A veteran in Glendale claims his Second Amendment rights were violated after his $25-thousand gun collection was confiscated by the courts.
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A veteran in Glendale claims his Second Amendment rights were violated after his $25-thousand gun collection was confiscated by the courts.
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By Editorial Board April 5
IN THE Supreme Courts landmark 2010 case Citizens United v. Federal Election Commission , the court declared that corporate independent political expenditures are protected free speech under the First Amendment and cannot be constrained. The court wrestled with the possibility that unlimited spending might have a corrupting influence on politics, but in the end it decided that free speech was the overriding goal and that as long as the expenditures were independent of candidates, and transparent, they would not increase corruption. The campaign cycles since then have been increasingly awash in this spending, much of it going to super PACs.
Now comes a disturbing set of facts that call into question the courts logic and conclusions about corruption. The April 1 indictment of Sen. Robert Menendez (D-N.J.) on bribery charges alleges a chronology that should worry everyone who cares about integrity in national politics. According to the indictment, a wealthy Florida ophthalmologist, Salomon Melgen, who was seeking Mr. Menendezs support on matters before the U.S. government, wrote two checks for $300,000 each in 2012 to the Senate Majority PAC, a super PAC devoted to supporting the election of Senate Democrats.
The donations were earmarked for use in the senators state of New Jersey. The senator was the only Democrat running for the Senate then in New Jersey. The doctor handed over one of the checks to a close friend of Mr. Menendez at the senators annual fundraiser. Is this what the court envisioned as independent?
The super PAC has said it acted within the law. It will be up to a jury to decide whether the doctor and the senator engaged in corruption. But the facts asserted in the indictment are sufficient to call into question the courts underlying thinking in Citizens United. The court declared that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. The court added that there is only scant evidence that independent expenditures even ingratiate.
In this case, the money may have earned the doctor more than just gratitude. The indictment describes a flurry of e-mails, calls and requests for meetings by the senator on behalf of the Florida doctor. The senator aimed his efforts at cabinet members, regulators and fellow senators. There is no evidence of a direct quid pro quo, but the timing is suspicious. For example, on June 1, 2012, the doctor issued a $300,000 check, through his company, to the super PAC, earmarked for New Jersey politicking. On June 7, the senator met with the acting administrator of the U.S. Centers for Medicare and Medicaid Services to advocate for a resolution of a Medicare billing dispute involving the doctor to the tune of nearly $9 million. Just coincidence?
Whats at stake here is more than just one case. The Supreme Court has created an environment pregnant with possibility for corruption. The principles of independent expenditure are being routinely subverted. The reality of corrupt politics money for favors is growing more evident by the day.
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A Californian appellate court has affirmed an earlier ruling that Sun Worshipping Atheism is not a religion.
According toRaw Story,the California Court of Appeal ruled on Tuesday that Marshel Copple’s Sun Worshipping Atheism did not satisfy the requirements of a three-point checklist in order to be considered a religion.
The appellate court ruled that Sun Worshipping Atheism failed to demonstrate that it addresses “fundamental and ultimate questions having to do with deep and imponderable matters,” and that it is comprehensive and not limited to only one subject matter. The court also said that religions “can often be recognised by the presence of certain formal and external signs,” all of which are not present in Copple’s atheism.
The case began after Copple, a former officer at theCalifornia Department of Corrections and Rehabilitation, resigned from his work claiming that he was denied religious accommodation by the department. Copple promptly filed suit alleging religious discrimination, failure to accommodate and constructive discharge.
According to Copple, the Sun Worshipping Atheism advocatessleeping at least eight hours a day, daily fresh air, frequent exercise, having a job, social interaction, and scepticism of one’s surroundings. As his job requiredeight hours of mandatory overtime if needed and up to 16 hours of overtime in the rare instances of a prison riot, Copple requested that the department limit his duty to eight hours a day.
According to the National Law Review, the Department denied his request. Copple then resigned and filed his lawsuit.
A Court issued summary judgement on Copple’s suit and ruled that Sun Worshipping Atheism was not a religion, and there was no basis for the Department to grant Copple’s request for religious accommodation. Copple appealed, and the Courts of Appeals upheld the decision on Tuesday.
“Although there is a set of principles on which plaintiff relies to guide his life, it reflects a moral and secular, rather than religious, philosophy,” the court ruling said.
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The Supreme Court has given pro-life advocates free rein, even if it distresses patients. But getting people to listen is more complicated.
