- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
A trustee’s discretion is generally constrained by statute, by the terms of the trust, and by the trustee’s fiduciary duty to act in the beneficiaries’ interests. When a trustee, acting within the scope of that discretion, distributes trust property into a new trust, that distribution is called “decanting.” In Morse v. Kraft, the Massachusetts Supreme Judicial Court (SJC) considered whether the broad discretion afforded to a trustee under the terms of an irrevocable trust included the power to decant. Holding that it did, the SJC nevertheless declined to adopt the Boston Bar Association’s (BBA’s) preferred position that such power is inherent in all trustees of irrevocable trusts
Although the First Amendment generally bars government restrictions on speech based on message or viewpoint, the government may restrict certain categories of speech where the speech’s content imposes harm that “‘overwhelmingly outweigh[s]’ any First Amendment concerns.” A true threat constitutes one such category of unprotected speech. In United States v. Martinez, the Court of Appeals for the Eleventh Circuit considered whether a true threat must be analyzed under an objective or subjective standard. The court held that true threats are analyzed under an objective standard, and following therefrom, the indictment of the defendant was constitutional where she made a threat that “‘an objectively reasonable jury could find beyond a reasonable doubt to be a serious expression of an intent to injure another person.’”
In a criminal trial, Federal Rule of Evidence 404(b) (FRE 404(b)) prohibits the prosecution from using a defendant’s other crimes, wrongs, or bad acts to prove the defendant’s propensity to commit the charged offense. Courts, in their discretion, may admit other bad acts to prove something other than propensity, such as knowledge, intent, or absence of mistake. In United States v. Lee, the United States Court of Appeals for the Seventh Circuit considered whether it was an abuse of discretion and reversible error to admit a prior drug possession conviction against a defendant in a trial for drug distribution. The Seventh Circuit held that the federal district court abused its discretion by admitting a prior possession conviction because it was probative “only in the sense that it established his propensity” to commit a similar crime.
On April 11, 2014, the Massachusetts Supreme Judicial Court (SJC) extended the pure-emergency exception to allow police officers and other public officials to enter a home without first obtaining a warrant “to render emergency assistance to animals.”1 The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights each require a judicial determination of probable cause prior to a government intrusion into an individual’s dwelling.2 Nevertheless, there are a number of exceptions to this requirement. One such exception “permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.”3 The SJC’s holding in Duncan extends that pure emergency exception to the rendering of emergency aid to animals as well.4
II. The Warrantless Entry Of The Defendant’s Home
Police officers arrived at the defendant’s home after receiving a telephone call from a neighbor who reported two dead dogs and one “emaciated” dog on the defendant’s property. Upon arrival, police officers “heard a dog ‘whimpering and very hoarsely and weakly barking’” from behind the defendant’s privacy fence. To get a better view, the officers climbed a nearby snowbank and saw three dogs leashed to a fence; two were “motionless” and “frozen” and one was “emaciated” and “barking.”5 There appeared to be no food or water for the animals. The officer’s attempts to alert any occupants in the defendant’s home—by engaging their police cruiser’s siren, emergency lights, and air horn and utilizing various public records to contact them—were unsuccessful.
The officers, relying on police protocol for handling animal-related emergencies, contacted the fire department to remove the locks on the defendant’s privacy fence. Once inside the defendant’s yard, the officers contacted animal control to remove the dogs. The entire event lasted less than two hours. The Essex County District Attorney’s Office charged the defendant with three counts of animal cruelty, under Chapter 272 of the Massachusetts General Laws.6
The defendant moved to suppress the police officers’ observations and the physical evidence giving rise to the charges, arguing the observations and evidence were unlawfully obtained under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. The District Court judge granted the defendant’s motion to suppress, reasoning that “‘[Massachusetts] courts have not as yet applied the emergency exception to animals.’”7 Nevertheless, the judge reported the question of law to the SJC, under the Massachusetts Rules of Criminal Procedure.8 The question presented to the SJC was “‘Does the ‘pure emergency’ exception to the warrant requirement extend to animals?’”9
III. A brief Summary of The Emergency Exception to the warrant requirement and decisions in other jurisdictions permitting the exception for animals
As noted above, both the United States Constitution and the Massachusetts Declaration of Rights consider a police officer’s entry into a home, a “serious governmental intrusion into one’s privacy,” and these provisions were designed to limit such intrusions.10 Despite this protection, courts have recognized an exception that allows police to enter into a person’s dwelling without a warrant if there is an “objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.”11 The need to protect the life of another person obviates the need for a warrant because of the impracticality of obtaining one during such an emergency.12 The emergency exception, unlike other exigency-based exceptions, is not based on investigating criminal activity and does not require the showing of probable cause.13 In order to ensure constitutional protections, there are two strict requirements for a warrantless entry under the emergency exception: the officer must have an objectively reasonable belief that an emergency exists; and the conduct of the officer, following the entry, must be reasonable under the circumstances.14
In many instances, this emergency exception can discreetly transform into a criminal investigation. There are numerous instances where an officer has responded to a reported emergency that resulted in an arrest.15 Despite the requirement to act reasonably, an officer’s subjective belief does not invalidate the exception.16 Additionally, the exception permits the officer to conduct a “protective sweep” in areas where the emergency may reasonably be found.17 Furthermore, any contraband or evidence of criminal activity observable in “plain view” during the emergency-based entry is subject to seizure.18
Prior to this case, there was a presumption that the emergency aid exception was related and limited to an imminent injury to a human being. In Massachusetts, there was no precedent or statutory provision for the courts to rely upon. Other state courts, for example, had addressed the issue by declaring that a reasonable interpretation of the emergency aid exception would permit the rendering of aid to “vulnerable and helpless animals.”19 Moreover, several states have held that “needless suffering and death” of animals is an exigent circumstance.20 These various state appellate court decisions display a growing consensus among the states that animals fall within the scope of living organisms protected by the emergency exception to the warrant requirement.
IV. The Supreme Judicial Court’s use of Statutory public policy to expand the emergency exception to include Animals
The SJC relied heavily on public policy underlying Massachusetts’s criminal statutes. The Court reasoned that it would be counterintuitive to punish individuals for animal mistreatment and abuse but prohibit officers from entering an alleged abuser’s dwelling without a warrant to render reasonable emergency aid.21 In particular, judges have the authority to make a totality-of-the-circumstances finding of whether there is imminent threat of bodily injury to a pet and judges are required to notify officers of such a finding.22
The SJC relied upon these statutes and noted that courts may consider such policies “when no previous decision or rule of law is applicable.”23 The Court concluded that rejecting the expansion of the emergency aid exception would run contrary to the underlying policy rationales and objectives of the statutes criminalizing animal mistreatment. Additionally, the SJC reasoned that not allowing officers or other public officials to enter a home without a warrant to provide emergency assistance to animals would force untrained persons to intervene, resulting in harm to the animal, layperson, or community at large.24 The SJC did limit the scope of the exception to animals harmed by humans, noting that without human action “the threshold for police entry . . . will be considerably higher.”25 Finally, in dicta, the Court noted a list of potential factors that other courts have considered, such as the species of the animal, the privacy interest at issue, the degree of police effort to obtain consent prior to entry, and the extent of intrusion and damage resulting from the entry.26 The Court remarked that the above list was not exhaustive and emphasized the need for a case-by-case determination upon the totality of the circumstances.
While the SJC’s ruling does appear to comport with the underlying policy objectives behind statutes criminalizing animal mistreatment and cruelty, this expansion of the emergency aid exception could open a defendant’s rights to abuse by officers seeking to use a whimpering dog as pretext for searching a person’s home for other illegal activity without probable cause or even reasonable suspicion. The SJC did go to rather great lengths to emphasize the limitations imposed by the emergency aid doctrine. In fact, the Court’s opinion hinted that it might be very difficult to utilize the animal-emergency exception when the injuries are not a result of a human cruelty, by stating that such an entry would have a “considerably higher” threshold. Additionally, the Court highlighted that the emergency exception requires officers to act reasonably under the circumstances. This should restrict the officer to the removal of the endangered animal; however, if the officer were to observe contraband, or other evidence of a crime, in plain view, such evidence would be admissible.
The factors enumerated above also demonstrate an attempt by the Court to impose limitations and case-by-case scrutiny by examining the totality of the circumstances. The factor derived from Suss, which examines the measures undertaken by officers to obtain consent prior to entry, has the potential to prevent secret entries when the residents of the dwelling are available to provide consent. Nonetheless, the SJC, in the future, will certainly be prompted to address what constitutes the minimum amount of effort to obtain consent. The Court also noted that the species of the animal was relevant, which raises the logical question of what counts as a protected animal. Perhaps there is some solace that officers, in cases reported in other jurisdictions, only seized neglected or abused animals. Nonetheless, as the Court notes, future litigation will have to flesh out the issues that will naturally arise from the Duncan decision.
The courts of the Commonwealth should vigilantly attempt to safeguard against allowing evidence from an otherwise unlawful search and seizure under the guise of rendering aid to tortured helpless animals. The SJC’s opinion makes a valiant effort to prevent abuse of the ruling, but the judges throughout the Commonwealth must strive to keep this ruling narrow and limited to circumstances that require immediate entry to preserve the life of an animal.
James Gardner Long III, Commentary, SJC Expands Pure Emergency Exception to Animals in Duncan, 2 Suffolk U. L. Rev. Online 52 (Sep. 12, 2014), http://suffolklawreview.org/sjc-expands-pure-emergency-exception
Under Article 66(c) of the Uniform Code of Military Justice (UCMJ), the military’s courts of criminal appeals have the unusual appellate power to conduct a de novo review of a trial court’s findings of fact. Congress gave the military’s appellate courts their unique fact-finding powers in 1950 because under the original UCMJ, special and general courts-martial were highly unprofessional proceedings and extremely susceptible to command influence, thereby creating the risk of unjustly convicting and harshly sentencing servicemembers. Originally, there were not even military judges presiding at summary courts-martial. Instead, a senior line officer untrained in the law was designated president of the panel and was responsible for deciding questions of law, such as the admissibility of evidence. The panel president also served as a juror, voting with the panel to decide the accused’s guilt or innocence and sentencing. While law officers were present at general courts-martial, they were not the presiding officers of the court and lacked the traditional judicial powers bestowed upon judges to ensure the integrity of trials and other judicial proceedings. Furthermore, both the law officer and panel president were hand-picked and evaluated by the convening authority. Based on this structure and the high potential for both prejudicial command influence and legal error, the appellate courts’ de novo review of a trial court’s findings of fact was an important protection for servicemembers.
Today, these justifications for the plenary fact-finding powers of the courts of criminal appeals no longer exist. Due to amendments to the UCMJ over the past fifty years, military trials now resemble civilian trials and are presided over at both special and general courts-martial by an independent and professional circuit of military judges with powers modeled after Article III judges. This has reduced the potential for command influence while increasing the professionalism of trials, thus mitigating the chances of legal error. Furthermore, the fact-finding power of the military’s courts of criminal appeals is actually an impediment to justice because it adds a considerable burden on the military’s already severely backlogged appellate system. Claims of factual insufficiency are frequently and easily made by appellate defense counsel, but are very time consuming for appellate prosecutors to respond to. Despite this huge investment of resources in conducting a de novo review of claims of factual sufficiency, the courts of criminal appeals almost never find factual insufficiency. On the rare occasion they do, courts rarely reduce a sentence, and therefore, the high costs of the power’s continued existence cannot be justified. Not only will removing this de novo fact-finding power reduce the military’s appellate backlog, but it will also do so without prejudicing the rights of servicemembers because they already have numerous due process protections that civilians do not.
Cap-and-trade is a failed policy. Under the Kyoto Protocol, global emissions have continued to increase and the European Union Emissions Trading System (EU ETS) price collapsed due to hot air and over allocation of emissions. The time has come to abandon cap-and-trade as a method or means of potentially reducing global greenhouse gas (GHG) emissions. As such, the European Union Twenty-Seven (EU-27) should abandon the EU ETS and adopt a carbon tax with reinvestment (CTR), leading the way for the United Kingdom, United States, and China to also adopt this strategy. Together, the EU-27, United Kingdom, United States, and China account for 57% of total carbon-dioxide emissions, not including land use and deforestation. If these countries, which account for approximately 65% of global gross domestic product (GDP) and over 60% of world trade, adopt this system, it would provide a significant incentive for the remainder of the world to adopt similar legislation.
The tax would apply to all goods and services based on emissions intensity plus shipping emissions, and once collected, countries can retain the revenue for the purposes of rebuilding the power grid and developing alternative energy sources for transportation. This formula will lead to significant reductions in GHG emissions. With a CTR in place, the EU, United States, United Kingdom, and China would reduce their economy-wide emissions by 48%, 49%, 51%, and 13%, respectively, within twenty years. This would amount to a combined 34.2% reduction of current global emissions, which is a significant down payment to avoiding the world warming by more than 2oC. With respect to China, the 13% reduction is contrasted with most current projections that it will double its GHG emissions. This would occur while automatically putting a border-trade adjustment in place. Finally, the EU is heavily dependent on energy imports. The majority of these imports come from Russia, which has flexed its energy muscle multiple times under President Putin. With a CTR structure, the EU would become energy independent in the power and heating sectors, thus providing added political, as well as economic power, for the EU on the world stage.
Due to the ambiguous language of the Fourth Amendment, courts have been unable to agree on a strict test as to what constitutes a reasonable search and seizure. For example, in United States v. Falso, the court held that evidence of child molestation, by itself, did not create probable cause for a search warrant for child pornography. In its reasoning, the court concluded that a crime involving the sexual abuse of a minor does not relate to child pornography. Therefore, officers lacked sufficient probable cause when executing the search warrant issued by the magistrate.
Likewise, in United States v. Hodson, the court held that evidence of child molestation, without more, was insufficient to create probable cause for a search warrant for child pornography. The court reasoned that when “probable cause [is established] for one crime (child molestation) but [the warrant is] designed . . . for evidence of an entirely different crime (child pornography)” the warrant lacks probable cause. Therefore, because there was no relation between the two crimes and no reasonable inference could be made to link the two for sufficient probable cause, the court held the search warrant to be defective.
The extraterritorial reach of the Federal Rules of Civil Procedure’s (Federal Rules) evidence-gathering provisions has long been a source of tension in foreign relations. The world we live in is increasingly interconnected and litigation between parties subject to multiple sovereigns has become more commonplace. Often, the discovery provisions of the Federal Rules come into conflict with foreign laws, such as banking secrecy or blocking statutes. Under such a predicament, a litigant that operates both abroad and in the United States is placed in a catch-22: produce discovery in violation of foreign law (and be subject to liability) or refuse to produce discovery (and be subject to sanctions). These types of scenarios can arise in almost every context and implicate the laws of many of nations. For example, consider the Securities and Exchange Commission’s (SEC) recent conflict with Deloitte’s branch in China regarding the production of documents. The SEC sought documents related to Deloitte’s audit of Longtop Financial Technologies, but Deloitte claimed it was barred from doing so by Chinese secrecy laws.
Courts have attempted to resolve these conflicts in a variety of ways. The United States Supreme Court has even offered guidance. Federal courts, however, continue to apply an inconsistent standard that balances various interests. Thus, it is common for courts to decide cases in this area in conflicting fashion. The conflicting decisions, however, run further than a typical circuit split. The United States District Court for the Southern District of New York recently decided virtually identical cases involving the discovery obligations of Chinese banks differently. Neither judge was wrong in either of those cases; rather, the legal standard itself provides the judiciary with almost unlimited discretion to make subjective policy judgments.
For many Americans, the thought of providing any form of medical care to a convicted murderer is incomprehensible, a sentiment embodying the tenuous interplay between principles of morality and the rule of law. The reality is that prisoners throughout the United States frequently undergo various medical procedures to treat their health care needs, but for transsexual prisoners, the uphill battle to receive treatment, including hormone therapy and sex-reassignment surgery (SRS), has been plagued by the courts’ general resistance to recognize the severity of gender dysphoria. The Eighth Amendment has long been interpreted to afford a prisoner the right to receive adequate medical care and treatment for his or her serious medical needs. The Supreme Court has further explained that the Eighth Amendment’s protections must conform to shifting and maturing notions of decency and social justice.
Gender Identity Disorder (GID) has been recognized as a mental illness; individuals currently incarcerated and suffering from GID—or gender dysphoria as it has been recently renamed—assert that SRS is a “medically necessary” treatment for this condition under the Eighth Amendment. In 2012, the United States District Court for the District of Massachusetts became the first American court to grant an injunction mandating a prison to provide SRS to a transsexual prisoner in the case of Kosilek v. Spencer (Kosilek II). Michelle Kosilek, a male-to-female transsexual currently serving a life sentence for the murder of her wife, sought to have the Massachusetts Department of Corrections (DOC) provide her with the controversial procedure. The DOC doctors determined that the only adequate treatment for Kosilek’s condition was to undergo the procedure but nonetheless denied treatment out of the purported rising fears for prison security. Holding that the security concerns were merely a pretext for denying treatment, the court found that prison officials were deliberately indifferent to Kosilek’s serious medical needs and ordered the treatment.
New York City currently maintains one of the lowest crime rates among all major American metropolitan areas. Several decades ago, however, the urban hub of the Empire State found itself in peril as it experienced a devastating rise in violent crime. This upward trend persisted until the early-to-mid 1990s when statistics on crime began to indicate a change for the better. Crime rates in New York City continued to descend until the turn of the millennium when they stagnated, resulting in a plateau of reported crime, which continues to endure. The plummeting crime numbers coincided with an historic ascent in the number of stop and frisks performed by city police officers. The decline in urban crime and simultaneous rise in stop and frisks suggests a correlation between the two phenomena.
The discourse surrounding the stop-and-frisk practices in New York City is dominated by the poignant argument of critics claiming that such practices have been unjustly used as a vehicle for discrimination by the New York Police Department (NYPD). Moreover, particular crime statistics do in fact indicate that stop and frisks carried out by the NYPD have disproportionately targeted people of color. Drawing conclusions based solely on the interpretation of raw data, however, paints an incomplete picture of a complex issue. A more thorough examination of the larger context of urban crime and policing practices suggests that a variety of additional factors account for the racially disproportionate figures.