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!
Thursday, October 28, 2010
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.
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.
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!
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).
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."
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.
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.
Third Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The Third Amendment prohibts the government from abusing citizen property. It prohibits the government from quartering soldiers in citizen homes without consent during peacetime and without proper government regulation during war.
Although the military has had corruption and still does in its system, people often complain about the military on selfish grounds. I have been one of those people. I have been one of those people who have not wanted a close one to enlist because I would miss them if they were to serve long periods away from home. What a selfish perspective to see such a noble service. In the same way, I know that many people would be unhappy if soldiers were to be housed in their homes in times of war even if it was in an appropriate "manner prescribed by law." Again, what a selfish perspective to see such a noble service. The more I learn about the American government and its root, the more I come to appreciate its different branches.
This article talks about the history of the Third Amendment and the only Third Amendment Supreme Court case so far- Engblom v. Carey (1982).
The Third Amendment: Do You Know Your Rights?
Published January 17, 2007 by:
Jon Grilz
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
If you have been following along with these articles, it is safe to say that you know that this is the Third Amendment to the Constitution, if you haven't been reading along it might not be too familiar. It is because of its lack of familiarity amongst the American public that actually makes this Amendment so interesting.
Originally submitted on September 25th, 1789 it was one of twelve submitted by the First Congress and on December 15th, 1791 it was one of ten that ratified becoming a part of the original Bill of Rights. Despite its importance at the time, the Third Amendment has been one of the least litigated sections of the Constitution and the Supreme Court has never directly reviewed the meaning. Indeed, only one court has ever confronted the meaning of the amendment, in a case decided nearly 200 years after it was ratified: Engblom v. Carey (1982).
Engblom grew out of a "statewide strike of correction officers, when they were evicted from their facility-residences ... and members of the National Guard were housed in their residences without their consent." The district court initially granted summary judgment for the defendants in a suit brought by the officers claiming a deprivation of their rights under the Third Amendment. The Second Circuit Court of Appeals, however, reversed on the ground that it could not "say that as a matter of law appellants were not entitled to the protection of the Third Amendment." However, the District Court later held that because the officers' Third Amendment rights had not been clearly established at the time of the strike, the defendants were protected from suit by a "qualified immunity", and this decision was upheld by the Second Circuit.
The following article talks about the Third Amendment Rights Group- National Anti-Quartering Association, founded in 1816 due to repeated Third Amendment violations during the War of 1812.
Third Amendment Rights Group Celebrates Another Successful Year
October 5, 2007
ISSUE 46•26 ISSUE 43•40
04.28.99 WASHINGTON, DC—The National Anti- Quartering Association, America's foremost Third Amendment rights group, held its annual gala in Washington Monday to honor 191 consecutive years of advocating the protection of private homes and property against the unlawful boarding of military personnel
"This is a proud day for quarters-owners everywhere," said the organization's president, Charles Davison, in his keynote address. "Year after year, we have sent a loud and clear message to the federal government and to anyone else who would attack our unassailable rights: Hands off our cottages, livery stables, and haylofts."
The NAQA was created in 1816 in response to repeated violations of the Third Amendment during the War of 1812. The organization quickly grew in influence and cites its vigilance as the primary reason why the amendment has only been litigated once in a federal court since the Bill of Rights was ratified. The organization is also arguably the country's most powerful political lobby; every politician elected since 1866 has fully supported Third Amendment rights.
"The framers of the Constitution provided the American people with the right to have their homes free of troops unless Congress mandates otherwise during a time of war," Davison said. "Thanks to our tireless efforts, six generations of civilians have never known the cruelty and duress of quartering unruly foot soldiers."
Davison recalled the "dark days" of 1982, when the federal case of Engblom v. Carey threatened to strip Americans of their fundamental Third Amendment freedoms. The ruling by the Second Circuit Court of Appeals acknowledged that the State of New York had indeed violated the Third Amendment rights of the plaintiffs. The case, according to Davison, was "a chilling reminder of how even an established 200-year-old right hangs by a slender thread."
"I don't think people fully understand how close we came to completely losing such a basic right," Davison said. "If the Second Circuit had ruled otherwise, we'd be living in a world in which soldiers would be quartering amok upon our very hearthstones."
Davison expressed pride in the NAQA's grassroots involvement at the local level, citing the association's direct-mailing campaigns and its fully staffed regional centers where citizens can report Third Amendment rights abuses. The NAQA also holds quartering-safety seminars for citizens interested in learning how to effectively defend their households against U.S. troops seeking shelter.
Davison reiterated the organization's promise to oppose pro-quartering legislation should any ever be proposed.
"Keep the fat hands of soldiers out of America's larders!" Davison said to rousing applause. He was quoting the NAQA's familiar slogan, which can be found on T-shirts, bumper stickers, and other merchandise sold on the group's website.
Davison ended his address by warning of the dangers of the NAQA resting on its laurels.
"Pro-quartering advocates are waiting for just the right moment to stick a bunch of troops in our homes," Davison said. "Well, I say to them that we will never allow this to happen. You can count on the true patriots of the NAQA to ensure that no chickens and livestock will be appropriated, and private stores of salt, brandy, candles, and vinegar will stay firmly where they belong: in civilian hands."
The NAQA is known for its quick and aggressive mobilization when it believes Third Amendment rights are at risk, and has rushed to the defense of homeowners it believes are being illegally coerced into housing American soldiers. Last month, 200 NAQA members marched on a private residence in Fairfax, VA after receiving a tip that the owners were being victimized by three Navy seamen demanding prolonged quartering. They ended their demonstration, however, when it was discovered that the sailors were brothers on shore leave visiting their parents.
Davison, 49, has headed the NAQA since January, replacing longtime president Lawrence Frost. Frost, 58, left the organization to chair the Citizens Committee for the Right to Drink, a 21st Amendment rights group committed to the continued legal status of alcohol for Americans of drinking age.
The Third Amendment prohibts the government from abusing citizen property. It prohibits the government from quartering soldiers in citizen homes without consent during peacetime and without proper government regulation during war.
Although the military has had corruption and still does in its system, people often complain about the military on selfish grounds. I have been one of those people. I have been one of those people who have not wanted a close one to enlist because I would miss them if they were to serve long periods away from home. What a selfish perspective to see such a noble service. In the same way, I know that many people would be unhappy if soldiers were to be housed in their homes in times of war even if it was in an appropriate "manner prescribed by law." Again, what a selfish perspective to see such a noble service. The more I learn about the American government and its root, the more I come to appreciate its different branches.
This article talks about the history of the Third Amendment and the only Third Amendment Supreme Court case so far- Engblom v. Carey (1982).
The Third Amendment: Do You Know Your Rights?
