Wild West Update: AZ legalizes exhibiting firearm in response to threat of non-deadly force.
You may have heard of Arizona’s new gun law going into effect tomorrow that will make it legal for concealed weapons permit holders to carry guns into bars. Well, the wild, wild west keeps getting wilder. A less publicized bill is also becoming law tomorrow that will legalize the exhibition or display of a firearm in response to the threat or use of non-deadly physical force. This self-defense justification was previously only available if deadly physical force was being threatened or used. Even though this new law seems to go against the common sense adage of most responsible gun owners that you don’t threaten someone with a weapon unless you intend to use it, as a defense attorney, I am glad to have a new justification defense available for my clients charged with gun crimes. Still, I can’t help being perplexed by the mixed messages that the citizens of Arizona are getting when it comes to the use of a firearm. The Maricopa County Attorney’s Office (MCAO) is running a gun crime awareness campaign that is getting a lot of air play these days. It warns about the severe consequences for the illegal use of a deadly weapon, and they aren’t kidding — the gun crime policies at MCAO are harsh and unforgiving. While the legislature is now telling you it’s okay to feel free and easy about flashing your Glock at that maniacal road rager to back him off, don’t be so sure that the people who investigate and charge the crimes (the police and the prosecutors) are going to give you the benefit of the doubt when it comes to applying this new defense. Even though the maniacal road rager threatened you first, in our hypothetical, once you flash your gun he is the one who is calling 911 to report  that there is a maniac on the road (you) who cut him off and pointed a gun at him. When the police pull you over and find you with a gun, do you think they are going to be sympathetic to your side of the story. Short answer: NO. You are getting charged with aggravated assault with a deadly weapon, a dangerous felony offense which carries mandatory prison time. The good news is, the legislature told you that what you did was not illegal. The bad news is, that’s known as a “defense” and the prosecutor doesn’t care what your defense is, at least until he or she has been bludgeoned with it by an aggressive trial attorney, and that is exactly what you are going to need. Hopefully, you will never find yourself in this unfortunate position. If you do, call my office for a free, confidential consultation.
John Vigileos
Attorney at Law
(602) 443-0415
Defending the criminally accused against the heavy hand of the state
I am commonly asked, “isn’t it hard to defend criminals?”  One answer is that I am not defending criminals, I am defending the constitution, because if the rights of the criminally accused are not protected, then the state is, in effect, given free reign to violate the constitutional rights of all citizens.
Imagine, for example, that the police mistakenly believe that there is a large quantity of marijuana in your house.  Officers in paramilitary gear storm your  house in the middle of the night, point high powered rifles in your face, and order you and your spouse to the ground. Your children are traumatized. Your life is turned upside down, and it was all because of a mistake. It was a bad tip, wrong address maybe, and there really was no probable cause to justify this violent action by the state. If you think this sounds like an unlikely scenario, click here: www.washingtonpost.com/wp-dyn/content/article/2009/09/17/AR2009091701680.htmlÂ
So, what’s the remedy for such searches conducted without probable cause?  Individual officers are granted broad immunity for conduct carried out in the performance of their duties. Civil lawsuits against the state are difficult and costly. The primary remedy for such abuses is found, not in civil law, but in the criminal system, and that remedy is suppression of any evidence obtained as a result of an illegal search.  If no evidence is found, there is usually no remedy for the bad conduct of the police. “Sorry about that, Mr. and Mrs. Jones, looks like your clean, we’ll be on our way now.” But because the police know any evidence discovered as the result of an illegal search will usually be inadmissible (if a competent defense attorney gets a hold of the case) they are generally careful to comply with constitutional safeguards before executing a search. If the rights of the criminally accused are not protected, then the police will have no incentive to be cautious with the rights of the rest of us. This is not because police officers are bad people or corrupt, but because they are under pressure to obtain results and will take the path of least restistance to obtain those results, as is human nature. If there were no constitutional requirement for search warrants, believe me, the state would never bother to obtain one.
