We previously discussed the case of Doyle Randall Paroline, who pleaded guilty in Texas in 2009 to possessing child pornography. He downloaded hundreds of images and two were found to be child pornography dedicating the abuse of Amy. After pleading guilty, Paroline was hit by $3.4 million in restitution damages for Amy even though he had no role in her victimization nine years earlier or any role in the production or distribution of the two photos. The United States Court of Appeals for the Fifth Circuit found that the federal restitution law does not require “proximate causation” — a critical limitation in torts and criminal law that ensures that liability is confined to those parties immediately responsible for injuries. I have criticized the expansion of restitution in this area for years and I spoke with NPR’s On The Media on the case. The Court has now ruled and reversed the Fifth Circuit in a 5-4 decision. As discussed with regard to yesterday’s decision in the Michigan affirmative action case, my Supreme Court class votes on the merits and predicted outcome of the major cases of the term before the Supreme Court. On this occasion, the vote was 8 to affirm and 6 to reverse. The latter “reversal” is closest to the outcome in the case. On prediction, the vote was 11 to 2 in favor of affirming so we were way off on the prediction on this one.
Archive for the ‘Constitutional Law’ Category
I was just on CNN discussing the decision in Schuette v. BAMN, reversing the United States Court of Appeals for the Sixth Circuit and declaring that the citizens of Michigan have the constitutional authority to prohibit racial and other preferences in university admissions. We addressed this case this term in my Supreme Court class and the students voted not only in the same way as the majority today but predicted this result. What was surprising was the vote — 6-2. Only Justice Sotomayor and Ginsberg voted to upheld the Sixth Circuit.
While President Obama ran on a pledge to be the most transparent presidency in history, critics have charged that — as with promises to protect civil liberties and international law — Obama has done precisely the opposite of what he promised. His Administration has radically expanded the national security state while fighting every effort in court to challenge unchecked executive powers, including his successful effort to get Congress to dismiss dozens of public interest lawsuits over surveillance, torture, etc. The latest effort of the Obama Administration was to refuse to release even redacted version of legal memoranda on Obama’s use of drones to kill U.S. citizens. I have previously written about Obama Kill list policy in columns and blog posts. What is interesting is that the Obama Administration shows utter contempt for the federal courts in first claiming that any release of redacted classified legal arguments would endanger national security and then, after the district court yielded to the government, proceeding to discuss the very same information in public when it suited the Administration. The United States Court of Appeals for the Second Circuit finally said enough. The problem is that the district court did not exercise its authority to reject the clearly excessive claims of the government. It is only because the government contradicted itself — not the facially overboard claims made before the district court. The case is New York Times v. United States Department of Justice, 2014 U.S. App. LEXIS 7387. The case highlights the extreme hostility shown by the Obama Administration to both transparency and the media.
Posted in Academics, Animals, Bizarre, Congress, Constitutional Law, Courts, Criminal law, Environment, Free Speech, International, Justice, Lawyering, Media, Military, Politics, Society, Supreme Court, Torts on 1, April 22, 2014 | 13 Comments »
We only recently passed the 20,000,000 mark last February but we just hit 21,000,000, according to WordPress. Congratulations everyone. This has been a banner year for the site with a continuing increase in traffic, links on other sites, and new voices on the blog. These milestones are coming faster and they give us a chance to look at the spread of our regular readers and commentators. As always, I want to offer special thanks for our weekend contributors: Mark Esposito, Eliane Magliaro, Mike Appleton, Larry Rafferty, Charlton Stanley and Darren Smith. The increasing traffic on the site is gratifying and reaffirms that there are many people looking for mature and civil debate. Even among the top ten sites, I believe that we offer a unique forum of different views and backgrounds in the discussion of law and politics (and a few quirky items).
Posted in Congress, Constitutional Law, Courts, Criminal law, International, Justice, Lawyering, Military, Politics, Supreme Court, Uncategorized, tagged CIA, Donald Rumsfeld, Enhanced Interrogation Techniques, Jose Rodriguez, torture on 1, April 20, 2014 | 61 Comments »
Respectfully Submitted by Lawrence E. Rafferty (rafflaw)- Weekend Contributor
We have seen and heard the claims from Donald Rumsfeld and others that the leaked Senate torture report is off base because the enhanced interrogation techniques were not only legal according to the Office of Legal Counsel, but they also produced results. Putting aside the idea that just because an allegedly illegal act is claimed to have been successful in producing actionable intelligence, does not make it any more legal or illegal, is there a reason why we should listen to the participants who authorized the waterboarding and other torture procedures when they claim that all is well?
