Monthly Archives: June 2021

From Nunes v. Lizza, handed down yesterday by Magistrate Judge Mark A. Roberts (N.D. Iowa):

Defendants published an article about Plaintiffs' dairy farm. A thorough statement of the factual background is set forth in Judge Williams's Memorandum and Order regarding Defendants' Motion to Dismiss. Because of Judge Williams's ruling, the sole surviving claim is for defamation arising from Defendants' allegedly false statements that Plaintiffs knowingly employed undocumented or unauthorized workers.

Thereafter, discovery focused on the immigration status of Plaintiffs' employees, including, among other things, Plaintiffs' I-9 documentation and records in the possession of the Social Security Administration. Defendants noticed the depositions of six of Plaintiffs' current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions.

Plaintiffs' counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants' counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, "I've advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.]" Mr. Biss then interrupted stating, "Hold on. Hold on. Can we go off the record for just a minute? I'd like to talk to Justin before we do this." In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants' counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we've had several conversations with lots of people and I've talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

Defendants complain about Mr. Biss's behavior during the deposition of F.S.D. Particularly, Defendants assert that Mr. Biss asserted argumentative objections that were disruptive and intended to intimidate or coach the witness. Mr. Biss asserts that his objections were proper and "intended to call out the Defendants' overt harassment of the NuStar employee." Mr. Biss's further explanation on this issue is puzzling and troubling:

No effort was made to "signal to the witness how to answer questions" or to "coach[ ] the witness to testify in a certain way." Counsel for the Defendants got answers to all his questions, including those about [F.S.D.'s] traffic tickets. The deponent was never instructed not to answer. Indeed, he wanted to answer all questions. Plaintiff's counsel sought a side bar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment. The witness did not, which is why the witness terminated the lawyer with absolutely no prompting by Plaintiffs' counsel.

During the deposition, Defendants' counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment. Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer's lawyer making lengthy, animated objections to those questions.

The most puzzling and troubling aspect of Mr. Biss's explanation, however, is the representation that he "sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment." This two-hour "sidebar" occurred immediately after Mr. Allen stated, "I've advised my client to invoke his Fifth Amendment right regarding questions about this document."

Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss's protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss's behaviorcoupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was firedgives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

Here, the problem is at least the appearance of an attorney pressuring a witness not to assert a privilege and effectively canceling the deposition to obtain that result. I make no finding based on this record that such pressure did, in fact, occur. Nevertheless, the record lends itself to the appearance that [F.S.D.] may have been subject to pressure not to independently assert his rights.

Read more:
Devin Nunes's Libel Lawyering, Employee Witnesses, and the Privilege Against Self-Incrimination - Reason

The principle that anyone born in the United States is an American citizen is enshrined in the 14th Amendment. But in a divided decision Tuesday, a federal appeals court reaffirmed the unique inapplicability of the citizenship clause to one of Americas six federal territories American Samoa, the only one of the six where birthright citizenship does not currently apply.

The ruling in Fitisemanu v. United States doesnt just rest on a deeply flawed understanding of the 14th Amendment. It also breathes new life into a long since discredited distinction that the Supreme Court drew in the early 20th century one in which territories that just happened to be predominantly white received full constitutional protections, while those that were not didnt.

After years of struggle between the U.S., Germany, and United Kingdom for dominance over the Samoan island chain, the islands were partitioned into two in 1899. Just prior to the partition, America had gained significant overseas territories as a result of concessions arising out of the Spanish-American War. The eastern group of Samoan islands quickly joined the ranks after tribal leaders formally ceded the land to the Americans. The western group remained a German possession through Germanys defeat in World War I, becoming an independent nation in 1962.

But even as residents of other U.S. territories gained birthright citizenship either by constitutional mandate or statute, and even as American Samoans (a disproportionate percentage of whom have served in the U.S. military throughout the past century) fought for similar and other protections in Congress, they were left out.