But there is another answer to the question about the difficulty of defending  “criminals”, and that is that the premise is all wrong. My clients are not “criminals”. While no criminal defense attorney has the luxory of representing only the factually innocent, simply being accused of a crime does not make you a “criminal”. In most cases, even those who have violated the law do not deserve to have that stygma attached to them. Most of my clients have never been accused of a crime before and are shocked at how brutal and unforgiving the criminal justice system is. They do not identify themselves as “criminals” and are glad to have at least one person who recognizes them as just a human being who deserves to be defended against the heavy hand of the state. Representing a criminal might be hard, but helping a human being is easy.
A study in how the heavy hand of the state can tear a part the lives of good people can be found in the story of Lisa and Anthony Demaree who, after attempting to develop innocent photographs of their children, were investigated for child sex crimes.
Source: http://www.azcentral.com/news/articles/2009/09/19/20090919walmart0919.html
John Vigileos
Attorney at Law
(602) 443-0415
52 arrested at Tempe sports bar for underage drinking
This latest round-up of 52 alleged underage drinkers at Tempe’s “Hail Mary” sports bar follows the arrest of 85 Tempe college age partiers at the Vue Apartments two weeks ago.  For guidance on what to do if you are charged with DUI / DWI, Minor in Consumption, Minor in Possession, or any other alcohol related offense, read my earlier post here: http://vigilaw.com/?p=141.
Source: www.azcentral.com/community/tempe/articles/2009/09/15/20090915tr-hailmarys0915.html#comments
John Vigileos
Attorney at Law
(602) 443-0415
Why you should never consent to a search by a police officer
“Law and Order” episodes and old “Dirty Harry” movies would have us believe that the only reason people ever assert their 4th Amendment right to be free from unreasonable searches and seizures by the state is because they are criminals with something to hide. Police officers often ask citizens to consent to searches of their persons, vehicles or homes without probable cause to believe that a crime has been committed. A common refrain is “go ahead, I have nothing to hide.”  But whether you have anything to hide or not, by waiving your right to be free from intrusive searches you are leaving yourself wide open to the kind of governmental overeaching that the constitution was designed to protect you against. The case of Elvira Zatarain is a case in point. Ms. Zatarain consented to a search of her purse after being pulled over by a Pima County Sheriff’s Deputy. The deputy found crystals that Ms. Zatarain obtained from a psychic who identified them as white quartz stones. The deputy suspected that the crystals were methamphetamine. A field test verified Ms. Zatarain’s assertion that the crystals were not an illegal substance. Ms. Zatarain was arrested and charged with a crime anyway: “possession of an imitation controlled substance”.Â
“Zatarain, a mother of two, was in Pima County Justice Court Thursday morning, where she was told she could plead guilty and receive a sentence of drug counseling and a $130 fine. However, she declined the offer, saying she’s never used drugs and that there was nothing sinister about the crystals.” Source: http://www.azstarnet.com/metro/308555.php
Sheriff Deputy’s shake down of racial profiling legal observers makes the TV news
A couple days ago I reproduced Scottsdale attorney Joy Bertrand’s account of her encounter with a Maricopa County Sheriff’s Deputy as she and a friend were attempting to video a stop of two hispanic men during Arpaio’s most recent racial profiling sweep. KPHO picked up the story and aired a portion of the video here. http://www.kpho.com/video/20822883/
John Vigileos
Attorney at Law
(602) 443-0415
Alcohol related arrests way down at the Vue Apartments
Well, the party may not be over at the Vue Apartments in Tempe, but it has gotten a lot quieter since the recent crack down on student residents by ASU Police. According to recent reports, two Vue residents were arrested last Wednesday, and sixteen on Thursday, with no arrests over the Labor Day weekend. If you were arrested at the Vue or any other place for an alcohol related offense, see my earlier post here for some guidance: http://vigilaw.com/?p=141.
John Vigileos
Attorney at Law
(602) 443-0415
Phoenix attorneys stand up and observe Arpaio’s racial profiling sweeps
Below is Scottsdale attorney Joy Bertrand’s account of acting as a legal observer to Sheriff Joe Arpaio’s most recent racial profiling sweep. Below the story is a link to the youtube video capturing her and a friend’s encounter with one of Arpaio’s deputies.
WWJD — What would Jim do?
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When Sheriff Joe Arpaio tweeted that he was conducting immigration sweeps in South Phoenix, I had just gotten back from a long run. Corn was soaking for the grill and I had started a batch of homemade bread. Jameson and Justin have worked as observers at these sweeps before, but I stayed at the office, waiting to be called for bail money.
The community where I live is disparagingly called “Nazicopa” and “Alazona,” because of Maricopa County’s deteriorating respect for civil rights. The Sheriff’s “crime suppression sweeps” and “immigration enforcement actions,” led by his “selective enforcement group” target brown people in impoverished areas.  The Sheriff receives federal funding and now is under investigation by the US Department of Justice for his missuse of these funds and violations of federal law.Â
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As I listened to Jameson and Justin coordinating their plans, I thought of my dad, Jim Bertrand. A lot of my childhood friends here on Facebook knew him as my big, gregarious dad. The adults here on Facebook knew him not only as an A-list party guest, but also as a man fearlessly passionate about his beliefs. What many of you don’t know about him is that in the 1950′s and most of the 60′s (pre-Fifi, my mom), he was a Catholic priest. He could have had a comfortable life in a suburban parish, but instead he was active in the civil rights movement. Family lore has it that he walked in at least one of the 1965 marches from Selma to Montgomery.
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So, I put on a pressed shirt, a modest skirt, and a pair of loafers and headed out with Jameson to Southwest Phoenix, where the Sheriff had tweeted he would be. I drove the Tahoe owned by my firm, instead of the Jeep because 1) I was doing legal work and 2) we had recording equipment and computers with us. My other car, a soft-top Jeep wrangler, is not well suited for leaving expensive equipment. As we drove to the sweep, we learned that deputies by force had taken the video camera of Carlos Galindo, a local radio-show host with press credentials, erased everything on his camera, and handed it back to him. Driving northbound on 59th Avenue, I saw the sheriff’s department initiate a car stop just north of Buckeye Road. The stop involved an hispanic driver and another male in the driver seat. I had observed no traffic violations before the stop was initiated.Â
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I parked the truck about one block from the stop, across the street, in a parking lot of an abandoned building. Jameson walked up the street with his video camera. I had a digital camera. Another person in a silver pickup also was observing and taking pictures of the stop from across the street.
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Within one or two minutes, the deputy in the passenger side of the sheriff’s squad, got out of the squad and approached Jameson. He demanded Jameson’s video camera. Jameson said “no.” The deputy said that the camera contained “evidence of [his] traffic stop” and again demanded it. Jameson said “no.” Jameson and I began to walk away from the deputy. He yelled, “I am giving you a lawful order!” (Trust me — he wasn’t — I’ll send the brief on the issue to anyone who wants it) The deputy demanded ID from Jameson (who is very brown-skinned). Jameson said no. The deputy trotted in front of us and demanded ID from me. I demonstrated by opening my arms that I had nothing with me. He yelled, “Nothing? You have nothing?” I responded, “No,” and kept walking. Â
 The deputy then ran ahead of us and began running the tags on the Tahoe. We stopped about 50 feet from the truck, expecting that this deputy was going to arrest us. I didn’t want him searching my truck incident to arrest (under the recent Gant decision) — with the computer, client info, etc. in the truck, so we stayed away from the truck.Â
The other person who had been photographing this incident then pulled up between the deputy and us. I approached the person and said, “I am an attorney and a legal observer and I believe I’m being seized.” He smiled and said, “I’m an attorney, too.” He never said who he was. The deputy approached that person and I saw him hand over something in a blue or green plastic valet. The deputy handed it back to him and that guy drove away. We don’t know who he was, (my theory — law enforcement), but I don’t know what he was doing also photographing the stop.Â
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As he drove away, Jameson and I began to walk towards my truck. I clicked the remote entry to unlock it and the deputy stepped in front of me. He said, “You aren’t going anywhere until you tell me who you are.”
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The deputy had his hand on his gun. I put my hands out and up and I quietly replied, “I am not going to give you a statement.” He repeated his demand and I replied, ” I am an attorney advisor and a legal observer. I am not going to make a statement to you.” He was furious and barked at me to the effect of, “You aren’t leaving until I know that you’re not committing a crime.” (If he needs me to explain it to him, then he doesn’t have a reasonable, articulable suspicion that I’m committing a crime and cannot stop me.) I expected him to taze me or take me to the ground.
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Meanwhile, Jameson was calling our colleagues who also were acting as legal observers. Alex Lane, Justin Yentes, and Shana Higa pulled up as the deputy was standing in front of me, glaring. I said, “That’s_ my_ lawyer” and I pointed to Alex’s car.Â
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The deputy’s partner pulled up in the squad. The deputy got into the squad. The two of them talked in the squad for about a minute and pulled out at a high rate of speed when they saw Channel 12 coming up the street.Â
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From the time I changed into lawyer clothes, to when the deputies finally left, I kept asking myself, “what would Jim do?” My dad hated bullies and bigots. My dad was notorious for having “authority issues.” He was happiest, I think, when he was serving the poor and standing up for the little guy.Â
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My dad would be disgusted with the treatment of Hispanics and the poor in the community he adopted as his own nearly 35 years ago. My dad would have gone out with Jameson and Justin, so I am comfortable with my choice to step into the fray. When the deputy was yelling at me and inside I was shaking with fear, I could hear my dad saying, “Don’t flinch. Don’t raise your voice.”
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United States immigration policy is a mess. I have my own opinions about what policy changes should be made, but it’s an issue too big for me to fix on my own. As I lawyer, I hold the Government accountable in court and in administrative actions. I make sure that the Government plays by the rules when it charges someone with a crime or decides to take action against one of its employees. You’d be surprised how often those rules are bent or broken if no one is watching. The same goes for quietly standing across the street and observing a car stop in the course of an action the Sheriff _invited_ people to watch. Jim would have done the same thing.
 http://www.youtube.com/watch?v=BahVuiLKdRU
This was originally posted on Ms. Bertrand’s Facebook page: http://www.facebook.com/home.php#/profile.php?id=1481616364&ref=profile
This is hard to resist: Apache Junction cop gets stuck in wash
Link to article and photo of our man in action here: http://www.kpho.com/news/20760223/detail.html#
Labor Day Task Force Nets Nearly 1,000 DUI Arrests
The multi-agency DUI task force operating in Phoenix and the East Valley has made nearly 1,000 arrests through September 5. 315 of the arrests are reported to be for Extreme DUI and 106 for Underage DUI or Underage Drinking and Driving. The task force will end tomorrow.  Of course you should always drink responsibly and you should never drive if you are impaired by alcohol. But if you are ever questioned by a police officer who suspects you of driving while impaired, it is important that you protect your rights.  The ONLY information that you should provide the police before consulting an attorney is your name and state issued identification, registration and proof of insurance.  DO NOT voluntarily submit to any tests UNTIL you have been given the opportunity to call your attorney. If you are being investigated for possible DUI tell the police the following:
1) I DO NOT want to answer any questions or speak with you without my attorney present.
2) I DO NOT want to take ANY tests UNTIL I have had an opportunity to call my attorney for legal advice. EMPHASIZE: I am not refusing the tests, I just want to consult my attorney FIRST.
3) I WILL NOT consent to a search of my person, my car, my home, or my property.
John Vigileos
Attorney at Law
(602) 443-0415
Arpaio’s latest “crime sweep”: we want to see your papers
Sheriff Joe Arpaio’s deputies have arrested 30 people in the most recent racial profiling patrol, involving more than 100 deputies. Half of those arrested are reported to be suspected illegal immigrants.
City councilman Michael Nowakowski told reporters that the sheriff’s deputies were pulling people over “for broken lights and stuff like that, then asking for documentation.” Ten people were arrested on Saturday at the Mercado Swap meet on suspicion of selling bootlegged CDs and DVDs.Â
If you are driving while Mexican be aware that Arpaio’s people will be patrolling near 35th Ave andLower Buckeye through Sunday, and will be asking you for your papers.
Source: http://www.myfoxphoenix.com/dpp/news/crime/msco_crime_sweep_09_05_2009
Fox News Video on “ASU Party Patrol”
Link here to a peice by local Fox news affilliate on reactions to the crackdown on student partying near the ASU campus.
DPS to Motorists: Your Money or Your Liberty
The Arizona Republic recently reported that Arizona Department of Public Safety officers have seized over 1.3 million dollars in cash from motorists in the past two weeks. Although it is not illegal to carry large amounts of cash, law enforcement can and will seize large amounts of currency found on motorists even though there is no evidence that the cash is connected to any illegal activity. The motorist are asked to sign a disclaimer of any property interest in the funds and often do out of fear that claiming the money will lead to criminal charges. Those claming a property interest in the cash have thirty days to contest the forfeiture once the notice requirements have been met.
Link to Arizona Republic Article: http://www.azcentral.com/news/articles/2009/09/04/20090904abrk-currencyseizure0904.html
As of Saturday, 780 arrested in DUI Task Force
According to news reports, 780 arrests have been made so far as a result of the Labor Day task force going after suspected impaired drivers. The task force began on August 21 and ends September 7 after the Labor day weekend. 266 of those arrested have been charged with Extreme DUI (above .15 BAC) and seventy-four have been charged with Underage DUI. Extreme DUI carries a mandatory minimum 30 day consecutive jail sentence. Underage DUI carries an additional penalty above and beyond the mandatory penalties for a regular DUIÂ of a two year license suspension.
Hundreds of suspected gang members arrested in sweeps
by Nathan Gonzalez – Sept. 3, 2009 11:00 AM
The Arizona Republic
Southeast Valley police agencies, together with state and federal authorities, arrested 271 suspected gang members and seized guns, drugs and vehicles in two gang taskforce operations.
The 17-day Operation Lone Star, which began in April and ended May 16, resulted in 144 arrests, including 64 known gang members, according to figures released this week.
The second gang taskforce, Operation Summer Surge, was held Aug. 12 to 29 and resulted in 127 arrests and the seizure of a half-pound of heroin.
Read Full Story Here: http://www.azcentral.com/community/chandler/articles/2009/09/03/20090903mr-gangarrests0904.html
Police to step up Labor Day DUI patrols
by Jim Walsh – Sept. 3, 2009 09:45 AM
The Arizona Republic
East Valley police are hoping to eliminate fatalities and serious injury accidents over the Labor Day weekend through aggressive enforcement of Arizona’s tough drunken driving laws.
Police are planning saturation patrols and sobriety checkpoints at a variety of locations throughout the Southeast Valley. Day and night operations are planned Friday through Monday.
Read Full Story Here: http://www.azcentral.com/community/tempe/articles/2009/09/03/20090903mr-dui0904.html
Tempe police make 90 arrests at apartment complex near ASU
by Lily Montijo – Sept. 2, 2009 08:50 AM
The Arizona RepublicTempe police made more than 90 arrests – many for alcohol-related offenses – last Thursday and Saturday at The Vue, an apartment complex near Arizona State University.
Although the complex at Apache Boulevard and Rural Road is near the university, The Vue is privately owned and not exclusively for students, police said.
Tempe Police spokesperson Sgt. Steve Carbajal said many, but not all, of the alcohol-related charges involved underage drinking.
Read Full Article Here: http://www.azcentral.com/news/articles/2009/09/02/20090902tr-asuarrests0902-ON.html
Arizona court ruling: DUI blood test requires warrant or consent
Sept. 1, 2009 11:55 AM
Associated Press
A new Arizona court ruling says authorities must obtain a search warrant to conduct a blood test of a DUI suspect unless the suspect clearly consents to have blood drawn. The state Court of Appeals
ruled Tuesday that it wasn’t enough under state law that a man apparently didn’t object when officers moved to take a blood sample while in a police DUI van. The court notes that the law in question is called “implied consent” because drivers are subject to a civil driver’s license suspension if they refuse to have blood drawn. But the ruling says motorists clearly still have the right to withhold consent for a warrantless search.
Full story: http://www.azcentral.com/news/articles/2009/09/01/20090901dui-bloodtest01-ON.html
Read the Opinion here: http://www.cofad1.state.az.us/opinionfiles/SA/SA090042.pdf
DUI Enforcement for ASU Coincides With the Start of the School Year
Drinking and driving is a serious offense, and a DUI conviction can ruin an academic career. Always choose a designated driver or call a cab. Enforcement in and around ASU will be extra heavy right now.
TEMPE, AZ — Several East Valley police departments will have extra officers on the streets in and around Tempe this weekend as they kick off a DUI enforcement to coincide….Read the full story here:
Tempe DUI enforcement kicks off start of ASU school year – Phoenix Arizona news, breaking news, local news, weather radar, traffic from ABC15 News | ABC15.com