Now it seems that Donald Rumsfeld has company. “In an uncompromising and wide-ranging interview with the Guardian, his first public remarks since he was linked to the program in 2007, James Mitchell was dismissive of a Senate intelligence committee report on CIA torture in which he features, and which is currently at the heart of an intense row between legislators and the agency.
The committee’s report found that the interrogation techniques devised by Mitchell, a retired air force psychologist, were far more brutal than disclosed at the time, and did not yield useful intelligence. These included waterboarding, stress positions, sleep deprivation for days at a time, confinement in a box and being slammed into walls.
But Mitchell, who was reported to have personally waterboarded accused 9/11 mastermind Khalid Sheikh Mohammed, remains unrepentant. “The people on the ground did the best they could with the way they understood the law at the time,” he said. “You can’t ask someone to put their life on the line and think and make a decision without the benefit of hindsight and then eviscerate them in the press 10 years later.” ‘ Reader Supported News (more…)
Submitted by Charlton (Chuck) Stanley, Weekend Contributor
This piece could easily have been titled, Peoria Mayor Jim Ardis (below, left) discovers the Streisand Effect.
The same might be said of Peoria Police Chief Steve Settingsgaard. Sometime in February or early March, the Twitter account @Peoriamayor was created, with a picture and fake bio of Mayor Ardis. On or about March 10, the account was labeled a parody, clarifying that it was not really Jim Ardis’ account. That did not deter Ardis, who appears to be as thin-skinned as any politician we have seen recently. He recruited Police Chief Settingsgaard to track down whoever was behind the parody Twitter account.
Submitted by Elaine Magliaro, Weekend Contributor
First, there was Citizens United. Now, we have the Supreme Court’s recent ruling in the McCutcheon case. It does appear that our country’s campaign finance laws may have been “eviscerated”—as noted by Justice Breyer when he wrote that, taken together with Citizens United, McCutcheon “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
Corporations are people…money is speech. The more money one has to spend…the more “speech” one can afford to buy—especially where political campaigns are concerned.
Two high school students at St. Anthony’s High School in Long Island have been suspended indefinitely after they walked into an after-hours sporting event wearing a Confederate flag draped over their shoulders. We recently discussed another suspension of a student involving a Confederate flag. I have the same free speech concerns in this case. The question is whether other flags would also be confiscated and the student suspended in my view. While I can certainly understand how this flag represents racism for many, others view the flag as a symbol of Southern heritage and heroism. I often see them in Virginia and recoil a bit due to the association with slavery. However, my concern is where the school is drawing the line on speech.
Judge Richard Posner has crushed the appeal of Catherine “Banana Lady” Conrad who sued for copyright infringement over the publication of her photograph in her costume after appearing at parties for children. Posner not only dismissed her case, he encouraged a lower court to bar her from new filings and published a picture as part of the opinion. The picture is now part of an official opinion and court record. As discussed below, The Banana Lady fared much worse than did The Human Cannonball in an earlier analogous case brought under the common law as opposed to copyright.
We have previously discussed the use of shaming punishments by judges around the country — a practice that I have previously denounced in columns and blog postings. I discussed a new case this week on BBC involving Edmond Aviv, 62, in South Euclid, Ohio. Aviv pleaded no contest to a misdemeanor disorderly conduct charge. Aviv, 62, had been feuding with his neighbor for 15 years, particularly over the smell of her dryer vent when she did laundry. He retaliated by hookup up kerosene to a fan to blow the smell on to the property of Sandra Prugh. Municipal Court Judge Gayle Williams-Byers (left) decided to impose her own brand of justice and ordered him to demean himself in public and wear a signing reading “I AM A BULLY! I pick on children that are disabled, and I am intolerant of those that are different from myself. My actions do not reflect an appreciation for the diverse South Euclid community that I live in.” For those of us who view this type of novel or shaming punishment to be unprofessional and abusive, it is Judge Williams-Byers who is in serious need for corrective measures. Indeed, many view judges who entertain the public with shaming sentences to be the ultimate bullies.
Lawrence Pintak, dean of the Washington State University’s Edward R. Murrow College of Communication, has written a controversial guide for journalists on how to cover stories without insulting Muslims. “Islam for Journalists” is an effort to educate reporters on the sensitivities of Muslims to avoid triggering protests or violence. Pintak writes that “Across the Muslim world extremists are wielding their swords with grisly effect, but the pen . . . can be just as lethal.” That line captures the controversy because it seems to suggest that reporters are a cause of violence when they fail to adhere to the demand of religious values or orthodoxy in their publications.
