Archive for the ‘Constitutional Law’ Category

210px-flag_of_washington_dcsvg220px-CriminologygunglockUnited States District Court Judge Frederick Scullin Jr. has finally handed down a ruling in Palmer v. District of Columbia overturned the city’s total ban on residents on carrying firearms outside their home. The litigants repeatedly went to court to try to force Scullin to rule during the five year wait for a decision. They probably now feel it was worth the wait. The court held the D.C. law was unconstitutional under the Second Amendment. The D.C. Attorney General’s Office and city council has continued to resist the rulings in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) and have spent copious amounts of money and time defending this law. The city could have drafted more tailored laws but seemed intent to re-fight aspects of its historic loss in Heller. The Office of Attorney General continues to dig a deeper hole both legally and financially for the citizens in such litigation.

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WEJohnson33251412949c6bd4ffff8144ffffe907I just saw this story about how Petersburg police and prosecutors have been under fire after an internal memo surfaced from 1st Sgt. Carl Moore, telling officers not to speak with defense attorneys and suggesting that they could lose their jobs if they help strength defense cases even by telling the truth to counsel. Petersburg City Manager William Johnson (left) is making no statement at this time: he was recently arrested for allegations of assault and domestic battery against his wife. Petersburg Commonwealth’s Attorney Cassandra Conover (right) was also criticized for thanking Moore despite the memo’s conflict with ethical rules governing prosecutors. However, I have not been able to find anything more recent on this story about the instructions or the ethical review.

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_51889481__47552719_daughterThere is an interesting (and tragic) case out of France where Andre Bamberski, 76, was convicted for organizing the kidnapping five years ago of retired doctor Dieter Krombach. Krombach was accused at the time of raping and murdering Kalinka Bamberski, 15: the daughter of Bamberski and the step daughter of Krombach. When a German court refused to extradite Krombach for the 1982 murder, Bamberski had him kidnapped and dumped (tied up) in front of a French courthouse in 2009. Bamberski was found guilty and was looking at ten years but was given a one-year suspended sentence.
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I have received a fair number of emails over the debate last week featuring my views on executive power on the Senate floor. The debate concerned the growing fight over immigration and I have been asked by journalists if I believe that the President is also violating the Separation of Powers with the suggestion of unilateral measures in the area. I am indeed troubled by the suggestion of a new round of unilateral actions by the President. However, the details are still unclear.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor

Since the Senate Select Committee on Intelligence voted in April of this year to declassify its long-awaited Torture Report, the intelligence agencies have been working behind the scenes to convince the Executive Branch to further sanitize it or keep it entirely secret.  Needless to say, the declassification process used to prepare the report for public consumption has been dragging on.  With the CIA and other defense agencies working overtime to keep a lid on the report, the truth may never reach the public.

What can Congress do to make sure that its report gets declassified and distributed to the public if the President agrees with the intelligence agencies and does not order the release? (more…)

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Screen Shot 2014-07-25 at 9.17.22 AMThere is an interesting twist this morning on the controversy over the Halbig decision that we have previously discussed. As I have stated in testimony before Congress and columns, I do not view the law as ambiguous and agree with the conclusion in Halbig as a matter of statutory interpretation, even though I think that the change ordered by the Obama Administration makes sense. Nevertheless, the White House and various supporters have insisted that the key language in the law linking tax credits to exchanges “established by a State” was a typo and nothing more. One of those voices has been Jonathan Gruber, a Massachusetts Institute of Technology economist who played a major role in the drafting of the law and was paid almost half of a million dollars to consult with the Administration on the law. He told MSNBC recently that “It is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states.” However, a libertarian group just uncovered a video showing Gruber saying quite clearly after the passage of the law that this provision was a quid pro quo device: state exchanges for tax credits. Conservative sites have lit up over the video below showing Gruber essentially describing the very tradeoff identified in Halbig.

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23ARIZONA-now-master180We previously discussed the botched execution in Oklahoma and the questions that it raised about our methods of execution. Now we have another horrific execution story to report. In Arizona, it took almost two hours for the prison to execute Joseph R. Wood III. The execution took so long that his counsel had time to file emergency papers with the federal court saying “He is still alive.”
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250px-US-CourtOfAppeals-6thCircuit-SealBy any measure, former Wayne County Circuit Judge Wade McCree was a disgrace to the bench. The worse of his violations was his affair with the wife of a man in a child-support case before his court. However, while calling McCree’s conduct “often reprehensible,” a three-judge panel ruled that his affair with a litigant before him was still covered by judicial immunity when the former husband Robert King sued for damages in a civil rights case. The United States for the Sixth Circuit barred such recovery as a matter of judicial immunity in what will likely be a highly controversial decision.

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230px-CPR_training-04190px-Falk,_Benjamin_J._(1853-1925)_-_Eugen_Sandow_(1867-1925)Below is my column today in the Chicago Tribune on the rivaling rulings in the D.C. Circuit and the Fourth Circuit over a critical provision under the Patient Protection and Affordable Care Act (ACA). As an academic interesting in statutory interpretation and legisprudence, the opinions are fascinating and capture two different but well-argued views of the role of both courts and agencies in dealing with legislative language.

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Patch_of_the_San_Diego_Police_DepartmentThirty women who work at two strip clubs, Cheetahs and Expose, are suing the city of San Diego and police Chief Shelley Zimmerman for what they allege were “license inspections” that were really photo ops for officers who snapped pictures of dancers in dressing rooms during a raid on July 15, 2013. (No, those are not supposed to look like two stripper poles on the police patch).

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US-CourtOfAppeals-4thCircuit-SealPresident_Barack_ObamaSoon after the D.C. Circuit delivered a major loss to the Administration in rejecting its statutory interpretation under the ACA in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit has delivered an equally important victory on the very same issue in King v. Burwell. This tale of two circuits only increases the likelihood of a Supreme Court review and perhaps the case for expedited appeals.

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US-CourtOfAppeals-DCCircuit-SealPresident_Barack_ObamaAs I have written about in columns and testimony, the most significant challenge to Obamacare was never Hobby Lobby but Halbig vs. Burwell that has been pending in the D.C. Circuit. I described Halbig in my testimony as a live torpedo in the water for Obamacare. Well, that torpedo just hit. The D.C. Circuit has found that the Obama Administration effectively rewrote the law on a critical provision dealing with tax credits and state exchanges. It is another major blow against the Administration and more importantly another judicial finding that President Obama exceeded his authority in his effort to “go it alone” in ordering such changes to federal laws.

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JeffreyAndersonMugShot-279x300There is a disturbing child pornography case out of Nebraska that also raises some challenging legal questions. Jeffrey Anderson, who entered a conditional guilty plea for one count of distributing child pornography, after digitally editing a photo of a naked adult woman having sex and replaced the face with that of an 11-year-old girl. He then sent the girl the photo with the caption “This is what we will do.” The Eighth Circuit upheld his 10-year sentence in rejected the conditional challenge to the charge.

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Submitted by Elaine Magliaro, Weekend Contributor

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Submitted by Darren Smith, Weekend Contributor

City of Moses Lake LogoA controversy developed in Moses Lake, Washington over a Fourth Congressional Candidate’s and his supporters’ placement of campaign signs on city owned property and rights of way in the city.

House hopeful Gavin Seim declined to agree to a required use permit in placement of his campaign signs calling the permitting and removal of his signs a violation of his free speech and his right to participate in government.

Moses Lake City Manager Joe Gavinski claims the policy somehow protects the public. The city’s government permits six campaign free speech zones within its jurisdiction.

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