Saturday, December 4, 2010

Twenty-Seventh Amendment (1992)

No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.

The Twenty-Seventh Amendment was proposed as part of the original Bill of Rights, but it failed to be ratified. It was reintroduced in the early 1980s and was ratified in 1992. The Twenty-Seventh Amendment prohibited members of Congress from raising their salaries during their terms of service. Members of Congress cannot receive an increase in salary until after the next election.

This cartoon suggests that Congressmen are greedy, and therefore are prone give themselves pay raises at the expense of the rest of the citizens. The cartoon reemphasizes the need for the 27th Amendment. http://tobuds.com/blogs/blog1.php/2009/12/24/congress-votes-themselves-pay-raise-in-2


The 27th Amendment restricts the ability for Congressmen to receive pay raises. In this video Florida Representative Vern Buchanan pushes for a bill that will prohibit Congressmen from receiving a pay increase until they balance the budget. This would place even more restrictions on the ability for Congressmen to receive pay raises.

Twenty-Sixth Amendment (1971)

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The Twenty-Sixth Amendment lowered the voting age from 21 to 18 in federal, state, and local elections. It also gave Congress the authority to enforce the amendment through legislation.

This 1969 New Jersey campaign poster was created in support of lowering the voting age from 21 to 18, paving the way for the drafting of the 26th Amendment. However, New Jersey was one of the states that did not vote to ratify the 26th Amendment. http://www2.scc.rutgers.edu/njh/1960/vote.php


This video is a clip from the 26th Amendment Certification Ceremony. President Nixon chooses three 18-year-olds to serve as witnesses to the certification of the 26th Amendment. He does this on purpose to celebrate what the 26th Amendment does.

Twenty-Fifth Amendment (1967)

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
 
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
 
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
 
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
 
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
 
The Twenty-Fifth Amendment outlined the presidential plan of succession.

The following image illustrates the first three persons in line for presidential succession after President Barack Obama, starting with Vice President Joe Biden to Speaker of the House Nancy Pelosi to President Pro Tempore Daniel Inouye. http://www.aolnews.com/opinion/article/opinion-after-byrd-a-new-presidential-succession-plan-needed/19538649


This video comically gives account to the presidential line of succession if Bush were to have become incapacitated.



Twenty-Fourth Amendment (1964)

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The Twenty-Fourth Amendment got rid of the poll tax. It also gave Congress the authority to enforce the amendment through legislation. 

This cartoon illustrates the terribly constraining effects of the poll tax on citizens' ability to vote for change. http://bvapush.pbworks.com/w/page/4313391/Amendment-24 

This video recounts the history behind the ratification of the 24th Amendment. This video highlights the voting disparities between the wealthy and the poor. I enjoyed the accompanying music very much.



Twenty-Third Amendment (1961)

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The Twenty-Third Amendment amended Article 2, Section 2 of the Constitution. It gave the District of Columbia electors. It also gave Congress the authority to enforce the amendment through legislation.

The following picture shows what life was like in Washington D.C. before the Twenty-Third Amendment. http://www.livinginaperfectworld.com/wp-content/uploads/2010/10/23rd-amendment.jpg


Although the 23rd Amendment gave D.C. the right to vote for President and Vice President, it did not give D.C. represenation in Congress. This video is fighting for D.C.'s right to representation in Congress.






Twenty-Second Amendment (1951)

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

The Twenty-Second Amendment set presidential term limits at two terms.

There have been many attempts since the ratification of the 22nd Amendment to repeal it. This web page lists the many attempts to either repeal or restructure the 22nd Amendment during the last 20 years. http://theconservativist.com/tag/22nd-amendment/

This video recounts the history behind the ratification of the 22nd Amendment. It talks about how President George Washington set the ground for the custom of presidents serving two terms until being challenged by President Grant and President Roosevelt. The 22nd Amendment was created to prevent this from happening again.



Twenty-First Amendment (1933)

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The Twenty-First Amendment repealed the Eighteenth Amendment, ending the Prohibition. The Twenty-First Amendment returned the regulation of alcohol to the states. The Twenty-First Amendment was the only amendment ratified by conventions rather than legislatures.  

The following photograph shows the excitement experienced after the repeal of the 21st Amendment!
http://www.albany.edu/~wm731882/21st_amendment_final.html



This video illustrates the rejuvenation of the liquor industry after the repeal of the 18th Amendment by the 21st. The Prohibition had been a major blow to the alcohol industry and the nation's economy.




Twentieth Amendment (1933)

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The Twentieth Amendment is often referred to as the "lame-duck" amendment. It reduced the four-month lag period between the November elections and the March 4 starting date of the new congressional and presidential terms. It moved the commencement of the new congressional session from March 4 to January 3. Under the Twentieth Amendment, if a presidential election were thrown into the House of Representatives, the decision would be made by the newly elected House. Under the Twentieth Amendment, the nation would only have to go two months instead of four months without a chief executive.Twentieth Amendment modified section 1 of the Twelfth Amendment and Article I of the Constitution.
This illustration of a "lame-duck" points the lack of quality work during the lag time when the nation is waiting for their new president to take office. Bills are often shuffled through the system and signed without serious debate. The 20th Amendment shortened this lag time.  http://www.carolinapatriots.org/cpblog/2010/11/e-mail-fyi-lame-duck-session-original-intent-and-reality/


This video compares Congress' lame duck session to high school senioritis. I thought it was funny.

Nineteenth Amendment (1920)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

The Constitution never prohibited women from voting. However, several states place voting restrictions that hindered women from voting. The Nineteenth Amendment guaranteed women their right to vote. It also gave Congress the authority to enforce the amendment through legislation. 

This poster commemorates Susan B. Anthony, one of the leading activists in the women's suffrage movement that paved the way for the 19th Amendment. She died 14 years before the ratification of the 19th Amendment. http://1.bp.blogspot.com/_nJLOuss1ip0/TGyNt3S7ezI/AAAAAAAACm8/6UzsKtqIfB0/s1600/19th+amendment_sba-arrested.jpg



A humorous take on the women's suffrage movement and taxation without represenation. I enjoyed the critical thinking. 



Eighteenth Amendment (1919)

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The Eighteenth Amendment instituted the Prohibition. It also gave both Congress and the States the authority to enforce the amendment through legislation.

This photograph illustrates the dissatisfaction experienced after the ratification of the 18th Amendment!
http://blogs.abcnews.com/campuschatter/2008/12/abc-news-on-c-2.html


This video highlights the disastrous effects of the Prohibition. The Prohibition allowed for the rapid development of organized crime.  




Seventeenth Amendment (1913)

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Under Article I, Section 3 of the Constitution, state legislatures were responsible for electing U.S. senators. This system started to experience problems in the mid-19th century with the growth of political parties. By the late 19th century, party disagreements left some states without Senate representation for years. This Seventeenth Amendment changed the system so that senators are elected directly by the people. 

