Category: Constitutional Law

Constitutional Law, Courts, Religion, Supreme Court

Religious Pluralism and the Niggling Test

By Mike Appleton, Weekend Contributor

“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

-Epperson v. Arkansas, 393 U.S. 97, 104 (1968)

“This commission chooses to stand by the tradition of opening its meetings in a manner acknowledging the beliefs of a large segment of its constituents.”

-Brevard County (Florida) Commission Chair Mary Bolin Lewis (August 15, 2014)

On August 19th the County Commission in Brevard County, Florida voted unanimously to reject a request by the Central Florida Freethought Community, an organization of atheists, agnostics, humanists and free-thinkers, to be added to a rotating list of groups invited to give the opening invocation at commission meetings. Instead, the commission approved a letter drafted by the county attorney offering the group three minutes to speak during the public comment portion of its meetings. According to the letter, the rejection was appropriate because, “The prayer is delivered during the ceremonial portion of the county’s meeting, and typically invokes guidance for the County Commission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist.”

The Brevard County decision comes on the heels of the Supreme Court’s opinion in Town of Greece v. Galloway, 572 U.S. ______ , 134 S.Ct. 1811 (2014), a case that more than anything else illustrates that the current state of Establishment Clause jurisprudence is, to put it bluntly, a mess. Continue reading “Religious Pluralism and the Niggling Test” →

Academia, Bizarre, Constitutional Law, Criminal law, Free Speech, Society

“The Hysteria is Far From Over”: Maryland Teacher Writes Futuristic Novel About School Shooting . . School Board Sends Him For Evaluation While Police Raid His Home and Distribute His Picture

mclawpatrick-mclaw-investigation-book-coverThere is a bizarre case out of Maryland where school officials sent teacher and novelist Patrick McLaw, 23, to an emergency medical evaluation for publishing, under a pseudonym, a novel about a school shooting. That’s it. A language-arts eight grade teacher at Lane Middle School writes a book about a school shooting and he is put on leave by the Dorchester County Board of Education, investigated by the Dorchester County Sheriff’s Office, and sent away for evaluation. “The Insurrectionist” happens to be set 900 years in the future but the board couldn’t just wait for the shooting to occur and had to act. What is striking is that all of these steps have been taken and McLaw has been effectively treated as a danger to children but no one has said a thing beyond the novel that is the basis for the actions. Was there something else that raise the danger of a violent act by McLaw? Officials have not been shy about distributing McLaw’s picture, assuring parents that they will protect their children (presumably from McLaw), and generally portraying him as a possible threat to children. Yet, when it comes to the basis for these actions, no one is saying a thing.

Continue reading ““The Hysteria is Far From Over”: Maryland Teacher Writes Futuristic Novel About School Shooting . . School Board Sends Him For Evaluation While Police Raid His Home and Distribute His Picture” →

Bizarre, Constitutional Law, Criminal law

Massachusetts Lawyer Charged With Impersonating . . . A Transformer?

decepticoncar-300x225It appears that a Massachusetts man has been arrested for impersonating a transformer. Barricade (an evil Decepticon) to be exact. The driver had his Maserati “dipped” to resemble the character and was pulled over in Braintree, Massachusetts. His car has the words “Decepticons punish and enslave” painted along the side. It is not clear if the officer was a Decepticon or just a clueless deputy. He faces fines of $1000 or more, probation or, in the most extreme cases, up to five years in jail for impersonating an officer.

Continue reading “Massachusetts Lawyer Charged With Impersonating . . . A Transformer?” →

Bizarre, Constitutional Law, Criminal law, International, Media, Politics, Religion, Society, Uncategorized

Morality Spill On Aisle 6: Saudi Religious Police Beat Husband After He And His Wife Use a Women-Only Checkout Line At Supermarket

Screen Shot 2014-09-02 at 7.20.12 AMIn Riyadh, the Saudi morality police are again in the news. You may recall that when we last left the medieval mod squad they had secured a sentence to flog a woman who insulted them. Now, the religious police was caught on video beating up a British resident after they paid a bill at a women-only cask desk. The religious police was irate at the violation of the strict Sharia-based separation of the sexists and apparently took what they thought was the morality correct approach in beating the man in front of his wife who was wearing a black abaya cloak.