Usually the selection of a state bird or state song is not particularly divisive or even notable. The same goes for a state book (though it seems a bit odd to select a single book for a state unless it is written by a native son or daughter). Louisiana however could find itself in court as it moves to make the Bible the state book. Rep. Thomas Carmody, R-Shreveport, proposed the official adoption but insisted that it should not be viewed as any type of state endorsement. It is simply the selection of one faith’s religious book as the official book for the entire state. Who could possibly view that as a state endorsement?
By Mark Esposito, Weekend Contributor
Many courts have recognized the so-called emergency aid exception to the Fourth Amendment’s prohibition against warrantless searches, but the emergency usually had to involve a natural person. Now the highest court in Massachusetts has extended the doctrine to emergency aid in furtherance of animals. In Jan. 2011, Lynn police were called to the home of Heather Duncan based on neighbors’ reports of two dead dogs lying near her locked fence in her backyard. Two officers from the Lynn Police Department arrived and began to investigate the scene. Climbing a nearby snowbank, the officers saw two motionless dogs and another barking weakly. No food or water was seen and according to the officers, the dogs appeared malnourished and in immediate distress. After trying unsuccessfully to reach the homeowner, fire officials were called who promptly cut the fence lock and escorted the police onto the property. Two of the animals were indeed dead and the third was starving.
Ms. Duncan was charged with three counts of animal cruelty. She defended the case based on her claim that the officers had unreasonably searched without a warrant and the fruit of their search was thus unconstitutional. No warrant, no dogs, no case went the defense.
Previously, our contributor Charlton Stanley wrote about Kanawha County Prosecuting Attorney Mark Plants in a controversial foreclosure matter. Now, Plants is back in the news as the subject of a criminal case as opposed to the charging prosecutor. Plants is charged with beating his son with a belt and leaving a considerable bruise. He is claiming a constitutional right to such beatings as a parental choice on discipline.
Former CIA and National Security Agency director Michael Hayden has long been the face and voice of the growing security state within the United States. While many of his representations have been challenged, he continues (like Dick Cheney) to create his own reality to justify powers viewed as authoritarian and unlawful. Now, with the approaching release of a comprehensive report on the torture program, Hayden is out in the press denying the findings of the report that torture did not result in any meaningful new intelligence and that the CIA tortured people who were already cooperating with conventional (and legal) interrogations. Hayden took to the airways to champion torture by attacking the chair of the Senate Intelligence Committee Sen. Dianne Feinstein (D, Cal.) and said that she was just being “emotional” and should not be involved in such a serious debate.
I guess you don’t have to be from Chicago or Illinois to know who Rahm Emanuel is. The current Mayor of the City of Chicago, Rahm Emanuel is the former chief of staff to President Obama and a former Congressman. He is also a former investment banker. It has been alleged that this former investment banker has been crying poor since he entered office and proposing that city workers must pay more into their pension funds and get less pay and benefits.
“If you’ve read the financial news out of Chicago the last few weeks, you’ve probably heard that the city faces a major pension shortfall, supposedly because police officers, firefighters, teachers and other public workers are selfishly bleeding the city dry.
You’ve also probably heard that the only way investment banker-turned-mayor Rahm Emanuel can deal with the seemingly dire situation is to slash his public workers’ retirement benefits and to jack up property taxes on those who aren’t politically connected enough to have secured themselves special exemptions.” Pandodaily (more…)
A secret recording has surfaced of Vice President Dick Cheney speaking to the Republican Jewish Coalition where he held forth on various subjects — assuming that the session was closed to the public and press. Cheney appears to be intent on, again, revising history to get people to embrace a security state. You may recall how Cheney (who is often cited as a potential defendant in a torture prosecution) publicly assuring the nation that the Bush torture program produced valuable intelligence. That assertion has been previously dismissed by experts and insiders. However, as we discussed recently, the forthcoming Senate Report goes into great deal to show that not only is that assertion untrue but that the CIA actively sought to hide the fact that the torture program produced insignificant intelligence (and that detainees were tortured despite their cooperation in conventional interrogations). Cheney is now fighting to defend the massive surveillance of citizens — again dismissing even the concessions of intelligence officials about abuses and violations under the program. Cheney told a rapturous crowd that all such accounts were “hogwash.” He further pumped the crowd with support for an attack on Iran to add yet another war to our current international conflicts.