The following diagram illustrates how government representatives are elected and appointed. The blue arrow illustrates the process before the ratification of the 17th Amendment. The green arrow shows the change after the 17th Amendment was ratified. http://craigwwright.files.wordpress.com/2008/11/structure_of_u_s_government.jpg


This Fox news clip claims that the 17th Amendment is unconstitutional because it amended the original constitution. The news reporter feels that the 17th Amendment took away state power and that "states no longer [have] a place at the federal table."



Sixteenth Amendment (1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

The Sixteenth Amendment reversed an 1895 Supreme Court decision by declaring a federal income tax law constitutional.

The following cartoon illustrates the power of the IRS and the helplessness of the people after the ratification of the 16th Amendment. http://www.apfn.org/apfn/16th.htm



This video is a refreshing and humorous account of tax evasion, a direct violation of the 16th Amendment!



Fifteenth Amendment (1870)

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The Fifteenth Amendment protected the African American citizen's right to vote. It also gave Congress the authority to enforce the amendment through legislation.  

This picture documents some African Americans' first vote after the ratification of the 15th Amendment. http://www.loc.gov/rr/program/bib/ourdocs/15thamendment.html


This rap written and sung by these girls is really creative. They sing about exercising their 15th Amendment right. 

Fourteenth Amendment (1868)

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Thirteenth Amendment freed the slaves, but did not make them citizens. The Fourteenth Amendment made the newly freed slaves citizens. It declared that all persons born or naturalized within the United States were citizens. It made provisions for due process, which the Supreme court has used to incorporate the Bill of Rights to the states. It demanded equal protection of the laws for all citizens. However, the Fourteenth Amendment denied convicted felons the right to vote even if they served their time and prohibited anyone who served or provided aid to the rebellion to hold office. It also gave Congress the authority to enforce the amendment through legislation. 

This political cartoon suggests that bans on gay marriage violate Section 1 of the 14th Amendment:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

http://jimmays.com/wp-content/uploads/2009/09/gay_marriage.gif



In this video (Part 1 of 4) Director of Immigrant and Refugee Services Debby Alter from the Jewish Family and Vocational Service shares step by step how to become naturalized. After becoming naturalized, the 14th Amendment will protect one's new citizenship rights. 



Thirteenth Amendment (1865)

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment freed the slaves. The Emancipation Proclamation did not apply to all the states. The Thirteenth Amendment abolished slavery entirely. It also gave Congress the authority to enforce the amendment through legislation.  

The following cartoon celebrates achievements in the fight for racial freedom. Slavery was abolished once and for all with the ratification of the 13th Amendment, but Jim Crow laws were soon created to push for segregation.
http://daddybstrong.blogspot.com/2008/12/13th-amendment-happy-freedom-people.html


The following video takes a stand against human trafficking arguing that it is a form of involuntary servitude. I definitely agree. Involuntary servitude is protected against by the 13th Amendment. Human trafficking is modern day slavery. United States' citizens need to stand up and fight against it. 


Twelfth Amendment (1804)

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Under Article II, Section 1 of the Constitution, electors were not required to vote for presidential and vice presidential candidates separately. The Twelfth Amendment required that electors vote for presidential and vice presidential candidates separately. It also required that both candidates must meet the same eligibility requirements as president.

This cartoon makes fun of the 12th Amendment's electoral process. http://gdpiglet.glogster.com/


This video describes the electoral process. The 12th Amendment further mandates that electors must vote for presidential and vice presidential candidates separately. It is quite confusing! 



Eleventh Amendment (1795)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Under Article III of the Constitution, citizens could sue states in federal court. The Eleventh Amendment made it so that states could only be sued in state courts. The Eleventh Amendment protected state sovereignty and provided for what is known as the doctrine of sovereign immunity.

The 11th Amendment gave more power to the states. http://www.csc.noaa.gov/ptd/module08/lesson01/0801.htm


This video talks about the sometimes tragic downfalls of sovereign immunity. This video tells the story of Haseeb, a resident of one of the nation's institutions for the mentally disabled. Haseeb was heavily assaulted by a caretaker. Haseeb's family has not been able to seek justice for Haseeb because of their inability to sue due to state sovereign immunity. Many time citizens suffer at the expense of state sovereign immunity, which is protected by the 11th Amendment. This needs to be reexamined.



Thursday, October 28, 2010

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment, the final amendment of the Bill of Rights, states that the powers not specifically given to the federal government in the Constitution are reserved for the individual states.

In this video, Representative Sam Rohrer of the 128th District of Berks Country explains the history and purposes of the Tenth Amendment. He claims that the government is increasly overstepping its bounds into areas of state power. I do not know how I feel because I do not know enough about the situations.


This promotional video was garnering support for the Washington State Tea Party on January 14, 2010. The state of Washington was reintroducing HJM4009 bill for state sovereignty. 


This video features a great rap summarizing the Bill of Rights- the first ten amendments of the Constitution!
 

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment states that the rights in the Constitution and the Bill of Rights are not the only rights retained by the people.

The man in this video claims that prohibition of drugs violates the 9th Amendment because the government is denying the right of citizens to take whatever drug they so choose. I thought the guy was really funny.  



This video features a much more lengthy lecture (October 15, 2008) about natural rights, enumerated rights, and the Ninth Amendment by Michael W. McConnell, Presidential Professor of Law and Judge of 10th U.S. Circuit Court of Appeals.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment is yet another amendment that offers protection to the accused. It also offers protection and dignity to the convicted.

The following cartoon illustrates the controversy over whether or not the death penalty is considered cruel and unusual. http://www.toondoo.com/cartoon/438529


The following video whos a fictional example of what life could be like without the Eighth Amendment.

Seventh Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment is intended to preserve and protect trial by jury. Trial by jury was a feature of the British courts. The Seventh Amendment is the only amendment that has not been incorporated to the States. Since the ratification of the Seventh Amendment, Congress has amended it to combine the function of civil common law and equity courts, and has also increased the $20 threshold to $75,000.

This video features a rap about the Seventh Amendment. It emphasizes over and over again the right to trial by jury.  



This video shows a fictional example of trial by jury- the Seventh Amendment in action! This video is a spin off the popular movie Twilight. I am impressed that these young kids (they look like they are in 8th grade) know their Seventh Amendment!

Tuesday, October 12, 2010

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment outlines the procedural due process to be followed during criminal trials. The Sixth Amendment is popularly known for its protection of the right of the accused to an attorney. But it is much more than this. It also protects the right to be informed of the charges, the right to confront and obtain favorable witnesses, and the right to a speedy and public trial by an impartial jury of one's peers in the state where the crime was allegedly committed.