Published January 17, 2007 by:
Jon Grilz
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
If you have been following along with these articles, it is safe to say that you know that this is the Third Amendment to the Constitution, if you haven't been reading along it might not be too familiar. It is because of its lack of familiarity amongst the American public that actually makes this Amendment so interesting.
Originally submitted on September 25th, 1789 it was one of twelve submitted by the First Congress and on December 15th, 1791 it was one of ten that ratified becoming a part of the original Bill of Rights. Despite its importance at the time, the Third Amendment has been one of the least litigated sections of the Constitution and the Supreme Court has never directly reviewed the meaning. Indeed, only one court has ever confronted the meaning of the amendment, in a case decided nearly 200 years after it was ratified: Engblom v. Carey (1982).
Engblom grew out of a "statewide strike of correction officers, when they were evicted from their facility-residences ... and members of the National Guard were housed in their residences without their consent." The district court initially granted summary judgment for the defendants in a suit brought by the officers claiming a deprivation of their rights under the Third Amendment. The Second Circuit Court of Appeals, however, reversed on the ground that it could not "say that as a matter of law appellants were not entitled to the protection of the Third Amendment." However, the District Court later held that because the officers' Third Amendment rights had not been clearly established at the time of the strike, the defendants were protected from suit by a "qualified immunity", and this decision was upheld by the Second Circuit.
The following article talks about the Third Amendment Rights Group- National Anti-Quartering Association, founded in 1816 due to repeated Third Amendment violations during the War of 1812.
Third Amendment Rights Group Celebrates Another Successful Year
October 5, 2007
ISSUE 46•26 ISSUE 43•40
04.28.99 WASHINGTON, DC—The National Anti- Quartering Association, America's foremost Third Amendment rights group, held its annual gala in Washington Monday to honor 191 consecutive years of advocating the protection of private homes and property against the unlawful boarding of military personnel
"This is a proud day for quarters-owners everywhere," said the organization's president, Charles Davison, in his keynote address. "Year after year, we have sent a loud and clear message to the federal government and to anyone else who would attack our unassailable rights: Hands off our cottages, livery stables, and haylofts."
The NAQA was created in 1816 in response to repeated violations of the Third Amendment during the War of 1812. The organization quickly grew in influence and cites its vigilance as the primary reason why the amendment has only been litigated once in a federal court since the Bill of Rights was ratified. The organization is also arguably the country's most powerful political lobby; every politician elected since 1866 has fully supported Third Amendment rights.
"The framers of the Constitution provided the American people with the right to have their homes free of troops unless Congress mandates otherwise during a time of war," Davison said. "Thanks to our tireless efforts, six generations of civilians have never known the cruelty and duress of quartering unruly foot soldiers."
Davison recalled the "dark days" of 1982, when the federal case of Engblom v. Carey threatened to strip Americans of their fundamental Third Amendment freedoms. The ruling by the Second Circuit Court of Appeals acknowledged that the State of New York had indeed violated the Third Amendment rights of the plaintiffs. The case, according to Davison, was "a chilling reminder of how even an established 200-year-old right hangs by a slender thread."
"I don't think people fully understand how close we came to completely losing such a basic right," Davison said. "If the Second Circuit had ruled otherwise, we'd be living in a world in which soldiers would be quartering amok upon our very hearthstones."
Davison expressed pride in the NAQA's grassroots involvement at the local level, citing the association's direct-mailing campaigns and its fully staffed regional centers where citizens can report Third Amendment rights abuses. The NAQA also holds quartering-safety seminars for citizens interested in learning how to effectively defend their households against U.S. troops seeking shelter.
Davison reiterated the organization's promise to oppose pro-quartering legislation should any ever be proposed.
"Keep the fat hands of soldiers out of America's larders!" Davison said to rousing applause. He was quoting the NAQA's familiar slogan, which can be found on T-shirts, bumper stickers, and other merchandise sold on the group's website.
Davison ended his address by warning of the dangers of the NAQA resting on its laurels.
"Pro-quartering advocates are waiting for just the right moment to stick a bunch of troops in our homes," Davison said. "Well, I say to them that we will never allow this to happen. You can count on the true patriots of the NAQA to ensure that no chickens and livestock will be appropriated, and private stores of salt, brandy, candles, and vinegar will stay firmly where they belong: in civilian hands."
The NAQA is known for its quick and aggressive mobilization when it believes Third Amendment rights are at risk, and has rushed to the defense of homeowners it believes are being illegally coerced into housing American soldiers. Last month, 200 NAQA members marched on a private residence in Fairfax, VA after receiving a tip that the owners were being victimized by three Navy seamen demanding prolonged quartering. They ended their demonstration, however, when it was discovered that the sailors were brothers on shore leave visiting their parents.
Davison, 49, has headed the NAQA since January, replacing longtime president Lawrence Frost. Frost, 58, left the organization to chair the Citizens Committee for the Right to Drink, a 21st Amendment rights group committed to the continued legal status of alcohol for Americans of drinking age.
Monday, October 11, 2010
Second Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The Second Amendment provides proctection to We the People. It protects We the People's right to keep and bear Arms to protect themselves or for recreational purposes. It also protects the right of We the People to organize themselves into a militia if need be to protect their rights from being infringed by the government.
I am sad to say I never understood what a militia was until our in-class discussion.
I know that I am ultimately responsible for my own ignorance, but I would also like to a make a point that the public school system does not do well in educating students about the United States history and government. I know that the public school system has requirements set in place that will not allow students to graduate high school or college without taking certain history and government related courses. However, as many students know, oftentimes classroom work and homework become busy work rather than a true learning experience. I passed my Advanced Placement United States History and Advanced Placement Government courses in high school and even scored a 4 on the official AP US History Exam, but I did not really learn what I needed to learn. I just crammed and memorized. I did not devote the time I should have to truly studying and pondering ideas and implications. I know that it is my own fault; however, I do think that instead of having official exams to assess students knowledge of a subject, better teaching and learning experiences should be implemented throughout the entire schooling experience.
Arms have never been a big part of my life. I do not personally know any friends or family that bear arms. I do not use arms for recreational or defensive purposes. Perhaps this gives me the good neutral background I need to consider the Second Amendment rationally.
This article talks about the complications surrounding gun control. A honorably discharged Vietnam War veteran is repeatedly denied gun rights due to a past misdemeanor of assault and battery that does not seem to have involved a weapon. I feel that Schrader's minor misdemeanor should not deny him gun rights.
SAF Sues Eric Holder, FBI Over Misdemeanor Gun Rights Denial
Second Amendment Foundation
/PRNewswire-USNewswire/ -- Acting on behalf of a Georgia resident and honorably discharged Vietnam War veteran, the Second Amendment Foundation today filed a lawsuit against Attorney General Eric Holder and the Federal Bureau of Investigation over enforcement of a federal statute that can deny gun rights to someone with a simple misdemeanor conviction on his record.