A federal judge in Utah had agreed that the denial of citizenship was unconstitutional but a divided panel of the Denver-based federal appeals court reversed that decision.

In the case decided Tuesday, three American Samoans living in Utah had brought suit challenging their denial of citizenship which, among other things, means that they are denied the right to vote, the right to run for elective federal or state office outside American Samoa, and the right to serve on federal and state juries. A federal judge in Utah had agreed that the denial of citizenship was unconstitutional but a divided panel of the Denver-based federal appeals court reversed that decision.

Writing for the majority, Judge Carlos Lucero relied heavily on a series of early-20th century Supreme Court decisions known as the Insular Cases. In those cases (none of which dealt specifically with birthright citizenship), the justices adopted a distinction between incorporated territories (those U.S. possessions that were destined for statehood) and unincorporated territories (those U.S. possessions that were not). The Constitution generally applied to its fullest extent in the former, whereas courts were left to decide on a case-by-case (and provision-by-provision) basis the extent to which it applied in the latter.

Forests have been felled on the myriad problems with the Insular Cases. To make a long story shorter, as five of the leading scholars on the subject wrote in 2014:

The Insular Cases approach to the constitutional status of the U.S. territories lacks any grounding in constitutional text, structure, or history. The Insular Cases, rather, reflected the assumptions of the time that the United States, like the great European powers of that era, must (despite being constrained by a written Constitution) be capable of acquiring overseas possessions without admitting their uncivilized and savage inhabitants of alien races to equal citizenship. That reasoning, even if it were constitutionally relevant, is the product of another age. It has no place in modern jurisprudence even if it had any validity in earlier times.

Of course, lower courts would still be bound by those decisions if any of them were squarely on point. But none of the Insular Cases involved the citizenship clause of the 14th Amendment. Instead, the Court of Appeals was free to reach the issue anew in this case and still chose to abide by the Insular Cases discredited framework. In the process, the court wholly ignored the original context of the citizenship clause enacted to overturn a Supreme Court decision in which one of the questions had been the status of slaves in federal territories.

The Supreme Courts 1857 decision in the Dred Scott case is infamous for its full-throated legal defense of the institution of slavery. But its constitutional significance was its specific holding that slaves and their descendants were not and could not become U.S. citizens. Congress accordingly did not just amend the Constitution to abolish slavery after the Civil War; it also wrote into our founding charter the principle of birthright citizenship that anyone born in the United States is a citizen thereof.

Turning to the question of whether the citizenship clause should apply in an unincorporated territory like American Samoa, the 10th Circuit Court of Appeals focused its analysis on whether it would be impractical or anomalous to extend birthright citizenship to American Samoa and held that it would.

Their reasoning: a majority of American Samoans have expressed concern that recognition of birthright citizenship would open the door to arguments that other constitutional provisions cannot be reconciled with some of American Samoas unique legal traditions. That includes worries that if the citizenship clause of the 14th Amendment applies to American Samoa, it might presage a holding that the Supreme Courts modern Fifth Amendment property rights jurisprudence likewise applies to the Pacific Ocean territory, , threatening the islands communal ownership of property..

But this analysis not only misapplied the Supreme Courts precedents (which ask whether recognition of the right is impractical or anomalous from the federal governments perspective); it also fundamentally devalues the importance of constitutional rights in the territories where those rights that arent supported by a majority are perhaps the most in need of judicial incorporation.

One might wonder why its such a big deal that a federal appeals court has held that 50,000 Americans arent constitutionally entitled to birthright citizenship. The answer is two-fold: First, to reach that result, the court had to both ignore the original purpose and context of the citizenship clause and revive the deeply problematic rationale of the Insular Cases

Second, and more fundamentally, one of the two central goals of the post-Civil War amendments was to hard-wire into the Constitution the idea that theres only one class of American to repudiate not only the institution of slavery, but also the caste system it created. The more that contemporary courts recognize circumstances in which our compatriots are not treated as equals, the more they open the door to additional erosions of this fundamental ideal.

