Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P41 pptx

accusatorial system of justice. (An accusatorial system places the burden on the prosecution to establish the guilt of the defendant, as opposed to an INQUISITORIAL SYSTEM, wherein guilt or innocence is determined through interrogation of the defendant.) For 150 years, the Right to Counsel Clause was construed as simply granting to a defendant the right to retain a private attorney. This did not mean that an impoverished criminal defendant had the right to a court-appointed attorney without cost. In 1932 the U.S. Supreme Court began to reverse this interpretation in POWELL V. ALABAMA, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158. In Powell, nine black youths were accused of raping a white girl in a train going through Alabama on March 25, 1931. A sheriff’s posse rounded up the youths and held them in custody. The youths were not from Alabama, and they were not given the opportunity to contact their families. The youths were indicted on March 31. On April 6, they were tried with the assistance of unprepared counsel and convicted, and subse- quently sentenced to death. The youths thereaf- ter received the assistance of counsel for their appeals. The Supreme Court of Alabama affirmed the convictions. The U.S. Supreme Court reversed the convictions and returned the case to the Alabama state court. According to the Court, the trial court’s appointment of an unprepared attorney in a capital case is a violation of the defendant’s DUE PROCESS rights. The Powell decision did not mandate the appointment of an attorney for all impoverished defendants. The Court in Powell merely held that due process requires the appointment of prepared counsel to indigent defendants in a case that involves the death penalty. Powell did, however, provide the basis for the requirement of free counsel for defendants faced with serious federal charges. In Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), the U.S. Supreme Court held that an indigent federal criminal defendant who faces a serious criminal charge, such as a felony, is entitled to an attorney at the expense of the gover nment. According to the Court, the right to counsel is “one of the safeguards deemed necessary to insure fundamental HUMAN RIGHTS of life and liberty.” In making this decision, the Court noted “the obvious truth that the average defendant does not have the professional legal skill to protect himself.” Significantly, the Johnson opinion did not force states to provide the right to counsel for all indigent criminal defendants in state court; this right to counsel applied only to indigent defendants facing serious charges in federal court. In state court, by virtue of the Powell opinion, only indigent defendants accused of capital crimes had the right to a court- appointed attorney. Many states did provide for the right to an attorney for accused felons through statutes; other states did not. In 1963 the Supreme Court corrected these inequalities in GIDEON V. WAINWRIGHT, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799. In Gideon, defendant Clarence Gideon was charged in a Florida state court with breaking and entering a poolroom with the intent to commit a misdemeanor. Under Florida law, this was a felony. Gideon valiantly represented himself, but he was found guilty and sentenced to five years in prison. On appeal to the U.S. Supreme Court, Gideon was represented by ABE FORTAS, who had been appointed by the Court. Through Fortas, Gideon argued that the right to counsel was a FUNDAMENTAL RIGHT and essential to a fair trial. The Court agreed, stating that the “noble ideal” of a fair trial cannot be achieved “if the poor man charged with a crime has to face his accusers without a lawyer to assist him.” The Court reversed Gideon’s conviction, holding that all states must provide counsel to indigent defen- dants who face serious criminal charges. The legal basis for the decision was the Due Process Clause of the FOURTEENTH AMENDMENT to the U.S. Constitution. This clause forbids states to enact laws denying DUE PROCESS OF LAW to citizens of the United States. On retrial, represented by appointed counsel, Gideon was acquitted. In a companion case decided the same day as Gideon , the U.S. Supreme Court created the right to counsel for indigent defendants on appeal. In Douglas v. California, 372 U.S. 353, 82 S. Ct. 814, 9 L. Ed. 2d 811 (1963), defendants WILLIAM DOUGLAS and Bennie Will Meyes, represented by a single PUBLIC DEFENDER, were tried jointly in a California state court and convicted of various felonies. Both defendants appealed to the California District COURT OF APPEAL . This first appeal was granted as a matter of righ t to all criminal defendants. Under California law, however, indigent defendants GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 388 RIGHT TO COUNSEL did not have the right to an appointed attorney for the first appeal. Douglas and Meyes, both indigent, prepared and filed their own appellate briefs. The District Court of Appeal affirmed the convictions. Meyes petitioned to the California Supreme Court for himself and on behalf of Douglas. That court denied the petition without a hearing. On appeal to the U.S. Supreme Court, Douglas and Meyes, this time represented by Supreme Court-appointed counsel, argued that they deserved the right to an attorney on their appeal. The Court agreed, lecturing that “there can be no equal justice where the kind of an appeal a man enjoys ‘depends on the amount of money he has” (Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 [1956]). According to the Court in Douglas, the