If a recent story is to be believed, it appears that there are many things that you can demand to see in the “show me state” but a warrant is not one of them. A Kansas City man is accusing the police department of shocking conduct after he declined a demand that he allow police officers to search his house without a warrant. Eric Crinnian, a lawyer, said that an officer threatened that, if he insisted on his getting a warrant, he would come back in force, bust down his door, and shoot any dogs in the house. The response from a local criminal justice professor is also rather interesting.
Archive for the 'Constitutional Law' Category
Missouri Lawyer Accuses Police Of Threatening To Kill His Family Pets And Kick In Front Door If He Insisted On A WarrantPublished 1, December 5, 2013 Animals , Constitutional Law , Criminal law 27 Comments
Michigan is the latest state to have DNA clear a man imprisoned for years for a crime that he did not commit. What is most striking about the case of Jamie Peterson (right) is that lawyers had fight to re-test evidence that could prove his innocence. Prosecutors opposed the simple re-testing of evidence in the case that was not analyzed previously (as have prosecutors in other states). Finally, prosecutors relented and it was shown that it belonged to a man that police had cleared in first-degree murder in 1998. A second man was arrested this week but police insist that Peterson is not cleared. The case also shows the great cost to the rule of law that was presented by the Supreme Court ruling that there is no right to such testing in a post-conviction case. Chief Justice Roberts decision in the 5-4 case in District Attorney’s Office v. Osborne allows prosecutors and police to resist such simple testing to prove innocence in cases like Peterson’s. Indeed, the Court has produced an all-too-common double standard for citizens. It ruled in 2013 that police could routinely take DNA samples from suspects to use against them but the same individuals have no right to access to DNA testing to prove their innocence.
Hearing Or Elephant? Washington Post Portrays Republicans At Presidential Abuse Hearing As Impeachment ObsessedPublished 1, December 4, 2013 Bizarre , Congress , Constitutional Law , Media , Politics 154 Comments
The Washington Post has a controversial take on yesterday’s hearing in its coverage by Dana Milbank. The hearing raised the serious question of a pattern of allegedly unconstitutional actions by President Obama in either barring enforcement of federal law or directly violating those laws. However, the Washington Post only reported on the fact that impeachment was raised in the hearing in the discussion of the constitutional means left to Congress to address presidential abuse. Republicans object that the Post piece misses 99 percent of the hearing detailing the rise of an imperial presidency under Obama and four hours of discussion of the dangerous shift of power in the tripartite system. Impeachment or presidential abuse. It seems that two hearings occurred simultaneously. Both sides appear to be claiming the other is blinded by bias. The Milbank and Republican accounts appear a modern version of the parable of the elephant and the six blind men.
House Judiciary Committee To Hear Testimony On President Obama’s Authority To Suspend Or Change Federal LawsPublished 1, December 3, 2013 Academics , Congress , Constitutional Law , Courts , Politics , Society , Supreme Court , Testimony 57 Comments
This morning I will testifying in Congress before the House Judiciary Committee on “The President’s Constitutional Duty to Faithfully Execute the Laws.” The hearing will address areas where President Obama has ordered the delay or nonenforcement of federal laws. While I happen to agree with some of these policies, I have great reservations about this record and its implications for the separation of powers.
By Mike Appleton, Guest Blogger
“Despite suggestions by the President, various Senators, and numerous commentators that the Senate has a constitutional obligation to act on judicial nominations, the text of the Constitution contains no such obligation.“
-Adam J. White, “Toward The Framers’ Understanding of ‘Advice and Consent’: A Historical And Textual Inquiry,” 29 Harvard J. Law & Pub. Pol. 103, 147 (2005)
“… [T]he constitutional obligation to provide advice and consent in the judicial appointment process should be seen as a nondiscretionary duty constitutionally imposed upon the Senate and enforceable by the judiciary.”
-Lee Renzin, “Advice, Consent, and Senate Inaction-Is Judicial Resolution Possible?”, 73 N.Y.U. L. Rev. 1739, 1751 (1998)
The Constitution requires no more than a bare majority of the Senate to approve a judicial nominee. How do we know this? First, there are only five situations in which the Constitution mandates super-majority approval: conviction of an impeachable offense (Article I, Section 3); expulsion of a member of Congress (Article I, Section 5); overriding a presidential veto (Article I, Section 7); approval of a treaty (Article II, Section 2); and the convening of a constitutional convention (Article V). Second, under a familiar rule of statutory construction known as “expressio unius est exclusio alterius,” the failure to include a super-majority vote requirement in the Appointments Clause means that no such requirement exists.
Nevertheless, the Senate has been able to transform its “advice and consent” function under the Appointments Clause into a sixth super-majority approval standard through its power under Article I, Section 5 to establish “the Rules of its Proceedings.” And the consequences have been more strongly felt during the current administration than at any other time in our history, Continue reading ‘Judicial Appointments and Bad Faith’
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
The five alleged 9/11 defendants currently being held at Guantanamo Bay where they have been detained since 2006, are currently preparing their defenses for trials that are scheduled for September 2014. All five defendants have been subjected to what the United States government called enhanced interrogation techniques at CIA black sites even before they got to Gitmo. Continue reading ‘Kangaroo Commissions and Torture’
-Submitted by David Drumm (Nal), Guest Blogger
The “parsonage exemption” is found in 26 U.S. Code § 107 and states that a “minister of the gospel” does not have to include in his gross income, either the rental value of a home furnished to him or the rental allowance paid to him. Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin has held that the “parsonage exemption” is unconstitutional. Crabb wrote in the decision that the tax exemption “provides a benefit to religious persons and no one else, even though doing so is not necessary to alleviate a special burden on religious exercise.”
