Greene sued Doruff and others. The Seventh Circuit reinstated his suit after the district court dismissed it. Greene alleged that he was fired for exercising his First Amendment freedom of speech. The District Court granted a motion for summary judgement for Doruff since Greene failed to show that “the challenged action would not have occurred but for the constitutionally protected conduct.”

But the Seventh Circuit held that the correct test in First Amendment tort cases is that the plaintiff only has to show that there was a “sufficient condition,” not “a but for” condition of the plaintiff’s injury. A sufficient condition is one that can cause something to happen but is not necessary for it to happen. For example, according to Seventh Circuit Judge Richard A. Posner who wrote the opinion dropping a match into a bucket of gasoline is a sufficient reason to start a fire but it is not a necessary reason since a fire can be started in any number of ways. A “but for” condition is necessary to create a particular condition that cannot be created any other way.

Thus the Seventh Circuit remanded the case to the District Court for reconsideration using a “sufficient cause” test.

Well its not nice to listen in to a conversation but fifteen years?

Michael Allison fixed old cars in his front yard. This violated a city ordinance. He claimed the police were harassing him by seizing the cars and making him pay fines to have them returned. He secretly taped his conversation with the police. He was cited for violating the ordinance. At the arraignment he requested a court reporter. His request was denied. He said he would tape it himself. When he showed up for trial, the judge asked him if he was taping the proceedings. He said yes and the judge had him immediately arrested for violating the privacy law. When the tape was examined there were four conversations with officers on the tape. He was charged with five counts of violating the privacy act. The maximum sentence would have been 75 years.

The court found the act unconstitutional as applied. ² the Court ruled that Allison had a First Amendment right to record the police officers ³ and the court employees. While it may be okay to prohibit the court proceedings ⁴ making it a felony was overreaching.

Share/Save

In order to be convicted of failing to comply with a police order, the order must be legal. In this case the demonstrators had a valid permit to demonstrate in front of the White House. In the middle of the demonstration a police captain revoked the permit and ordered the demonstrators to leave. Their refusal resulted in the failure to comply with a police order charge. The problem is that there was no evidence at the trial that the captain had a legitimate reason for revoking the permit. The police claimed that the demonstrators violated an ordinance that prohibited stationary signs and placards in the center portion of the White House sidewalk. However there was no evidence at the trial that the demonstrators had signs. Therefore the appellate court reversed the conviction for failure to follow a police order since the government did not meet its burden to show that the order was legal.

After the demonstrators were ordered to leave the police set up yellow tape between the demonstrators and the sidewalk where they were demonstrating. Since the police did not show that the revocation of the permit was legal, the demonstrators had a legal right to be on the sidewalk and the placement of the tape was illegal. Therefore the court reversed the conviction for crossing a police line.

At the beginning of the trial the demonstrators and the prosecutor entered into a vague stipulation that the demonstrators “were, in fact, the individuals arrested for crossing a police line or failure to obey on March 16th or 17th of 2007 at the White House.” Why the demonstrators entered into this stipulation I do not know. There is no evidence to show that the police could identify 13 the demonstrators as people arrested in front of the White House. Without the stipulation, unless the police had evidence that was not used at the trial ¹the case would have had to be dismissed. It was absolutely crucial to show that the defendants in the courtroom were not only the people who were arrested but that each of them did something illegal. There was no evidence at the trial of any illegal acts by any particular demonstrator. Without such and without the stipulation there is no way they could have been convicted.

The only reason that I can think of for the demonstrators agreeing to the stipulation is that they were pro se, i.e. they represented themselves and did not know what they were doing. This shows the necessity of having an attorney represent you in a criminal case. If the cases were charged as misdemeanors the demonstrators had a right to an appointed counsel if they could not afford to hire counsel and they should have accepted appointed counsel. If it was an infraction they could probably have found some antiwar lawyers who would have taken the case.