When Kelsey McLain, then a 25-year-old in the midst of the first trimester of her pregnancy, arrived at the abortion clinic closest to her home, her car couldnt get past the entrance of the parking lot. Protestors loomed toward the front of her vehicle. The group of 12 wielded signs covered in photos of aborted fetuses with the word murder printed across them in big block letters. McLains mother was behind the wheel, and with her foot on the brake, she gave the road blockers a choice of moving or getting run over.
The encounter didnt end after the protesters moved off to the side. As McLain got out of the car, louder shouts greeted her, accusing her of turning her back, of not wanting to know the truth. She felt growing anger but resisted the urge to lash out. She dashed inside the clinic, her mother close behind. It wasnt what I needed to deal with that day, McLain recalls.
In the clinics waiting room, McLain noticed that many of the patients seemed rattled. At that point, all they knew was that there were people outside and they were screaming at them. They didnt know their motivations or if they were good or bad people. As a woman with a self-proclaimed interest in reproductive rights, McLain had thought she was prepared for what she was going to face when she arrived at the clinic. But she, too, felt jarred. Protesters are always going to be a scary thing, no matter how much knowledge you have about them, she says.
Today, McLain witnesses pro-life activism on a weekly basis, when she volunteers as a clinic escort. Her role is to offer patients moral and physical support as they make their way past protestors, some of them quietly praying, others approaching the women with an intensity that that borders on harassment. She says protesters are quick to remind escorts and clinic staff that theyre legally entitled to be there. They comment to us that they have great lawyers, and they know their rights, and if we ever violate their right to free speech, theyll sue us, she says.
In June 2014, the Supreme Court unanimously struck down a Massachusetts law forbidding protesters from standing within 35 feet of the entrance to a reproductive health care facility. After that decision came down, the demand for escorts like McLain sharply increased, says Marty Walz, the recently retired CEO of the Planned Parenthood League of Massachusetts. The protesters definitely have greater access to our patients, right up to the front door, Walz says. And they take advantage of it. When the buffer zone was in place, the Boston clinic used escorts only on Friday and Saturdayits busiest days. Now, every day, a swarm of people descends on the building. Along with the patients, the protesterswho now number anywhere from 20 to 80 each day and the pedestrians, there are 20 to 30 additional escorts at the Boston clinic.
This growing horde of people has made the atmosphere outside the clinic tenser, more chaotic, and in general, a lot less comfortable for the patients, says Sarah Cyr-Mutty, the community relations coordinator at the Boston clinic and a regular clinic escort. No one wants to drive up to their doctors office and see over 100 people standing outside.
The activists are now able to walk right up to patientspraying, pleading, and handing out flyers. They can follow women up to the clinics doors, which means that once the patients are in the waiting room, they can still hear the chants from outside. As such, Cyr-Mutty says that the patients she escorts through the clinics doors now are often in need of more consoling than they were before the Courts decision. Whether theyre just a presence outside, or theyre really trying to interact with them, its always really upsetting to the patient.
But apart from the commotion, its not clear how much has changed since the Supreme Courts ruling in McCullen v. Coakley nine months ago. Theres no evidence that activists are succeeding in changing womens minds. What is succeeding is the one thing the Supreme Court intended: People who believe abortion is murder are able to share that message with those who least want to hear it.
It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas, wrote Chief Justice John Roberts in the Courts opinion. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks.
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Forced Blood Draws, DNA Collection and Biometric Scans: What Country Is This?
By John W. Whitehead
February 24, 2015
The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official. The framers would be appalled.Herman Schwartz,The Nation
Our freedomsespecially the Fourth Amendmentare being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrestanyindividual atanytime and for theslightestprovocation.
Forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databasesthese are just a few ways in which Americans are being forced to accept that we have no control over what happens to our bodies during an encounter with government officials.
Worse, on a daily basis, Americans are being made to relinquish the most intimate details of who we areour biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States: we are all guilty until proven innocent.
Thus far, the courts have done little to preserve our Fourth Amendment rights, let alone what shreds of bodily integrity remain to us.
For example, David Eckert was forced to undergoan anal cavity search, three enemas, and a colonoscopyafter allegedly failing to yield to a stop sign at a Wal-Mart parking lot. Cops justified the searches on the grounds that they suspected Eckert was carrying drugs because his posture [was] erect and he kept his legs together. No drugs were found. During a routine traffic stop, Leila Tarantino was subjected to two roadside strip searches in plain view of passing traffic, during which afemale officer forcibly removed a tampon from Tarantino. Nothing illegal was found. Nevertheless, such searches have been sanctioned by the courts, especially if accompanied by a search warrant (which is easily procured), as justified in the governments pursuit of drugs and weapons.
