Tag Archives: constitutional law

Published by:

It is time to revisit Professor James Duane’s potent reminder about WHY one should not cooperate with the police when questioned.    Even more relevant as we talk about the issue of self-incrimination.  Give this video a watch.  

Yes, I care that the Boston marathon suspect has not been mirandized

Published by:

“No person shall be compelled in any criminal case to be a witness against himself.”  Those are the words of the Fifth Amendment.  It says nothing about a “public safety” exception.  And what the government can do  to the most serious offenders, it can do to you or me too.  

Justice demands that the suspect be read his rights, and have access to counsel, from the beginning of custodial interrogation.   

As Emily Bazelon in Slate points out

[The] FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to “valuable and timely intelligence.” Couldn’t that be just about anything about Tsarnaev’s life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

Let’s repeat that last part.  WHY do we have Miranda?   It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.


You know you are in trouble when..

Published by:

a Supreme Court opinion begins with..

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and III, in which SCALIA, GINSBURG, and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C.J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.


But in this instance, it really means Kennedy joined all of the opinion except two sections (II-C and III, in case you are wondering)  he thought un-necessary, and which did not add to the ruling.  

If you are curious, this is from Missouri v McNeely, the Court’s case this week that says the dissipation of alcohol from the bloodstream does not by itself create an “exigent circumstance” (or emergency) justifying a warrantless blood draw after a DUI.  But it might, if in the totality of the circumstances, the officer can demonstrate the need for the blood test.    Yet, the Court won’t specify what such circumstances might look like.  

Double sigh….  



Interesting Times for the Fourth Amendment: The Trespass Doctrine is Dead, Long Live the Trespass Doctrine

Published by:

In all of the excitement over the marriage equality cases,  the Court’s important decision in Florida v Jardines has gone by the wayside.

Jardines involves the use of a K-9 narcotics dog sniff done on the front porch or curtilage of a home.  This was the second case in 13 months in which Justice Scalia has decided a search and seizure case using his newly reborn “trespass doctrine.”  Last January, in United States v Jones, he ruled in a “unanimous” decision (with 2 concurring opinions that make Jones look more like a 5-4 decision) that the warrantless placement of a GPS tracking device on the under-carriage of a car was a physical intrusion and thus a trespass on a constitutionally protected area.  Scalia argued that the trespass doctrine was the historical basis for 4th Amendment protection, and the Katz “reasonable expectation of privacy” test added to, but did not substitute for the earlier test.  He conveniently ignored Justice Stewart’s unambiguous statement in his Katz majority opinion that the trespass doctrine was “no longer good law” and that the Fourth Amendment protects “people and not places.”  

Scalia used the same trespass rationale in Jardines.  The home is a constitutionally protected area.  The front porch is part of the curtilage of the home,and is entitled to the same protection.  Therefore, bringing a dog to the front steps to do a narcotics sniff was a physical intrusion of a constitutionally protected area.   He did not rule on whether it violated Jardine’s expectation of privacy because in his view, he did not need to reach that question.  

What was interesting about this case is that Scalia ignored his own precedent from Kyllo v. United States (2001), in which he used the Katz reasonable expectation of privacy test to strike down the use of a thermal visioning imager to collect information on heat emanating from the home.  Justice Kagan points this out in her Jardines concurrence, and suggests that Jardines is an easy case — it really is just Kyllo with a highly trained narcotics dogs instead of the Agema 210 thermal visioning imager.  

In re-reading Scalia’s decision in Kyllo, there was good reason for him to ignore his majority opinion from that case.   He does not want to acknowledge that he once decided cases using Katz, which he would prefer to go away, as he wants to rely entirely on his newly reborn trespass doctrine.  In Kyllo he admitted that Fourth Amendment searches had been “decoupled” from the tresspass/property origins in Katz.  Yet in Jones last year he acted as if the trespass doctrine has always been the way the 4th Amendment has been interpreted, and always the law,   He repeats that claims in Jardines.  Somehow he has brought the trespass doctrine back to life, disregarding the Katz’ precedent which said the trespass doctrine was no longer good law.  He is trying his best to make Katz go away.   Whether that will happen, however, is questionable, since in both Jones and Jardines other justices (Sotomayor in the former; Kagan in the latter) have focused heavily on Katz expectations of privacy to reach their decision.  Plus Alito’s concurrence in Jones and dissent in Jardines  also use Katz (but with different results). 