EQUAL PROTECTION and Due Process Clauses of the Fourteenth Amendment prevent states from granting crim- inal appeals in such a way as to discriminate against poor people. Thus, under the Douglas decision, a state must provide free counsel to indigent defen- dants on appeal, if the state offers an appeal as a matter of right. All states do allow one appeal as a matter of right. For discretionary appeals, or appeals that are not granted as a matter of right—such as appeals to the state’s highest court in states with a lower reviewing court, and appeals to the U.S. Supreme Court—there is no right to counsel. However, many states maintain laws that provide free counsel to indigent defendants even for these discretionary appeals. A year after Gideon and Douglas, the Supreme Court decided two more cases that further extended a defendant’s right to counsel. In MASSIAH V. UNITED STATES, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), defendant Winston Massiah was indicted by a federal GRAND JURY on narcotics charges. Massiah retained a lawyer and pleaded not guilty. While free on bail, Massiah was contacted by a codefendant, Jesse Colson. Unbeknownst to Massiah, Colson was cooperating with federal law enforcement authorities. Massiah and Colson met and spoke in an automobile for several hours about the case, and Massiah made incriminating statements that were transmitted by radio to a federal agent located a few bloc ks away. The statements were used as evidence in Massiah’s trial. Massiah was convicted and sentenced to nine years in prison. On appeal to the Supreme Court, Massiah argued that he had the right to counsel while being interrogated by law enforcement, even when the interrogation w as not conducted in person by an officer. The Court agreed and reversed Massiah’s conviction. The Court in Massiah established that the police may not interrogate someone who has been indicted unless the person’s attorney is present or the person has knowingly waived the right to have counsel present. Approximately one month later, the Su- preme Court extended Massiah in ESCOBEDO V. ILLINOIS, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). In Escobedo , defendant Danny Escobedo was arrested and taken to police headquarters for questioning regarding the recent MURDER of his brother-in-law. Escobedo was not indicted for the crime. However, he was held in police custody and was not free to leave. Escobedo’s retained attorney arrived at police headquarters while Escobedo was being ques- tioned, but the police prevented the two from speaking to each other. Under interrogation, Escobedo admitted to some knowledge of the murder. Eventually, he confessed to having participated in the crime. At trial, Escobedo’s statements were admit- ted as evidence, and Escobedo was convicted of murder. On appeal, the Supreme Court over- turned Escobedo’s conviction. The Court spe- cifically held that where an investigation is “no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect,” the suspect is effectively in custody and has the right to consult a lawyer. Citing the prolific legal theorist Dean JOHN HENRY WIGMORE, the Court warned that any criminal justice system that relies on “compulsory self-disclosure as a source of proof must itself suffer morally thereby.” The Escobedo opinion established that when a suspect asks to speak with an attorney, the police must comply with the request, even before formal charges have been filed against the suspect. After this slew of right-to-counsel cases, it remained for the Supreme Court to decide which criminal charges required the availability of free counsel. Under Johnson and Gideon, a defendant had the right to counsel for all “serious” cases, but this standard proved difficult to apply. To clarify this aspect of the right to counsel, the Court seized on Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RIGHT TO COUNSEL 389 In Argersinger, the defendant, Jon Richard Argersinger, an indigent person, was charged in a Florida state court with carrying a concealed weapon. The offense carried a punishment of up to six months in prison and a $1,000 fine. Proceeding without counsel, Argersinger was convicted and sentenced to 90 days in jail. On appeal, the Supreme Court vacated Argersinger’s conviction. The Court co ncluded that “the problems associated with misde- meanor and petty offenses often require the presence of counsel to ensure the accused a fair trial.” Under the rule formulated in Argersinger, an indigent defendant who is not offered the services of a court-appointed attorney at trial may not be sente nced to prison, even if the defendant is convicted of a crime for which INCARCERATION is an authorized punishment. Pursuant to the case, when a court determines that incarceration is a possible result of the proceedings, the court must inform the defen- dant not represented by an attorney of the right to representation. If the respondent is indigent, the court must inform the defendant of the right the appo intment of an attorney. Con- versely, if an indigent defendant will not be incarcerated as a result of the proceedings, the court may require the defendant to proceed without an attorney. The apparent fairness of the rule established in Argersinger can be deceiving. In Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994), defendant Kenneth O. Nichols pleaded guilty in federal court to CONSPIRACY to distribute cocaine. Nichols was sentenced to 19 years and seven months in prison. To justify this lengthy term, the sentencing court relied on a previous misde- meanor conviction that resulted from a trial in which Nichols was not