We have often discussed the lack of separation of temple and state in Israel as well as the control of religious figures on aspects of public life. A story this week vividly illustrates the problem. A rabbinical court has fined a woman hundreds of dollars for refusing to circumcise her baby son and thereby endangering her child. Many doctors are questioning the necessity and value of circumcision, which is generally left up to the parents. However, this is an issue with both religious and medical importance in Israel. The mother was fine $150 dollars every day that the boy was left uncircumcised.
Fitness Advocate Removed From Facebook After A Posting Critical of Plus-Sized Woman In Article Allegedly Labeled “Hate Speech”Published 1, November 29, 2013 Constitutional Law , Free Speech , Media , Society 45 Comments
With many of us rolling out of bed moaning from the food the consumed on Thanksgiving, I felt a wonderfully depressing fat story was appropriate to get us back into our guilt-ridden regimes. Maria Kang, fitness guru and mother of three, is not exactly the bedside nurse that you would want on such occasions. Kang has been banned from Facebook after she criticized an online article showing plus-size women in lingerie. While this is not a free speech issue involving the government, there is a question of whether Facebook should have taken it upon itself to punish someone for her view of obesity and what she views as an unhealthy lifestyle. More importantly, the controversy raises the issue of the expanding definition of “hate speech.”
We have previously discussed how Barack Obama has become the president that Richard Nixon always wanted to be. From his Administration’s comprehensive attack on privacy and civil liberties, investigation of journalists, to his claim of unilateral authority to kill citizens, Obama has created an Imperial Presidency that could haunt this nation for generations. He has succeeded with the silent acquiescence of many liberals and Democrats who have embraced personality over principle in continuing to support his Administration. Now, a new report documents how the National Security Agency under Obama has been gathering records of online sexual activity and evidence of visits to pornographic websites to be used as part of a proposed plan to harm the reputations of people consider radicals. The obvious comparison to Nixon is only dwarfed by the comparison to J. Edgar Hoover, but again the silence is deafening from the Democrats. In the meantime, the so-called “reforms” of the NSA as expected would preserve the massive data-gathering programs of the agency — as guaranteed by such “reformers” as Dianne Feinstein.
In what seems destined to be a blockbuster decision in the making, the Supreme Court has accepted a religious challenge to the Affordable Care Act. The decision could force a reexamination of the Court controversial 2010 ruling in Citizens United in considering whether companies have religious rights to match the speech rights embraced by the Court. The case involves objections from businesses and individuals like David Green, founder and CEO of Hobby Lobby, who insist that the Act’s required support for contraceptive services violates religious rights. Two cases were accepted: Sebelius v. Hobby Lobby Stores, Inc. (13-354); and Conestoga Wood Specialties Corp. v. Sebelius (13-356). I will be discussing the cases this morning on CNN.
The American Civil Liberties Union (ACLU) has filed a lawsuit that, if true, would stand as one of the most grotesque and vicious cases of police abuse in recent memory. Marlene Tapia says that she was arrested and forced to strip naked for a contraband examination. The officers at the Metropolitan Detention Center (Bernalillo County New Mexico) claimed that she had a plastic baggie in her vagina and, according to the lawsuit, forced her to bend over and as punishment sprayed mace inside of her vagina.
I am very happy to report that our blog has been inducted into the ABA Journal’s Hall of Fame for legal blogs around the world. We just received word this afternoon with the start of this year’s competition for the top News/Analysis blog. This is also our sixth year in being selected as one of the top 100 legal blogs in the world. Of course, this is the closest that an endomorphic law professor can get to any Hall of Fame. I am grateful to the ABA Journal staff not just for this distinction but for holding this competition each year to feature the wide variety of legal blogs. For all of us who were the last to be selected on sports teams growing up, this is our pudgy, wheezing victory lap. While people like Pete Rose may be a hundred times more athletic, we made it into the Hall of Fame (pending any last minute gambling scandals).
The selection for the Hall of Fame is latest distinction given this site which has strived to offer an alternative forum for those interested in passionate but civil discourse over the legal cases and issues of our day. Special thanks go to our talented and popular weekend team of guest bloggers: Mike Appleton, David Drumm, Mark Esposito, Gene Howington, Elaine Magliaro, Larry Rafferty, Darren Smith, Mike Spindell, and Charlton Stanley. I owe them a great debt for their insightful and gifted postings. The greatest thanks however goes to our readers and commenters who have placed this blog in the top ten most visited legal blogs in the world according to AVVO. We have strived to maintain a civility rule while discussing issues that may divide us. We do not want to be another echo chamber for one ideology or viewpoint. There are ample conservative and liberal sites that cater to that desire for reaffirmation. We value dialogue and different views. While we occasionally have some who stray into personal remarks, we have been remarkably successful in maintaining a high level of discourse. We even have some fun with the more bizarre legal and social stories.