The following article talks about a case in which the Supreme Court refused to lift stay of execution over a Sixth Amendment issue. The accused man was sentenced to death by a judge. Courts are trying to decide whether or not he had the right to be sentenced by a jury instead.

U.S. high court refuses to lift stay of execution
By TONY RIZZO
The Kansas City Star


The planned execution of a convicted Kansas City killer was called off late Tuesday night after the U.S. Supreme Court refused to lift a stay of execution.

Roderick Nunley, who was sentenced to death for the kidnapping, rape and murder of 15-year-old Ann Harrison in 1989, was scheduled to be put to death by lethal injection at 12:01 a.m. today.

Ann’s father, Bob Harrison, said his family was not surprised by the Supreme Court’s decision because of the many legal twists and turns the case has taken over more than 21 years.

The decision came after a hectic day of appeals and counter-appeals in state and federal courts.

The Missouri attorney general’s office did not indicate what action it might take next, but the state could continue efforts to carry out the execution today. The state has until midnight tonight to carry out the execution order.

Missouri officials took the case to the Supreme Court on Tuesday night after the 8th Circuit Court of Appeals in St. Louis declined to lift the execution stay granted Monday by Chief U.S. District Judge Fernando Gaitan in Kansas City.

Gaitan ruled that the issue of whether Nunley, who had been sentenced to death by a judge, had the right to be sentenced instead by a jury needed to be studied further.

The Missouri Supreme Court had earlier denied Nunley a stay on the same grounds, but Gaitan ruled he could not determine if its order was legal without clarification from the Missouri court.

The attorney general’s office filed a motion Tuesday with the Missouri Supreme Court asking for that clarification. The issue is likely to be litigated today.

For members of Nunley’s family, the late night ruling by the U.S. Supreme Court brought relief after a tense day of not knowing if Tuesday would be his last day.

Darrell Kind Jr., Nunley’s nephew, expressed his condolences to Ann’s family. Nunley spoke on a live radio broadcast earlier in the day Tuesday to tell Ann’s family that he was sorry.

Nunley and co-defendant Michael A. Taylor kidnapped Ann as she waited for the school bus in front of her home.

No date has been set for Taylor’s execution.
To reach Tony Rizzo, send e-mail to trizzo@kcstar.com.
Read more: http://www.kansascity.com/2010/10/19/2332816/us-high-court-refuses-to-lift.html#ixzz13hK4nfji
Posted on Tue, Oct. 19, 2010 11:37 PM


The following commentary talks about the disparities and difficulties experienced in implementing procedural due process. The author calls for a federal forum to bring about reform in the public defense services.

Commentaries
Toward a Federal Forum for Systemic Sixth Amendment Claims
By Cara H. Drinan *
October 22, 2008

In 1963, the Supreme Court held in Gideon v. Wainwright that the Sixth Amendment requires states to provide indigent criminal defendants with legal representation, noting that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”[1] Today, in some states, one would think that Gideon had never been handed down. In Mississippi, for example, the state provides no money for non-capital cases, and cash-strapped counties must shoulder the burden of funding indigent defense.[2] As a result, a pre-trial defendant may spend months in jail before his case is resolved, and court-appointed lawyers routinely meet their clients for the first time on their trial day.[3]

Mississippi is not unique; the indigent defense crisis is national in scope. The academic literature is replete with documentation of the critical flaws in indigent defense services.[4] These flaws include: chronic under-funding of the defense function, enormous prosecutorial and defense resource disparity, excessive attorney caseloads, a lack of meaningful attorney-client contact, a lack of training and oversight for indigent defense counsel, and inadequate (or sometimes non-existent) investigative and expert assistance for defense counsel. In recognition of these problems, Louisiana,[5] Texas,[6] and Nevada[7] have recently taken steps to address acute indigent defense challenges, while Georgia,[8] Missouri,[9] and Florida[10] confront immediate defense funding crises.

While this may sound like a legislative problem-and it is, because it relates to resource allocation-legislative bodies have failed to respond to the unpopular and largely silent constituency of indigent defendants. In response, in recent years, public defender offices, non-profit organizations, and private law firms have taken the indigent defense crisis to the courts. These groups have brought state court class-actions to vindicate the Sixth Amendment rights of indigent defendants. Specifically, these challenges have relied upon accepted professional standards, such as the American Bar Association’s Ten Principles of a Public Defense Delivery System,[11] to delineate the inadequacies of various systems and to enumerate the remedies required in a given jurisdiction. These suits have generated meaningful reform in Connecticut,[12] Pennsylvania,[13] Massachusetts,[14] Washington,[15] and Montana.[16] Suits of this kind are pending in New York,[17] Michigan[18] and Kentucky.[19] What the plaintiffs in these suits do not have at their disposal-and need to have in some jurisdictions-is a federal forum for these systemic Sixth Amendment claims.

Thirty-nine states elect some or all of their judges.[20] Moreover, in some jurisdictions, judges must actively run for re-election.[21] If these judges are in jurisdictions where the populace is more concerned about victims’ rights than defendants’ rights, there is good reason to think that these judges are subject to the same pressure to be “tough on crime” that we know politicians feel.[22] Thus, federal judges insulated from this pressure may be better-suited to hear a systemic Sixth Amendment claim.

Despite the fact that, historically, the federal courts have been a refuge for women, African-Americans, and the imprisoned,[23] today, a federal forum is not available to indigent defendants seeking to vindicate their Sixth Amendment right to counsel on a systemic basis.[24] Federal courts that have considered challenges to an indigent defense system have declined to award injunctive relief to plaintiffs, citing principles of comity and federalism[25].

In Luckey v. Miller, the Eleventh Circuit rejected the plaintiffs’ request for a court order mandating an overhauled indigent defense system in Georgia.[26] The Luckey Court held that Younger v. Harris[27] required the federal courts to abstain from interfering with ongoing state criminal prosecutions to protect the “vital consideration of comity between the state and national governments.”[28] The Second Circuit took a similar position when considering a class-action challenge to the indigent defense system in Kings County, New York.[29] Despite evidence of systemic deficiencies, including excessive attorney caseloads, excessive delays in bringing cases to trial, and excessive bail, the Second Circuit denied injunctive relief. The Court explained: “This is not the proper business of the federal courts, which have no supervisory authority over the state courts and have no power to establish rules of practice for the state courts.”[30] The Fifth and Sixth Circuits have arrived at the same conclusion in similar cases.[31]

These federal courts have erred in refusing to hear these cases on federalism grounds. Not only should Younger not apply to these prospective Sixth Amendment claims, but, even if it does, the doctrine’s exceptions should permit the federal courts to hear these cases.

First, the Younger abstention doctrine itself should not bar a federal court from hearing a suit in which a class of indigent defendants seeks prospective, injunctive relief.[32] The Younger doctrine is based on two rationales: (1) “the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief,” and (2) the notion of comity, which the Court described as “Our Federalism.”[33] Neither rationale should preclude a suit designed to install future improvements to a state’s public defense system. A federal court could declare that funding indigent defense is the state’s responsibility; it could establish hiring and training guidelines for defense counsel; and it could announce attorney caseload guidelines without compromising ongoing state prosecutions.

Moreover, consistent with the past, federal courts can address state criminal process failings without stalling the state’s prosecutorial function. In Gerstein v. Pugh, the Supreme Court held that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.”[34] In its opinion, the Gerstein Court noted:

The District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions [required by Younger]. The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits.[35]
When plaintiffs have attempted to leverage Gerstein in the indigent defense context, the federal courts have been unreceptive.[36] In dismissing a class action challenging a state public defender office, the Fifth Circuit noted that the appropriate remedy for indigent defendants was to “challenge the legality of their custody via federal habeas corpus, subject, of course, to prior exhaustion of state remedies.”[37] Suggestions of this kind in the indigent defense context are disingenuous. Not only does a state habeas claim depend upon a well-preserved trial record (something unlikely to exist when one has received ineffective, if any, assistance at trial), but also, in some of the most egregious ineffective assistance of counsel cases, the record is irrelevant because it is precisely what counsel has failed to do that is the essence of the claim. To add insult to injury, in some jurisdictions, the state does not guarantee post-conviction representation.[38] Indigent defendants seeking prospective, injunctive relief therefore do not have an adequate remedy at law in state court, nor can they raise systemic issues, like excessive caseloads, that compromise the quality of their representation in the course of their own defense. Younger, then, should not bar federal courts from hearing a prospective suit seeking reform of a public defense system.

Second, even if Younger applies to these suits, the doctrine permits at least one exception that should allow a federal court to award injunctive relief to a class of indigent defendants. While the exceptions to the abstention doctrine announced in Younger itself are incredibly narrow and are not especially useful in this context,[39] subsequent federal court decisions have announced procedural exceptions that may defeat the application of Younger in this setting. “Federal courts have found that when the injury protected by the Constitution results from the proceeding itself, allowing the state proceeding to go forward does not serve the purposes of ‘Our Federalism.’”[40] For example, in Mannes v. Gillespie, the Ninth Circuit held that Younger did not require the District Court to abstain from hearing the defendant’s double jeopardy claim.[41] Other courts have applied a similar rationale to claims based on a defendant’s right to a speedy trial.[42]

A class-action claim by indigent defendants seeking prospective improvements to the state defense function fits squarely within this line of procedural exception cases. In these cases, the “injury protected by the Constitution results from the proceeding itself,”[43] namely, ineffective assistance of counsel, an injury which subsequently hinders a defendant’s ability to employ the appellate and habeas process. If these procedural exceptions are to have any meaningful application outside the speedy trial and double jeopardy settings, they should apply to prospective Sixth Amendment claims.

Finally, abstention is a prudential doctrine,[44] and federal courts should not allow a state to invoke federalism as a shield with which it can deflect its constitutional responsibility to provide effective representation for its poor citizens. At some point, the principles of equity and comity must yield to the Sixth Amendment itself. Could a state require its counties to provide indigent defense representation and then stand by while the counties refused to do so? In some states, like Mississippi, something very close to that scenario is the status quo.[45] And accordingly, where plaintiffs can demonstrate systematic deprivations of the right to counsel, injunctive relief should be available in federal court.

Some may wonder why a plaintiff would want to be in federal court at this point in time,[46] while others may argue that the federal courts have not been very effective at overseeing social policy reform through structural injunctions in the past. I offer three responses to these arguments. First, regardless of whether one thinks that federal judges have been effective at instituting reforms, like desegregation or improving prison conditions, there is good reason to think that these judges would be uniquely skilled at overseeing the implementation of a revamped public defense system. While a judge may know very little about education policy, she certainly knows a great deal about lawyering-what counts as good lawyering and what resources a good lawyer needs at her disposal. Second, as to the idea that federal courts may be hostile to class-action Sixth Amendment suits, there is reason to believe otherwise. Even the most devout federalist judge may very well be equally committed to textual integrity and rule of law. Where states blatantly fail to safeguard the Sixth Amendment-the right that has been deemed essential to safeguarding all others-even conservative federal judges may be willing to step in. Third, even if the current federal bench does not seem likely to offer a sympathetic ear to indigent defendant plaintiffs, its composition is neither static nor permanent.

In some jurisdictions, a federal forum may be required to bring about lasting reform of public defense services. Federal judges should not shy away from the responsibility to hear these cases on abstention grounds, especially where plaintiffs can demonstrate historical and ongoing miscarriages of justice.
--------------------------------------------------------------------------------

* Assistant Professor of Law, Columbus School of Law, The Catholic University of America (Drinan@law.edu).

[1]. 372 U.S. 335, 344 (1963).

[2]. NAACP Legal Defense and Educational Fund, Inc., Assembly Line Justice: Mississippi’s Indigent Defense Crisis 6 (2003) [hereinafter Assembly Line Justice].

[3]. Id.

[4]. See generally Standing Comm. on Legal Aid and Indigent Defendants, Am. Bar Ass’n, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (2004) [hereinafter Gideon's Broken Promise], available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/ fullreport.pdf; Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 Hastings L.J. 1031 (2006).

[5]. Johnny Gunter, Study Cites Improved Public Defending, The News-Star, July 20, 2008, available at http://www.nlada.org/DMS/Documents/1217945522.99/807200321.

[6]. Editorial, Public Defenders Office Was Created In Short Time, The Lubbock Avalanche-Journal, Sept. 7, 2007, available at http://www.lubbockonline.com/stories/090707/edi_090707012.shtml.

[7]. Nevada Supreme Court Mandates Sweeping Changes in Indigent Defense Practices, Jan. 4, 2008, available at http://www.nvsupremecourt.us/info/news/index.php?contentID=204.

[8]. Greg Bluestein, Ga. Public Defenders Reluctantly Agree to Cuts, Forbes, Sept. 26, 2008, http://www.forbes.com/feeds/ap/2008/09/26/ap5477584.html.

[9]. Editorial, Missouri is Ducking its Responsibilities to Fund Public Defenders, Kansas City Star, Aug. 3, 2008, available at http://voices.kansascity.com/node/1780.

[10]. Susannah A. Nesmith, Dade Public Defender: Caseload is untenable, Miami Herald, July 31, 2008, available at http://www.nacdl.org/public.nsf/defenseupdates/Florida085.

[11]. Standing Comm. on Legal Aid and Indigent Defendants, Am. Bar Ass’n, The Ten Principles of a Public Defense Delivery System (2002), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf.

[12]. Press Release, American Civil Liberties Union, Settlement Reached in ACLU’s Class-Action Lawsuit Alleging Inadequacy of CT Public Defender System (July 7, 1999), available at http://www.aclu.org/crimjustice/gen/10138prs19990707.html.

[13]. American Civil Liberties Union: The ACLU and Rights of the Poor, http://www.aclu.org/rightsofthepoor/31177res20051107.html (last visited Oct. 21, 2008).

[14]. Lavallee v. Justices in the Hampden Superior Court, 812 N.E.2d 895 (Mass. 2004) (holding that defendants were being deprived of right to counsel and limiting time during which defendants could be held without assigned counsel).

[15]. Press Release, American Civil Liberties Union, Following ACLU of Washington Lawsuit, Grant County Agrees to Overhaul Public Defense System (Nov. 7, 2005), available at http://www.aclu.org/rightsofthepoor/indigent/21705prs20051107.html.

[16]. Montana Public Defender Act, Mont. Code Ann. § 46-8-211 et seq. (2005) (passed in the wake of a systemic Sixth Amendment challenge).

[17]. See Class Action Complaint, Hurrell-Harring v. State, No. 8866-07 (Albany County Sup. Ct., Nov. 8, 2007).

[18]. See Complaint, Duncan v. State (Ingham County. Cir. Ct., Feb. 22, 2007).

[19]. Deborah Yetter, Public Defenders Must Take Cases, Court Rules, The Courier-Journal, Sept. 20, 2008, available at http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20080920/NEWS01/309200007/1008.

[20]. Am. Bar Ass’n, Fact Sheet on Judicial Selection Methods in the States, available at http://www.abanet.org/leadership/fact_sheet.pdf.

[21]. Id.

[22]. See generally Stephen B. Bright, The Politics of Capital Punishment: The Sacrifice of Fairness for Executions, in America’s Experiment with Capital Punishment 117 (James R. Acker et al. eds., 1998).

[23]. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284 (1976) (describing the breadth of public law litigation).

[24]. Note, Gideon’s Promise Unfulfilled: The Need for Litigated Reform of Indigent Defense, 113 Harv. L. Rev. 2062, 2077 (2000) (”A serious obstacle to the future viability of litigated reform . . . is the lack of a federal forum to hear such claims.”); see also Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of Criminal Defense Services, 63 U. Pitt. L. Rev. 293, 332-33 (2002).

[25]. See infra notes 26-31 and accompanying text.

[26]. Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992).

[27]. 401 U.S. 37, 44 (1971).

[28]. Luckey, 976 F.2d at 676; see also id. at 676-79 (addressing and rejecting plaintiffs’ various arguments as to why Younger need not bar the relief requested).

[29]. Wallace v. Kern, 499 F.2d 1345 (2d Cir. 1974).

[30]. Id. at 1351.

[31]. See Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir. 1974); Foster v. Kassulke, 898 F.2d 1144, 1148 (6th Cir. 1990).

[32]. Donald H. Zeigler, An Accommodation of the Younger Doctrine and the Duty of the Federal Courts to Enforce Constitutional Safeguards in the State Criminal Process, 125 U. Pa. L. Rev. 266, 290-300 (1976) (outlining instances when Younger doctrine should not apply, including those cases when “the relief sought entails virtually no interference with substantive aspects of pending state judicial proceedings, even if other aspects of the state criminal process are involved.”); see also Rodger Citron, Note, (Un)Luckey v. Miller: The Case for a Structural Injunction to Improve Indigent Defense Services, 101 Yale L.J. 481, 494-96 (1991).

[33]. Younger v. Harris, 401 U.S. 37, 44 (1971); see also Citron, supra note 32, at 494.

[34]. 420 U.S. 103, 114 (1975).

[35]. Id. at 108 n.9 (citations omitted).

[36]. See, e.g., Luckey v. Miller, 976 F.2d 673, 678-79 (11th Cir. 1992).

[37]. Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir. 1974).

[38]. See generally Sarah L. Thomas, Comment, A Legislative Challenge: A Proposed Model Statute to Provide for the Appointment of Counsel in State Habeas Corpus Proceedings for Indigent Petitioners, 54 Emory L.J. 1139 (2005).

[39]. Younger v. Harris, 401 U.S. 37, 46-49 & 53-54 (1971) (limiting the exceptions to cases of immediate, “irreparable injury” and a showing of “bad faith and harassment”).

[40]. Daniel Jordan Simon, Comment, Abstention Preemption: How the Federal Courts Have Opened the Door to the Eradication of “Our Federalism,“ 99 Nw. U. L. Rev. 1355, 1364 (2005).

[41]. 967 F.2d 1310, 1312 (9th Cir. 1992) ( “The Fifth Amendment’s protection against double jeopardy . . . ‘is not against being twice punished, but against being twice put in jeopardy.’ Because full vindication of the right necessarily requires intervention before trial, federal courts will entertain pretrial habeas petitions that raise a colorable claim of double jeopardy.”) (citations omitted); see also Sprague v. Oregon, No. 06-1277-TC, 2007 WL 1138462, at *5 (D. Or. April 16, 2007) (discussing this exception).

[42]. See, e.g., Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) (allowing defendant to bring speedy trial claim in federal court rather than requiring him to raise the claim as an affirmative defense when and if the state brought him to trial).

[43]. Simon, supra note 40, at 1364.

[44]. Adibi v. Cal. State Bd. of Pharmacy, 461 F. Supp. 2d 1103, 1111 (N.D. Cal. 2006) (citations omitted).

[45]. See generally Assembly Line Justice, supra note 2; Gideon’s Broken Promise, supra note 4; see also The Spangenberg Group, State Indigent Defense Commissions 5 (2006) (describing the different funding mechanisms in the various states and endorsing full state funding with few exceptions).

[46]. See generally, Erwin Chemerinsky, Closing the Courthouse Doors to Civil Rights Litigants, 5 U. Pa. J. Const. L. 537 (2003) (discussing the Supreme Court’s recent hostility to civil rights litigants and its general impact on the (un)availability of a judicial forum for these suits).

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment is popularly known for its protection of the right of the accused to remain silent. The Fifth Amendment involves due process rights prohibiting the government from acting improperly or unfairly, requiring government action to be performed in a strict manner prescribed by law. It protects the accused from being convicted of a crime without the presentment and indictment of a Grand Jury. It also protects against double-jeopardy. The Fifth Amendment also protects the arbitrary seizure of private property for public use without just compensation. As with all other amendments, there are loopholes in the Fifth.

The following article discusses a case in which the accused invoked the fifth, never giving a testimony at all. A New York investment firm was accused of a Ponzi scheme. It is suggested that the U.S. Securities and Exchange Commission may be "overstepping its bounds trying to make up for lack of evidence." This article illustrates the complications that may occur with invoking the fifth.

SEC, attorneys spar over Fifth Amendment claim in McGinn Smith case
The Business Review - by Barbara Pinckney
Date: Tuesday, June 22, 2010, 11:10am EDT - Last Modified: Tuesday, June 22, 2010, 2:56pm EDT. Related: Banking & Financial Services, Bankruptcies


...Several witnesses spoke during a court hearing earlier this month to determine if assets of McGinn Smith & Co. and its principals should remain frozen. But the most important testimony may have come from the two men who never said a word.
The U.S. Securities and Exchange Commission wants the U.S. District Court to draw an “adverse inference” from that fact that firm principals Timothy McGinn and David Smith invoked their fifth amendment rights against self incrimination rather than take the stand. It also wants that inference extended to Lynn Smith, David’s wife and a relief defendant in the SEC’s securities fraud case against McGinn Smith.

But in memorandums filed late last week, attorneys for Lynn Smith and David Wojeski—the East Greenbush CPA named last month as trustee of an irrevocable trust the Smiths set up for their children nearly six years ago—say the SEC is overstepping its bounds and trying to make up for a lack of evidence,
The SEC filed its civil suit against McGinn Smith, an Albany, New York investment firm, and its principals in April. The government agency put the damages from an alleged Ponzi scheme at $84 million. That money, much of which was raised from nonaccredited investors, allegedly went into illiquid businesses owned by Smith and McGinn, McGinn Smith payroll, and personal loans to the principals and others.

The court issued a preliminary injunction April 20, freezing the assets of the firm and its principals. On June 9, a hearing convened before the Hon. David Homer, to determine if that injunction should remain in place pending the outcome of the civil suit.

McGinn and Smith had already consented to the preliminary injunction, but were still called by the SEC as witnesses.

In documents filed with the court in early June, the men said they could not testify, or provide the SEC with documents or a verified accounting of their assets, because of a pending criminal investigation into their activities. Judge Homer ruled that they could “take the fifth” through sworn declarations.

The hearing, which lasted three days, focused on assets controlled by Lynn Smith, namely a $2.5 million brokerage account; the $3.5 million David L. and Lynn A. Smith Irrevocable trust; a checking account; and a $1.7 million home in Vero Beach, Fla. The SEC contended that these should remain frozen because Lynn Smith allegedly received $1.8 million from McGinn Smith “during the period of fraud.” It also has argued that the assets are actually marital property, and that the Florida home and checking account were put in Lynn Smith’s name a year ago to shield them from creditors.

In a memorandum of law filed with the court June 16, the SEC noted that David Smith’s declaration made it clear that he would not answer any questions about any of these assets or transfers.

“Accordingly, it is appropriate to draw an adverse inference against David Smith with regard to all issues concerning the trust, the stock account, the checking account and the Vero Beach house,” it wrote.

And, because “David and Lynn Smith’s interests are intertwined and clearly aligned,” the negative inference should be extended to Lynn Smith, it said.

James Featherstonhaugh, who represents Lynn Smith for the Albany firm Featherstonhaugh Wiley & Clyne, LLP, said in a memorandum filed June 18 that Lynn Smith should not even be a relief defendant. He said the SEC failed to prove two key things: that the funds she received were “ill-gotten gains” and that she had no legitimate claim to them.

He said the SEC is “apparently attempting to use the adverse inference as a method of avoiding its own evidentiary burden as to the specific elements it must show to demonstrate that Lynn Smith is a properly named relief dependent.”
Jill Dunn, the attorney representing Wojeski, agreed that the SEC’s attempt to extend the adverse inference to Lynn Smith—and therefore to the irrevocable trust—“demonstrates the obvious weaknesses in [the commission’s] legal argument on this issue.”

The SEC had also asserted, toward the end of the court hearing, that the trust was established, in 2004, to shield assets from creditors. A year earlier, McGinn Smith began raising money from investors through four debt funds the SEC now says were fraudulent.

Dunn argued that ‘not a single piece of evidence was admitted to support his absurd contention” and that it was “belatedly offered [by the SEC] to salvage its failure of proof.”

..
Read more: SEC, attorneys spar over Fifth Amendment claim in McGinn Smith case
The Business Review

The following video features local Olathe, Kansas lawyer Paul D. Cramm's speech about the Fifth Amendment. He states that law enforcement often suggest those arrested to "provide their side of the story." He encourages viewers to exercise their Constitutional right to remain silent. He says that "people need to understand no good can come from waiving their Constitutional right."

Fourth Amendment

The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment protects the privacy of We the People. It protects the from unreasonable searches and seizures. Without the Fourth Amendment, the government could perform searches and seizures arbitarily.

The following article dicusses the 9th Circut ruling that airport screening does not violate the Fourth Amendment. It discusses a case in which a man was randomly selected to undergo magnetometer wand airport screening and found to possess cocaine.

9th Circuit says airport screening didn't violate Fourth Amendment
Daily Record and the Kansas City Daily News-Press, Jun 24, 2005 by Lawyers Weekly USA Staff
(This article originally ran in Lawyers Weekly USA, Boston, MA, another Dolan Media publication).


It was not an infringement of an airline passenger's Fourth Amendment rights for him to be subjected to a random security screening with a handheld wand, the 9th Circuit has ruled.
The defendant was attempting to board a domestic flight to Anchorage from Seattle and had already gone regular screening and had his luggage x-rayed. He was chosen at random to undergo extra screening using a magnetometer wand.
The wand alarmed in passing over the defendant's right hip. A security company employee touched his hip and felt a hard brick type of thing which he feared, from his military and security training, might be C-4 explosives.
When a supervisor arrived, the defendant went into a private room, pulled down his pants and revealed four wrapped bricks of cocaine.


At trial, the defendant moved to suppress the cocaine, arguing that the additional screening performed on him was unreasonable because it was not based on individualized suspicion of wrongdoing.


But the 9th Circuit said that a randomly conducted search by means of the magnetometer wand was constitutionally permissible.


[A]irport screenings of passengers and their carry-on luggage in order to detect weapons and explosives and deter potential passengers from carrying such items aboard is 'reasonably necessary' and not overly intrusive in light of the interests at stake. It is also necessary to provide for screening procedures designed to detect non-metallic threats to air safety. The intensity and extent of screening must take into account the fact that '[h]ijackers as well as airport officers know of the existence of plastic explosives or even ordinary dynamite. ...


The added random screening procedure in this case involving a handheld magnetometer scan of [the defendant's] person was no more extensive or intensive than necessary in order to detect weapons and explosives. ... While it arguably constituted a 'slight privacy intrusion,' it was reasonably confined to procedures necessary to detect weapons and explosives, including those that may evade detection by the larger, less sensitive walkthrough magnetometer.


The court noted that [t]he mere fact that [the] screening procedure ultimately reveal[ed] a contraband other than weapons or explosives [did] not render it unreasonable, post facto.

Lawyers Weekly USA Staff "9th Circuit says airport screening didn't violate Fourth Amendment". Daily Record and the Kansas City Daily News-Press. FindArticles.com. 27 Oct, 2010. http://findarticles.com/p/articles/mi_qn4181/is_20050624/ai_n14699923/ Copyright 2005 Dolan Media Newswires
Provided by ProQuest Information and Learning Company. All rights Reserved.


The following is a detailed record of a local case involving Fourth Amendment rights - Smith v. Kansas City Missouri Police Department. This case involves warrantless entry of a home by police. This record discusses differenty issues justifying warrantless entries.

United States Court of Appeals,Eighth Circuit.
SMITH v. KANSAS CITY MISSOURI POLICE DEPARTMENT

Wilson SMITH, Plaintiff-Appellee, v. KANSAS CITY, MISSOURI POLICE DEPARTMENT, Defendant, Officer Troy Taff;  Officer Manuel Anchondo;  Officer Lee Malek, Defendants-Appellants, Karl Zobrist, Board President, Board of Police Commissioners;  Terry Brady, Board Vice President, Board of Police Commissioners;  Mark Thompson, Board Treasurer, Board of Police Commissioners;  Mark Funkhouser, Mayor, Board of Police Commissioners;  James Wilson, Board of Police Commissioners, Defendants.
No. 09-1484.
-- November 09, 2009

Before MELLOY, GRUENDER, and BENTON, Circuit Judges.
Virginia H. Murray, Asst. Atty. Gen., Kansas City, MO, argued (Chris Koster, Atty. Gen., Ryan Bertels, Asst. Atty. Gen., Jefferson City, MO, on the brief), for appellants.Samuel M. Wendt, Wendt Goss, P.C., Kansas City, MO, argued (Peter E. Goss, Wendt Goss, P.C., Brian F. McCallister, Christopher J. Lawler, The McCallister Law Firm, P.C., Kansas City, MO, on the brief), for appellee.
Wilson J. Smith sued three officers and the Board of Police Commissioners under 42 U.S.C. § 1983 and state law.   The district court 1 granted summary judgment to the Board, but denied qualified immunity to the officers on Smith's claims of unlawful entry and excessive force.   Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.

At about 1:00 a.m. on December 12, 2006, officers Troy Taff, Manuel Anchondo, and Lee Malek responded to an emergency call.   A woman told them she had been assaulted by her boyfriend, Terry C. Smith, Sr. She appeared to have been in a physical altercation, her clothing in disarray, with scrapes, bumps, and bruises on her body.
The woman told the officers that her boyfriend was at either the nearby home of his brother, plaintiff Wilson Smith, or another relative's house.   The officers went to plaintiff's home.   Taff and Anchondo stood in the driveway while Malek walked to the rear of the home.   Returning to the front, Malek told the other officers that there was a “hostile situation.”
Taff and Anchondo approached the front door.   Taff knocked on it.   Plaintiff answered wearing a bathrobe.   Taff asked him if he was “Mr. Smith,” and to step outside.   Plaintiff replied he was Wilson, not Terry, Smith.
The parties dispute the following facts, which are stated here favorably to plaintiff.   After plaintiff opened the door, Taff grabbed his forearm, pulling him outside.   Taff then forced plaintiff against the railing on the porch, struggling to handcuff him.   Anchondo helped detain plaintiff.   All three fell to a concrete walkway, causing injury to plaintiff's knees.   Taff and Anchondo then shoved plaintiff's face into the concrete and placed their knees on his back as they handcuffed him.
During the struggle, Malek guarded the front door.   After seeing a 12-year-old boy walk toward the door, Malek entered the home, finding Terry Smith in a bedroom.
Plaintiff sued Malek for warrantless entry and Taff and Anchondo for excessive force.   The district court denied qualified immunity.   The officers appeal.
II.
 Plaintiff argues that this court lacks jurisdiction over the appeal.   This court has jurisdiction of an interlocutory appeal reviewing legal determinations by a district court that denies qualified immunity.   Sherbrooke v. City of Pelican Rapids, 513 F.3d 809, 813 (8th Cir.2008).   Whether qualified immunity is appropriate from a particular set of facts is a legal determination.   See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (“the appealable issue is a purely legal one, whether the facts alleged ․ support a claim of violation of clearly established law”).
Plaintiff correctly notes that this court lacks jurisdiction to consider factual disputes.   See Brown v. Fortner, 518 F.3d 552, 557 (8th Cir.2008).   However, in this case, this court views the facts favorably to plaintiff and does not consider disputed facts.   See Pace v. City of Des Moines, 201 F.3d 1050, 1053 (8th Cir.2000) (dismissing for lack of jurisdiction an argument based on a factual dispute, but considering appellant's other purely legal contentions).   Here, the district court's determinations on qualified immunity are legal determinations within this court's jurisdiction.   See id. at 1052-53.
III.
 “In a § 1983 action, state actors may be entitled to qualified immunity.”  McRaven v. Sanders, 577 F.3d 974, 980 (8th Cir.2009), quoting Riehm v. Engelking, 538 F.3d 952, 962 (8th Cir.2008).   Qualified immunity shields government actors from suit unless their conduct violates clearly established constitutional or statutory rights that a reasonable person would have known.  Henderson v. Munn, 439 F.3d 497, 501 (8th Cir.2006), citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).  “To overcome the defense of qualified immunity, a plaintiff must show:  (1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right;  and (2) the right was clearly established at the time of the deprivation.”   Howard v. Kansas City Police Dep't., 570 F.3d 984, 988 (8th Cir.2009).   This court may first address either prong.  Id.,citing Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).   This court reviews de novo a district court's denial of qualified immunity.   McRaven, 577 F.3d at 980.
A. Warrantless Entry

 Malek argues that exigent circumstances justified his warrantless entry.  “Generally, the Fourth Amendment requires the police to obtain a warrant before entering a home.”  United States v. Spotted Elk, 548 F.3d 641, 651 (8th Cir.2008), citing Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).   Without a warrant, the police may enter a home in response to exigent circumstances.  Id. Exigent circumstances include threats to an individual's life, a suspect's imminent escape, the imminent destruction of evidence, or situations where “there is a compelling need for official action and there is no time to secure a warrant.”  Radloff v. City of Oelwein, 380 F.3d 344, 348 (8th Cir.2004).
Malek contends that the fact that a domestic violence suspect was inside the home-with a child-was an exigent circumstance.   The presence of a domestic violence suspect, however, does not alone justify Malek's warrantless entry.   See Singer v. Court of Common Pleas, Bucks County, 879 F.2d 1203, 1206-07 (3d Cir.1989) (noting that concerns of danger to police or others did not justify warrantless entry into the home of a domestic violence suspect as the victims were no longer present and were in no danger).   Malek asserts no facts indicating that the suspect was a threat to the child or others.   See Radloff, 380 F.3d at 348 (ongoing violations constitute exigent circumstances permitting a warrantless entry into a home);  United States v. Roark, 36 F.3d 14, 17 (6th Cir.1994) (“unsubstantiated suspicions” do not support a finding of exigent circumstances).
This situation differs from the case Malek relies on, United States v. Hill, 430 F.3d 939 (8th Cir.2005).   There, an officer entered a suspect's home without a warrant after seeing an unidentified man run inside the home during the arrest of the suspect.  Id. at 940.   In light of the suspect's aggravated robbery offenses, the officer believed the unidentified man could obtain a weapon inside the home.   This court held that concerns for officer safety justified a warrantless entry.  Id. at 941.   Here, by contrast, the officers saw no other adult acting suspiciously inside the home and had no reason to believe weapons were there.
 Malek also claims that his entry was reasonable because he was conducting a protective sweep for safety purposes.   A protective sweep is permitted when an officer enters a home on the reasonable belief that someone dangerous is inside the home.  Spotted Elk, 548 F.3d at 651.   On the facts here, Malek's belief that an unarmed domestic violence suspect was inside the home does not itself justify a protective sweep.   See United States v. Tisdale, 921 F.2d 1095, 1097 (10th Cir.1990) (the danger justifying a protective sweep comes from the possible presence of armed and dangerous persons in the vicinity).   The district court properly held that Malek did not demonstrate exigent circumstances to justify his warrantless entry.
 Malek argues that even if he unlawfully entered plaintiff's home, the right against warrantless entry was not clearly established.   To be clearly established, a right must be sufficiently clear such that a reasonable officer would understand that what he is doing violates that right.  Lindsey v. City of Orrick, 491 F.3d 892, 902 (8th Cir.2007).   In cases dealing with exigent circumstances, this court asks whether the officer “could have ‘reasonably but mistakenly’ concluded that exigent circumstances were present based upon the information [the officer] possessed at the time.”  Rogers v. Carter, 133 F.3d 1114, 1119 (8th Cir.1998) (alteration added).
 At the time of the incident, a reasonable officer understood that it was unlawful to enter a home without a warrant, absent consent or exigent circumstances.   See United States v. Powell, 379 F.3d 520, 523 (8th Cir.2004);  Guite v. Wright, 147 F.3d 747, 750 (8th Cir.1998);  cf.   United States v. Antwine, 873 F.2d 1144, 1147 (8th Cir.1989) (upholding a search where authorities entered a home to remove a previously exhibited weapon to avoid leaving children alone with it).   The district court properly denied qualified immunity to Malek.
B. Excessive Force

 The district court denied Taff and Anchondo qualified immunity on plaintiff's claim of excessive force.   Excessive force claims arise under the Fourth Amendment.  Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).   The use of force is not excessive if it was objectively reasonable in light of the facts and circumstances confronting the officer.  Crumley v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir.2003).   In determining reasonableness, a court considers the totality of the circumstances and “the severity of the crime at issue, the immediate threat the suspect poses to the safety of the officer or others, and whether the suspect is actively resisting or attempting to evade arrest by flight.”  Id., quoting Foster v. Metro. Airports Comm'n, 914 F.2d 1076, 1082 (8th Cir.1990).   This court may also consider the result of the force.   See Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir.2004).   An officer may be held liable only for his or her own use of excessive force.  Hayek v. City of St. Paul, 488 F.3d 1049, 1055 (8th Cir.2007).
1. Officer Taff

 Taff argues that he did not use excessive force because he acted reasonably.   Based on the facts asserted by plaintiff, this court disagrees.   Plaintiff never resisted Taff's commands and had no opportunity to comply with his request to step outside before being forcibly removed and eventually injured.   On all the facts here-including the lack of exigent circumstances, “the lack of an immediate safety threat, and the lack of active resistance to arrest”-a jury could find that Taff's use of force was not objectively reasonable.  Littrell, 388 F.3d at 586, citing Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir.2002).
 Taff also contends that he acted reasonably because he followed standard police procedures.   See McCoy v. City of Monticello, 342 F.3d 842, 849 (8th Cir.2003).   To the contrary, following standard procedure does not necessarily make an officer's acts reasonable.   See Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir.1993) (“under section 1983 the issue is whether the government official violated the Constitution or federal law, not whether he violated the policies of a state agency”).   Moreover, a jury could conclude that under the facts asserted, Taff acted unreasonably by forcibly removing Plaintiff from his home and injuring him.   See Patzner v. Burkett, 779 F.2d 1363, 1371 (8th Cir.1985) (stating that the extent of injury is relevant in determining the reasonableness of force).
 At the time of the encounter, the right to be free from excessive force in the context of an arrest was clearly established under the Fourth Amendment.   See Guite, 147 F.3d at 750.   The district court correctly concluded that Taff was not entitled to qualified immunity.

2. Officer Anchondo

 Viewing the facts favorably to plaintiff, Anchondo was present for the entire encounter, and saw that plaintiff-wearing only a bathrobe-posed no threat to the safety of the officers or others and did not attempt to resist arrest.   Cf. Lyons v. City of Xenia, 417 F.3d 565, 577-78 (6th Cir.2005) (granting qualified immunity to an officer who entered a home and tackled a suspect after receiving a distress call from a fellow officer struggling with a suspect inside the home);  Smith v. Ball State Univ., 295 F.3d 763, 770-71 (7th Cir.2002) (an officer's use of force was reasonable where he arrived late to the scene of an apparent crime, witnessed two officers struggling with a resisting suspect, and tackled the suspect).   As the district court concluded, a genuine issue of fact exists as to whether Anchondo used excessive force in struggling with and detaining plaintiff.
 This court next considers whether Anchondo had fair notice that his conduct violated a clearly established right.  Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004).   At the time Anchondo acted, it was clear to a reasonable officer that knocking a non-resisting suspect to the ground after he had been forcibly removed from his home without cause violated his clearly established Fourth Amendment rights.   See Samuelson v. City of New Ulm, 455 F.3d 871, 877 (8th Cir.2006) (denying qualified immunity where officers violently removed a homeowner from his property even though he was not resisting arrest);  Thompson v. Zimmerman, 350 F.3d 734, 735 (8th Cir.2003) (declining qualified immunity to prison guards where inmate alleged he did not resist arrest when the guards entered his cell and attacked him);  Lambert v. City of Dumas, 187 F.3d 931, 933-34 (8th Cir.1999) (rejecting qualified immunity where officers shoved and kicked a non-resisting suspect).   The district court properly held that Anchondo was not entitled to qualified immunity.

IV.

The district court's order denying qualified immunity is affirmed.

FOOTNOTES

1.  The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.