represented by counsel. When Nichols appealed the sentence, the Supreme Court held that it is not a violation of the Sixth and Four teenth Amendments to enhance punishment based on a prior convic- tion in which an indigent defendant was not afforded an attorney. The Supreme Court has, at times, displayed considerable latitude in deciding various right- to-counsel issues. It has held that an indigent defendant has the right to counsel in deciding whether to submit to a psychiatric examination when statements made during that examination may be used at trial (Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 [1981]). Under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), an indigent defendant has the right to have appointed counsel present during post-indictment identi- fication lineups. Under the Sixth Amendment, juveniles have the right to an attorney when their liberty is at stake (Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 [1967]). The Court has also read the Sixth Amend- ment to mean that a criminal defendant is entitled to effective legal counsel. This means that a defendant has the right to conscientious, meaningful representation. If a defendant does not receive effective assistance of counsel at trial, the conviction will be reversed. However, the standard of proof for the defendant is high. Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant has to prove not only that the attorney’s performance was less than reasonable but that this substandard performance changed the outcome of the trial. The second factor is very hard to prove, especially when the evidence of guilt is overwhelming. Nevertheless, courts will overturn convictions when it finds that a defense lawyer was asleep during critical parts of the proceedings. Claims of ineffective counsel are often made against co urt-appointed lawyers, whether they are members of a public defen- der’s office or individuals chosen by a trial judge. Absent egregious behavior by a lawyer such claims are usually unsuccessful because a liberal attitude w ould lead to second-guessing the decisions of trial counsel by appellate courts . The Supreme Court has been less generous to identify the right to counsel on other issues. Generally, an indigent defendant has no right to counsel in a proceeding after conviction (Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 [1987]). An indigent defendant does not have an absolute right to counsel for revocation of PAROLE or PROBATION hearings (Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 [1973]). If the parolee or PROBATIONER denies committing the offense or if there are MITIGATING CIRCUMSTANCES that may limit the parolee or probationer’s guilt, the court may appoint an attorney. An indigent defendant has no constitutional right to an attorney for a HABEAS CORPUS petition (Finley) unless the defendant faces death, in which case he or she is entitled to an attorney for a habeas corpus petition (McFarland v. Scott, 512 U.S. 849, 114 S. Ct. 2568, 129 L. Ed. 2d 666 [1994]). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 390 RIGHT TO COUNSEL An indigent defendant has the right to appointed counsel during pre-indictment iden- tification lineups conducted by the police (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). Kirby would seem to contradict Escobedo, where the defendant was entitled to counsel after arrest but before INDICTMENT. However, Escobedo has been limited to its facts and has been constr ued as upholding the defendant’s right against SELF-INCRIMINATION more than the right to counsel. The Supreme Court has carved out other exceptions to the right to counsel after an arrest. It has allowed law enforcement officials to have EX PARTE contacts with defendants to determine whether the defendant is in fact represented by counsel. It has also allowed ex parte communications that are made with the consent of defendant’s counsel; those made pursuant to discovery procedures, such as subpoenas; communications in the course of a criminal investigation; communications necessary to pro- tect the life or safety of another person; and those made by a represented person, so long as the person has knowingly, intelligently, and volun- tarily waived the right to have counsel present. These exceptions apply to all persons, regardless of whether they can afford their own attorney. Finally, law enforcement officials need not advise criminal suspects of their right to an attorney until those suspects are actually taken into custody or are not free to leave the presence of the officers. This rule gives law enforcement the freedom necessary to conduct reasonable investigations for the safety of the general public. Congress sought to restric t the ability of convicted defendants to argue success fully that they received ineffective counsel when it passed the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. A provision of this act states that federal courts may not grant habeas petitions unless they find that the state court proceedings “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law.” The Supreme Court has ruled that “clearly established federal law” means a decision it has rendered. In Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), the Court had to decide which of its precedents constituted “clearly established federal law.” It ruled that its more stringent precedent in Strickland v. Washington controlled in this case, signaling that it wished to limit successful death penalty appeals. FURTHER READINGS Marcus, Paul, and Jack Zimmerman. 2009. Miranda Criminal Procedure in Practice. 