We hope that all of our regulars will take the time to go and vote for the blog in the heavily competitive News/Analysis category. You only have to do a quick registration (used only to prevent vote stuffing) and then you can VOTE HERE.
There is a truly bizarre defamation lawsuit filed against the Tonight Show and Jay Leno by former American flight attendant Louann Giambattista who was the subject of rather crude jokes by Leno referencing allegations that she had snuck a pet rat on flights in her underwear. Giambattista denies the allegations and says that she was falsely portrayed as ”engaging in bestiality and sexual misconduct with a rat.”
There is an interesting nuisance case in Detroit where Alan Markovitz has erected an art piece in his backyard. It so happens to be lighted at night and fully visible when his ex-wife looks out of her windows next door. It is a large piece giving a middle finger salute.
Spain is on the verge of passing a draconian measure that threatens fundamental values of free speech. Faced with ongoing protests over economic conditions, the Spanish government is about to make insulting police officers and protesting without permission crimes punishable by fine greater than dealing drugs or prostitution. Not since Franco has the country turned so decidedly against civil liberties and free speech.
Not that long ago, police departments joined together to call upon the United States Supreme Court (with the support of the Obama Administration) to allow citizens to be tracked with GPS devices placed on their vehicles without a warrant or probable cause. The litigants argued that this was a minor intrusion into the rights of citizens and that there was no expectation of privacy in such movements. The Court wisely rejected the arguments in United States v. Jones. Now police in Boston are objecting to a plan to place such devices on their patrol cars as an unwarranted intrusion.
The Evil Twin Defense: Court Rules Army Officer Can Blame His Twin For Serial Assaults on Young GirlsPublished 1, November 18, 2013 Bizarre , Constitutional Law , Courts , Criminal law 20 Comments
We have previously discussed actual evil twin defenses in past cases (here and here and here and here). However, a case out of Colorado Springs now has a detailed opinion specifically allowing the use of the defense in a major case. District Judge David Shakes ruled Friday that an Army artillery officer, 1st Lt. Aaron Lucas, could argue that his twin brother may be responsible for a series of sexual assaults.
Tags: Department of Homeland Security, The Electronic Infomation Privacy Center;
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
The Electronic Privacy Information Center recently won the first round of a court action asking that the Department of Homeland Security be required to disclose its plans to pull the plug on regional or national mobile telephone and internet communication systems pursuant to its Standard Operating Procedure 303.
“In the classicly-rendered case, DHS has argued that shutting down entire communication networks might be necessary in order to prevent the detonation of radio-controlled bomb or explosive device.
However, siding with the Electronic Privacy Information Center (EPIC), which brought a suit demanding more transparency for the DHS program known as “Standard Operating Procedure 303″ (or SOP303), the federal judge at the US District Court for the District of Columbia ruled that because the release of the protocol could not reasonably be seen as harming law enforcement “investigative techniques or prosecutions” it’s cited reasons for keeping the details of the program secret did not hold up.” Common Dreams
The so-called SOP 303 could allow DHS to cut-off all internet and mobile phone communications at a regional level or a national level if it determined that there was a national security concern. We have already seen this government tactic used in Oakland in 2011 and that alleged over reach by the Bay Area Rapid Transit authorities may be the reason for EPIC’s lawsuit. Continue reading ‘Internet Kill Switch Plan is Killed…For Now.’
-Submitted by David Drumm (Nal), Guest Blogger
George Nathaniel III, a pastor of a church in Minneapolis and school bus driver in Burnsville, Minnesota, was terminated from his school bus driving job. Nathaniel said: “To fire a bus driver for praying for the safety of the children” is not right. It is wrong to fire someone for praying for the safety of the children, but Nathaniel is misrepresenting the facts to portray himself as a victim of the War on Christianity.
Submitted By: Mike Spindell, Guest Blogger
In recent years many studies have come out that have made the case that a high proportion of CEO’s of major companies are sociopaths. At the end of this blog I’ll provide a number of links that discuss this, some from major conservative business magazines. We do know that from 1% to 3% of humans are sociopaths sharing all of these 10 characteristics:
#1) Sociopaths are charming. #2) Sociopaths are more spontaneous and intense than other people. #3) Sociopaths are incapable of feeling shame, guilt or remorse. #4) Sociopaths invent outrageous lies about their experiences. #5) Sociopaths seek to dominate others and “win” at all costs. #6) Sociopaths tend to be highly intelligent #7) Sociopaths are incapable of love #8) Sociopaths speak poetically. #9) Sociopaths never apologize. #10) Sociopaths are delusional and literally believe that what they say becomes truth.” http://www.naturalnews.com/036112_sociopaths_cults_influence.html
Now the problem with the definition of Sociopathy is that there can be a good deal of subjectivity in making the diagnosis, absent a clinician interviewing the subject. After all many people are charming, spontaneous, invent lies, try to dominate others and speak “poetically” and that doesn’t make them sociopaths. The subjectivity comes in trying to determine whether a given person is incapable of feeling guilt, shame, remorse and is delusional. A trained clinician may be able to do this via an intensive interview, but the nature of this disorder is such that even a trained clinician can be fooled by a sociopath. Rather than argue back and forth about the negative effects of CEO sociopaths on this society as the root of so much dysfunction, my readings this week suggest another theory that would provide a simpler explanation of why it seems that so many in this country have so little compassion and empathy for the less fortunate among us. We need not deem them sociopaths, but people who are simply removed from the misery that they inflict. The apocryphal story of Marie Antoinette’s “let them eat cake” may well characterize those who control most of this country’s wealth. It may be why some are sincere philanthropists, yet show such disdain and lack a sense of responsibility for the suffering that they cause. Let’s explore this further. Continue reading ‘Selfish or Sociopath, Does It Make a Difference?’
The Fix Is In: Can President Obama Grant An Effective ACA Waiver To Millions Of Disgruntled Citizens?Published 1, November 15, 2013 Congress , Constitutional Law , Politics , Society 117 Comments
President Obama is taking a great deal of heat for the cancellations of millions of policies after he repeatedly told citizens that if you like your policy you could keep it. He recently apologized for what seems a classic bait and switch. However, Obama has now announced a fix that raises a more serious question in my mind. Most of us have become used to a relatively high level of dishonesty from our leaders in Congress as well as the White House. This blog has documented whoppers, even perjury, that results in little more than a shrug in today’s political system. However, the “fix” involves the President unilaterally changing that scope and timing of a law. This has been a recurring concern with this President and the rise of the “Imperial Presidency” that he has established within ever-expanding executive powers. I will be discussing this issue today on CNN.
There is an investigation in Fredericksburg, Virginia after the posting of a YouTube clip show police tasering, Lantz Day, 36, for what appears to be 42 consecutive seconds. On the video below, you can hear what sounds like the taser and Day screaming for them to stop. There is no reason that I can see why the tasering continued after Day was down and surrounding by officers, which leads to the concern that officers were punishing him for attempting to run. He was unarmed and under suspicion of property damage.
There is growing tension in Israel between Orthodox Jews and the country’s gay community. As gays and lesbians have fought for the recognition of same-sex unions, Orthodox Jews have become equally vocal in fighting against such recognition. Into this volatile environment walked an Orthodox mayor who showed little evidence of intellect and even less judgment. Moshe Abutbul, the Haredi mayor of Beit Shemesh, near Jerusalem, stated categorically in an interview that there are no gay people in his city and that such people should be left to health officials and the police. The comments by Abutbul, a member of the ultra-Orthodox Shas party, resulted in the filing of a criminal charge for incitement. While Abutbul appears a perfect moron, I do not believe that people should face criminal charges for expressing their views — even the absurd thoughts of a hateful religious bigot.
Continue reading ‘Israeli Mayor Facing Criminal Complaint For Anti-Homosexual Comments’
I know how you expect that sentence to end. We have covered endless stories of Christian schools abusing teachers or students due to their perceived lack of faith or morals. However on this occasion, the line ends something like this: “Student Class President Comes Out As Atheist And Christian College By Supporing Him.” That’s right, when Eric Fromm, 21, announced in an article that he is an atheist, he said the school and fellow students at Northwest Christian University went out of their way to assure him that he was valued and appreciated as part of their community. It is a good thing. A happy story. Such places do exist where religious people are both tolerant and pluralistic.
Continue reading ‘Student Class President Comes Out As Atheist And His Christian College Responds By . . .’
A Not-So “Good Catholic Fellow” Wins Appeal: Florida Court Orders New Sentencing After Judge Lectures On Catholic ValuesPublished 1, November 11, 2013 Bizarre , Constitutional Law , Courts , Criminal law , Lawyering , Politics , Religion , Society 26 Comments
A Florida appellate court has ordered a new sentencing for Percy Edgardo Torres, 44, of Jacksonville in light of a tongue-lashing that he received from Judge Russell Healey who used his sentencing to lecture him on his violation of Catholic principles.
We have previously discussed the inspiring story of Malala Yousafzai, who has captivated the world in her struggle after being shot in the head by Muslim extremists for her advocacy of female education. It is a story that appears destined to be read around the world but not in Pakistan where various organizations have banned it from private schools. One educator objected that she referred to the Prophet Muhammad without using the abbreviation PBUH — “peace be upon him.” For that, she is viewed as a dangerous heretic not a heroine.
Regarding the Separation of Church and the State’s Money: Charter Schools with Religious Affiliations Being Publicly FundedPublished 1, November 9, 2013 Constitutional Law , Religion , Society , Uncategorized 58 Comments
Tags: Charter Schools, religion
As a former public school educator, I have been following what has been going on with school reform in this country. I have written posts about some of the groups and individuals involved in the current reform movement (here), the push to privatize public schools (here), school vouchers (here and here), and charter schools (here and here). Despite all the research that I’ve done on the subject, I hadn’t been aware until recently that there are many publicly funded charter schools across this country that have religious affiliations.
In December 2011, Tiffany Gee Lewis (Deseret News) wrote that there had been a “veritable explosion of charter schools over the past two decades.” She noted that a number of the schools that were riding this charter trend were “founded or authorized” by religious and cultural organizations. As she said, the subject of religion in public schools “has always been a hot-button topic.” She added that “the rise of charter schools that tie themselves to a certain ethnic or religious group introduces a new shade of complication to public schooling.”