Israel’s Second Authority for Television and Radio has banned the Hoodies commercial below as containing “too many sexual insinuations.” The commercial shows a supermodel with Red Orbach, a famous puppet character, in bed with not so veiled references to puppet-human relations. It raises again the ongoing controversy over censorship in commercials to protect younger or more sensitive viewers.
The Albuquerque police have long been criticized for a high rate of shootings and the increasing militarization of their operations. This month, many have joined in that criticism after the release of a videotape of police shooting a homeless camper, James Boyd, in the foothills outside of the city.
We previously discussed how CIA officials were accused of trying to intimidate Senate staffers working on an investigation into allegations of torture and lies by the agency officials. Now the details of that still classified report have been leaked to the media. For the Senate Intelligence Committee (long accused of being a rubber stamp for intelligence agencies), the report is quite damning. The Senate found a pattern of misinformation knowingly released by the CIA to convince the public that its torture program yielded valuable intelligence — and new forms of torture that have never been previously confirmed. What is most striking however is what is not in the report: a recommendation for criminal prosecution. Indeed, consistent with its past approach to intelligence abuses, the Committee does not recommend any action be taken against a single CIA official.
While the Obama Administration struggles to restore good relations with Saudi Arabia, the Kingdom continues to lead the effort among Arab nations to deny most rights of free exercise, free expression, and free association. Saudi Arabia has fought for the creation of an international blasphemy standard (with the support of the Obama Administration) and has continued to deny basic rights of worship to religious minorities. Now, the the Kingdom has introduced new criminal provisions that makes atheism not only blasphemy but terrorism.
By Mike Appleton, Weekend Contributor
“First, we hold as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protection. Such corporations can be ‘persons’ exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.”
-Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013)
“Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a ‘person’ under RFRA.”
-Conestoga Wood Specialties Corporation v. Sebelius, 724 F.3d 377, 388 (3d Cir. 2013)
David and Barbara Green and their family own and operate Hobby Lobby stores, an arts and crafts chain employing some 13,000 people at over 500 locations. As committed Southern Baptists, Mr. and Mrs. Green believe that the contraception mandate under the Affordable Care Act requires their company to provide its employees health insurance coverage for abortafacients, a violation of the Greens’ religious beliefs. Conestoga Wood Specialties manufactures wood cabinets and has 950 employees. It is wholly owned by the Hahn family, all of whom are members of the Mennonite religion. They share the Greens’ opposition to the ACA mandate for the same reasons.
The Greens and the Hahns now await a decision by the Supreme Court on their claims that corporations for profit, at least those that are closely held, should be regarded as persons entitled to the protections of the Religious Freedom Restoration Act. The Tenth Circuit supports their argument; the Third Circuit does not. The Supreme Court has never addressed the question. In my view, however, it is the wrong question.
Posted in Constitutional Law, Courts, Free Speech, Justice, Lawyering, Media, Politics, Religion, Supreme Court, tagged David Green., Hobby Lobby, National Christian Charitable Foundation on 1, March 30, 2014 | 691 Comments »
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
Unless you have been in a coma the last few weeks, you have probably heard of or read about the Hobby Lobby case recently argued in front of the United States Supreme Court. Hobby Lobby is challenging a section of the Affordable Care Act that requires companies to provide medical insurance for their employees or pay a fine. The mandate also requires the insurance to include coverage for contraception services. Services that its owners claim violates their religious beliefs.
“…. the battle for its Christian identity was revived this week when lawyers for the company argued before the Supreme Court that the company should not have to comply with the Affordable Care Act’s contraception mandate. The issue, says Hobby Lobby co-founder Barbara Green, isn’t that the company wants to meddle with women’s rights to take contraceptive drugs. “We’re not trying to control that,” she said. “We’re just trying to control our participation in it.” ‘ Reader Supported News
Mrs. Green claims they are not trying to control their female employees use of contraceptives, but the network of causes that they are involved with seem to indicate that the Greens want to mix their religious views into everyone else’s business. (more…)
By Darren Smith, Weekend Contributor
According to Courthouse News an Idaho state trooper arrested and searched a 70-year-old Washington man solely because of his license plate from Colorado, where marijuana is legal, the man claims in a federal lawsuit.