Close to 600 motorists leaving Penn State University one Friday night were stopped by police and, without their knowledge or consent, subjected to a breathalyzer test usingflashlights that can detect the presence of alcohol on a persons breath. These passive alcohol sensors are being hailed as a new weapon in the fight against DUIs. However, because they cannot be used as the basis for arrest, breathalyzer tests are still required. And for those who refuse to submit to a breathalyzer, there are forced blood draws. One such person is Michael Chorosky, who was surrounded by police, strapped to a gurney and thenhad his blood forcibly drawn after refusing to submit to a breathalyzer test. What country is this? What country is this? cried Chorosky during the forced blood draw.Thirty states presently allow police to do forced blood draws on driversas part of a nationwide No Refusal initiative funded by the federal government.
The US government, with assistance from major telecommunications carriers including AT&T, has engaged in a massive illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001. Since this was first reported on by the press and discovered by the public in late 2005, EFF has been at the forefront of the effort to stop it and bring government surveillance programs back within the law and the Constitution.
History of NSA Spying Information since 2005 (See EFFs full timeline of events here)
News reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans phone calls and Internet communications. Those news reports, combined with a USA Today story in May 2006 and the statements of several members of Congress, revealed that the NSA is also receiving wholesale copies of American’s telephone and other communications records. All of these surveillance activities are in violation of the privacy safeguards established by Congress and the US Constitution.
In early 2006, EFF obtained whistleblower evidence (.pdf) from former AT&T technician Mark Klein showing that AT&T is cooperating with the illegal surveillance. The undisputed documents show that AT&T installed a fiberoptic splitter at its facility at 611 Folsom Street in San Francisco that makes copies of all emails web browsing and other Internet traffic to and from AT&T customers and provides those copies to the NSA. This copying includes both domestic and international Internet activities of AT&T customers. As one expert observed, this isnt a wiretap, its a country-tap.
Secret government documents, published by the media in 2013, confirm the NSA obtains full copies of everything that is carried along major domestic fiber optic cable networks. In June 2013, the media, led by the Guardian and Washington Post started publishing a series of articles, along with full government documents, that have confirmed much of what was reported in 2005 and 2006 and then some. The reports showed-and the government later admitted -that the government is mass collecting phone metadata of all US customers under the guise of the Patriot Act. Moreover, the media reports confirm that the government is collecting and analyzing the content of communications of foreigners talking to persons inside the United States, as well as collecting collecting much more, without a probable cause warrant. Finally, the media reports confirm the upstream collection off of the fiberoptic cables that Mr. Klein first revealed in 2006. (See EFFs How It Works page here for more)
EFF Fights Back in the Courts
EFF is fighting these illegal activities in the courts. Currently, EFF is representing victims of the illegal surveillance program in Jewel v. NSA,a lawsuit filed in September 2008 seeking to stop the warrantless wiretapping and hold the government and government officials behind the program accountable. In July 2013, a federal judge ruled that the government could not rely on the controversial state secrets privilege to block our challenge to the constitutionality of the program. This case is being heard in conjunction with Shubert v. Obama, which raises similar claims. Also in July, 2013, EFF filed another lawsuit, First Unitarian v. NSA, based on the recently published FISA court order demanding Verizon turn over all customer phone records including who is talking to whom, when and for how longto the NSA. This so-called metadata, especially when collected in bulk and aggregated, allows the government to track the associations of various political and religious organizations. The Director of National Intelligence has since confirmed that the collection of Verizon call records is part of a broader program.
In addition to making the same arguments we made in Jewel, we argue in Unitarian First Unitarian v. NSA that this type of collection violates the First Amendment right to association. Previously, in Hepting v. AT&T,EFF filed the first case against a cooperating telecom for violating its customers’ privacy. After Congress expressly intervened and passed the FISA Amendments Act to allow the Executive to require dismissal of the case,Hepting was ultimately dismissed by the US Supreme Court. First Unitarian v. NSAEFFs case challenging the NSAs phone metadata surveillance Jewel v. NSAEFFs case challenging the NSAs dragnet surveillance Hepting v. AT&TEFFs case that challenged AT&Ts complicity in illegal NSA spying Smith v. ObamaEFF’s appeal with the ACLU of an Idaho nurse’s challenge to the NSA’s phone metadata surveillance.