According to Jessica Meyers of The Dallas Morning News, “Church-charter partnerships are springing up across the country as private institutions lose funding and nontraditional education models grow in popularity. Their emergence prompts questions about the role religious groups should play in the development of publicly funded schools.” She added, “Critics fear the fuzzy division means taxpayers are footing the bill for religious instruction.”
Submitted By: Mike Spindell, Guest Blogger
I’m going to use what has become a cliché to open up this piece. “The definition of insanity is doing the same thing that has failed over and over again.” Often clichés are expressions of reality that nevertheless express problems faced by generation generations and generations of human beings. In my opinion “The War on Drugs” is not only an abysmal failure, but has gone a long way towards destroying the social fabric of this country and corrupting the efforts of law enforcement, by manufacturing a “problem” that they are pressured to solve. The idea for writing this came to mind this week at my local drug store. My wife had sent me for a decongestant that contains pseudo-ephedrine to treat a persistent cold. These medications which were formerly as matter of course located in the Cold and flu section are by law now kept behind the prescription counter. To make my purchase I had to produce a driver’s license, whose number was duly entered into a computer and sign an affirmation form digitally. Now since I was a loyal viewer of “Breaking Bad” I understood why this was seen to be necessary by the government. Pseudo-Ephedrine is used in one common formula to “cook” Chrystal Methedrine, or “Speed”. The idea that I, a 69 year old greybeard, should be recorded as a potential cooker of “meth”, is so ludicrous that it caused me to think about the whole process of drug interdiction that is the result of the War on Drugs.
The reach of the War on Drugs goes far beyond the control of formerly non-controlled substances and has affected and limited the way Doctors prescribe for their patients. This prescription oversight ever expands the categories of controlled substances and puts every physician under undue government surveillance. To illustrate the silliness of this, from my own experience, let me relate that in 2010 I underwent 3 major, life-threatening operations within a 4 month period. After each operation which involved cutting my chest open (the middle one was a heart transplant) in the Surgical Intensive Care Unit I was being given unlimited dosages of morphine to deal with my pain. In each instance after an operation, after two days, I would refuse the morphine because it was affecting my thinking and the pain without it was tolerable. In each instance after practically having to forcefully deny the proffered morphine in the morning, my request for Xanax that evening to help me sleep was denied, even though my Surgeon had prescribed it. This required a late hour call to the Doctor on call to prescribe it. The nurse was only following procedure, but the scrupulousness of the procedure is the result of the War on Drugs. Physicians now treating people for various pain symptoms are now under very close scrutiny regarding the medications they prescribe. To me this is nonsensical, given that addicts always find ways to get their drugs no matter what strictures are put into place. What follows is my examination of the premises behind the War on Drugs, its affect on all of us and my solution to this “problem”. Continue reading ‘Our Insane War on Drugs’
New Mexico Police Allegedly Stop Man For Minor Traffic Violation And Use Repeated Digital and Surgical Anal Examinations To Find Drugs . . . And Find NothingPublished 1, November 6, 2013 Bizarre , Constitutional Law , Criminal law , Society , Supreme Court 74 Comments
There is a highly disturbing case out of New Mexico where David Eckert has filed a federal case against the Hidalgo County Sheriff’s Office, police officers with the City of Deming and medical professionals at the Gila Regional Medical Center. Eckert was stopped on a minor traffic violation and accused by an officer of holding his buttocks. What followed was a nightmare where officers and doctors subjected Eckert to outrageous abuse as they searched for drugs or contraband in his body.
This may be the most ironic story of the year. We often discuss two outstanding characteristics of modern China: expanding pollution and shrinking civil liberties. Now, the two have collided where Chinese officials are struggling with the loss of surveillance from its thousands of surveillance cameras spying on citizens. Pollution is now making it difficult to maintain such surveillance due to the permanent shroud of particulates and pollutants. Thus, while Chinese lives are being shortened, their government may have given them a slight respite from monitoring. Of course, it is hard to use free speech when you are gasping for breath. A recent report details how pollution in one Chinese city is being attributed as the cause of lung cancer in an eight-year-old boy.
On Monday, Secretary of State John Kerry met with Saudi King Abdullah to deal with increasing tensions with the Kingdom. What I thought was the most interesting moment came when a female reporter asked Kerry about the continued bar on women driving in the Kingdom. We just discussed how a Kuwaiti woman was arrested for driving her father to a hospital during a diabetic seizure. Kerry’s response was remarkably muted on an issue of human rights.
We recently discussed the crackdown on sorcerers in Muslim countries. Mystics are finding themselves targeted in the United States as well in recent weeks. In New York and Florida, clairvoyants have been prosecuted for fraud and some cities and states are moving to ban soothsaying.
We have previously discussed how, after Sept. 11th, officials have simply begun to classify acts to be terrorism to use ramped up surveillance and sentencing laws. It was inevitable that with Western countries giving official unprecedented anti-terror powers, they would start to move as many crimes as possible under the expanding category. That is evident after it was disclosed this week that British authorities framed the case against David Miranda, the partner of journalist Glenn Greenwald, as a case of terrorism “terrorism” for carrying documents from Edward Snowden.
Sixth Circuit Ruling Prompts Tennessee DCS to Stop Removing Endangered Children from Homes Without a Formal Hearing.Published 1, November 3, 2013 Bizarre , Constitutional Law , Courts , Justice , Lawyering , Society , Uncategorized 24 Comments
Tags: Children's Services, Fourth Amendment, Ohio, Sixth Circuit, Tennessee
Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger
On an August afternoon in 2008, Hickman County, TN resident Robert Andrews was working on a trailer in his yard when two deputy sheriffs pulled up in front of his house, along with three caseworkers from the Tennessee Department of Children’s Services. They approached Mr. Andrews and asked permission to go inside his home. They did not have any kind of warrant or court order, so Andrews told them they did not have permission to enter his home.
Despite his refusal, all three caseworkers and one of the deputies entered the home and searched the place. They also took each of his four children aside for interviews out of his earshot. Then the officials left. Neither Andrews nor his wife, Patti, was ever accused of a crime in connection with the visit. They were not afforded the opportunity to contact a lawyer or have a lawyer present for the interrogations of the children. At no time before or since that incident was any member of the Andrews family ever accused of any crime in connection with that visit.
In March 2002, a police officer in Cuyahoga County, Ohio kicked in Nancy Kovacic’s door, allowing caseworkers to enter her home and seize her two children. The children were placed in foster care, where they stayed 10 months. There were no criminal charges of any kind against Nancy Kovacic. Her attorney, Jay Crook, told reporters, “Caseworkers can’t just make a judgment call and say, ‘Well, I don’t like this, and with the power of the state, I’m taking these children,’ “
The children are now grown and were part of the lawsuit. They report being abused while in foster care. They have been in therapy for several years due to the trauma of being removed from their mother. Mr. Crook added, “Without that neutral arbiter, that magistrate, that judge; even over the phone, you have lost all your due process safeguards.”
Those events at the Andrews home led to a lawsuit against the caseworkers. There was also a similar lawsuit from another family in Ohio. Both cases ended up in front of the Sixth Circuit. The U.S. Court of Appeals for the Sixth Circuit used the cases to specify that caseworkers, like police, are agents of the State, and therefore controlled by the Fourth Amendment to the Constitution. This is the first time a Federal appeals court has specified that caseworkers from children’s services departments must abide by the Constitution.
More over the flip, including the full text of both Sixth Circuit decisions.
By Mark Esposito, Guest Blogger
Well, the guy who ushered in the recent government shutdown with a 21 hour filibuster sure gets it honest. Texas senator Ted Cruz, that darling of the Tea Baggers, is no longer the Harvard educated political mystery man who chides the administration at every turn and who rabble rouses what is loosely referred to as the Republican base. Seems he learned the techniques of fact-free demagoguery at daddy’s knee and not amid the ivy in Cambridge (or at Princeton as Elaine M reminds me). That’s right, the Right (as in far) Reverend Rafael Cruz has embarked on his own freewheeling magical mystery tour armed only with the credential that he sired that darling of the Rebel flag wavers. Cashing in on sonny boy’s status among some on the right, Rafael Cruz is now touring the country demanding Obama “go back to Kenya” and turning the Treaty of Tripoli* on its head claiming divine sanction in decreeing that the land of the free and home of the brave is also the exclusive dominion of the Christian. And if that isn’t a big enough stain on his vestments, the representative of the Savior commands all Tea Baggers to shinny on up to the latest polling place to vote Republican.
IRS are you listening?
Submitted By: Mike Spindell, Guest Blogger
Through the years this site has produced a multitude of blogs that details the excesses that occur in the intelligence community of the United States. Whether it is about spying on us, or upon other governments, the disclosures of incidents where this group of agencies has overstepped the bounds of our Constitution have become too numerous to detail. Beyond that through the years there have been many instances where elements of our Intelligence Complex have interceded in other countries, under the rubric of protection of United States interests. There are many different Agencies within our government that deal with intelligence and in the post 9/11 era the prevention of threats to our country and its citizens has become a giant self serving industry. The Agencies that we know about have supposedly fallen under the egis of the Department of Homeland Security, which should mean from an organizational chart perspective, they are under the control of the President of the United States. To get the political issue out of the way I believe that President Obama has aided and abetted policies that go against the Constitution of the United States. However, not to justify his policies, which are clearly wrong, my opinion is that it has been a very long time since any American President had control of our Intelligence Complex. My belief is not informed by any information public or private, but from what I’ve gleaned from history and from what I know about the operations of bureaucracy. This Guest Blog is not a piece of investigative journalism, but the opinion of someone who understands both the workings of human nature and the workings of bureaucracy. I hope that this piece can engender discussions about the Intelligence Complex and elicit opinions as to what service it provides in protecting this country. The issue is not one of politics per se, because the guilt of enabling our Intelligence Complex falls equally on both political parties and the powerful elements within those parties who would support any action taken by the Intelligence Complex including abrogating our Constitution. The FBI is where I’d like to begin my perspective and that might surprise some, who consider the Federal Bureau of Investigation, basically a law enforcement agency. The history of the FBI is such that it has expanded its role with each upheaval, or new popular shibboleth that garners national attention. Continue reading ‘The Problem with the “Intelligence Community”’
Below is today’s column in USA Today in which I discuss the increasing revenue acquired through car searches and seizures. Some of these stops are thinly disguised drug checkpoints where a sobriety stop quickly turns to questions about drugs and drug money. Police are using pretextual stops and DUI stops as a way to circumvent the Supreme Court decision in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), where the Court drew the line at drug checkpoints and ruled that such stops were unreasonable even though it ruled a few years earlier that DUI checkpoints were reasonable. The DUI ruling was denounced as an all-to-familiar ruling from the Court which abandons principle for convenient compromises. Many warned the Court that it was placing the country on a slippery slope where road blocks would be thrown up around the country in the name of fighting drunk driving while searching for other things. The Court ignored the warnings and soon roadblocks appeared across the country. There is admittedly limited data on such practices but there is sufficient antedoctal evidence to raise a concern of the emerging pattern.