Darien Roseen lives in Washington and has a second home in Colorado. He was driving east on I-84 the morning of Jan. 25, 2013, and had just crossed the Idaho-Oregon Border, when he passed Idaho State Police Trooper Justin Klitch, who was in the median observing eastbound traffic. “Immediately after Mr. Roseen passed his location, Trooper Klitch pulled out from the Interstate median, rapidly accelerating to catch up with Mr. Roseen’s vehicle,” according to the 25-page complaint. Roseen, who is retired from Weyerhauser, says he changed from the right lane to the left, and exited the Interstate to a designated rest area. Klitch followed him to the parking lot, which Roseen says made him “uncomfortable,” though “he did not perceive that he had done anything wrong.”
Posted in Constitutional Law, Courts, Free Speech, International, Media, Society, tagged Abdullah Gül, Binali Yıldırım, censorship, Courts, Free Speech, Prime Minister Erdoğan, Turkey, Turkish Courts, Twitter on 1, March 29, 2014 | 10 Comments »
By Darren Smith, Weekend Contributor
We recently reported of Turkish Prime Minister Recep Erdoğan’s effort to silence the social media service Twitter to repress dissent within Turkey. HERE. Now, the courts in Turkey are beginning to reverse some of these efforts. Turkish Twitter users are expected to regain access to the microblogging platform after a local court issued a stay of execution on last week’s decision by a local telecommunications authority to ban the website.
According to some local media reports, the ban will be lifted as soon as the administrative court in Ankara informs Turkey’s Telecommunications Authority of the ruling.
In a first official remark, Deputy Prime Minister Bülent Arinç said the Turkish government would implement the court ruling. “We will implement the court’s decision. We might not like the court decision, but we will carry it out,” he told reporters.
Posted in Constitutional Law, Environment, Free Speech, Media, Politics, tagged Columbian, corruption, Don Benton, environment, Free Speech, Freedom of the Press, Washington Senate on 1, March 29, 2014 | 10 Comments »
By Darren Smith, Weekend Contributor
In what many see as a sign of attempting to control the press through legislative penalties a Washington state newspaper is crying foul after a state senator singled out a local newspaper by making it pay a $150,000-a-year fine for being “one of the top polluters in the county.” It just so happens that the lawmaker, state Senator Don Benton, had been the subject of a series of critical articles in the same newspaper.
The editor of The Columbian newspaper is now accusing Benton of playing hardball. Editor Lou Brancaccio said it is clear Benton’s “nonsensical” proposal is “silly on its face and in our view, retaliatory.”
Posted in Constitutional Law, Courts, Criminal law, Free Speech, Justice, tagged First Amendment, Harassment, Meeker Oklahoma, police, Police Misconduct, Speed Trap on 1, March 29, 2014 | 20 Comments »
By Darren Smith, Weekend Contributor
James Goad, of Meeker, Oklahoma, says the harassment that followed his action amounted to a violation of his First Amendment right to freedom of speech. In the suit against the Meeker Police Department and Police Chief Sam Byrd, Goad claims police arrested him and violated his civil rights to get back at him for his sign stunt.
“Mr. Goad was exercising his constitutional right to free speech when he posted the speed trap warning sign on the property,” Goad’s attorney, Jack Dawson, wrote.
By Darren Smith, Weekend Contributor
According to an article in the Associated Press the California Senate voted Friday to suspend three lawmakers caught up in separate criminal cases after the latest one to be hauled into court refused to step down, the most serious house-cleaning action the chamber has taken in more than a century.
Friday’s 28-1 vote in the 40-member chamber came amid one of the most severe ethical crises in modern times for the Legislature in the nation’s most populous state. Later in the day, Gov. Jerry Brown also called on the three lawmakers to resign.
The resolution prevents Democratic Senators Ron Calderon and Leland Yee, who face federal corruption charges, and Democratic Sen. Rod Wright, who is awaiting sentencing in a voter fraud case, from exercising any power of their office until the criminal cases against them have been resolved. Even so, they will continue receiving their $95,291 annual salaries. Senator Leland Yee was the subject of an article on the Jonathan Turley website HERE
The actions of the California Senate is laudable in many ways, but is this also a sign of a greater or endemic problem in the California legislature and formerly lax oversight of some unsavory dealings of legislators?
I recently wrote about the declining free speech rights of students in the United States. There is another such case out of New Jersey this week where Gregory Vied, 17, has been suspended for refusing to remove a Confederate flag on his truck. In my view, it is a clear violation of free speech and an abuse of the rights of this student to express his views and associations by the administrators of Steinert High School in Hamilton Township.