Continue reading “Morality Spill On Aisle 6: Saudi Religious Police Beat Husband After He And His Wife Use a Women-Only Checkout Line At Supermarket” →

Constitutional Law, Criminal law, Politics, Religion, Society

Sixth Circuit Overturns 16 Hate Crime Convictions In Amish Case

Mullet-Samuel_storyThere is an interesting case out of the United States Court of Appeals for the Sixth Circuit this week on the limits of hate speech prosecutions. The court overturned the hate-crime convictions of 16 men and women in a bizarre series of attacks where Amish victims had their beards cut off. It was personal hatred not religious hatred that prompted this Amish on Amish crime in the view of the court. I had previously criticized the prosecution of the defendants under the hate crime law. Amish bishop Samuel Mullet Sr. (left) was convicted in September of organizing a series of raids in 2011 against religious enemies and disobedient family members. This was an intra-Amish dispute in which the men’s beards were forcibly sheared and women’s hair was cut. He was given 15 years in prison for federal hate crimes in an extreme interoperation of the law by the Obama Administration, which claimed jurisdiction in what appeared a state offense. They did so by building the case around the “Wahl battery-operated hair clippers” used to cut the beards of Amish men and insisted that federal jurisdiction followed the clippers which crossed state borders in their manufacturing and sale. The case is United States v. Miller, 2014 U.S. App. LEXIS 16532, 2014 FED App. 0210P (6th Cir.).

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Constitutional Law, Politics, Religion, Society

Flint Michigan Considers Distributing Scientology Book To Save City

seal220px-L._Ron_Hubbard_in_1950For those already uncomfortable with the erosion of the separation of church and state in voucher programs and faith-based programs under Presidents Bush and Obama, a new proposal in Flint Michigan is likely to seen the inevitable result of this trend. The Flint city council is considering using police and other public officers to distribute copies of “The Way To Happiness,” a book by Scientology creator L. Ron Hubbard.

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Constitutional Law, Criminal law, Free Speech, International, Media, Politics, Religion, Society

Was Billy Crystal’s Tribute To Robin Williams Racist?

screenshot (YouTube)
screenshot (YouTube)
Many people have now watched the touching tribute giving by Billy Crystal to Robin Williams at the Emmy Awards ceremony (I actually detest awards shows and show the clip below after the controversy arose). It appears that there has been a torrent of criticism of one of the clips as racist. We have been discussing the rising limits on speech deemed racist or hateful, including cases brought against comedians (here and here). This controversy highlights the subjectivity over the meaning of such a joke in my view.

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Bizarre, Constitutional Law, Free Speech, Politics, Religion, Society, Uncategorized

Yielding For Bacon [Critics]: Vermont Diner Takes Down Sign After Woman Objects To The Reference To Bacon

Screen Shot 2014-08-26 at 9.04.11 AMThere is an interesting controversy out of Winooski, Vermont over a sign for Sneakers diner. As part of a city program, Sneakers helped beautify its street with flower beds and in return was allowed to put up a sign. The diner featured its favorite dish with a sign that read: “Yield For Sneakers Bacon.” However, a Muslim woman who was also a vegan objected that a sign with the word bacon was offensive to her due to her religion’s ban on eating pork products. The diner responded by immediately taking down the sign and personally apologizing to the woman. That accommodation has led to a backlash from others who feel that the diner is yielding to ultra-sensitive individuals and encouraging such demands from others who may be offended by any number of food references and dishes.