This week we saw how NSA Director General Keith Alexander called on the government to find a way to stop the free press from being . . . well . . . a free press and publish Snowden documents. This follows statements from Sen. Dianne Feinstein and other denouncing both Snowden and the media despite admissions (as a result of those disclosures) that the government has made a variety of violations of U.S. and international laws. Now, even as his country decries the disclosure of over monitoring of foreign leaders and citizens, British Prime Minister David Cameron has said that he intends to stop English papers like the Guardian of informing of the public of the content of these Snowden documents.
For civil libertarians, there may be no more unsettling statements than “Dianne Feinstein is here to protect civil liberties.” Of course, it is not quite that bad. The Senate Intelligence Chairwoman Dianne Feinstein (D-Calif.) has been the greatest champion for the creation of the massive surveillance of U.S. citizens and effectively blocked any demand for a perjury prosecution of National Intelligence Director James Clapper for lying about the programs. She has called for the prosecution of Edward Snowden for revealing years of deceitful or false statements made to the public. She has criticized the media for disclosing information on the programs despite admissions that of unlawful conduct by the government after the disclosures. No, none of that bothers Dianne Feinstein. However, she is outraged by the monitoring of foreign leaders and promised a “total review” surveillance program.
NSA documents released by Edward Snowden have revealed years of false statements by the government, the capture of calls and emails from every citizen, the monitoring of tens of millions of people globally, the surveillance of world leaders including close allies, and the perjury by National Intelligence Director James Clapper. It has caused the Obama Administration — after denials of violations — to admit violations of U.S. laws and abuse of surveillance powers. Now General Keith Alexander, NSA director, says enough. We simply cannot stand any more disclosures of wrongdoing so Alexander wants to see actions taken against the media to prevent further disclosures.
Federal Agents Raid Reporter’s Home In Search of Illegal Weapons and Allegedly Question Her About Prior Negative Stories And Seize Documents and NotesPublished 1, October 29, 2013 Constitutional Law , Criminal law , Media , Politics , Society , Uncategorized 72 Comments
There is a troubling story outside of Washington where journalist Audrey Hudson’s home was searched by federal agents who took documents related to stories and reportedly asked her about stories that she had written that were critical of the Federal Air Marshal program. The agents had a warrant to search for unregistered firearms and a “potato gun.” That apparently required a pre-dawn raid by armed agents of the U.S. Coast Guard, Maryland State Police and the Department of Homeland Security. Presumably, the family was believed to have a whole bushel of potatoes that were considered an arsenal.
We have seen in the last year a shocking return of the Chinese government to the practice of public confessions that were regular displays during the Cultural Revolution. Environmentalists, dissidents, and reporters have been frog-marched in front of television audiences to confess their evil ways and praise the authoritarian government for teaching them the correct path of obedience. The latest is Chen Yongzhou, 27, who committed the sin of writing about fraud committed by Zoomlion, a Chinese heavy machinery manufacturer. In a pathetic nine-minute confession, Yongshou apologizes to Zoomlion for his lies and deceit in covering the alleged fraud. The public demonstration led many to question the official account of the bribing of a reporter.
Europeans are upset after learning that, in addition to capturing the email and phone records of Americans, the NSA has been doing the same to them in a global assault on privacy. This includes leaders of allied nations. The United States is now viewed as an international rogue nation with no respect for the law or privacy or even loyalty. Now into this explosive environment has jumped Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee. Rogers responded directly to the French and said that this is all a “good thing” and the French should really be “applauding and popping champagne corks” for keeping them all under surveillance and destroying any notion of privacy.
Mike Appleton, Guest Blogger
“Blessed be you, mighty matter, irresistible march of evolution, reality ever newborn; you who, by constantly shattering our mental categories, force us to go ever further in the pursuit of the truth.”
-Pierre Teilhard de Chardin, “Hymn of the Universe,” (Harper and Row, 1961).
It took the jury fewer than fifteen minutes to convict substitute teacher John Scopes of the crime of teaching evolution to Tennessee public school students in 1925. It was the last victory of Christian fundamentalists in their war against the disciples of Darwin, and a hollow one at that. Although the Tennessee Supreme Court upheld the constitutionality of the law, it reversed the verdict because the trial judge had imposed a $100.00 fine on Mr. Scopes, contrary to a provision in the Tennessee constitution requiring a jury to assess fines exceeding $50.00. In sending the case back, however, the court made the unusual suggestion that further prosecution not be pursued. Scopes v. State, 154 Tenn. 105, 289 SW 363 (1927). It was not.