The United Nation’s Office of the High Commissioner for Human Rights has issued a report slamming the United States on torture and surveillance — the last international condemnation of the United States that is now viewed by many as a threat to civil liberties and international law. This follows international reports condemning the Obama Administration for its attacks on the free press and Internet freedoms. The demand for action on torture revives one of the greatest failures of the Obama Administration when the President, shown after taking office, assured CIA employees that no one would be investigated or prosecuted for torture despite the existence of international treaties obligating us to carry out such prosecutions. The President has admitted (as is clear from domestic and international rulings) that water boarding is torture. What is fascinating is that those who continue to defend this Administration dismiss the criticisms of respected international public interest groups, award-winning journalists, and even United Nations organizations in such condemnations. It is part of what has become a blind loyalty for an iconic president over long-standing principles. As noted by a widening array of organizations and experts, Obama has proven a perfect nightmare for civil liberties — once a core and defining area for Democrats and liberals alike.
While predicting that a case will be accepted by the Supreme Court is a dubious form of fortune-telling (I just had a case denied review this week), the decision yesterday in the Fifth Circuit upholding the Texas law imposing restrictions on abortion clinics has the highest possible chances for such a review. It could also represent a major opportunity for those seeking to limit the pro-choice cases extending back to Roe v. Wade. The decision (written by Judge Edith Jones) is Planned Parenthood of Greater Texas v. Abbott, 2014 U.S. App. LEXIS 5696.
We recently discussed the controversy surrounding a confrontation between Thrin Short, 16, and her sister Joan, 21, and Feminist Studies Associate Professor Mireille Miller-Young. Miller-Young has now been charged with criminal conduct including Theft of Person; Battery; and Vandalism. However, even that charge does not appear to have prompted an express and clear statement from the University denouncing Miller-Young or calling for the review of her academic position. To the contrary, in the first statement from the university, Michael D. Young, Vice Chancellor of Student Affairs, appears to spend more time alluding to the victims as the problem than addressing the allegedly criminal abuse by a member of the faculty. The letter below contains a series of backhanded references to those engaging in free speech demonstrations on campus. The problem it would seem is not Miller-Young as much as these troublesome “outsiders” and “evangelical types” who come to “create discord” and “promote personal causes and agendas.” In the end, you are not sure if Miller-Young was the culprit or a victim in these alleged criminal acts. While there are good sentiments expressed in this letter, I can understand why the pro-life community would view this letter as basically saying “please don’t beat the protests no matter how much they may deserve it.”
There is an interesting lawsuit out of Flint Township, Michigan over the arrest of John David McMorris who was arrested for a concealed weapon on Christmas Eve. McMorris, 21, was walking alongside a road when he was stopped by a Flint Township police officer. The officer arrested him for concealing a handgun. It is legal to openly carry a handgun. However, the video below shows the gun clearly in the open and McMorris even turned with his hands up to show the officer his .40-caliber Smith & Wesson pistol on his hip.
Despite my great respect for Seventh Circuit Judge Richard Posner (whose brilliant writings on legal theory have shaped much of modern jurisprudence), I have recently had occasion to criticize his conduct on the bench (here and here). I am afraid that an opinion this week raises yet another troubling example of poor judgment by Posner. In an opinion in Mitchell v. JCG Industries and Koch Foods, Posner included an account of an experiment by court staff that tested a core factual issue presented by the Plaintiffs — the time needed to change into work clothes. The reliance — to any degree — on such an experiment violates core rules of appellate review and is correctly identified by fellow Seventh Circuit judge Diane Wood as a highly disturbing element to the decision supporting the company. What is odd is that this experiment with “donning” and “doffing” only undermined an otherwise well-considered opinion (even though many would still disagree with its conclusion).
I recently wrote a column on the wholesale attack on press freedoms under President Obama that parallel his attack on other civil liberties and privacy principles (here and here and here and here and here and here and here and here). I testified on the erosion of press freedom under President George W. Bush but the assault on the free press has worsened under President Obama while Democratic members and supporters remain conspicuously silent. Reporters have not been so silent or reticent and have repeatedly tried to educate citizens of the danger to press freedoms under this President. Now one of the most respected journalists in the country, New York Times reporter and Pulitzer Prize winner Jim Risen, has declared that the Obama Administration is the greatest threat to a free press in a generation.
Venezuela has continued to assault on civil liberties started by the late Hugo Chavez under his “mini-me” President Nicolas Maduro. That legacy took a particularly menacing turn when opposition congresswomen Maria Corina Machado was stripped of her office after speaking to the Organisation of American States (OAS) about the violence in her country. The Venezuelan government insists that she “acted as a Panamanian official” by accepting the invitation and that her speech constituted a crime of “inciting violence”.
We previously discussed the rapid drop of the United States in the protection of the free press. Now, the respected Reporters Without Borders has produced a separate report on Internet freedoms. In yet another dubious distinction for President Obama, the United States is now listed with such “Enemies of the Internet” as Russia, China, North Korea, and Iran. This is our first time on the infamous list — a true accomplishment for an Administration that has been denounced for its wholesale attacks on privacy and other core civil liberties.
Kenya’s parliament has passed a law intended to codify the existing customary law allowing for multiple spouses. However, the legislators went further and removed a provision that would give the existing spouse or spouses the right to veto a marriage. After female legislators stormed out of the session in protest, MP Junet Mohammed explained “When you marry an African woman, she must know the second one is on the way, and a third wife… this is Africa.”
I have repeatedly written on the alarming erosion of free speech in the United Kingdom, particularly as a result of hate speech and anti-discriminatory regulations (here and here and here). Now, Security and Immigration Minister, James Brokenshire, has stated that the government is not content with censoring language viewed as terroristic but wants to remove “”unsavoury” content.” He acknowledges that such content is not illegal but express a desire to sanitize the web of such speech. Brokenshire is an example of the insatiable appetite for censorship that develops once you allow the government to control speech. You can almost hear the “harrumph” and “hear, hear” to get the diminishing measure of free speech in England.
Yesterday a North Carolina jury handed down a major victory for free speech and academic freedom. It found that the University of North Carolina–Wilmington retaliated against criminology professor Dr. Mike Adams for his writing of conservative columns for the website Townhall.com and other forums. The decision culminates years of litigation, including a prior decision before the United States Court of Appeals for the Fourth Circuit. The treatment of Adams reaffirms for many conservatives that academia is hostile to their views and that conservative academics face a bias on promotion. The implications of the decision however could go beyond the issue of bias and raise countervailing issues of academic judgment and decision making.
The Kansas House Standing Committee on Corrections and Juvenile Justice has introduced an extraordinary bill that would allow citizens to be criminally charged if they bring abuse or misconduct charges against police officers are that later dismissed by the police department. They would be subject to a felony charge for perjury in such cases — a clear threat that will chill anyone considering such a charge in the future.
We recently discussed a controversy involving the censorship of an article on rape by a high school student in Wisconsin. The article, entitled “The Rape Joke: Surviving Rape In A Culture That Won’t Let You” was written by Fond du Lac High School senior Tanvi Kumar described a “rape culture” at the school. The school officials immediately moved to censor and block the publication. Fond du Lac High School Principal Jon Wiltzius objected to both the text and a picture in the article. In criticizing the actions of the school, I offered this blog as a forum for publishing the uncensored article. I was contacted by Kumar who said that she would like to avail herself of that opportunity. Photographer Gabi Padovano also agreed to have her remarkable photographs shown on the blog. I am also particularly proud to announce that Kumar will be attending George Washington University in the fall as one of our undergraduate. I wish I could take credit for that last fact but Kumar did that all on her own. So, without further ado, here is the uncensored “The Rape Joke.”
There is a disturbing lawsuit filed this month in Tennessee against CCA Silverdale and Hamilton County Sheriff Jim Hammond (left). Charity Flerl was incarcerated when she went into labor last summer. The police proceeded to force her to give birth while shackled because, as explained by one individual in this article, because “They’re criminals, so you never know what they might do.” Now here is the kicker: Flerl was not in for some violent offense. She was in for failure to pay child support. It is not clear what “they might do” in such a case: failure to pay child support on the new baby?
Jordan Wiser, a student at Ashtabula County Technical School in Jefferson, Ohio is rightfully confused after being being arrested for bringing a weapon into school. The “weapon” was a pocket knife that he had in his EMT medical vest . . . that was locked into the truck of his car. That’s right, in the latest example of the insane application of zero tolerance rules, the school officials called police after searching the trunk of a locked car to find a pocket knife used by a senior in his work as a EMT. He was then fed into a legal system that refused to show discretion in his prosecution. Notably, prosecutor Harold Specht ran for office based on a pledge that he would maintain a “hardline, zero tolerance policy” as a prosecutor. It was the perfect storm for Wiser: zero tolerance administrators handing a student over to a zero tolerance prosecutor. But it gets worse . . .