3d ed. Louisville, Co.: National Institute for Trial Advocacy. Saltzburg, Stephen A., Daniel J. Capra, and Angela J. Davis. 2009. Basic Criminal Procedure. 5th ed. St. Paul, Minn.: West. Sonneborn, Liz. 2004. Miranda v. Arizona: The Rights of the Accused. New York: Rosen. Tomkovicz, James J. 2002. The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution. Westport, Conn.: Greenwood Press. CROSS REFERENCES Criminal Law; Criminal Procedure; Due Process of Law; Gault, In re; Juvenile Law; Miranda v. Arizona. RIGHT TO DIE See DEATH AND DYING; EUTHANASIA. RIGHT-TO-WORK LAWS State laws permitted by section 14(b) of the TAFT- HARTLEY ACT that provide in general that employees are not required to join a union as a condition of getting or retaining a job. Right-to-work laws forbid unions and employers to enter into agreements requiring employees to join a union and pay dues and fees to it in order to get or keep a job. Twenty-one states, mostly in the South and West, have right- to-work laws. The ability of states to pass right-to-work laws was authorized by the Taft-Hartley Act of 1947, also known as the LABOR MANAGEMENT RELATIONS ACT (29 U.S.C.A. § 141 et seq.). Taft- Hartley, which sought to curtail union power in the workplace, amended the National Labor Relations Act (NLRA) of 1935 (29 U.S.C.A. § 151 et seq.). The NLRA as first passed preempted state regulation of labor relations in interstate commerce, with the goal of developing a national LABOR LAW. Taft-Hartley departed from this goal in section 14(b) (29 U.S.C.A. § 164[b]), expressly authorizing the states to adopt right-to-work measures. Orga- nized labor has tried repeatedly, without success, to secure the repeal of section 14(b). The Federal Railway Labor Act (45 U.S.C.A. § 151 et seq.) prevents the application of state right-to-work laws to the railroad and airline industries. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RIGHT-TO-WORK LAWS 391 Section 14(b) works with other provisions of Taft-Hartley to limit the ability of unions to mandate compulsory union membership. Sec- tions 8(a)(3) and 8(b)(2) prohibit a type of union security clause (a provision that describes the obligations of employees to support the union) from being inserted into a collective bargaining agreement. A closed shop clause obligates the employer to hire only union members and to discharge any employee who drops union membership. The CLOSED SHOP is forbidden under Taft-Hartley. Although the act permits the union shop, section 14(b) allows the states to prohibit it. A union shop clause requires an employee to become a member of the union in order to retain a job, although no one needs to be a member in order to be hired; every newly hired person has a prescribed period of time to become a member. Section 14(b) also allows states to prohibit the agency shop. An agency shop clause requires every company employee to pay to the union an amount equal to the union’s customary initia- tion fees and monthly dues. It does not require the employee to become a formal member of the union, be a member before being hired, take an oath of obligation, or observe any internal rules and regulations of the union except with regard to dues. The U.S. Supreme Court, in National Labor Relations Board v. General Motors Corp., 373 U.S. 734, 83 S. Ct. 1453, 10 L. Ed. 2d 670 (1963), held that an employer does not violate the NLRA by agreeing to include an agency shop clause in a bargaining agreement. Therefore, when a state passes a right-to- work law, it prohibits both mandatory union membership and initiation fees and dues obliga- tions of agency shops, and permits employees who do not voluntarily pay dues and initiation fees to receive the benefits the union provides. Unions call such people “free riders.” Right-to-work advocates argue that no person should be forced to become a union member or to provide financial support for a labor organization as a condition of employ- ment. Such compulsion is said to be contrary to the U.S. concept of individual rights and FREEDOM OF ASSOCIATION. It is also alleged that compulsory unionism enables large labor orga- nizations to exert excessive power in the workplace and in the political arena. Organized labor believes that right-to-work laws allow free riders at the expense of their fellow workers. Opponents of these laws argue that everyone should pay a proportionate share of the costs of the union in negotiating contract benefits that will go to all. Unions also maintain that the real objective of right-to-work laws is to sow dissension among workers and thus weaken the labor movement. The bitter controversy over right-to-work laws peaked in the 1950s, when almost every state legislature consid ered the issue. Some scholars suggest the importance of the issue has been exaggerated. Studies have indicated that where unions are well established, employ- ees tend to enroll without regard to right-to- work statutes. Such laws may be more a symptom than a cause of union weakness in certain industries and geographical areas. FURTHER READINGS Hogler, Raymond L., and Robert LaJeunesse. 