Steve Vladeck is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast).

View post:
American Samoans are the latest victims of these ignorant Supreme Court rulings - MSNBC

Rooted in legal scholarship and academia, critical race theory experienced a small spike in public consciousness last September shortly before former President Donald Trump signed a related executive order and then interest skyrocketed over the past two months.

Signs saying, "Stand Up Greenwich: Unmask our children, ban critical race theory, protect medical freedom" popped up earlier this month in Greenwich. People have raised concerns about critical race theory to the boards of education in Greenwich and in East Lyme. More than 500 people have signed a petition asking the Guilford Board of Education to disavow critical race theory.

Republican legislators in at least 22 states have introduced billstargeting theteaching of critical race theory or certain "divisive concepts." A month ago, 20 Republican attorneys general wrote an anti-CRT letter to the U.S. Department of Education Secretary Miguel Cardona saying the department shouldn't fund "any projects that characterize the United States as irredeemably racist or founded on principles of racism."

Lewis Gordon, head of the philosophy department at the University of Connecticut, called the latter statement a false dilemma.

"To say that the United States is a country that was built on racism and colonization and genocide is not to say that's the only things the United States were built on," he said, "because throughout, there were people including among whites who fought against white supremacy, racism, colonialism and genocide."

So, what is critical race theory, and how did the phrase become so pervasive in current discourse? And is the backlash actually to critical race theory, or to something else?

Its origins date to the 1970s and '80s, and the late Harvard Law School professor Derrick Bell.

Quinnipiac University School of Law professor Angela Robinson, who teaches a course called Critical Race Theory, said it started with a group of lawyers and law professors who came up with the principles that race is a social construct and that "racism is pervasive in our society because we really haven't unpacked the effect of race."

"Critical race theory says that systems are designed to get the results they get, and so if we are continually having racial disparities which we have in wealth and education and health outcomes that must be because there is something in the system that is continually producing those results," Robinson said.

She said she teaches her students that critical race theory is one way to look at things but not the only way.

Robinson and other scholars of critical race theory say some misconceptions are that it wants white people to feel guilty about being white and that it's rooted in Marxism.

Dishonest takes on both sides

Gerald Torres, a Yale School of the Environment and Yale Law School professor who is a scholar of critical race theory, said he has "no idea whether people are being taught to feel guilty or not, but in any event, that's not critical race theory." He and other professors say the term is now being used as a "boogeyman."

Critical race theory began by viewing race as an organizing principle to examine legal doctrine, but Torres said it then moved from law schools to schools of education, and began to inform sociological and historical inquiries.

"Race has played a role in American history, and it doesn't diminish the virtues of American society to say that it did," Torres said.

William Lugo, sociology and criminologyprofessor at Eastern Connecticut State University, doesn't explicitly tell his students, "Now this is critical race theory" but it's embedded in his curriculum, as he looks at how race and racism have shaped policies and criminal justice.

He feels "frustration" with the current discourse around the theory, saying it's getting misrepresented by a focus on the most extreme examples, and he sees dishonest takes on both sides, thanks to Twitter.

Teaching criminal justice, Lugo said he tends to have a pretty even split between liberal and conservative students, and they typically respond well to critical race theory concepts.

"I don't get this sort of lightning rod backlash that you see online, and I've been doing it for 16 years," he said.

'Divisive concepts'

Yi-Chun Tricia Lin, professor and director of Women's and Gender Studies at Southern Connecticut State University, called the backlash to critical race theory an "orchestrated panic" but doesn't think all this attention is a bad thing.

In October, she organized a weeklong Critical Race Theory Teach-In at Southern. It was aresponse to Trump's Sept. 22signing Executive Order 13950, whichprohibited the United States Uniformed Services or government contractors from providing workplace training on certain "divisive concepts" and allowed federal agencies to require that grant recipients not use federal funds to promote such concepts.

The list of divisive concepts includes that "one race or sex is inherently superior to another race or sex";"the United States is fundamentally racist or sexist"; "an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex"; "any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex."

The U.S. District Court for the Northern District of California in December issued a preliminary injunction banning enforcement of parts of the order pertaining to contractors and grantees, on First Amendment and Fifth Amendment grounds. President Joe Biden revoked the orderon Jan. 20.

At SCSU in October, at a kickoff virtual discussion with 10 speakers, multiple professors said it would be impossible to do their jobs effectively without critical race theory.

"We cannot discuss or critique America, as social scientists, without discussing or critiquing racism in this country, as racism is embedded in the very fabric of the United States," sociology professor Cassi Meyerhoffer said.

Janani Umamaheswar, also a sociology professor, questioned how we can approach a solution to the incarceration of Black and Latino people "at such alarming rates" without recognizing the role race plays, and said a colorblind approach to questions of social equity is "fundamentally flawed."

Siobhan Carter-David said it's impossible for her to teach American history "without pulling from an understanding about the role that white supremacy had in crafting the United States, even if we start after slavery ends." She listed a slew of racialized practices: convict leasing, health care experimentation, political disenfranchisement, redlining, unethical banking practices, the war on drugs.

"I don't think that anti-racist activists or people who teach critical race theory have ever made the argument that people should take responsibility for the actions of their ancestors, but rather to understand how this manifests itself today," Carter-David said.

This past week, UConn sociology professor Noel Cazenave said critical race theory first developed at a time when there was a backlash to the civil rights movement, and he sees the current attention as "a highly organized backlash" to systemic racism being forced into national discourse through protest last summer.

"Critical race theory is a perfect foil because nobody knows what the heck it is," Cazenave said.

University of New Haven professor and retired Navy officer Robert Sanders, who chairs the National Security Department, and teaches a course called Security, Sovereignty, and Slavery, said those who latched onto critical race theory "as the new boogeyman" say, "Oh, this is just another way of them telling us America is bad." But, he said, "No, America is not bad; America, just like a lot of other countries in the world, have done bad things."

Akey orchestrator of theconflict over critical race theory is Christopher Rufo, a senior fellow at the conservative Manhattan Institute for Policy Research, who told The New Yorker in a profile he called "accurate, fair, and thoughtful" the term "is the perfect villain." Rufo helped draft Trump's executive order, after the former president saw Rufo talking about critical race theory on "Tucker Carlson Tonight."

Rufo tweeted in March, "We have successfully frozen their brand 'critical race theory' into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category."

Some state Republicans push back

On June 7, Sen. Rob Sampson, R-Wolcott, proposed an amendment to Senate Bill 1073, which has the stated purpose of requiring "a study of state agency policies and programs to assess the equity of state government programs and the allocation of state resources."

The amendment would have prohibited Connecticut schools from teaching "divisive concepts," the same ones referenced in Trump's order, to students in kindergarten through12th grade.

"I firmly believe that we have got to get a hold of our education system in this state and in this country, and remind the next generation that America is the greatest place on Earth," Sampson said.

In response to questions from Sen. Mae Flexer, D-Windham, and Sen. Matt Lesser, D-Middletown, Sampson said the bill wouldn't prohibit teaching the Civil War or civil rights movement, and he believes schools should be able to teach that the founding fathers owned slaves.

Flexer pushed back against the part about students not feeling "discomfort, guilt, anguish, or any other form of psychological distress."

"I just don't know how we can legislate the feelings of the students," she said. She added, "I would argue that sometimes a feeling of discomfort, guilt or anguish might actually make a student want to learn more, might make a student want to engage in policies to change what they're learning about."

The amendment ultimately failed on a party-line vote, but the overall bill passed without any opposition.

During the back-and-forth between Sampson and Flexer, neither used the term "critical race theory," though Sampson did later sayhe offered the amendment "to prohibit the teaching of critical race theory in Connecticut schools."