Remember that politician around 8 years ago who promised the most transparent Administration ever? Well, long ago, President Obama distinguished himself by withholding documents, pictures, and documents from the public and Congress. This includes the withholding of photos for the simple reason that they will embarrass the government or be used by critics like the pictures of Osama Bin Laden. (In the case of Bin Laden, it appears that the account glamorized in movies like Zero Dark Thirty may not be true and that U.S. forces allegedly riddled the body of Bin Laden with countless bullets, according to a new report). However, the Administration has gone well beyond the simply embarrassing. It has defied Congress in refusing to turn over documents to oversight committees, prompting a vote to demand that Attorney General Eric Holder be prosecuted for obstruction. (The Administration then prevented prosecutors from acting on the charge). A new analysis by the Associated Press shows what is already well known in Washington, President Obama has created the least transparent presidency in decades. The AP found that the Obama administration more often than ever censored government files or outright denied access to them last year under the U.S. Freedom of Information Act, according to a new analysis of federal data by The Associated Press.
Posted in Congress, Constitutional Law, Courts, Justice, Lawyering, Politics, Supreme Court, Uncategorized, tagged Chief Justice Roberts, Justice Alito, Justice Anthony Scalia, Justice Kennedy, Justice Thomas, Supreme Court, US Chamber of Commerce on 1, March 16, 2014 | 38 Comments »
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
This session the record is 7-1. Since October of 2011, the record is 28 wins and 4 losses. That is a record that any team would be proud of and evidence of a significant amount of work and effort to improve its performance on the court. However, I am not talking about any particular basketball team currently involved in March Madness and the upcoming NCAA Men’s Basketball tourney.
I am talking about the record a team called The United States Chamber of Commerce has in cases it has argued or filed a brief in front of the Supreme Court. Even Coach K or Coach Izzo would be jealous of that record. (more…)
Posted in Bizarre, Constitutional Law, Free Speech, Politics, Society, Things That Tick Me Off, tagged City Government, civil rights, Cornwallis, Eminent Domain, Government Overreach, Plankton, Small Town Politics, Third Amendment, Washington on 1, March 15, 2014 | 13 Comments »
By Darren Smith, Weekend Contributor
A controversy is developing in Cornwallis, Washington where residents of a neighborhood bordering the army’s Joint Base Lewis McChord (JBLM) say the city council’s latest ordinance is yet another example of an overreaching government.
During the Christmas recess the mayor called a midnight city council meeting, with no public notice, and reportedly of all places in a Seattle pub. After seven exhausting hours the council voted 5 to 4 to enact a law that was purportedly intended to ease the severe traffic jams along Interstate 5 which runs through JBLM. But these intentions some believe were not so benevolent.
The law allocated nine tracts of park land to build high density housing for military personnel and their families. The land is just west of the Berkeley Bridge and soldiers going to and from the base would not need to use I-5. However the land is platted within the realm of the Lafayette neighborhood and its homeowner’s association. Residents angrily objected to their former park being taken over by the city, and in response turned to a relatively unknown civil rights advocacy group, the No Quartering Association, (NQA) to seek redress for the city violating the Third Amendment’s prohibition of quartering soldiers in citizens’ homes. Unfortunately for them, the worst was yet to come.
By Darren Smith, Weekend Contributor
The Montana Secretary of State Office approved the ballot a measure that would mandate the legislature be equally represented by men and women. Presently, women hold 41 of the 150 seats in the state legislature. There are several more processes to surmount before the ballot measure becomes listed on the general election ballot. A signature drive follows and must obtain valid signatures of ten percent of the total voters in Montana and ten percent in each of the forty legislative districts. The signature gathering with the requisite signatures must be collected by June 20th if to be placed upon the ballot.
While certainly laudable in an effort to obtain greater participation of women in the political process, which is still not at parity, the likelihood of this measure, if it becomes law, surviving a constitutional challenge is weak.
I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. This week, President Obama went even further with the announcement of a new sweeping exemption that not only has no foundation in the federal law but directly contradicts the law. It also happens (again) to be a change debated but not accepted by Congress. The exemption appears an effort to blunt growing criticism of Obama for a false assurance given to citizens before the enactment of the ACA. It is also coming at a time of new polls indicating that Obama is not only hitting a record low in popularity but Republicans appear poised to gain seats in both houses (and potentially could retake the Senate as well as add seats in the House). [Update: The White House is now denying that it will implement the hardship exemption despite the article in the Wall Street Journal and other media]