Continue reading “Yielding For Bacon [Critics]: Vermont Diner Takes Down Sign After Woman Objects To The Reference To Bacon” →

Constitutional Law, Criminal law, Society

On The Horns Of A Dilemma: Massachusetts Defendant Raises Potential Prejudice In Jurors Seeing . . . Him

1408728555478_wps_9_Caius_Veiovis_unique_appeThere is an interesting debate going on in a Massachusetts courtroom over prejudicial evidence in a murder trial. No, it is not pictures of the victims or crime scene. It is the appearance of the defendant himself. You see, Caius Veiovis, 33, had himself implanted with horns and had a satanic tattoo put on his face. Now this defense counsel is understandably concerned that the jury will recoil at the very sight of him. However, there is only so much that a court can do to protect a defendant against his own appearances, particularly when he spent considerable time and money to look satanic.

Continue reading “On The Horns Of A Dilemma: Massachusetts Defendant Raises Potential Prejudice In Jurors Seeing . . . Him” →

Constitutional Law, Courts, Criminal law

Washington Supreme Court Clarifies Requirements For Post-Conviction DNA Testing

Submitted By Darren Smith, Weekend Contributor

DNA_orbit_animated_static_thumbAdvocates of allowing the convicted the opportunity to have DNA tests performed on evidence in the hope of releasing from prison innocent persons could find benefit in an En Banc ruling by the Washington Supreme Court.

In State v. Crumpton the Court created a standard lower courts court should use to decide a motion for post-conviction DNA testing and whether a court should presume DNA evidence would be favorable to the convicted individual when determining if it is likely the evidence would prove his or her innocence in order to determine if the DNA test is provided.

In 1993 petitioner Lindsey Crumpton was convicted of five counts of rape in the first degree and one count of residential burglary. He then petitioned the Superior Court to grant him a post-conviction DNA test as provided in RCW 10.73.170(3) which reads in pertinent part:

(3) The court shall grant a motion requesting DNA testing under this section if such motion is in the form required by subsection (2) of this section, and the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis

The superior court denied this motion, saying he had not shown a ‘”likelihood that the DNA evidence would demonstrate his innocence on a more probable than not basis.” An appeal to a Washington Court of Appeals ultimately denied the defendant’s motion and affirmed the Superior Court’s denial of his motion. The Washington Supreme Court reversed and remanded the motion back to the trial court to apply the new standard in determining whether such DNA testing should be granted.

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Bizarre, Constitutional Law, Courts, Criminal law, Free Speech, Justice, Lawyering, Media, Military, Politics, Religion, Society

Wonder Why The Folks In Ferguson Are Up In Arms About Their Police? Meet Sgt. Major Dan Page, St. Louis Co. P.D.

By Mark Esposito, Weekend Contributor

Watching the waves roll in here in Duck, NC, I have to admit things seem pretty peaceful and serene. It got me wondering why the folks in Ferguson, Mo. are demonstrating on a daily basis about their policing. Wonderment stopped last evening when I came across this video by 35-year veteran of the St. Louis County Police Department, Sgt. Major Dan Page.  Former Green Beret and supervising cop, Dan’s vaguely known to most  CNN viewers as the enlightened peace officer who shoved reporter Don Lemon from a Ferguson street corner as he tried reporting on the mass protest of 17-year-old Michael Brown’s police-facilitated killing. Lemon was shoved and then was herded to some “Free Speech Zone” in a remote parking lot. Now street-savvy Page is back … and with a right-wing philosophy and blood thirsty vengeance that you’d have to go to 1970s Cambodia to match — “We can kill you anyway we want!”

