Co-Author of ACLU Amicus Brief in Significant GPS Case

Attorney William Newman and I co-authored, on behalf of the ACLU of Massachusetts, an amicus brief regarding the legality of imposing GPS devices on all defendants who accept continuances without a finding (CWOFs) rather than guilty pleas to sex offenses and who then become subject to conditions of probation. The brief was filed on August 24, 2015 in support of the defendant in Commonwealth v. John Doe, SJC-11861. The case has been argued and is currently pending in the Supreme Judicial Court.

The amicus brief argues that if the Supreme Judicial Court finds that the legislature allows such GPS impositions, there are two serious constitutional questions which result: 1) Whether a 24/7 search and seizure without reasonable suspicion is allowed under the Fourth Amendment and Article 14; and 2) Whether this invasive punishment is cruel or unusual under Article 26 of the Massachusetts Constitution. You can link to the amicus brief here: https://static1.squarespace.com/static/53920cf8e4b0f5d5f60ee66a/t/560db674e4b088a188aa9968/1443739305614/Doe+ACLU+Amicus+Brief+%28in+SJC%29.pdf

On MACDL Panel: Legal Challenges to GPS Monitoring (1/16/15)

Hayne Barnwell is pleased to soon be contributing to MACDL's popular and CLE-approved program, Advanced Post-Conviction Litigation Seminar. The seminar will take place on Friday, January 16, 2015, from 8:30am - 5:30pm at Wilmer Hale, 60 State Street, Boston, MA. She will serve on the panel, Legal Challenges to GPS Monitoring, alongside distinguished attorneys, Bonnie Allen (of Northampton, MA), William Newman (of the ACLU and the firm, Lesser Newman & Nasser) and Ryan Schiff (of the Committee for Public Counsel Services, Special Litigation Unit). 

The panel will discuss the Supreme Judicial Court's recent major decisions on the constitutionality of mandated GPS monitoring for all Massachusetts defendants, who are convicted of designated sex offenses and who are placed on probation. It will also exchange ideas for potential future challenges to the mandate such as the constitutional prohibitions against cruel or unusual punishment and against unreasonable searches and seizures.

On Panel re: Cell Phone Search Cases (Sept. 24)

"Cell Phone Searches and Beyond:
Supreme Court Teachings in Riley and Wurie"
Wednesday, September 24, 2014
Salvatore's Restaurant, 34 Park Street, Andover, MA
5:30 p.m.-7:30 p.m.

Come to learn more from Hayne Barnwell and James Krasnoo about the changes to the law implemented by a unanimous Supreme Court in two recent cases concerning searches and seizures of digital information. Enjoy the free appetizers and networking opportunities. This panel has been organized by the Lawrence Bar Association.

Has The U.S. Supreme Court Put The Second Amendment Into Sleep Mode

District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) created a sea change in constitutional law by holding that people have the fundamental right to keep and bear arms under the Second Amendment. But they left several important questions unanswered. More than a few petitions for certiorari, which test the scope and nature of this right, have been filed in the U.S. Supreme Court, but all have so far been rejected.

Will the Supreme Court take up a case anytime soon and decide once and for all whether the right to keep and bear arms applies outside the home? Or has the Second Amendment fallen into indefinite sleep mode? Although no federal court of appeals has held that there is *no* such right outside the home, some courts instead have artfully dodged the question. In other words, they assume the right extends outside the home without deciding the question and then turn to the merits of the case. The reason why this matters is that because the courts don't grapple with the nature of the right, they naturally tend to water down the standard of review when considering the merits.

Usually fundamental rights trigger strict scrutiny by the courts. And yet, most federal courts of appeal have applied intermediate scrutiny. A case can be made that these courts have eviscerated the right through the use of the malleable intermediate scrutiny standard without having to say so. The intermediate scrutiny approach appears to involve the very "interests balancing" (between the individual interest in possessing a firearm and the state’s interest in protecting public safety) that the Supreme Court rejected in Heller and McDonald. So how will the Supreme Court decide the right-to-carry/standard of review questions?

Currently, two federal courts of appeal have unequivocally held that the Second Amendment right extends outside the home: Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. Feb. 13, 2014) and Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (reasoning that one doesn't have to be a historian to know that during the Founding era, the right could not have rationally been confined to the home).

The Mass. Legislature Has Placed Most People Convicted Of Sex Offenses Into The Same Risk Pool

In Moe v. SORB, 467 Mass. 598 (March 26, 2014), the Supreme Judicial Court (SJC) held that the retroactive application of new Massachusetts amendments, which require internet publication of Level 2 sex offenders, to Level 2 offenders who were classified before the new amendments were passed, is unconstitutional. Part of the SJC's reasoning was that SORB had already concluded that Level 2 offenders were not so dangerous such that their information had to be on the internet.

Before these amendments, only Level 3 offenders were subject to such wide publication of their personal information. Inevitably, there will come a due process challenge to applying internet publication to Level 2 offenders who were classified after these amendments passed. With this new law, there is now no principled distinction between Level 2 and Level 3 offenders because they are *all* now exposed on the internet despite their different levels of risk. How is this law then fair or sensible?