The lawsuit was filed in United States District Court for the District of Columbia. SAF and co-plaintiff Jefferson Wayne Schrader of Cleveland, GA are represented by attorney Alan Gura, who successfully argued both the Heller and McDonald cases before the U.S. Supreme Court.
In July 1968, Schrader, then 21, was found guilty of misdemeanor assault and battery relating to a fight involving a man who had previously assaulted him in Annapolis, MD. The altercation was observed by a police officer, who arrested Schrader, then an enlisted man in the Navy, stationed in Annapolis. The man he fought with was in a street gang that had attacked him for entering their "territory," according to the complaint.
Schrader was ordered to pay a $100 fine and $9 court cost. He subsequently served a tour of duty in Vietnam and was eventually honorably discharged. However, in 2008 and again in 2009, Mr. Schrader was denied the opportunity to receive a shotgun as a gift, or to purchase a handgun for personal protection. He was advised by the FBI to dispose of or surrender any firearms he might have or face criminal prosecution.
"Schrader's dilemma," explained SAF Executive Vice President Alan Gottlieb, "is that until recently, Maryland law did not set forth a maximum sentence for the crime of misdemeanor assault. Because of that, he is now being treated like a felon and his gun rights have been denied."
"No fair-minded person can tolerate gun control laws being applied this way," he added. "Mr. Schrader's case is a great example of why gun owners cannot trust government bureaucrats to enforce gun laws."
The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.
SOURCE Second Amendment Foundation
Posted on Wed, Oct. 13, 2010 04:15 PM
Read more: http://www.kansascity.com/2010/10/13/2310605/saf-sues-eric-holder-fbi-over.html#ixzz13bWwmOMC
This article talks about the issues surrounding the upcoming gun election next month on November 2 in Raymore, Missouri. Residents will be voting on whether or not to do away with an ordinance passed earlier this year that allows city council members to carry concealed weapons during meetings. I am not sure how I feel about the election.
Showdown looms for Raymore gun law
By DONALD BRADLEY
The Kansas City Star
The debate over the upcoming gun election in Raymore makes it sound like the city has an abnormally high rate of mental instability.
Both sides talk a lot about “crazy” people.
The anti-gun crowd worries that a City Council member could go “crazy” during a contentious meeting, pull a gun and start shooting. The pro-gun forces fear a “crazy,” irate citizen may come through the door blasting and a well-armed council may be the last line of defense.
Neither is likely to happen. This will: On Nov. 2, this city is headed for a showdown.
Residents that day will vote on a ballot question that, if passed, would amend the city charter and do away with an ordinance passed this year that allows council members to carry concealed weapons during meetings.
The ordinance also lets anyone with a conceal-and-carry permit to take a gun into city buildings and parks, and makes it legal to transport a gun in a vehicle even if the person does not have a conceal-and-carry permit.
The fight leading up to Election Day has been bitter and hot. Signs for both sides line streets all over town.
Council member Jeff Cox, who introduced the ordinance, and a group that has joined him in opposing the ballot measure, have been pushing the message to voters that the ballot question would “disarm police” by not making an exception for police officers carrying concealed weapons into city-owned buildings, including police headquarters.
Not true, Raymore Police Chief Kris Turnbow said Thursday. Police are exempt.
“State law allows us to carry concealed weapons in the performance of our duty,” Turnbow said. “We would not be affected by this at all.”
He is not taking a position on the ballot issue. He did, though, note that a man who allegedly shot at one of his officers during an Oct. 10 traffic stop had a conceal-and-carry permit.
There is also this twist to Raymore’s Question 1: A “no” vote will mean “yes” to allowing guns. Both sides agree voter confusion may play a role.
Supporters of the proposal to undo the ordinance say council meetings are often cantankerous and tension-filled — why put guns in the mix? Only police need be armed at public meetings, and no one has to be armed when paying a water bill or enjoying an afternoon in a city park, they say.
Opponents say the Second Amendment and Missouri law give citizens the right to carry concealed weapons. They also say they think it is foolhardy to rely entirely on police for public safety. They speak often of the 2008 “City Hall Massacre” in Kirkwood, Mo., when a gunman went to a council meeting and killed six people, among them the mayor, who died later.
For Raymore resident Jonathan Seeley, a structural engineer, it comes down to his belief that “gun control is people control.” He was a student at Virginia Tech on April 16, 2007, when a gunman killed 32 people and wounded at least 20 in the deadliest shooting ever on an American campus.
He said he now thought people should be able to carry a weapon anywhere, even onto airplanes and to parent-teacher conferences at schools.
“Law-abiding citizens should have the right to defend themselves wherever they go,” Seeley said Thursday.
Murel Geyer, a retiree, doesn’t want to believe that his world is safer when people carry guns. This week he called the ordinance “plum ridiculous.”
But he knows his city likes guns. A neighbor down his street mows his yard while wearing a holster and pistol, he said.
“Seems like everybody wants to be Wyatt Earp because they think everybody else is Jesse James,” Geyer said.
Piano teacher Lisa Sullivan also favors the initiative to undo the ordinance. People are always arguing at council meetings — potholes, trash, all kinds of things, she said.
“Why would you want to put guns in a place where people get mad?” she asked. “And what happened to bring this about? What are these people scared of?”
Council member Cox, an attorney, has said that the Kirkwood shootings motivated him to introduce the ordinance. He is a staunch believer that concealed weapons increase public safety and decrease crime.
His ordinance didn’t come easy. The measure passed initially, but not by enough of a margin to withstand a veto by Mayor Juan Alonzo.
In April, though, two of the “no” votes on Cox’s plan were defeated in city elections. Popular sentiment is that pro-gun forces pushed their ouster. Cox then quickly reintroduced his proposal, and it was approved in May.
But by then, foes already were planning a citizens petition for the November ballot.
Cox is highly critical of the effort and dismisses criticism that his ordinance is anti-Second Amendment because it allows council members to carry concealed weapons during meetings, but not citizens in the audience.
State law prohibits that. His ordinance did, however, include a resolution in which Raymore asked the Missouri General Assembly to rescind a ban on citizens carrying guns at council meetings.
Cox also noted that several other cities in the area, such as Lee’s Summit and Raytown, allowed council members to carry concealed weapons during meetings. Those cities have not requested that the right extend to the audiences.
Ivan Waite, a former Raymore councilman and leader of a group fighting to undo Cox’s ordinance, said he thought Cox was hoping the gun issue would propel him to higher office — Cass County prosecutor.
“He thinks there are enough gunslingers out there to get him elected,” Waite said.
Cox, a Republican who ran for prosecutor in 2006, chuckled at the suggestion.
“That office is up right now, and I’m not running,” he said, adding that he took heat for the ordinance and never sought any recognition.