Sampson apologized on the Senate floor for "not bringing what are many, many examples of these divisive concepts being taught in the classroom across our state" but told The Day on Friday, "I never said there were examples; I was doing it preemptively."

After the vote, Sampson emailed constituents asking people who "know of efforts to incorporate Critical Race Theory in our schools" to email him.

He told The Day that "people have certainly contacted me on the subject" but "I don't want to provide anything at this time," that he's pulling something together and wants to do that on his own timeline.

He did point to a statement this week on critical race theory from the State Education Resource Center of Connecticut, which is leading the development of a new course of studies under a state law requiring the inclusion of Black and Latino studies in public school curriculum.

SERC said through its research, it learned that CRT "strives to advance a social justice framework," explains how race and racism operate, is typically interdisciplinary and recognizes that race works with "gender, ethnicity, class, and sexuality as systems of power."

"We know how confusing and disruptive some of these concepts can seem because we felt it too," SERC wrote. "But it became impossible to ignore the legacy of racism and its impact on our educational system. We could not discount students' lived experience with race and because of their race. These are their stories, and they have gone untold for so long."

Sampson also joined a virtual town hall that Rep. Kimberly Fiorello, R-Greenwich, held Monday about critical race theory called, "Why is the Accusation of Racism Everything and Everywhere?" She said many parents in Greenwich and Stamford reached out to her with concerns about what they were seeing in their classrooms.

Her featured guest was anthropologist Peter Wood, president of the National Association of Scholars and author of "1620: A Critical Response to the 1619 Project."

Wood agrees that race is a social construct, and said it's true that racism has affected "political participation, wealth creation, housing, medicine, the labor market, sports, the military, schooling and higher education, and opportunities in the arts." But he doesn't believe racism is "foundational or intrinsic to American institutions."

Fiorello also went on Fox News to criticize the passage of a bill that, in part,declared racism a public health crisis, which she said "is critical race theory in our laws." While only one Democratic representative voted no on the bill, Republicans in the House were split: 22 voted in favor and 32 against.

e.moser@theday.com

Read more from the original source:
Critical race theory has proved divisive. What is it? - theday.com

(Court TV Image)

Triple murder defendant Christian Kit Martin took the stand in his own defense Tuesday and denied killing his neighbors and having any knowledge about who did.

After Martins testimony, the defense rested its case with jury deliberations likely to begin in Hardin County Circuit Court on Wednesday.

Martin is accused of the November 2015 murders of Calvin and Pamela Phillips and their neighbor Ed Dansereau in Pembroke. Calvin Phillips was found shot in his home, while Pamela Phillips and Dansereau were discovered a few miles away in the charred remains of a car.

Martin was asked point-blank by his attorney Tom Griffiths if he killed his neighbors.

click to download audioThe Army had charged Martin with sexual and physical abuse of three children as well as mishandling classified information. He was exonerated on the more serious charges but convicted of mishandling classified information and simple assault and was sentenced to 90 days in jail.

Phillips was scheduled to be a witness in Martins court-martial scheduled for two weeks after the murders. However, during questioning, Martin said Phillips was going to be called as a defense witness for his side.

click to download audioTwo key pieces of evidence in the case a shell casing and an Army dog tag with Martins name on it were reportedly found after the murder by Phillips son and sister in the Phillips home. Both were turned over to investigators. Martin was asked if the dog tag was his.

click to download audioThe defense has suggested that Martins ex-wife Joan Harmon may have been involved in the planning and execution of the murders. Martin testified that Harmon made threats to him during an argument a year prior to the murders.

click to download audioBoth the defense and Commonwealth subpoenaed Harmon, and her son to testify in the case. Both invoked their Fifth Amendment right against potential self-incrimination and have not testified.

Closing arguments should begin Wednesday with Senior Circuit Judge John Atkins expected to give the jury its instructions before deliberations begin.

Continue reading here:
Murder Defendant Martin Takes the Stand on His Defense - wkdzradio.com