Continue reading “Wonder Why The Folks In Ferguson Are Up In Arms About Their Police? Meet Sgt. Major Dan Page, St. Louis Co. P.D.” →

Congress, Constitutional Law, Politics, Society

GAO: Obama Violated Federal Law in Bergdahl Swap

President_Barack_Obama305px-USA_PFC_BoweBergdahl_ACU_CroppedThe Government Accountability Office has rendered a decision on the actions of the Obama Administration in swapping five Taliban leaders for Army Sgt. Bowe Bergdahl earlier this year. At the time on CNN and other forums, I noted that President Obama had again openly violated federal law which requires at least 30 days of advance notice in such a change. The GAO agreed and found that the Administration clearly violated federal law. I recently testified (here and here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. As in past cases, defenders of the President insist that any violation was done for the best of reasons, but that is a dangerous rationalization for any violation of law. Presidents always insist that they are acting with the best of motivations when they violate laws. We remain a nation of laws and presidents do not have the option of not complying when the laws are inconvenient or counterproductive. Notably, it was not just one law that President Obama violated in taking this unilateral action.

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Constitutional Law, Criminal law

Ferguson Officer Suspended After Captured On Video Pointing Weapon At Protesters and Threatening To Kill Them

1408576057271_wps_9_UPDATE_The_St_Ann_Police_The St. Louis County Police Department has announced the suspension of an officer who was seen pointing a semi-automatic assault rifle at a Ferguson, Missouri, protester and threatening to kill him. The confrontation occurred during the protests and looting following the shooting of Michael Brown by Ferguson Police Officer Darren Wilson. [Warning: foul language]

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Constitutional Law, Criminal law, Lawyering

California Supreme Court: Prosecutors May Use The Silence Of A Defendant As Proof Of Guilt

smdj_article_1776425128461_1The California Supreme Court has handed down a major 4-3 decision in a vehicular manslaughter case that further erodes the rights of citizens to remain silent after being placed into custody. As are all familiar with the Miranda warning that “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” However, as we recently discussed, the Supreme Court by plurality decision that effectively allowed pre-Miranda silence to be used against a criminal defendant in Salinas v. Texas 570 U.S. ___, ___ (2013) (plur. opn. of Alito, J.). Now, the California Supreme Court in People v. Tom, has handed down the first major application of Salinas and ruled that the prosecution can use the silence of a defendant (Richard Tom, left) as evidence of guilt. In California, it is not simply what you say but what you do not say that can be used against you. It is not clear if they are going to change the warning to let people know that if they do not speak, their silence can be used as incriminating.

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Columns, Constitutional Law, Courts, Criminal law, Lawyering, Media, Politics, Society

THE PERRY INDICTMENT: ALL HAT, NO CATTLE

220px-Felthat300px-Muddy_Water_Red_desertBelow is my column today on the Perry indictment. I have previously raised my serious reservations about the factual and legal basis for a criminal charge. We obviously do not know what evidence will be presented, particularly evidence of back channel communications that might have occurred over the threatened veto. Such conversations can have a highly damaging effect on jurors as shown by the trial of Illinois Democratic Gov. Rod Blagojevich. They can also damage someone politically by exposing uninhibited moments or comments. I have heard from reporters in Texas that there might have been communications between Perry and Lehmberg about her resigning but I have yet to see clear accounts of such communications. However, at the moment, I cannot see the basis for these charges. Perry publicly stated his intent to use his lawful power to veto the line item for the office budget if Lehmberg did not resign. I do not see how the use of such a lawful power in this case would rise to the level of a criminal act.

At the moment, I see a compelling case for dismissal as a threshold legal question for the court. However, the degree to which the court views this matter as turning on the factual allegations as opposed to the legal questions, it could be held over for trial. That is the problem with such ambiguously written provisions is that the court may feel more constrained in dismissing the counts. The result for Perry can be damaging even if he is acquitted as was former U.S. Senator Kay Bailey Hutchison two decades ago. Hutchinson was charged with using state employees to plan her Christmas vacation in Colorado and write thank-you notes. The case was so weak that it took only 30 minutes for the jury to find her not guilty on all charges. The political danger is the exposure of private communications. Few of us are as crude as Blagojevich or his wife even in private but none of us is likely to look good if our unguarded comments were played out for a national audience. Once again, only time will tell what type of evidence was heard by the grand jury. Yet, my view is that this indictment is very problematic from a constitutional standpoint and offers little to support such a major prosecution.

Here is the column:

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