There is one other interesting tidbit that comes out of the “new trespass doctrine” cases.   In Jardines, we have a physical intrusion on a constitutionally protected area (the home).   In Jones, the placement of the tracker on the vehicle was an intrusion on a constitutionally protected area (the vehicle, an “effect”).  Yet, a vehicle has long been ruled to posses a “diminished expectation of privacy.”  Thus, all of the other K-9 cases have had no problems with the use of a dog sniff.  It does not violate any expectation of privacy, and Stevens went so far in Illinois v Caballes (2005) to argue that one has no expectation of privacy in possessing contraband.     It strikes me that if the vehicle is a constitutionally protected area in Scalia’s logic, why is the K-9 sniff of the vehicle not a search?  Scalia himself rejected the “through the wall” vs. “off the wall” argument of Justice Stevens’ dissent in Kyllo.  Would he be willing to make the same distinction with a K-9 search of a car?  I doubt it, and this position would not likely command a majority in any event, but it illustrates some of the limitations and inconsistencies of the new Fourth Amendment regime he is trying to create.   

These are interesting times for the Fourth Amendment, with many issues that still need to be answered.  

Is there a constitutional right to an assault weapon?

Published by:

Is there a constitutional right to possess an assault weapon?   This question was raised to me in light of my tumblr post on  Aurora and the culture of gun violence.  

Lets get down to the nitty gritty.  The Second Amendment to the US Constitution says the following

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.

Does this create an individual right to bear arms?   Yes.  

Is that right unlimited? NO.  

Can regulations and limitations be placed on it?   YES.   

The NRA would have you believe the first half of the Second Amendment does not exist, but the words “well regulated militia being necessary to the security of a free state” are not there as window-dressing. It is one sentence, and the second part is dependent on the first.   A “well regulated” militia is one where citizens are part of an organized self-defense force.   Organized by the government.    Today that function is organized into the National Guard in each state.    In 1789, it was organized locally, and all able-bodied men were part of it.  Thus, to defend the security of a free state, it was essential that the people have the right to keep and bear arms.     

You can not simply ignore the first part of the Second Amendment.

That said, is there an individual right to bear arms?  YES.  I repeat – you have a right to keep and bear arms.  As recently as 2010 the Supreme Court in the Heller decision, reaffirmed that.   And they said that an effort to completely ban firearms would be unconstitutional.   No argument.  

BUT does that mean there is a right to bear specific types of weapons?   Absolutely not. 

Does that mean the state, in the exercise of its police powers (the 10th Amendment powers to regulate health, safety, general welfare, and morality) cannot place reasonable restrictions on firearms?   NO, it doesn’t.   

The Second Amendment does not establish a right to bear assault weapons. States are not banned from imposing gun control restrictions.   This has been the law throughout American history.    No constitutional rights are absolute.   I have freedom of speech, Congress (and the states) cannot abridge that; but they can certainly (and have on many occasions) place limitations on that right.  Even political speech, the right to criticize the government, perhaps the essential core aspect of the First Amendment is subject to narrow restrictions (See Brandenberg v Ohio, 1968).

I have the constitutional right to free exercise of religion: I can believe anything I want, but it does not mean I can act on all of those beliefs. The Fourth Amendment guarantees me the right to be secure in my persons, papers, houses, and effects against unreasonable searches and seizures, but it does not mean government can never search me.

All constitutional rights are subject to reasonable limitations or regulations.  They always have been. Even “fundamental rights” (as defined by the Court, and not all rights are thus defined) are subject to restrictions (such as a compelling state interest test).    If the states wanted to say no citizen has the legal right to possess an assault weapon, or say that possession of an assault weapon by a civilian is a serious felony, it would be completely within their power to do so, as a legitimate government interest.  As long as they did not ban all firearms.  

Where am I going with this?    While I have absolutely no expectation that political leaders will have the courage to stand up to the well-funded NRA lobby, and have little expectation that anything will change, I am not afraid to stand up and say ENOUGH.   Columbine. Virginia Tech. Gabby Giffords. And now Aurora (among many others).  It is time to wake up.  We have a culture of gun violence that is unlike any other in the world.  It results in almost double the amount of deaths that occurred in Aurora each and every day.   

Sportsmen are not the problem.  

Assault weapons like the AR-15 have one purpose.  It is to efficiently kill human beings.  They have a legitimate function in the hands of the military and in law enforcement (in certain circumstances).   But the state has an obligation to protect the health, safety, and general welfare, and a ban on these types of weapons is not only constitutional – it is essential.  Reasonable gun control is the first step – a very small step – in beginning to seriously address the culture of gun violence.

There is no constitutional right to assault weapons.  There never has been.   It may be legal to own one, but it is not a constitutional right.  And if states want to regulate or ban them, it falls completely within their police powers to do so.   

%d bloggers like this: