Author: University of Baltimore Law Review Staff

Issues to Watch

The Curtilage Cage: Should the Confines of Curtilage Be Expanded to Include A Private Driveway?


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The Curtilage Cage: Should the Confines of Curtilage Be Expanded to Include A Private Driveway?

Tiffany Meekins*

The Fourth Amendment requires that “no Warrants shall issue, but upon probable cause,
. . . and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.  The Warrant Requirement of the Fourth Amendment can be satisfied in either of two ways.  See William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va. L. Rev. 881, 882 (1991).  The officer can obtain a warrant from a neutral and detached magistrate with a showing of probable cause or by one of the many warrant exceptions.  Id.  Warrantless searches—or those in which an exception does not apply—are viewed as an intrusion on an individual’s reasonable expectation of privacy.  See Katz v. United States, 389 U.S. 347, 360–61 (1967) (Harlan, J., concurring).  Evidence obtained without the requisite probable cause and warrant or warrant exception should be deemed as “fruit of the poisonous tree” and held inadmissible. Daniel T. Pesciotta, Note, I’m Not Dead Yet: Katz, Jones, and the Fourth Amendment in the 21st Century, 63 Case W. Res. L. Rev. 187, 225 (2012).  In Collins v. Commonwealth, a case currently before the Supreme Court, the Justices will decide the admissibility of a stolen motorcycle which was parked in the Petitioner’s private driveway and used as evidence to convict him.  See 790 S.E.2d 611 (Va. 2016). (more…)

Issues to Watch, Uncategorized

Forgive Me Father, For I Have Sinned: A Possible Resurgence of Parental Responsibility for Child Delinquency?


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Forgive Me Father, For I Have Sinned: A Possible Resurgence of Parental Responsibility for Child Delinquency?

Alexis Holiday*

            Numerous anti-bullying campaigns are dedicated to ending bullying in schools as well as cyber bullying outside of schools.  E.g., Stopbullying.gov, https://www.stopbullying.gov/ (last visited Apr. 12, 2018); STOMP Out Bullying, http://www.stompoutbullying.org/ (last visited Apr. 12, 2018).  In a 2011 study, 27.8% of students ages twelve through eighteen in the United States reported that they were bullied in school.  Nat’l Ctr. for Educ. Statistics, Student Reports of Bullying and Cyber-Bullying: Results from the 2011 School Crime Supplement to the National Crime Victimization Survey T-1 (2011), https://nces.ed.gov/pubs2013/2013329.pdf.  While this does not seem like a large number of children, it forced the town of North Tonawanda, New York, to enact a new law in hopes of deterring bullying in the future.  See Christopher Buchanan & Steve Brown, New York Town’s Law Punishes Parents for Their Kids’ Bullying, 11alive.com (Oct. 11, 2017, 4:34 PM), http://www.11alive.com/news/nation-now/new-york-towns-law-punishes-parents-for-their-kids-bullying/482568440.

In North Tonawanda, a group of fourteen and fifteen year-old teens bullied other students continuously; one incident involved them waiting to ambush another student outside of a Dollar General.  Id.  The teens proceeded to publish a video of the attack online.  Id.  In dismay and protest, parents in the town formed the “North Tonawanda Coalition for Safe Schools & Streets” group on Facebook, and the involved students were expelled from the local middle school.  Id.  The city enacted a new law holding parents accountable for their child’s delinquency in response to the pressure by the parents involved in the Facebook group.  Id.  This new law states that if twice during a ninety-day period, a minor child violates the city’s curfew or any city law including bullying or harassment, then the child’s parent or guardian is subject to a fine up to $250 and/or fifteen days’ imprisonment.  Id.

This is not the first time that the United States has seen the enactment of laws holding parents responsible for their child’s delinquent actions.  Peter Applebome, Parents Face Consequences as Children’s Misdeeds Rise, N.Y. Times (Apr. 10, 1996), http://www.nytimes.com/1996/04/10/us/parents-face-consequences-as-children-s-misdeeds-rise.html.  By 1997, seventeen states enacted more specific criminal parental responsibility statutes in addition to truancy laws.  Pamela K. Graham, Note, Parental Responsibility Laws: Let the Punishment Fit the Crime, 33 Loy. L.A. L. Rev. 1719, 1732–33 (2000).  For example, in 1992, the California Superior Court considered a statute that made a failure to exercise supervision and control over a child that causes delinquency a misdemeanor, even though a violation of the statute resulted in a year of jail time and a $2,500 fine.  Philip Hager, Justices to Review Parental Responsibility Law: Delinquency, L.A. Times (Apr. 4, 1992), http://articles.latimes.com/1992-04-04/news/mn-292_1_parental-responsibility.  This was one of the first laws of this nature in the nation, although, not the last.  Id.  A version of this statute still exists in California today, where a violation of the statute may result in a year of jail time and a $2,500 fine.  Cal. Penal Code § 272(a)(1) (West 2018).  Some laws in municipalities order parents to attend counseling and classes, while other parents are forced to spend a night in jail as a result of their child’s poor actions.  Applebome, supra.

The primary goal of criminal parental liability laws is to reduce juvenile delinquency.  Graham, supra, at 1733.  The effectiveness of these laws is not conclusive due in large part to a lack of enforcement.  Id. at 1734 (citing Howard Davidson, No Consequences—Re-Examining Parental Responsibility Laws, 7 Stan. L. & Pol’y Rev. 23, 25–27 (1995)).  One reason these laws are not enforced is because classifying these actions as misdemeanors diminishes prosecutorial interest.  Id.  Parents may not be deterred by criminal responsibility laws because conviction is unlikely and, even if there is prosecutorial interest, it is likely punishment would not be not severe enough to change the parent’s behavior.  Id.  Another reason for a lack of enforcement is the difficulty of proving mens rea because the enacted laws are too vague.  Id. at 1735.  Only if the parental responsibility statute or law is clear can courts effectively determine if a parent’s lack of responsibility falls within the standard set forth by the law.  Id.

North Tonawanda’s new parental responsibility law has the opportunity to be effective as intended, just like many of the other parental responsibility laws enacted in the 1990s.  Buchanan & Brown, supra; Graham, supra, at 1734.  It is also possible that this law may not be effective at all.  First, this new law is only a misdemeanor.  See Buchanan & Brown, supra.  Parents whose children are delinquent more than once in a ninety-day period of time are subject to a fine up to $250 and/or fifteen days’ imprisonment.  Id.  In this case, the threat of such consequences may not influence parents to monitor their children any differently.  See id.; see also Graham, supra, at 1734.  Therefore, this new law might not be a deterrent for parents as intended because it is a mere slap on the wrist.

Additionally, lack of enforcement for the law may be caused by the difficulty of proving parental mens rea and lack of knowledge of their child’s delinquent acts.  Graham, supra, at 1735.  North Tonawanda’s parental responsibility law is vague.  See Buchanan & Brown, supra.  It is not explicit in laying out the foundation required for a parent’s mens rea.  Id.  The law is not clear as to whether or not parents need to be on notice of their children’s actions.  Id.  This ambiguity leaves prosecutors in trouble because there is no standard of parental responsibility set forth by the law.

Conversely, this law might actually be as effective as the “Coalition” group envisioned.  First, the law is supported by hundreds of parents in the area.  Id.  While support for other parental responsibility laws is unknown, it is clear that parental support of the new law would be advantageous.  See Graham, supra, at 1734.  Prosecutors might be more likely to put these misdemeanors at the top of their priority list because there is more pressure from the community than in other jurisdictions with similar laws.  As a result, irresponsible parents with delinquent children will be more likely to receive higher penalties.

This law is founded on a parental responsibility for a child staying out past curfew and engaging in harassment and bullying in schools.  Buchanan & Brown, supra.  As to a child staying out past the town’s curfew, parental mens rea may be evident because parents should know where their child is when they are not home.  Similarly, as to parental responsibility for bullying, schools typically notify parents when a child is involved.  E.g., Ark. Code Ann. § 6-18-514(e)(2)(G) (West 2018) (“The policies shall: . . . [r]equire that copies of the notice of what constitutes bullying . . . be provided to parents, students, school volunteers, and employees.”).  With an influx of anti-bullying campaigns, schools are more proactive than ever with regard to deterrence of bullying for the sake of safety.  See Caralee Adams, Cyberbullying: What Teachers and Schools Can Do, Scholastic, https://www.scholastic.com/teachers/articles/teaching-content/cyberbullying-what-teachers-and-schools-can-do/ (last visited Apr. 12, 2018).  Therefore, parental mens rea may actually be easier to prove than previously thought.  But mens rea is not always obvious in bullying incidents when they do not occur in school.   However, technology, compared to the 1990s, has greatly improved.  For example, in North Tonawanda, the group of bullying teens posted a video of their actions on the internet.  Buchanan & Brown, supra.  Mens rea is clear in this regard because parents can easily be cognizant of what their child is doing on the internet.  See id.

In the short-term, this law might be effectively enforced due to the ability to prove parental mens rea in many cases.  In addition, the pressure inflicted upon prosecutors by members of the community will assist in the effectiveness of this law.  In turn, this may deter delinquency among children as well as decrease bullying in schools.  That being said, following the influx of criminal parental responsibility laws in the 1990s and the subsequent lack of enforcement, it is unlikely that this law will be effective.  See Graham, supra, at 1734.  Nevertheless, if North Tonawanda’s new law is successful, the United States may see a rise of anti-bullying and child delinquency deterrence in the form of parental responsibility statutes.

 

*Alexis Holiday is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review and will serve as a Production Editor for Volume 48. She is also a member of the Women’s Bar Association, the Royal Graham Shannonhouse III Honor Society, the University of Baltimore School of Law Honor Board and she is a teaching assistant. Last summer, Alexis served as a judicial intern with the Hon. William C. Mulford II of the Circuit Court of Anne Arundel County.  Currently, and this summer, Alexis will work as a law clerk at the Law Office of Laura Burrows.

 

Issues to Watch

THE CONSTITUTIONALITY OF THE PROPOSED BAN ON BUMP-FIRE STOCKS


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The Constitutionality of the Proposed Ban on Bump-Fire Stocks

Jacob Waechter*

            On October 1, 2017, the United States experienced the deadliest mass shooting in its history when a single gunman in Las Vegas managed to kill fifty-eight people and wound hundreds more.  Tina Bellon, Las Vegas Shooting Victims File Lawsuit Against Bump Stock Makers, Reuters (Oct. 10, 2017, 1:58 PM), https://www.reuters.com/article/us-lasvegas-shooting-lawsuit/las-vegas-shooting-victims-file-lawsuit-against-bump-stock-makers-idUSKBN1CF2IC.  The use of at least twelve bump-fire stocks allowed the shooter, Stephen Paddock, to fire hundreds of rounds into a crowd of people at a country music concert in a matter of only ten minutes.  Tory Newmyer & Christian Davenport, NRA Stops Short of Supporting a Legal Ban on ‘Bump Stocks, Wash. Post (Oct. 8, 2017), https://www.washingtonpost.com/politics/nra-stops-short-of-supporting-a-legal-ban-on-bump-stocks/2017/10/08/c96c14fe-ac44-11e7-9e58-e6288544af98_story.html?utm_ term=.aa522450c671. (more…)

Issues to Watch, Uncategorized

Farewell Bookies: How Maryland Could Legalize Sports Betting in the Near Future


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Farewell Bookies: How Maryland Could Legalize Sports Betting in the Near Future

Connor Smith*

Sports gambling at Maryland casinos could be poised to undergo massive reforms during the 2018 Maryland legislative session.  Michael Dresser & Jeff Barker, Sports Betting at Maryland Casinos Could Return for 2018 Agenda in General Assembly, Balt. Sun (Oct. 10, 2017, 8:00 PM), http://www.baltimoresun.com/news/maryland/anne-arundel/bs-md-casino-gambling-sports-20171010-story.html.  Currently, most sports gambling is prohibited by federal law in all but four states.  Id.  A pending Supreme Court case, however, could repeal that prohibition and allow states more power to regulate sports gambling at casinos.  Id. (more…)

Issues to Watch, Uncategorized

Funding Amazon’s HQ2: Benefits and Burdens of Government-Funded Incentive Packages for Corporations


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Funding Amazon’s HQ2: Benefits and Burdens of Government-Funded Incentive Packages for Corporations

James Beslity*

Over the course of the last several years, Amazon.com, Inc. (Amazon) has grown its market share to become one of the biggest online retailers in the world.  See Phil Wahba, Amazon Will Make Up 50% of All U.S. E-Commerce by 2021, Fortune (Apr. 10, 2017), http://fortune.com/2017/04/10/amazon-retail/.  Approximately 34% of all U.S. online retail activity is conducted through Amazon, with Wall Street firm Needham & Company estimating that Amazon will control up to 50% of the online retail market by the year 2021 and continue its rapid growth in international markets.  Id.; Greg Hoffman, NEEDHAM: Amazon’s Stock Is Going a Lot Higher from Here, Bus. Insider (Apr. 10, 2017, 3:04 PM), http://markets.businessinsider.com/news/stocks/amazon-stock-price-april-10-amazon-prime-2017-4-1001911558.  The impact of what some have dubbed “the Amazon effect” has had far-reaching impacts not just within the realm of online retailing, but on traditional brick-and-mortar retailers as well.  Steve Dennis, Assessing the Damage of ‘The Amazon Effect, Forbes (June 19, 2017, 11:39 AM), https://www.forbes.com/sites/stevendennis/2017/06/19/should-we-care-whether-amazon-is-systematically-destroying-retail/#646d8206b1f0.

Amazon’s recent acquisition of Whole Foods Market is just one example of its ability to enter a market segment and wreak havoc on long-time players.  James F. Peltz & Ronald D. White, Bye to ‘Whole Paycheck’? New Owner Amazon Slashes Whole Foods Prices, L.A. Times (Aug. 28, 2017, 3:00 PM), http://www.latimes.com/business/la-fi-amazon-whole-foods-20170828-story.html.  The advance news of Amazon’s impending purchase of Whole Foods, including its promise to cut the upscale grocer’s notoriously high prices on a variety of products to make them “affordable for everyone,” sent traditional grocers’ stock prices tumbling.  Id.  Indeed, the permanent price reductions enacted on the day that the sale closed left competitors scrambling to compete in light of already razor-thin margins.  Id.

As part of Amazon’s ongoing efforts to grow its footprint, the company announced on September 7, 2017, that it was searching for a North American city or metropolitan area to construct a second headquarters, or “HQ2.”  Nick Wingfield & Patricia Cohen, Amazon Plans Second Headquarters, Opening a Bidding War Among Cities, N.Y. Times (Sept. 7, 2017), https://www.nytimes.com/2017/09/07/technology/amazon-headquarters-north-america.html.  The company emphasized that HQ2 would be a full equal to its downtown Seattle headquarters, comprised of several buildings and millions of square feet of office space.  Amazon HQ2, Amazon, https://www.amazon.com/b?ie=UTF8&node=17044620011 (last visited Mar. 22, 2018).  According to Amazon, the $5 billion HQ2 site will eventually employ about 50,000 workers and potentially pump billions of dollars into the host jurisdiction’s economy.  Id.  Amazon’s own calculations of its contributions to Seattle’s economy from 2010 (the year that it moved its headquarters to downtown Seattle) to 2016 paint a rosy picture.  See id.  The company claims to have made $3.7 billion in capital investments, paid $25.7 billion in compensation to employees, and indirectly created an additional 53,000 non-Amazon jobs in the Seattle area as a result of its direct investments.  Id.

Mere hours after Amazon’s HQ2 search announcement, cities across the United States and Canada began scrambling to put together proposals for the project.  Wingfield & Cohen, supra.  As the October 19, 2017, deadline for proposals approached, it became clear that politicians and development planners from cities and metropolitan areas were getting creative in their strategies to secure Amazon’s HQ2 and its vast potential for economic enrichment and revitalization.  For example, the city of Camden, New Jersey, offered to demolish its relatively new baseball stadium to make way for HQ2, while a small town in Georgia offered to establish a new city named “Amazon” just for HQ2.  Rebecca Everett & Bill Duhart, Here’s What Amazon’s HQ Would Look Like if Jeff Bezos Bites on Camden Offer, NJ.com (Oct. 20, 2017, 2:02 PM), http://www.nj.com/camden/index.ssf/2017/10/heres_what_amazons_hq_would_look_like_if_jeff_bezo.html#incart_river_index; Mahita Gajanan, This City Has the Weirdest Idea to Attract Amazon’s New Headquarters, Fortune (Oct. 3, 2017), http://fortune.com/2017/10/03/stonecrest-georgia-amazon-hq2/.

However, the main commonality amongst the serious proposals are the monetary incentives, namely tax credits and benefits, being offered by various state, county, and municipal governments in an effort to lure Amazon to their jurisdictions.  Leanna Garfield, Amazon Just Revealed the Top Cities for HQ2 – Here Are the Ones Throwing Hundreds of Millions to Land It, Bus. Insider (Jan. 18, 2018, 12:26 PM), http://www.businessinsider.com/amazon-hq2-cities-developers-economic-tax-incentives-2017-10.  Some jurisdictions, such as the city of Raleigh, North Carolina, put together incentive packages totaling just in the tens of millions of dollars, while the states of Maryland and New Jersey each presented Amazon with many billions of dollars in economic incentives in an effort to reel in the company’s new headquarters.  Id.  Amazon explicitly instructed respondents in its call for HQ2 proposals to outline any incentive programs available for the project, including tax credits or exemptions, grants, and fee reductions.  Amazon HQ2 RFP, Amazon, https://images-na.ssl-images-amazon.com/images/G/01/Anything/test/images/usa/RFP_3._V516043504_.pdf (last visited Mar. 22, 2018).  In fact, two of the nine total categories of general information requested by Amazon deal solely with the value of, and conditions attached to, any financial incentives that could be available to the HQ2 project were it to be sited in the respondent’s jurisdiction.  Id.  With so much taxpayer funding on the line, the question cannot help but loom large: do such exorbitant incentive packages translate into long-term benefits for the populations of host jurisdictions, or do they serve only to subsidize the costs of growth for businesses such as Amazon to the potential detriment of host jurisdictions?

State and local governments’ autonomy in their use of tax incentives to attract and retain business investment in their jurisdictions is by no means a new concept.  See Norton Francis, Urban Inst., State Tax Incentives for Economic Development 1, 4 (2016), https://www.urban.org/sites/default/files/publication/78206/2000636-state-tax-incentives-for-economic-development.pdf.  Companies such as IBM, Boeing, and Twitter have successfully obtained substantial government incentive packages to create new jobs and keep existing jobs by simply implying that they might move to another jurisdiction.  Emily Badger, Should We Ban States and Cities from Offering Big Tax Breaks for Jobs?, Wash. Post (Sept. 15, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/09/ 15/should-we-ban-states-and-cities-from-offering-big-tax-breaks-for-jobs/?utm_term=.0512cec14f39.  Though the practice of doling out these incentives has come under increased scrutiny in recent years, state and local governments subscribe to the belief that the only way to compete with other jurisdictions for new jobs, and retain the jobs they have, is to offer more generous financial incentive packages than neighboring jurisdictions.  Id.  And yet, if no jurisdiction was able to offer financial incentive packages, companies would no longer be able to coerce governments into granting such incentives, and taxpayers would not be on the hook for disastrous investments.  Id.  For example, the contraction of the American automotive industry following the 2008 financial crisis led General Motors to shutter several facilities that had been the beneficiaries of millions of dollars of incentives over the years, leaving several state and local governments with no jobs or growth to show for their investments.  Louise Story, As Companies Seek Tax Deals, Governments Pay High Price, N.Y. Times (Dec. 1, 2012), http://www.nytimes.com/2012/12/02/us/how-local-taxpayers-bankroll-corporations.html?pagewanted=all.

A 2012 New York Times investigation that examined and compiled thousands of local incentives granted nationwide estimated that states, counties, and municipalities have given in excess of $80 billion annually in financial incentives to various types of companies.  Id.  However, a complete and detailed accounting of these incentives is not possible due to the many thousands of government agencies and officials granting such incentives, many of which keep poor records of the cumulative value of all their awards.  Id.  What may be of even greater concern is that these agencies and officials do not have a way to know for certain if the money was “worth it,” as they rarely keep track how many jobs are created.  Id.  Moreover, determining whether or not the creation of a job was a direct result of a government-sponsored financial incentive is nearly impossible.  Id.

Amidst the rush to attract companies like Amazon that promise new jobs, infrastructure, and overall tax revenue in exchange for assurances of hefty incentives, it is clear that state and local governments have a tendency to become hypercompetitive and perhaps neglect to consider the potential consequences of a less than ideal outcome of such a deal.  See, e.g., Badger, supra; Story, supra.  Their autonomy in offering these lucrative incentive packages begs the question of whether or not they should be subject to stricter regulation.  In the meantime, Amazon has narrowed its list of HQ2 contenders to twenty jurisdictions, including Montgomery County, Maryland, which is offering financial incentives and transportation investments to the tune of $5 billion.  Robert McCartney & Ovetta Wiggins, A $5 Billion Carrot: Larry Hogan’s Historic Offer to Win Amazon HQ2, Wash. Post (Jan. 22, 2018), https://www.washingtonpost.com/local/md-politics/a-5-billion-carrot-larry-hogans-historic-offer-to-win-amazon-hq2/2018/01/21/4d5631d8-fedd-11e7-bb03-722769454f82_story.html?utm_term=.f693a10ac578.  Amazon is expected to announce the winning proposal sometime in 2018, and the victor’s prize will undoubtedly include bragging rights for successfully bringing the promise of jobs and development within their borders after a grueling and very public competition.  Id.; Katy Steinmetz, Winning Amazon’s New Headquarters Could Come with Hidden Costs, Time (Oct. 18, 2017), http://time.com/4987883/amazon-hq2-headquarters-costs/.  However, it may be some time before these benefits outweigh the costs of paying for the incentives required to win this high-stakes contest.  Steinmetz, supra.

 

*James is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review.  James is a member of the Royal Graham Shannonhouse III Honor Society and the Honor Board.  James also proudly serves as the president of OUTLaw, as a Teaching Assistant to Professor Nancy Modesitt for Introduction to Lawyering Skills/Torts, and as a Writing Fellow in the University’s Legal Writing Center.  During the spring semester, James worked as a judicial extern for the Hon. Michael W. Reed of the Court of Special Appeals of Maryland.  This summer, James will be working at Stein Sperling Bennett De Jong Driscoll P.C. in Rockville, Maryland, having been selected as a 2018 Montgomery County Bar Foundation Summer Scholar.  James holds a B.A. in Environmental Studies from Hamilton College in Clinton, New York.