Fundamentalists were emboldened by the Scopes verdict. In 1928 Mississippi and Arkansas adopted similar laws and in the ensuing years, the subject of evolution was effectively dropped as a topic in many high school science courses, a trend that was not reversed until the Sputnik scare in 1958 led to a revamping of science curricula. It was not until 1968 that the Supreme Court decreed that laws forbidding the teaching of evolution in public schools violated the Establishment Clause. Epperson v. Arkansas, 397 U.S. 97 (1968).
With direct bans no longer available, fundamentalists pursued a new strategy, the adoption of ”balanced treatment” legislation requiring that teachers provide time for the exploration of the Genesis story of creation as an alternative explanation of biological origins. In 1983 a federal district judge threw out Arkansas’ balanced treatment statute, concluding that creationism is “not science because it depends upon a supernatural intervention which is not guided by natural law. It is not explanatory by reference to natural law, is not testable and is not falsifiable.” McLean v. Arkansas Board of Education, 529 F. Supp. 1255, 1267 (E.D. Ark. 1982). Several years later, Louisiana’s balanced treatment statute was also found to violate the Establishment Clause under the Lemon test. Edwards v. Aguillard, 482 U.S. 578 (1987).
Efforts to recast creationism as science under the name “intelligent design” were rebuffed in the now famous case of Fitzmiller v. Dover Area School District, 400 F. Supp.2d 707 (E.D. Pa. 2005), in which the court succinctly stated that “[intelligent design] cannot uncouple itself from its creationist, and thus religious, antecedents.” 400 F. Supp.2d at 765.
But the war is far from over. Creationists are once again in court, and this time they are urging that the teaching of evolution in the public schools is itself a violation of, inter alia, the Establishment and Free Exercise clauses because evolution theory incorporates the “core tenets of Religious (‘secular’) Humanism.” Continue reading ‘Redefining Religion’
By Mark Esposito, Guest Blogger
American poet Stephen Dunn (bio here) reminds us that “all good poems are a victory over something.” For the folks in Rittman , Ohio (pop. 6,491) those words have a decidedly athletic context. The Rittman Indians High School football team was suffering through another miserable season at 1-7 and team morale was plummeting. Like most bad institutions there’s plenty of blame to go around but the school administration thought it had its scapegoat. Junior Defensive End Nick Andre had been tasked with composing a poem about something that made him angry. His English teacher told him anything he wrote about was fine as long as it was authentic and sincere. Not content with such weighty issues as drone strikes or government shutdowns, Nick decided to write about what he knew — the abysmal football team and allegations of nepotism and favoritism that were weighing down the squad.
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
A recent decision by the Justice Department has opened the doors to a possible test of whether the government’s widespread use of wireless wiretaps is constitutional.
“The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.” New York Times Continue reading ‘Criminal Defendants and Wireless Wiretaps: One Small Victory?’
Submitted By: Mike Spindell, Guest Blogger
I’d only planned to write one guest blog this weekend, but this morning on Huffington Post I saw a video from a TED lecture. http://en.wikipedia.org/wiki/TED_%28conference%29 The lecture was from Psychologist Elizabeth Loftus http://en.wikipedia.org/wiki/Elizabeth_Loftus who has been studying false memories since the 1970’s. She links what she discovered with one of the failings of our Criminal Justice System, with the false memories reported in court. This is an 18 minute lecture but it is well worth your time and bears directly on the topics we discuss here on the Law Blog. I must note that in it she is critical of certain psychotherapy techniques and I am a psychotherapist. Despite my training and profession I believe her critiques are on point and illustrate one of the problems inherent in some psychotherapies. For any readers that are interested in our legal system and who care about its problems, viewing this will represent time well spent. My technical skills are such that I don’t know how to properly make the video appear in WordPress but if you click on the following link you will be able to see it: Mystery of Memory
Submitted by: Mike Spindell, Guest Blogger
Tags: Cocke County, Ethics, Lu Ann Ballew, Messiah, Tennessee
Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger
Last August, this blog had the story of Cocke County, Tennessee child support Magistrate Judge Lu Ann Ballew who arbitrarily ordered parents to change the first name of their seven month old child. Jaleesa Martin and Jawaan McCullough had decided on their child’s first name, but were not able to agree on whether his surname should be that of his mother or his father. It was Judge Ballew who ordered the parents of seven month old Messiah McCullough Martin they had to change the child’s first name and change his birth certificate. Judge Ballew opined, “The word Messiah is a title, and it’s a title that has only been earned by one person, and that one person is Jesus Christ.”
In a rambling interview with local television, Judge Ballew tried to explain her reasoning. The reporter asked her what if the child had been named Jesus, a popular name in the Spanish speaking community. The judge stammered, finally declaring that to be irrelevant. The reporter did not press the issue and ask about the use of Mohammed/Muhammed by many Islamic families. Her answer to that would have been…..interesting. Here is the interview of Magistrate Judge Lu Ann Ballew with a reporter from a local TV station. This is almost painful to watch.