But beyond anyone’s political ambition or whether the ballot question was crafted perfectly, this election is about ideology and guns.
Dick Hime, a former Raymore police officer and current gun dealer who strongly opposes the proposed ballot question, said, “We as law-abiding citizens should have the right to control our environment — whether we are in a meeting, paying a water bill or playing with our grandchildren in the park. A lot of people like me are tired of having government telling us what we can and cannot do.”
Resident Jim Kopetsky said he believed that “Raymore is not to that point and I hope it never is.”
To reach Donald Bradley, call 816-234-4182 or send e-mail to dbradley@kcstar.com.
Posted on Fri, Oct. 22, 2010 12:03 AM
Read more: http://www.kansascity.com/2010/10/21/2341462/showdown-looms-for-raymore-gun.html#ixzz13bcGodxB
The Second Amendment provides proctection to We the People. It protects We the People's right to keep and bear Arms to protect themselves or for recreational purposes. It also protects the right of We the People to organize themselves into a militia if need be to protect their rights from being infringed by the government.
I am sad to say I never understood what a militia was until our in-class discussion.
I know that I am ultimately responsible for my own ignorance, but I would also like to a make a point that the public school system does not do well in educating students about the United States history and government. I know that the public school system has requirements set in place that will not allow students to graduate high school or college without taking certain history and government related courses. However, as many students know, oftentimes classroom work and homework become busy work rather than a true learning experience. I passed my Advanced Placement United States History and Advanced Placement Government courses in high school and even scored a 4 on the official AP US History Exam, but I did not really learn what I needed to learn. I just crammed and memorized. I did not devote the time I should have to truly studying and pondering ideas and implications. I know that it is my own fault; however, I do think that instead of having official exams to assess students knowledge of a subject, better teaching and learning experiences should be implemented throughout the entire schooling experience.
Arms have never been a big part of my life. I do not personally know any friends or family that bear arms. I do not use arms for recreational or defensive purposes. Perhaps this gives me the good neutral background I need to consider the Second Amendment rationally.
This article talks about the complications surrounding gun control. A honorably discharged Vietnam War veteran is repeatedly denied gun rights due to a past misdemeanor of assault and battery that does not seem to have involved a weapon. I feel that Schrader's minor misdemeanor should not deny him gun rights.
SAF Sues Eric Holder, FBI Over Misdemeanor Gun Rights Denial
Second Amendment Foundation
/PRNewswire-USNewswire/ -- Acting on behalf of a Georgia resident and honorably discharged Vietnam War veteran, the Second Amendment Foundation today filed a lawsuit against Attorney General Eric Holder and the Federal Bureau of Investigation over enforcement of a federal statute that can deny gun rights to someone with a simple misdemeanor conviction on his record.
The lawsuit was filed in United States District Court for the District of Columbia. SAF and co-plaintiff Jefferson Wayne Schrader of Cleveland, GA are represented by attorney Alan Gura, who successfully argued both the Heller and McDonald cases before the U.S. Supreme Court.
In July 1968, Schrader, then 21, was found guilty of misdemeanor assault and battery relating to a fight involving a man who had previously assaulted him in Annapolis, MD. The altercation was observed by a police officer, who arrested Schrader, then an enlisted man in the Navy, stationed in Annapolis. The man he fought with was in a street gang that had attacked him for entering their "territory," according to the complaint.
Schrader was ordered to pay a $100 fine and $9 court cost. He subsequently served a tour of duty in Vietnam and was eventually honorably discharged. However, in 2008 and again in 2009, Mr. Schrader was denied the opportunity to receive a shotgun as a gift, or to purchase a handgun for personal protection. He was advised by the FBI to dispose of or surrender any firearms he might have or face criminal prosecution.
"Schrader's dilemma," explained SAF Executive Vice President Alan Gottlieb, "is that until recently, Maryland law did not set forth a maximum sentence for the crime of misdemeanor assault. Because of that, he is now being treated like a felon and his gun rights have been denied."
"No fair-minded person can tolerate gun control laws being applied this way," he added. "Mr. Schrader's case is a great example of why gun owners cannot trust government bureaucrats to enforce gun laws."
The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.
SOURCE Second Amendment Foundation
Posted on Wed, Oct. 13, 2010 04:15 PM
Read more: http://www.kansascity.com/2010/10/13/2310605/saf-sues-eric-holder-fbi-over.html#ixzz13bWwmOMC
This article talks about the issues surrounding the upcoming gun election next month on November 2 in Raymore, Missouri. Residents will be voting on whether or not to do away with an ordinance passed earlier this year that allows city council members to carry concealed weapons during meetings. I am not sure how I feel about the election.
Showdown looms for Raymore gun law
By DONALD BRADLEY
The Kansas City Star
The debate over the upcoming gun election in Raymore makes it sound like the city has an abnormally high rate of mental instability.
Both sides talk a lot about “crazy” people.
The anti-gun crowd worries that a City Council member could go “crazy” during a contentious meeting, pull a gun and start shooting. The pro-gun forces fear a “crazy,” irate citizen may come through the door blasting and a well-armed council may be the last line of defense.
Neither is likely to happen. This will: On Nov. 2, this city is headed for a showdown.
Residents that day will vote on a ballot question that, if passed, would amend the city charter and do away with an ordinance passed this year that allows council members to carry concealed weapons during meetings.
The ordinance also lets anyone with a conceal-and-carry permit to take a gun into city buildings and parks, and makes it legal to transport a gun in a vehicle even if the person does not have a conceal-and-carry permit.
The fight leading up to Election Day has been bitter and hot. Signs for both sides line streets all over town.
Council member Jeff Cox, who introduced the ordinance, and a group that has joined him in opposing the ballot measure, have been pushing the message to voters that the ballot question would “disarm police” by not making an exception for police officers carrying concealed weapons into city-owned buildings, including police headquarters.
Not true, Raymore Police Chief Kris Turnbow said Thursday. Police are exempt.
“State law allows us to carry concealed weapons in the performance of our duty,” Turnbow said. “We would not be affected by this at all.”
He is not taking a position on the ballot issue. He did, though, note that a man who allegedly shot at one of his officers during an Oct. 10 traffic stop had a conceal-and-carry permit.
There is also this twist to Raymore’s Question 1: A “no” vote will mean “yes” to allowing guns. Both sides agree voter confusion may play a role.
Supporters of the proposal to undo the ordinance say council meetings are often cantankerous and tension-filled — why put guns in the mix? Only police need be armed at public meetings, and no one has to be armed when paying a water bill or enjoying an afternoon in a city park, they say.
Opponents say the Second Amendment and Missouri law give citizens the right to carry concealed weapons. They also say they think it is foolhardy to rely entirely on police for public safety. They speak often of the 2008 “City Hall Massacre” in Kirkwood, Mo., when a gunman went to a council meeting and killed six people, among them the mayor, who died later.