2002. “Okla- homa’s Right to Work Initiative: Labor Policy and Political Ideology.” Labor Law Journal 53 (fall): 109–21. Hunter, Robert P. 2002. “The Effect of Right-to-Work Laws on Economic Development.” Government Union Review 20 (summer): 27–30 Sumner, David G. 1984. “Plumbers and Pipefitters: The Need to Reinterpret the Scope of Compulsory Unionism.” American Univ. Law Review 33. Thomas, James C. 2007. “Right-to-Work: Settled Law or Unfinished Journey.” Loyola Journal of Public Interest Law 8 (spring). CROSS REFERENCES Collective Bargaining; Labor Law; Labor Union. RIOT A riot is a disturbance of the peace by several persons, assembled and acting with a common intent in executing a lawful or unlawful enterprise in a violent and turbulent manner. Riot, rout, and UNLAWFUL ASSEMBLY are related offenses, yet they are separate and distinct. A rout differs from a riot in that the persons involved do not actually execute their purpose but merely move toward it. The degree of execution that converts a rout into a riot is often difficult to determine. An unlawful assembly transpires when persons convene for a purpose that, if executed, would make them rioters, but who separate without performing any act in furtherance of their purpose. For example, when a restaurant owner refused to serve a certain four customers and barred them from entering the establish- ment, the four men remained in front of the doors of the restaurant and blocked the entrance GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 392 RIOT to all other customers. Although a riot did not result from their actions, the men were arrested and convicted of unlawful assembly. Inciting to riot is another distinct crime, the gist of which is that it instigates a BREACH OF THE PEACE , even though the parties might have initially assembled for an innocent purpose. It means using language, signs, or conduct to lead or cause others to engage in conduct that, if completed, becomes a riot. The SUPREME COURT, in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 430 (1969), held that free speech is protected and may not be prohibited solely on the idea expressed. It drew the line at speech or conduct that sought to incite imminent lawless action, but the state must show that the incitement was likely to result in such action. CONSPIRACY to riot is also a separate offense. In one case, the leader of a small Marxist group took to the streets preaching revolution and organized resistance to lawful authority. Curs- ing the police, he spoke about how to fight and kill them and generally advocated violent means to gain political ends. The court ruled that a person who agrees with others to organize a future riot and who commits an OVERT ACT in conformity with the agreement is guilty, not of riot, but of conspiracy to riot. In legal usage, the term mob is practically synonymous with riot or with riotous assembly. A federal court held that night riders were a mob and that their act of burning a building constituted the crime of riot. Nature and Elements Riot is an offense against the public peace and good order, rather than a violation of the rights of any particular person. It is not commonly applied to brief disturbances, even if MALICIOUS MISCHIEF and violence are involved in the commotion. For example, a lock company was picketed in a labor dispute. When the police attempted to escort some people through the picket line, a brief general commotion, some scuffling, and an exchange of blows took place. The police testified that the entire fracas lasted about “two or three minutes.” The court held that the crime of riot does not apply to brief disturbances, even those involving violence, nor to disturbances that occur during the PICKETING accompanying a labor dispute. The elements that comprise the offense are determined either by the COMMON LAW or by the statute defining it. In some jurisdictions, the necessary elements are an unlawful assembly, the intent to provide mutual assistance against lawful authority, and acts of violence . Under some statutes, the elements are the use of force or violenc e, or threats to use force and violence, along with the immediate power of execution. Other statutes provide that the essential elements are an assembly of persons for any unlawful purpose; the use of force or violence against pe rsons or property; an attempt or threat to use force or violence or to do any unlawful act, coupled with the power of immediate execution; and a resulting DISTUR- BANCE OF THE PEACE . The element of force or violence required under the common law means a defiance of lawful authority and the rights of other persons. Similarly the force or violence contemplated by the statutes is the united force of the partici- pants acting in concert with the increased capacity to overcome resistance. The statutes further specify that the type of force and violence, not mere physical exertion, must threaten law-abiding nonpa rticipants. Riotous Conduct Riots can arise from any violent and turbulent activity of a group, such as bands of people creating an uproar and displaying weapons; wildly marching on a pu blic street; violently disrupting a public meeting; threatening bystan- ders with displays of force; or forcibly destroy- ing property along the way. In one case, striking orange pickers armed with clubs, metal cables, sticks, and other weapons rushed into an orange grove and assaul ted nonstriking pickers. Af ter the nonstrikers were driven out of the grove, the strikers overturned the boxes full of picked oranges and threw oranges and boxes at the nonstrikers. The court held this to be riotous conduct. When on e city was wracked by racial disturbances, the court ruled that racial dis- orders constituted a general riot, or a series of riots, and that whether there was a single, identifiable group or a number of riotous groups was not significant when their one common purpose was to injure and destroy. One of the most brutal riots in the United States was the Tulsa race riot. In May 1921, a white man from Tulsa, Oklahoma, was allegedly assaulted by an African American man. A white mob stormed the city’s Greenwood neighbor- hood, a prosperous community that was pre- dominantly African