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In a thoughtful recent post, conservative political theorist Peter Lawler comments on my review of Damon Roots new book on the conservative-libertarian debate over judicial review. Lawler argues that libertarians overemphasize the role of judicial review protecting individual rights against state infringement, that the Founders assigned a much lesser role to judicial review, and that many of the rights libertarians (and liberals) seek to protect through judicial review cannot be squared with originalism. There are some problems with his analysis on all three issues.
I. The role of Judicial Review in Protecting Individual Rights
On the question of the effectiveness of judicial review, few serious libertarian commentators imagine that the judicial intervention alone is enough to protect the individual rights. Rather, they recognize that the road to victory for constitutional reform movements usually involves a combination of litigation and conventional political action. That has been a successful winning formula for the civil rights movement, womens rights advocates, gun rights supporters, and most recently same-sex marriage advocates. It has also underpinned the recent progress made by property rights advocates. The Institute for Justices efforts to revive public use constraints on eminent domain has involved just such a combination. While it has not so far achieved anything like complete victory, it has managed to secure important gains.
As evidence against the utility of judicial intervention, Lawler claims that the Courts record on race has generally been terrible and cites this as proof that it is ridiculous to rely all that much on the Court to protect our rights. The Courts record on racial discrimination has indeed often been poor relative to the ideal outcome. But the more relevant question is how good its record has been relative to the political branches of government. The case for strong judicial review is not that the courts are particularly good, but that, in protecting some types of important rights, they routinely do better than the available alternatives. By that standard, the Courts record on racial issues since the enactment of the Reconstruction Amendments is actually far better than many imagine. During the Jim Crow era, for example, the Court issued a number of important decisions striking down forms of racial discrimination that had prevailed in the political process. For example, it invalidated peonage laws and laws mandating residential segregation.
Although its record during that period was far from perfect, it was, overall, much better than that of Congress, the presidency, and many state legislatures. More recently, courts have been more willing than legislators to curtail racial preferences in government contracting and college admissions. Supporters of affirmative action understandably view these decisions as a negative, but conservative opponents including Lawler surely do not.
II. Originalism, the Founders, and the Role of the Judiciary.
Lawler doubts that judicial review was ever meant to be much more than an auxiliary precaution that would be rarely used, citing the Federalist Papers in support. While the Founders probably did not intend judicial review to be the primary method for protecting individual rights, they did emphasize its importance as a tool for enforcing constitutional limitations on government power. As Alexander Hamilton put it in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
In addition judicial review may have a greater role to play in protecting rights today, than might have been supposed in the 1780s. In a world where the size and scope of government is vastly greater than it was 225 years ago, it is far more difficult for voters with limited knowledge and attention spans to police all the many different possible ways in which government threatens liberty.
Under federal law, people who have been involuntarily committed to a mental institution however long ago are barred from possessing guns. Congress agreed that people with long-past mental problems might now be sane, and thus not especially dangerous, and provided for a means to apply for restoration of gun rights. But then in 1992 Congress ordered ATF not to spend any money applying the restoration program. And while it provided, in 2007, that people could get their rights restored by applying to a state that has a qualifying program for evaluating applicants mental fitness, many states have no such program.
This case was brought by a resident of one such state that lacks a relief-from-disabilities program, Michigan. From the courts opinion, Tyler v. Hillsdale County Sheriffs Dept (6th Cir. Dec. 18, 2014):
This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person who has been committed to a mental institution, 18 U.S.C. 922(g)(4), violates the Second Amendment. Twenty-eight years ago, Clifford Charles Tyler was involuntarily committed for less than one month after allegedly undergoing an emotionally devastating divorce. Consequently, he can never possess a firearm. Tyler filed suit in federal court, seeking a declaratory judgment that 922(g)(4) is unconstitutional as applied to him. The district court dismissed Tylers suit for failure to state a claim. Because Tylers complaint validly states a violation of the Second Amendment, we reverse and remand.
Tyler is a seventy-three-year-old resident of Hillsdale County, Michigan. On January 2, 1986, a state probate court committed Tyler to a mental institution. Tyler alleges that he underwent an emotionally devastating divorce in 1985 and that he was involuntarily committed because of a risk that he might be suicidal.
Tyler submitted a 2012 substance-abuse evaluation containing additional information about his 1985 depression. In 1985, when Tyler was forty-five years old, Tylers wife of twenty-three years served him divorce papers. Prior to filing for divorce, Tylers ex-wife allegedly ran away with another man and depleted Tylers finances. Tyler felt overwhelmed and sat in the middle of the floor at home pounding his head. According to a mental-health evaluation submitted by Tyler, Tyler was crying non-stop, not sleeping, depressed, and suicidal at this time. Tylers daughters became scared and contacted the police. [Tyler was then involuntarily committed. -EV]
In 2012, Tyler underwent a psychological evaluation. Tyler informed the psychologist that he had never experienced a depressive episode other than his 1985 incident. The psychologists report indicated that Tyler has no criminal history. The psychologist contacted Tylers physician who also reported that she had not detected evidence of mental illness in Tyler. The psychologist determined that Tylers prior involuntary commitment appeared to be a brief reactive depressive episode in response to his wife divorcing him. The psychologist determined that there was no evidence of mental illness.
The court concluded quite rightly, I think that Hellers endorsement of restrictions on gun ownership by the mentally ill doesnt dispose of the case:
The Courts assurance that Heller does not cast doubt on prohibitions on the possession of firearms by the mentally ill does not resolve this case. For 922(g)(4) prohibits firearm possession not just by the mentally ill but by anyone who has been committed to a mental institution. Hellers assurance that the state may prohibit the mentally ill from possessing firearms may provide solid constitutional ground for 922(g)(4)s restriction as to an individual adjudicated as a mental defective, but it is insufficient by itself to support the restriction as to individuals who have been involuntarily committed at some time in the past.
The court then concluded that strict scrutiny (not intermediate scrutiny) was generally the proper test to apply to gun restrictions, outside those categories excluded from Second Amendment scrutiny by Heller. The court, however, predict[ed] that the application of strict scrutiny over intermediate scrutiny will not generally affect how circuits decide various challenges to federal firearm regulations; this might seem surprising, but the courts explanation of this prediction on pp. 26-27 strikes me as quite plausible. And the court then applied strict scrutiny here are some excerpts from the analysis, which focuses largely on the fact that Congress (1) chose to create a system for people with past mental commitments to regain their Second Amendment rights, but (2) then defunded the federal system and decided to rely on state choices whether to set up their own state systems:
At issue here is only 922(g)(4)s prohibition on possession by persons previously committed to a mental institution. Not all previously institutionalized persons are mentally ill at a later time, so the law is, at least somewhat, overbroad. But is it impermissibly so? Congress, in its efforts to keep firearms away from the mentally ill, may cast a wider net than is necessary to perfectly remove the harm. A prophylactic approach thus obviate[s] the necessity for large numbers of individualized determinations. But is 922(g)(4)s net too wide? Are previously institutionalized persons sufficiently dangerous, as a class, that it is permissible to deprive permanently all such persons of the Second Amendment right to bear arms?
In 14 words, the decision of a Brantford judge changed the life of an 11-year-old Six Nations girl with leukemia, and sparked a controversy about Aboriginal rights and the rights of children in Canada.
The ruling has been supported by Aboriginal communities and met with concern by non-Aboriginal legal experts who question whether the decision adequately considered the rights of the girl and the duty of the government to protect the best interest of the child.
D.H.s decision to pursue traditional medicine for her daughter J.J. is her aboriginal right, wrote Justice Gethin Edward in his Nov. 14, 2014 decision.
And so Edward did not force the Brant Childrens Aid Society to apprehend the girl and undergo the chemotherapy her doctors at the McMaster Childrens Hospital said gave her a 90 to 95 per cent chance of survival her only chance of survival. He, instead, established that Section 35 of the Constitution protects the Aboriginal practice of using traditional medicine and the right of the mother to have her child treated with traditional medicine over chemotherapy.
The hospital has said it has no plans to appeal the decision. This is a world of competing sorrows, because no matter what you do somebody is going to be hurt or harmed or upset, says Margaret Somerville, the founding director of the Centre of Medicine, Ethics and Law at McGill University.
The case is distinct from other instances where courts have intervened to force medical treatment on minors not considered capable of making their own decisions often because of religious objections, such as in the case of Jehovahs Witnesses refusing to accept blood transfusions.
In those cases the courts essentially say to parents, your Charter right to freedom of religion does not override your childs right to life, says Cheryl Milne, the executive director of the David Asper Centre for Constitutional Rights at the University of Toronto. She adds that Canada, as a signatory of the UN Convention on the rights of a child, also has obligations to protect the life and health of children.
Edwards decision has left many legal experts in constitutional and family law questioning whether the rights of the child were properly weighed in this case.
What I find the decision is a little unclear on is the right of her child herself and seeing her rights as separate, says Milne. This is very much a decision based on rights of the aboriginal community as opposed to the right of the individual child and the right of parent to make decisions about the child.
If you look at the cases in this area which are not involving Aboriginal children, in almost every case including ones with similar facts to this one, the courts would take the decision-making authority away from the parents, says Somerville.
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A review of sentencing following the 2011 English riots has shown that sentences were much harsher than realised at first.
And just as people got caught up in the riots and acted out of character the study, carried out by The University of Manchester and Liverpool John Moores University, found that the courts themselves got caught up in a similar kind of collective hysteria.
Dr Hannah Quirk, a Senior Lecturer in Criminal Law and Justice from The University of Manchester, was the co-author of the research which has just been published in The British Journal of Criminology. She said: “Whilst the offending may have been impulsive, sentencing should not be.”
The summer riots of 2011 were commonly described as the worst in living memory due to the speed with which they spread over such a wide geographical area. The disorder began after Mark Duggan, was shot dead by the police in Tottenham, north London.
Over three thousand prosecutions were brought in connection with the unrest, which saw streets in parts of the country awash with violence, looting and arson. By 31 August 2012, of the 2,158 convicted, all but 20 had been sentenced with the vast majority of offending having taken place in London, followed by the West Midlands and Greater Manchester.
Dr Lightowlers, a lecturer in Criminal Justice at Liverpool John Moores University, says the courts decided not to follow sentencing guidelines which led to excessive and arbitrary punishments.
She said: “It was not just the courts that over-reacted. An ‘uplift’ was applied at every stage from arrest, to charge, to remand, to which court dealt with the case.”
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As Eugene noted, a divided panel of the Ninth Circuit recently held that a child pornography conviction had to be reversed because the evidence was gathered in violation of the Posse Comitatus Act. Steve Vladeck has a post discussing the important and potentially certworthy issue in the case, which is whether a violation of that statute can trigger the exclusionary rule at all.
I confess that my initial reaction was skepticism. Consider Sanchez-Llamas v. Oregon:
We have applied the exclusionary rule primarily to deter constitutional violations. [In t]he few cases in which we have suppressed evidence for statutory violations the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests.
Maybe the Posse Comitatus Act can be shown to implicate important Fourth and Fifth Amendment interests, but the Ninth Circuit didnt really show that, and it isnt obvious to me.
More generally, it seems to me that current exclusionary rule doctrine can be read in a couple of different ways:
One is the deterrence theory: Exclusion is appropriate when it seems like theres intentional and/or widespread and/or generally problematic illegality by the government. This refrain appears in a bunch of the cases, and its how the Ninth Circuit framed the analysis. Its not clear, however, that the analysis automatically applies in statutory cases (see above).
A second is the slow destruction theory: Under this theory, the exclusionary rule is unfounded and deleterious, and the rule and its works should be slowly destroyed. Some people read the Courts exclusionary rule precedents to be implicitly working toward this theory. It is not really put forward by the Court as a first-order justification, although quite a few of the opinions do frame their analysis by questioning the rules basis or justification.
Until recently, I would have ended this list there. But I have recently begun to give some credence to a third account of exclusionary rule doctrine put forward by my friend Richard Re in an article called The Due Process Exclusionary Rule.
Richard argues that today many searches and seizures should be seen as part of the criminal process and that the exclusionary rule is thus justified by the Due Process Clause, which forbids a conviction obtained through illegal process. While I am not yet sure that I agree with this view, I think it deserves serious consideration, and is the best alternative to the slow destruction theory that is on offer.
Here is what the article says about statutory violations (footnotes omitted):
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The Dispatchpublic affairs team talks politics and tackles state and federal government issues in the Buckeye Forum podcast.
Freedom to Marry, the nations major financial backer of same-sex marriage, will spend at least $500,000 to open field offices in Columbus, Cincinnati, Cleveland and Toledo.
The campaign also will air television commercials in Ohio, but they will not focus on a prospective ballot issue to overturn the states 2004 ban on same-sex marriage, said Marc Solomon, national campaign director for Freedom to Marry.
Solomon said his organization will spend a total of $1.1 million on Ohio, Michigan and Indiana on same-sex marriage bids. Why Marriage Matters Ohio will operate the field offices.
Freedom to Marry prefers winning in the courts over putting the issue to voters, Solomon said in an interview.
We want to win. We want to prevail. We think we have a very solid chance of prevailing through the courts. Ballot issues are never our preferred way of going. As a matter of principle, we believe its never appropriate to define the rights of minority groups through what amounts to a popularity contest. In a practical, sense, ballot campaigns are very difficult, very expensive.
Solomon said if the issue does go to voters in 2016, Freedom to Marry would be 100 percent behind that. All of the work were doing now serves all these ends.
Freedom to Marry is part of the Why Marriage Matters coalition that also includes Equality Ohio, the American Civil Liberties Union of Ohio and the Human Rights Campaign.
FreedomOhio, the Ohio-based group, is not part of the coalition. FreedomOhio officials recently decided to not go to the ballot this year seeking to overturn the 2004 amendment to the Ohio Constitution that restricts marriage to one man and one woman, but to launch a new petition drive likely aimed at 2016.
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Posted Mon, May 5th, 2014 12:00 pm by Lyle Denniston
Two areas of the law where the Supreme Court made major pronouncements, and then all but dropped the subject, continued on Monday to remain off the Courts decision docket. One wasthe intensifying controversy over Second Amendment rights; the other was the lingering controversy over the fate of prisoners held at Guantanamo Bay, Cuba. Without comment, the Court denied review of new cases, keeping intact a lengthening list of refusals.
Since the Courts 2008 decision declaring a personal right to have a gun under the Second Amendment, and its 2010 decision expanding that right nationwide, the Justices have steadfastly refused to say anything more about how far that right extends. And since its 2008 decision giving Guantanamo Bay detainees a right to go to court to protesttheir prolonged imprisonment, it has routinely denied pleasto spell out how that ruling should be applied.
The pattern continued on Monday, as the Justices without explanation and with no dissenting votes recorded chose not to take on the Second Amendment case of Drake v. Jerejian, or the Guantanamo case of Al Warafi v. Obama.
Only two explanations seem plausible: either the Court is content to let lower courts work out the details of gun rights and detention authority, or the Justices are hesitating to take on a new case because they are not sure how the votes will be cast on final decisions.
Probably the biggest question overhanging the Second Amendment is whether the right to have a gun for personal self-defense exists outside the home. Some courts have said yes, some have said no, and some have not been sure either way. That was the issue raised in the Drake case, seeking to test a New Jersey law that requires an individual who wants to carry a handgun in public to get a permit to do so; to obtain such a permit, one has to convince officials that the person has a justifiable need for that privilege.
There is a clear split among federal appeals courts on the outside-the-home issue. In the Drake case, the U.S. Court of Appeals for the Third Circuit found no Second Amendment violation with the handgun permit law.
Probably the biggest question overhanging Guantanamo Bay prisoners that is, those being held there who are not being prosecuted for any crimes is whether and how long they can be kept there if they did not actively engage in armed conflict against the U.S. or its allies before they were captured. Justice Stephen G. Breyer signaled in a recent opinion that this is an open question.
And that appeared to be the situation in the new Al Warafi case. He and his lawyers have insisted that he went to Afghanistan to act as a medical worker, in clinics and hospitals, and his stint with Taliban forces was only as a medical aide. His detention was upheld by lower courts, however, because he was found to have been a part of the Taliban terrorist network regardless whether he had engaged in armed hostilities himself.
Those denials came among a series of orders the Court issued before beginning a two-week recess. Here, in summary, were some of the other actions:
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When asked about polarization between justices, Ginsburg said that liberals who criticize the conservative Scalia forget that he “is one of the most pro-Fourth Amendment judges on the court.” The Fourth Amendment protects U.S. citizens from unreasonable searches and seizures. Here is an excerpt from that interview:
WSJ: How deeply polarized is the court?
GINSBURG: [Justice Antonin] Scalia is often criticized by people who would not be labeled conservative. Liberals dont count his Fourth Amendment cases or the confrontation clause cases. He is one of the most pro-Fourth Amendment judges on the court.
WSJ: Not more pro-Fourth Amendment than you.
GINSBURG: No. But weve been together in all the confrontation cases and many of the Fourth Amendment cases. For example, that wonderful, wonderful one with the GPS, and the dog sniff cases.
The “GPS case” was United States v. Jones, in which both justices sided with the courts 2012 ruling that police violated the Fourth Amendment when they attached a GPS device to track a vehicle. In the Florida v. Jardines case, Ginsburg and Scalia both sided with the courts 2013 ruling that police officers use of a drug-sniffing dog at a persons front porch constituted a search under the Fourth Amendment.
In both of those cases, it was Scalia who delivered the Supreme Courts opinion.
There are other recent examples where Scalia has demonstrated pro-Fourth Amendment opinions, as the Los Angeles Times has reported. That includes Scalias opposition to the Supreme Courts majority opinion that permits police to use anonymous tips to stop cars on highways. And in 2013, he fiercely dissented to the Courts ruling that police can routinely swab for DNA from arrested people.
Recently, the Supreme Court has considered whether police can search the digital contents of cellphones without warrants. In reporting on this case, a number of news outlets noted that Scalia has become a champion of the Fourth Amendment.
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MEDICINE HAT, Alta. – A southern Alberta city and an oil and gas company are asking the courts to quash a federal emergency order that protects the sage grouse.
Freedom as a number
Jonathan Power (POWERS WORLD) / 7 February 2013
THE COLD War ended and the good times began the big powers stopped using their veto in the UN Security Council, the number of wars fell dramatically, human rights improved all over the world including in Russia and the number of democracies increased substantially.
Where have all the flowers gone? The veto has returned. The number of civil wars has started to rise again. The number of democracies has begun to decrease. Perhaps better human rights practices are still holding their ground in China they are improving slowly, including a more open Press and more freedom for academics in the universities, but in Russia after some opening up under the presidency of Dimitri Medvedev freedoms are now retreating under Vladimir Putin.
The Arab Spring continues its uncertain course with Egypt awash with uncertainty. Only in Tunisia does freedom seem secure.
Freedom House has a long history of measuring progress on some of the key human rights indicators democracy, freedom of the Press and the courts. It has produced some interesting results in its new report.
Still, all is not right with Freedom Houses report. The organisation does have flaws. One mans judgment is another mans poison, although that is to put it too strongly.
When I look at its report on Nigeria, a country I have visited a dozen times over 30 years, I think back on my visits and recall that every time I go I feel astonished by its progress both political and economic. Its only 14 years ago that it was ruled by a brutal dictatorship. Under its first elected government freedom of the Press and assembly were instantly granted. A strong attack was made on its embedded corruption. The courts were freed to do their job and steadily improved their quality.
The first election was flawed but since then there have been three general elections and each time they have become fairer. The legal system has improved and the government has been challenged in the courts, including over the election results when the court in one knife-edged judgment decided there had been a good deal of fraud in the election but that the cheating wouldnt have altered the results. Newspapers have become more daring in their criticisms.
The deeply embedded culture of corruption continues unabated. Prosecutions on Nigerian soil have only netted one imprisonment. But Freedom House dont mention the successful conviction of a big time politician in a UK court, with the evidence supplied by Nigeria. Moreover, the sense of impunity has diminished. The cabinets of the three governments have been almost corruption-free.
WASHINGTON Legislative leaders from nine states Tuesday, citing a growing polarization on the issue of religious freedom, announced the formation of state religious freedom caucuses. There are plans to have similar legislative caucuses in all 50 states by the end of 2013.
The first wave of caucuses are headed by legislative leaders in Arizona, Colorado, Florida, Idaho, Kansas, Missouri, New Hampshire, Oklahoma and Tennessee. A caucus in Utah is anticipated to be announced in January, although its local leaders haven’t been publicly identified.
The Ethics and Public Policy Center’s American Religious Freedom Program is heading up the caucus effort to provide resources and expertise to state lawmakers who want to set state-specific religious freedom policy.
The program is targeting states with a strategy to combat threats to religious liberty on the ground level and help create a thoughtful, less polarized approach to resolving differences that will inform federal officials.
“A high percentage of laws are made in state houses, not by Congress, and a high percentage of religious freedom threats materialize in states,” said Tim Schultz, state legislative policy director for ARFP. “But states have not been as quick to recognize that this is something they will have to confront.”
The exceptions are representatives from the nine states on-hand for a teleconference announcing the caucuses.
“Legislative caucuses focused on religious freedom will help ensure that each statehouse is a bulwark against overreaching government officials and policies that would corrupt or curtail those freedoms,” said Kansas Republican Rep. Lance Kinzer, who is chairman of the Legislature’s Judiciary Committee.
Schultz said Kansas is where a Jehovah’s Witness and Medicaid recipient was denied state help for an alternative treatment because her faith prevented her from having a blood transfusion. It took two years for the courts to finally rule in her favor.
Schultz said those types of cases typically are what religious liberty advocates find on the state level and hope to address through the state caucuses through legislation. He said lawmakers and the public often place religious liberty disputes in the realm of Congress or the courts, or identify with the issue in cases of prayer or Christmas displays in public places.
“Those are actually establishment clauses cases. But the new threat is in the (free) exercise clause of the First Amendment and threaten people’s ability to practice their faith outside the walls of the church, synagoge or mosque. States have been a little bit slower to see these threats materialize,” he said.
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