For Raymore resident Jonathan Seeley, a structural engineer, it comes down to his belief that “gun control is people control.” He was a student at Virginia Tech on April 16, 2007, when a gunman killed 32 people and wounded at least 20 in the deadliest shooting ever on an American campus.
He said he now thought people should be able to carry a weapon anywhere, even onto airplanes and to parent-teacher conferences at schools.
“Law-abiding citizens should have the right to defend themselves wherever they go,” Seeley said Thursday.
Murel Geyer, a retiree, doesn’t want to believe that his world is safer when people carry guns. This week he called the ordinance “plum ridiculous.”
But he knows his city likes guns. A neighbor down his street mows his yard while wearing a holster and pistol, he said.
“Seems like everybody wants to be Wyatt Earp because they think everybody else is Jesse James,” Geyer said.
Piano teacher Lisa Sullivan also favors the initiative to undo the ordinance. People are always arguing at council meetings — potholes, trash, all kinds of things, she said.
“Why would you want to put guns in a place where people get mad?” she asked. “And what happened to bring this about? What are these people scared of?”
Council member Cox, an attorney, has said that the Kirkwood shootings motivated him to introduce the ordinance. He is a staunch believer that concealed weapons increase public safety and decrease crime.
His ordinance didn’t come easy. The measure passed initially, but not by enough of a margin to withstand a veto by Mayor Juan Alonzo.
In April, though, two of the “no” votes on Cox’s plan were defeated in city elections. Popular sentiment is that pro-gun forces pushed their ouster. Cox then quickly reintroduced his proposal, and it was approved in May.
But by then, foes already were planning a citizens petition for the November ballot.
Cox is highly critical of the effort and dismisses criticism that his ordinance is anti-Second Amendment because it allows council members to carry concealed weapons during meetings, but not citizens in the audience.
State law prohibits that. His ordinance did, however, include a resolution in which Raymore asked the Missouri General Assembly to rescind a ban on citizens carrying guns at council meetings.
Cox also noted that several other cities in the area, such as Lee’s Summit and Raytown, allowed council members to carry concealed weapons during meetings. Those cities have not requested that the right extend to the audiences.
Ivan Waite, a former Raymore councilman and leader of a group fighting to undo Cox’s ordinance, said he thought Cox was hoping the gun issue would propel him to higher office — Cass County prosecutor.
“He thinks there are enough gunslingers out there to get him elected,” Waite said.
Cox, a Republican who ran for prosecutor in 2006, chuckled at the suggestion.
“That office is up right now, and I’m not running,” he said, adding that he took heat for the ordinance and never sought any recognition.
But beyond anyone’s political ambition or whether the ballot question was crafted perfectly, this election is about ideology and guns.
Dick Hime, a former Raymore police officer and current gun dealer who strongly opposes the proposed ballot question, said, “We as law-abiding citizens should have the right to control our environment — whether we are in a meeting, paying a water bill or playing with our grandchildren in the park. A lot of people like me are tired of having government telling us what we can and cannot do.”
Resident Jim Kopetsky said he believed that “Raymore is not to that point and I hope it never is.”
To reach Donald Bradley, call 816-234-4182 or send e-mail to dbradley@kcstar.com.
Posted on Fri, Oct. 22, 2010 12:03 AM
Read more: http://www.kansascity.com/2010/10/21/2341462/showdown-looms-for-raymore-gun.html#ixzz13bcGodxB
First Amendment
It's been so long since I've last blogged. This was mostly intentional since I really just didn't have anything to say. Like I wrote in my previous post, I began this American Government course with a very elementary level understanding of the basic roots our government. I've been spending the last month just soaking up and pondering ideas from in-class discussions and the textbook. I know that textbooks are always biased to some degree and that classroom comments can often be fueled by emotional heat rather than reason, but I needed some ground to start on. However, I feel like there is just not enough time in the day (or too much to do rather) for me to study the United States government and Constitution as thoroughly as I would like. But I guess that's what life-long learning is for.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment protects We the People. It protects We the People's right to religious expression by prohibiting the government from establishing a national religion and allowing We the People to practice any form of religion we so desire. The First Amendment also protects verbal, written, and other forms of expression (i.e., artistic, audio, digital). The First Amendment also protects We the People's right to assemble in any way they so choose and protest the government in peace. In regard to the freedom of speech, there have been many controversial cases in which the freedom of expression collides with other rights of We the People.
I can't quite remember, but I think the first time I heard of some of the First Amendment's ideas was in elementary school. I grew up in a Baptist church, but I've always been in the public school system. I remember knowing that teachers were not allowed to lead us in prayer, but not fully understanding why. It probably wasn't until school middle school when I was formally introduced to the concept of "separation of church and state." I also don't think I was formally introduced to the concept of "freedom of speech" until middle school either. But I still did not fully understand these concepts, moreover their implications.
I have always been a very faith-oriented person. I often draw parallels between my faith and other aspects of life. It may seem ironic and inappropriate for me to be drawing parallels between Christianity and the establishment and free exercise clause, but I think they are very relative regardless of one's religious beliefs. Many of our Founding Fathers were religious, but they also knew that forcing religion upon a nation would only cause great turmoil. This is often noted in a surprising manner, but I don't think it should be at all. After all, the Christian faith is rooted in free will.
I know for sure that it wasn't until my high school government class when I was formally introduced to the freedom of the press, assembly, and petition. I have too often taken these freedoms for granted.
The following article talks about the issues surrounding the Snyder v. Phelps case that was recently heard by the U.S. Supreme Court on October 5. Snyder v. Phelps is a case about the First Amendment proctections versus the right to privacy. I feel that their should be a line drawn between First Amendment protections and the right to privacy. It will be interesting to see what the Supreme Court decides.
Lawsuit against Fred Phelps poses First Amendment test
By LAURA BAUER
The Kansas City Star
Under our First Amendment, there seem few — very few — social lines that cannot be crossed in this country.
Flags can be burned, Nazis can march, profanity be displayed, according to the U.S. Supreme Court. Like legal Spandex, free speech is stretched and stretched to cover some ugly things, making many of us uncomfortable in the process.
Waving signs that proclaim “God Hates America” and “God Hates Fags” and “Thank God for Dead Soldiers” outside a funeral for a fallen serviceman?
Will this fit, too? Lower courts have disagreed.
So today, the nine U.S. Supreme Court justices will hear Snyder v. Phelps.
“We’re going to court saying there’s a line somewhere,” said Craig Trebilcock, one of the attorneys for the father of Marine Lance Cpl. Matthew Snyder, who died four years ago in Iraq. “A group trying to use a claim of religion, or a claim of some sort of free speech, cannot use it as a club to harass, demean and crush a family.”
Rising from the other table will be the daughter of one of the most controversial — and some argue notorious — men in Kansas history, the Rev. Fred Phelps, pastor of Topeka’s Westboro Baptist Church.
“It’s not a First Amendment case, it is the First Amendment case,” Margie Phelps, attorney for Westboro Baptist, said last week. “It’s the ultimate test on whether this republic is real. The point of a republic is to protect from mob rule the dissenting view.”
The church’s dissenting view is that God reviles America for its tolerance of homosexuality and that deaths of military personnel are divine retribution.
And like it or not, she said, her family and their tiny church have the right to say whatever they want on public property.
The case, which has wound its way from a Maryland courtroom through the U.S. 4th Circuit Court of Appeals, pits free speech against privacy in a society that some would argue has too little of the latter.
“I had one chance to bury Matt and they took it away from me,” said the Marine’s father, Albert Snyder. “For them to say they didn’t disrupt the funeral, they are crazy.”
One of his other attorneys, Sean Summers, will tell the court that the church launched targeted abuse against the father and the family before, during and after the services.
Margie Phelps: “All this jabber about captive audience and private rights; it doesn’t fit the principal of law.”
Dan Winter, executive director of the American Civil Liberties Union of Kansas and Western Missouri, sees the case as a test of the amendment’s strength.
“It’s really a question of if the government is going to cut down this public speech because it’s vile, then what’s next?” he asked. “The Methodists? Is it newspapers? The blogs? The Republicans?”
The case will continue to elicit raw emotions and ethical and legal dilemmas.
The 20-year-old Snyder had only been in Iraq five weeks when he died in 2006. A day after two Marines showed up at his doorstep to give him the news, Albert Snyder learned that the Phelps clan would protest the funeral in Westminster, Md. He had seen members on TV, protesting other soldier funerals, and thought, “Oh, that’s great, that’s just what we need.”
The day of the funeral, seven members of the Topeka church showed up.
Shirley Phelps-Roper said the group stood the required 1,000 feet away.
“The church told us where to stand,” she said. “They put us in the corn field where the crickets chirp.”
Regardless, everything was disruptive, Snyder said. Swarms of media showed up. A SWAT team. State and county police. A Winnebago that served as command central for authorities.
Snyder said the stress from the protest and rhetoric from the church in the days after complicated his diabetes and caused depression.
A federal district court jury in Baltimore awarded nearly $11 million in damages to Snyder in 2007, saying the Phelps group intentionally inflicted distress on the family.
The award later was reduced to $5 million and eventually was overturned on appeal. In part, the three appellate judges said the protesters’ signs “clearly contain imaginative and hyperbolic rhetoric intended to spark debate” and thus were protected by the First Amendment.
The protest was not aimed specifically at the Snyder family, Phelps-Roper said.
“We didn’t know those people; we’re talking to a nation,” she said. “There was not one hitch in that funeral, nothing disruptive. …You just don’t like these words because they strike right at your heart.”
Snyder did not decide to sue until later, after he saw another family on the evening news going through a similar ordeal.
“What kind of society are we if we can’t bury our dead in peace?” Snyder asked. “It’s easy for people to say it’s free speech. You come back and tell me it’s free speech after they do it to your kid.”
Carl Tobias, University of Richmond (Va.) law professor, admitted being “conflicted personally. I am concerned about the First Amendment. But there’s a lot of sympathy, I think, and justifiably so, for the plaintiff, and I feel that, too.
“The thought is these are private people in a private moment, why should they be subjected to this behavior?”
The 48 states and District of Columbia supporting Snyder’s appeal say many legislatures have enacted laws limiting funeral protests that could be undermined if the church wins.
Led by Kansas Attorney General Steve Six, the states also contend that funerals are special circumstances protected from “unwanted emotional terrorism.”
“It’s not so much about the content of the speech, but when they do it, how they do it and to whom they do it,” said Steve McAllister, Kansas solicitor general. “They’re targeting private families.”
The ACLU submitted its own brief in favor of Westboro.
At the University of Kansas, law professor Richard Levy said, “If I had to go to Vegas and lay odds … I would be betting on the Phelpses. But it’s not a sure thing.”
Twenty-six members of the Topeka church have traveled to Washington, D.C. During arguments, three will be at the table with Margie, among them Phelps-Roper and another sister, Elizabeth Phelps.
Fourteen will be in the gallery watching, and eight more will be outside protesting with signs similar to the ones waved outside Matthew Snyder’s funeral.
“That First Amendment has weathered a lot of things — burning flags, pornography, all kinds of indecency,” Margie Phelps said. “Can the First Amendment survive a little humble church in the middle of the country talking to this nation about its sins that have gotten them in trouble with God?
“Can our First Amendment weather that?”
Some Supreme Court free speech rulings
1925
Chaplinsky v. New Hampshire
“Damned Facist” deemed “fighting words” leading to breach of peace
1970
National Socialist Party of America v. Village of Skokie
Nazis allowed to march in Illinois community whose population included Holocaust survivors. the U.S. Supreme Court’s role in 1977 was to decline review, leaving in place a lower-case ruling in favor of the Nazis.
1989
Texas v. Johnson
Forty-eight state laws that banned U.S. flag burning invalidated
2000
Hill v. Colorado
State allowed to order abortion protestors to stay 8 feet from clinic patrons
To reach Laura Bauer, call 816-234-4944 or send e-mail to lbauer@kcstar.com.
Posted on Tue, Oct. 05, 2010 11:00 PM
Read more: http://www.kansascity.com/2010/10/05/2280378/suit-against-phelps-poses-first.html#ixzz13bEWjsQg
This article talks about the phrase and idea "separation of church and state" in relation to the Constitution. The article catalogs a debate between O'Donnell and Chris Coons. O'Donnell states that nowhere in the Constitution is the phrase "separation of church and state" found. I agree with the idea that the First Amendment does not ban all involvement between church and state, but simply prohibits the government from establishing a religion and offers protection to We the People to practice whatever religion we so choose.
O'Donnell questions separation of church, state
By BEN EVANS
Associated Press Writer
O'Donnell left her law school audience buzzing when she challenged her Democratic opponent to show where the Constitution requires separation of church and state, and a day later, the two Senate candidates are set for more face-to-face forums.
"Where in the Constitution is separation of church and state?" O'Donnell asked Chris Coons Tuesday, drawing swift criticism from him, laughter from the crowd and a quick defense from prominent conservatives.
Coons, an attorney, responded that O'Donnell's question "reveals her fundamental misunderstanding of what our Constitution is. ... The First Amendment establishes a separation."
She interrupted to say, "The First Amendment does? ... So you're telling me that the separation of church and state, the phrase 'separation of church and state,' is in the First Amendment?"
Her campaign issued a statement later saying O'Donnell "was not questioning the concept of separation of church and state as subsequently established by the courts. She simply made the point that the phrase appears nowhere in the Constitution."
Conservative commentator Rush Limbaugh made the same point in his radio program soon after the debate, saying, "There's nothing in the Constitution about separation of church and state."
The controversy was the latest to befall O'Donnell in a race where she trails badly in the polls against Coons. They meet again twice on Wednesday.
Coons is executive of New Castle County, the state's most populous county. O'Donnell, with strong tea party support, burst into the national spotlight by winning the Republican primary over a longtime GOP congressman.
The subject of religion and the law came up during their debate at Widener University Law School as O'Donnell criticized Coons for saying that teaching creationism in public school would violate the Constitution.
Coons said private and parochial schools are free to teach creationism - O'Donnell used the term "intelligent design" - but that under the "indispensable principle" of separation of church and state "religious doctrine doesn't belong in our public schools."
He said the separation of church and state was one of a number of "settled pieces of constitutional law" worked out through years of legal development including Supreme Court decisions. He said a woman's right to abortion was another.
He noted again the First Amendment's ban on establishment of religion.
"That's in the First Amendment?" she said, smiling.
Both candidates suggested that the exchange showed the other didn't understand the Constitution.
The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The phrase "separation of church and state" is usually traced to President Thomas Jefferson. In a letter in 1802, he referred to the First Amendment and said that it built "a wall of separation between Church & State."
The relationship of government and religion continues to be debated in American law. Many argue that the First Amendment's reference to religion involves the establishment of any particular religion, an important concern to the American colonists, not a ban on all involvement between religion and government.
O'Donnell's comments, in a debate aired on radio station WDEL, stirred the audience.
"You actually audibly heard the crowd gasp," Widener University political scientist Wesley Leckrone said after the debate.
Posted on Tue, Oct. 19, 2010 08:16 AM
Read more: http://www.kansascity.com/2010/10/19/2329069/odonnell-questions-separation.html#ixzz13bgadAm6
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment protects We the People. It protects We the People's right to religious expression by prohibiting the government from establishing a national religion and allowing We the People to practice any form of religion we so desire. The First Amendment also protects verbal, written, and other forms of expression (i.e., artistic, audio, digital). The First Amendment also protects We the People's right to assemble in any way they so choose and protest the government in peace. In regard to the freedom of speech, there have been many controversial cases in which the freedom of expression collides with other rights of We the People.
I can't quite remember, but I think the first time I heard of some of the First Amendment's ideas was in elementary school. I grew up in a Baptist church, but I've always been in the public school system. I remember knowing that teachers were not allowed to lead us in prayer, but not fully understanding why. It probably wasn't until school middle school when I was formally introduced to the concept of "separation of church and state." I also don't think I was formally introduced to the concept of "freedom of speech" until middle school either. But I still did not fully understand these concepts, moreover their implications.
I have always been a very faith-oriented person. I often draw parallels between my faith and other aspects of life. It may seem ironic and inappropriate for me to be drawing parallels between Christianity and the establishment and free exercise clause, but I think they are very relative regardless of one's religious beliefs. Many of our Founding Fathers were religious, but they also knew that forcing religion upon a nation would only cause great turmoil. This is often noted in a surprising manner, but I don't think it should be at all. After all, the Christian faith is rooted in free will.
I know for sure that it wasn't until my high school government class when I was formally introduced to the freedom of the press, assembly, and petition. I have too often taken these freedoms for granted.
The following article talks about the issues surrounding the Snyder v. Phelps case that was recently heard by the U.S. Supreme Court on October 5. Snyder v. Phelps is a case about the First Amendment proctections versus the right to privacy. I feel that their should be a line drawn between First Amendment protections and the right to privacy. It will be interesting to see what the Supreme Court decides.
Lawsuit against Fred Phelps poses First Amendment test
By LAURA BAUER
The Kansas City Star
Under our First Amendment, there seem few — very few — social lines that cannot be crossed in this country.
Flags can be burned, Nazis can march, profanity be displayed, according to the U.S. Supreme Court. Like legal Spandex, free speech is stretched and stretched to cover some ugly things, making many of us uncomfortable in the process.
Waving signs that proclaim “God Hates America” and “God Hates Fags” and “Thank God for Dead Soldiers” outside a funeral for a fallen serviceman?
Will this fit, too? Lower courts have disagreed.
So today, the nine U.S. Supreme Court justices will hear Snyder v. Phelps.
“We’re going to court saying there’s a line somewhere,” said Craig Trebilcock, one of the attorneys for the father of Marine Lance Cpl. Matthew Snyder, who died four years ago in Iraq. “A group trying to use a claim of religion, or a claim of some sort of free speech, cannot use it as a club to harass, demean and crush a family.”
Rising from the other table will be the daughter of one of the most controversial — and some argue notorious — men in Kansas history, the Rev. Fred Phelps, pastor of Topeka’s Westboro Baptist Church.
“It’s not a First Amendment case, it is the First Amendment case,” Margie Phelps, attorney for Westboro Baptist, said last week. “It’s the ultimate test on whether this republic is real. The point of a republic is to protect from mob rule the dissenting view.”
The church’s dissenting view is that God reviles America for its tolerance of homosexuality and that deaths of military personnel are divine retribution.
And like it or not, she said, her family and their tiny church have the right to say whatever they want on public property.
The case, which has wound its way from a Maryland courtroom through the U.S. 4th Circuit Court of Appeals, pits free speech against privacy in a society that some would argue has too little of the latter.
“I had one chance to bury Matt and they took it away from me,” said the Marine’s father, Albert Snyder. “For them to say they didn’t disrupt the funeral, they are crazy.”
One of his other attorneys, Sean Summers, will tell the court that the church launched targeted abuse against the father and the family before, during and after the services.
Margie Phelps: “All this jabber about captive audience and private rights; it doesn’t fit the principal of law.”
Dan Winter, executive director of the American Civil Liberties Union of Kansas and Western Missouri, sees the case as a test of the amendment’s strength.
“It’s really a question of if the government is going to cut down this public speech because it’s vile, then what’s next?” he asked. “The Methodists? Is it newspapers? The blogs? The Republicans?”
The case will continue to elicit raw emotions and ethical and legal dilemmas.
The 20-year-old Snyder had only been in Iraq five weeks when he died in 2006. A day after two Marines showed up at his doorstep to give him the news, Albert Snyder learned that the Phelps clan would protest the funeral in Westminster, Md. He had seen members on TV, protesting other soldier funerals, and thought, “Oh, that’s great, that’s just what we need.”
The day of the funeral, seven members of the Topeka church showed up.
Shirley Phelps-Roper said the group stood the required 1,000 feet away.
“The church told us where to stand,” she said. “They put us in the corn field where the crickets chirp.”
Regardless, everything was disruptive, Snyder said. Swarms of media showed up. A SWAT team. State and county police. A Winnebago that served as command central for authorities.
Snyder said the stress from the protest and rhetoric from the church in the days after complicated his diabetes and caused depression.
A federal district court jury in Baltimore awarded nearly $11 million in damages to Snyder in 2007, saying the Phelps group intentionally inflicted distress on the family.
The award later was reduced to $5 million and eventually was overturned on appeal. In part, the three appellate judges said the protesters’ signs “clearly contain imaginative and hyperbolic rhetoric intended to spark debate” and thus were protected by the First Amendment.
The protest was not aimed specifically at the Snyder family, Phelps-Roper said.
“We didn’t know those people; we’re talking to a nation,” she said. “There was not one hitch in that funeral, nothing disruptive. …You just don’t like these words because they strike right at your heart.”
Snyder did not decide to sue until later, after he saw another family on the evening news going through a similar ordeal.
“What kind of society are we if we can’t bury our dead in peace?” Snyder asked. “It’s easy for people to say it’s free speech. You come back and tell me it’s free speech after they do it to your kid.”
Carl Tobias, University of Richmond (Va.) law professor, admitted being “conflicted personally. I am concerned about the First Amendment. But there’s a lot of sympathy, I think, and justifiably so, for the plaintiff, and I feel that, too.
“The thought is these are private people in a private moment, why should they be subjected to this behavior?”
The 48 states and District of Columbia supporting Snyder’s appeal say many legislatures have enacted laws limiting funeral protests that could be undermined if the church wins.
Led by Kansas Attorney General Steve Six, the states also contend that funerals are special circumstances protected from “unwanted emotional terrorism.”
“It’s not so much about the content of the speech, but when they do it, how they do it and to whom they do it,” said Steve McAllister, Kansas solicitor general. “They’re targeting private families.”
The ACLU submitted its own brief in favor of Westboro.
At the University of Kansas, law professor Richard Levy said, “If I had to go to Vegas and lay odds … I would be betting on the Phelpses. But it’s not a sure thing.”
Twenty-six members of the Topeka church have traveled to Washington, D.C. During arguments, three will be at the table with Margie, among them Phelps-Roper and another sister, Elizabeth Phelps.
Fourteen will be in the gallery watching, and eight more will be outside protesting with signs similar to the ones waved outside Matthew Snyder’s funeral.
“That First Amendment has weathered a lot of things — burning flags, pornography, all kinds of indecency,” Margie Phelps said. “Can the First Amendment survive a little humble church in the middle of the country talking to this nation about its sins that have gotten them in trouble with God?
“Can our First Amendment weather that?”
Some Supreme Court free speech rulings
1925
Chaplinsky v. New Hampshire
“Damned Facist” deemed “fighting words” leading to breach of peace
1970
National Socialist Party of America v. Village of Skokie
Nazis allowed to march in Illinois community whose population included Holocaust survivors. the U.S. Supreme Court’s role in 1977 was to decline review, leaving in place a lower-case ruling in favor of the Nazis.
1989
Texas v. Johnson
Forty-eight state laws that banned U.S. flag burning invalidated
2000
Hill v. Colorado
State allowed to order abortion protestors to stay 8 feet from clinic patrons
To reach Laura Bauer, call 816-234-4944 or send e-mail to lbauer@kcstar.com.
Posted on Tue, Oct. 05, 2010 11:00 PM
Read more: http://www.kansascity.com/2010/10/05/2280378/suit-against-phelps-poses-first.html#ixzz13bEWjsQg
This article talks about the phrase and idea "separation of church and state" in relation to the Constitution. The article catalogs a debate between O'Donnell and Chris Coons. O'Donnell states that nowhere in the Constitution is the phrase "separation of church and state" found. I agree with the idea that the First Amendment does not ban all involvement between church and state, but simply prohibits the government from establishing a religion and offers protection to We the People to practice whatever religion we so choose.
O'Donnell questions separation of church, state
By BEN EVANS
Associated Press Writer
O'Donnell left her law school audience buzzing when she challenged her Democratic opponent to show where the Constitution requires separation of church and state, and a day later, the two Senate candidates are set for more face-to-face forums.
"Where in the Constitution is separation of church and state?" O'Donnell asked Chris Coons Tuesday, drawing swift criticism from him, laughter from the crowd and a quick defense from prominent conservatives.
Coons, an attorney, responded that O'Donnell's question "reveals her fundamental misunderstanding of what our Constitution is. ... The First Amendment establishes a separation."
She interrupted to say, "The First Amendment does? ... So you're telling me that the separation of church and state, the phrase 'separation of church and state,' is in the First Amendment?"
Her campaign issued a statement later saying O'Donnell "was not questioning the concept of separation of church and state as subsequently established by the courts. She simply made the point that the phrase appears nowhere in the Constitution."
Conservative commentator Rush Limbaugh made the same point in his radio program soon after the debate, saying, "There's nothing in the Constitution about separation of church and state."
The controversy was the latest to befall O'Donnell in a race where she trails badly in the polls against Coons. They meet again twice on Wednesday.
Coons is executive of New Castle County, the state's most populous county. O'Donnell, with strong tea party support, burst into the national spotlight by winning the Republican primary over a longtime GOP congressman.
The subject of religion and the law came up during their debate at Widener University Law School as O'Donnell criticized Coons for saying that teaching creationism in public school would violate the Constitution.
Coons said private and parochial schools are free to teach creationism - O'Donnell used the term "intelligent design" - but that under the "indispensable principle" of separation of church and state "religious doctrine doesn't belong in our public schools."
He said the separation of church and state was one of a number of "settled pieces of constitutional law" worked out through years of legal development including Supreme Court decisions. He said a woman's right to abortion was another.
He noted again the First Amendment's ban on establishment of religion.
"That's in the First Amendment?" she said, smiling.
Both candidates suggested that the exchange showed the other didn't understand the Constitution.
The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The phrase "separation of church and state" is usually traced to President Thomas Jefferson. In a letter in 1802, he referred to the First Amendment and said that it built "a wall of separation between Church & State."
The relationship of government and religion continues to be debated in American law. Many argue that the First Amendment's reference to religion involves the establishment of any particular religion, an important concern to the American colonists, not a ban on all involvement between religion and government.
O'Donnell's comments, in a debate aired on radio station WDEL, stirred the audience.
"You actually audibly heard the crowd gasp," Widener University political scientist Wesley Leckrone said after the debate.
Posted on Tue, Oct. 19, 2010 08:16 AM
Read more: http://www.kansascity.com/2010/10/19/2329069/odonnell-questions-separation.html#ixzz13bgadAm6
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