American, to find the alleged GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RIOT 393 assailant. Over a two-day period, 35 city blocks in Greenwood were destroyed. Private homes, businesses, and even churches were burned down, and an estimated 300 people killed. Number of Persons Necessary The common law rule, and most of the statutes that define riot, require three or more persons to be involved. Some statutes fix the minimum number at two. Purpose of Original Assembly The jurisdictions differ on whether the original assembly must be an unlawful one. Some require premeditation by the rioters, but others prescribe that riots can arise from assemblies that were originally lawful or as a result of groups of persons who had inadvertently assembled. Common Intent A previous agreement or conspiracy to riot is not usually an element of a riot. A common intent, however, to engage in an act of violence, combined with a concert of action, is sometimes necessary. In one case, following a high school football game, a group of boys staged a “violent, brutal and indecent” ASSAULT on the color guard and band members of the visiting team. When the visitors attempted to leave, the attacks continued. On trial, the attackers claimed that the charge of riot did not apply to them because they had had no “common intent.” The court held that “an intent is a mental state which can be inferred from conduct.” They were found guilty of riot and the decision was affirmed on appeal. Terror When a riot arises from an unlawful act, such as an assault, terror need not be shown because in every riotous situation there are elements of force and violence that are by their very nature terrifying. When a riot arises from lawful conduct, terror must be shown. For example, if a group of neighbors decides to remove a nuisance, such as a pile of malodorous garbage, which would be a lawful activity, but does so in a violent and tumultuous manner, terror would have to be shown before the conduct would constitute a riot. In 1999, the World Trade Organization (WTO) held a five-day meeting in Seattle, Washington. Some 45,000 protesters converged on the meeting, protesting the WTO’s stand on everything from the environment to global business to HUMAN RIGHTS . What was supposed to be an organized mass movement quickly degenerated into a rampage through the city, in which buildings were vandalized, stores were looted, and police were attacked. Only one person need be alarmed to fulfill the terror requirement for a riot; in Seattle, the entire city was subjected to the terror. Persons Liable Principal rioters are those who are present and actively participate in the riot. All persons present who are not actually assisting in the suppression of the riot can be regarded as participants when their presence is intentional and tends to encourage the rioters. Municipal Liability In the absence of a statute, a MUNICIPAL CORPORA- TION , such as a city, town, or village, is not liable for injuries caused by mobs or riotous assem- blages. Where statutes do impose liability, the particular statute determines the type of action one can institute against a city, town, or village. Defenses There is never any justification for a riot. The only defense that can be claimed is that an element of the offense is absent. Participation is an essential element. Establishing that an individual’s presence at the scene of a riot was accidental can remove any presumption of guilt. Suppression of Riot Private person s can, on their own authority, lawfully try to suppress a riot, and courts have ruled that they can arm themselves for such a purpose if they comply with appropriate Riot policemen arrest a women during the 1999 World Trade Organization riots in Seattle. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 394 RIOT statutory provisions concerning the possession of firearms or other weapons. Execution of this objective will be supported and justified by law. Generally every citizen capable of bearing arms must help to suppress a riot if called upon to do so by an authorized peace officer. The state is primarily responsible for protecting lives and property from the unlawful violence of mobs. If the MILITIA reports to civil authorities to help quash a riot, it has the same powers as civil officers and must render only such assistance as is required by civil authorities. During the WTO riot in Seattle, 600 state troopers and 200 members of the NATIONAL GUARD were called in to assist the overwhelmed Seattle police force. In an emergency, and in the absence of constitutional restrictions, a governor can order the intervention of the militia to suppress a riot without complying with statutory formalitie s. When troops are ordered to quell a riot, they are not subject to local authorities but are in the service of the state. FURTHER READINGS Brophy, Alfred L. 2002. Reconstructing the Dreamland: The Tulsa Riot of 1921: Race, Reparations, and Reconciliation. New York: Oxford Univ. Press. Carter, David. 2008. Stonewall: The Riots that Sparked the Gay Revolution. New York: St. Martin’s Griffin. Gale, Dennis E. 1996. Understanding Urban Unrest: From Reverend King to Rodney King. Thousand Oaks, Calif.: Sage. CROSS REFERENCE Brandenburg v. Ohio. RIPARIAN RIGHTS The rights, which belong to landowners through whose property a natural watercourse runs, to the benefit of such stream for all purposes to which it can be applied. Riparian water, as distinguished from flood water, is the water that is below the hig hest line of normal flow of the river or stream. CROSS REFERENCE Water Rights. RIPENESS Ripeness is the mandate contained in Article III of the Constitution that requires an appellate court to consider whether a case has matured into a controversy worthy of adjudication before it can hear the case. An actual, current controversy worthy of ADJUDICATION must exist before a federal court may hear a case. The court determines if a controversy between parties with adverse legal interests is of sufficient immediacy and reality to warrant judicial intervention (Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 [ 1972 ]). The rationale behind the ripeness limitation is to prevent the courts from entering a controversy before it has solidified or before other available remedies have been exhausted. In disputes involving regulations or decisions promulgated by administrative agencies, a controversy is not considered ripe until the agency’s decision has been formalized and the challenging parties have felt its effects. Similarly, if a state court remedy is available, a controversy is not ripe for federal court review until all state court remedies have been exhausted. The courts generally apply a two-part test to determine if a controversy is ripe for judicial intervention. The first criterion is whether the controversy is fit for judicial decision, that is, whether it presents a QUESTION OF LAW rather than a QUESTION OF FACT. Secondly, the courts determine the impact on the parties of with- holding judicial consideration. In Abbott Labo- ratories v. Gardner (387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 [1967]), the SUPREME COURT examined whether a regulation that required drug manufacturers to use labels showing both the generic and the proprietary drug names was ripe for review before it was actually enforced. The Court held that the controve rsy was ripe because the regulation had an immediate and expensive impact on the plaintiffs’ day-to-d ay operations and the plain tiffs risked a substantial sanction if they did not comply with the regulation. Ripeness is a major consideration when parties seek injunctive or declarative relief before a statute or regulation has been applied. Courts are reluctant to enter an abstract disagreement over administrative policies (Ruckelshaus v. Monsanto, 467 U.S. 986, 104 S. Ct. 2862, 81 L. Ed. 2d 815 [1984].) However, in some cases, the courts will hear a request for an INJUNCTION or DECLARATORY JUDGMENT if the question presented is entirely or substantially legal and if postponing a decision until after a statute or regulation is applied would work a substantial hardship on the challenging party GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RIPENESS 395 (Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development Commis- sion, 461 U.S. 190, 103 S. Ct. 1713, 75 L. Ed. 2d 752 [1983]). FURTHER READINGS American Law Institute—American Bar Association. 1993. The “Ripeness” Mess in the Federal Courts, by Michael M. Berger. Course of study, September 30, 1993. C872 ALI-ABA 41. American Law Institute—American Bar Association. 1996. The Ripeness Mess: Part I—Getting into State Court, by Michael M. Berger. Course of study, October 17, 1996. SB14 ALI-ABA 155. Chemerinsky, Erwin. 2007. Federal Jurisdiction. 5th ed. New York: Aspen. CROSS REFERENCE Case or Controversy. RISK The potential danger that threatens to harm or destroy an object, event, or person. A risk that is specified in an insurance policy is a contingency which might or might not occur. The policy promises to reimburse the person who suffers a loss resulting from the risk for the amount of damage done up to the financial limits of the policy. In sales transactions, the contract and the UNIFORM COMMERCIAL CODE (UCC) determine who bears responsibility for the risk of loss of the merchandise until the buyer takes posses- sion of the goods. RISK ARBITRAGE The purchase of stock in a corporation that appears to be the target of an imminent takeover in the hope of making large profits if the takeover occurs. Risk arbitrage is practiced by investors called risk arbitrageurs. The strategy can return large profits if a takeover occurs but can also result in large losses if the transaction does not take place. Obviously, then, the more information an arbitrageur has about a possible takeover, the less risk the strategy involves. Buying SECURITIES of takeover candidates on the basis of rumors is legal, but it is illegal for an arbitrageur to purchase securities based on inside, or nonpub- lic, information. Insider trading violates rule 10(b)-5 of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78a et seq., which is a federal law that governs the operation of the stock exchanges and over-the-counter trading. To obtain information, arbitrageurs often develop relationships with investment banking firms and corporations, as well as with other sources of information and financial backing. These activities alone do not constitute a violation of the Securities Exchange Act, but if the risk arbitrageur uses these relationships or resources to gather information that is not available to the general public, the resulting purchase of securities is illegal. In the late 1980s, the SECURITIES AND EXCHANGE COMMISSION (SEC) began to investigate several prominent risk arbitrageurs for their roles in insider trading. This action, combined with the increasing number of corporate takeovers, brought the issue of risk ARBITRAGE to the headlines of Wall Street and the world. Between 1980 and 1988 in the U.S. District Court for the Southern District of New York alone, 57 arbitrageurs were criminally prosecuted for insider trading. One of the best-known cases involved risk arbitrageur Ivan Boesky, who allegedly realized a $9.075 million net profit through stock trades he made based on nonpublic information about three different mergers and takeovers. As part of the settlement with the SEC and the federal courts, Boesky was barred from any future securities trading. Because risk arbitrage can involve significant blocks of shares worth hundreds of thousands, even millions, of dollars, this practice can have a large impact on both the market and the value of the company’s stock. Professionals in the securities field generally agree that risk arbitrage based on inside information has a negative effect on the market, as well as on the reputation of arbitrageurs in general. Many of these commentators, however, are concerned that existing securities laws do not reach risk arbitrageurs who do not owe a fiduciary duty to the people who are harmed by the arbitrageur’s use of nonpublic information. The Securities and Exchange Act specifies that a violation of rule 10(b)-5 requires the accused violator to have breached a fiduciary duty to the injured party. Chiarella v. United States, 445 U.S. 222, 100 S. Ct. 1108, 63 L. Ed. 2d 348 (1980), is one of the leading cases on rule 10(b)-5 liabilit y. Vincent F. Chiarella was employed at a financial printer and, as part of his duties, handled a series of documents that detailed an upcoming GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 396 RISK takeover bid; although the nam es were left blank or falsified, Chiarella was able to figure out the companies involved. Then, without disclosing that he had inside information, he bought stock in the companies that were targeted in the takeover; when the takeover was made public, he sold the shares and made a profit of approximately $30,000. Shortly there- after, Chiarella was indicted on 17 counts of violating rule 10(b)-5. The U.S. Supreme Court reversed the conviction, however, on the grounds that Chiarella had not violated the rule because he was not a fiduciary and therefore did not have a duty to disclose. FURTHER READINGS Hazen, Thomas Lee. 1989. “Volatility and Market Ineffi- ciency: A Commentary on the Effects of Options, Futures, and Risk Arbitrage on the Stock Market.” Securities Law Review 21. Steckman, Laurence A. 1988. “Risk Arbitrage and Insider Trading—A Functional Analysis of the Fiduciary Con- cept under Rule 10b-5.” Touro Law Review 5 (October). Wyser-Pratte, Guy. 2009. Risk Arbitrage. Hoboken, NJ.: John Wiley & Sons, Inc. CROSS REFERENCE Mergers and Acquisitions. RIVERS See BOUNDARIES; INTERNATIONAL WATERWAYS; WATER RIGHTS . ROBBERY The taking of money or goods in the possession of another, from his or her person or immediate presence, by force or intimidation. Robbery is a crime of theft and can be classified as LARCENY by force or by threat of force. The elements of the crime of robbery include the use of force or intimidation and all the elements of the crime of larceny. The penalty for robbery is always more severe than for larceny. According to statistics from the FEDERAL BUREAU OF INVESTIGATION (FBI), 422,921 incidents of robbery occurred in 2001. This number was significantly lower than a decade earlier. The FBI estimated that between 1992 and 2001, the number of robberies in the United States dropped by 37.1 percent. According to the 2001 statistics, robbery accounted for 29.4 percent of violent crimes in the United States, costing victims a total of $532 million. The average loss per victim during that year was $1258. The general elements of robbery are the taking of PERSONAL PROPERTY or money from the person or presence of another, the use of actual or constructive force, the lack of consent on the part of the victim, and the intent to steal on the part of the offender. Neither deliberation nor premeditation is necessary, nor is an express demand for the property. Robbery requires a taking of prop erty from the person or presence of the victim, which means that the taking must be from the victim’s possession, whether actual or constructive. Property is on the victim’s person if it is in his hand, in the pocket of the clothing he wears, or otherwise attached to his body or clothing. The phrase “from the presence” or “in the presence” has been construed to mean proxim- ity or control rather than within eyesight of the victim. For example, a robber takes property from the victim’s presence if the robber locks the victim in one room and then takes the valuable from another room. There is sufficient proximity even though the victim cannot see through the walls into the room where the valuables are stored. The property taken must be close enough to the victim and sufficiently under his control that had the robber not used violence or intimidation, the victim could have prevented the taking. As an example, if a robber uses force Types of Weapons Used in Robberies, 2007 a Knives or cutting instruments 8.3% Firearms 42.8% Strong-armed tactics 39.9% Other weapons 9.0% a Because of rounding, percentages may not add to 100. SOURCE: FBI, Crime in the United States, 2007. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ROBBERY 397 . criminal defendants. Under California law, however, indigent defendants GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 388 RIGHT TO COUNSEL did not have the right to an appointed attorney for. aspect of the right to counsel, the Court seized on Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RIGHT TO COUNSEL 389 In. trial (Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 186 6, 68 L. Ed. 2d 359 [1 981 ]). Under United States v. Wade, 388 U.S. 2 18, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), an indigent defendant has