Share/Save

The Ninth Circuit reversed the conviction finding that neither of the statements were threats within the meaning of the law. Threats are a particularly difficult area of the law. As speech they are protected by the First Amendment. But the Supreme Court has ruled that “True Threats” are not protected by the First Amendment. A “true threat” is one in which the “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Thus the constitution requires that a conviction for any threat case be based upon subjective evidence as to the intent of the defendant. Some statutes including 18 U.S.C. § 879(a)(3) also require objective evidence that “the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President.”

Neither of Bagdasariian’s statements indicate that he was going to kill Obama. In one he says that Obama will be killed soon and in the other he is asking other people to kill Obama. Therefore there is no evidence that he subjectively planned to kill Obama. Nor would someone reading his internet message assume that he was going to kill Obama.

Share/Save

Armando Portillo-Muniz was charged with possession of a firearm by an undocumented individual in violation of 18 U.S.C. § 922(g)(5). He had a .22 caliber handgun in the center console of his vehicle.

The Court found that undocumented aliens are not covered by the Second Amendment. The Second Amendment, like the First Amendment and the Fourth Amendment refers to the rights of the people. The court held that the “people” does not include undocumented aliens. The Court pointed out that the Supreme Court in District of Columbia v. Heller which upheld the Second Amendment right to possess a gun referred to “law-abiding, responsible citizens to use arms in defense of hearth and home.” The majority opinion held that this does not applied to undocumented aliens who committed the misdemeanor of entering the country without papers.

Judge Dennis dissented from the majority’s holding. He pointed out that the Supreme Court in United States v. Verdugo-Urquidez interpreted the word “people” in the Fourth Amendment context as protecting aliens who “have come within the territory of the United States and developed substantial connections with this country.” Portillo-Muniz entered the country voluntarily. He worked steadily and with the exception of entering the country illegally he complied with the country’s laws. He would remand the case with instructions to the trial court to determine if 18 U.S.C. § 922(g)(5) violates the Second Amendment.

Share/Save

(a) A person commits disorderly conduct when he knowingly:
(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace ¹

But laws are subject to the United States Constitution and the First Amendment forbids, with only a few exceptions, any law which makes “speech” illegal. And there is no question that anything put on Facebook is “speech.” Constitutional violations are of two types. Sometimes a statutes is unconstitutional on its own and sometimes it is the enforcement of a statute in a particular incident that is unconstitutional. In this case the disorderly conduct statute is not necessarily unconstitutional but its enforcement against the student for using his right to free speech appears to be unconstitutional. As Illinois criminal defense attorney, Chris M. Shepherd states on his blog, “if your alleged disorderly conduct is composed merely of speech, your First Amendment freedom of speech rights will be enough, in most cases, to trump the disorderly conduct accusation.”

Share/Save

In 1993 Congress enacted the Religious Freedom Restoration Act (RFRA) to provide “heightened statutory protection to religious exercise.” The Supreme Court found the act violated the Fourteenth Amendment in City of Boerne v. Flores. Congress then passed the RLUIPA based on the Spending Clause. No one questions the validity of the RLUIPA. It calls for suits and specifically for those brought by citizens against the states for violations of the act. The Act prohibits governmental bodies from imposing a substantial burden on religious exercise in institutions or in land use policy.

Harvey Leroy Sossamon III brought suit against the State of Texas claiming that prisoners confined to their cells were denied their right to attend religious services and that the chapel was not available for religious services.

States have sovereign immunity against suit and unless the states waive the immunity the Federal government cannot authorized the bringing of a suit against a state or a state created governmental body or institution. Under the Spending Clause states can be required to waive their sovereign immunity in order to receive Federal funding.

The only question in Sossamon is the extent of the waiver required by the act. Texas argued that the waiver extends only to equitable damages while Sossamon argued that the trial court could grant monetary damages, also.

The Supreme Court sided with the lower courts and the State of Texas. It ruled that the trial court could only grant equitable damages such as injunctions. The act calls for the awarding of “appropriate relief.” The majority opinion written by Justice Thomas pointed out that waivers must be strictly construed and the right to obtain monetary awards can only be awarded if their is a express and unequivocal waiver. ¹ Not believing that accepting “appropriate relief” is an express and unequivocal agreement to pay monetary damages the Supreme Court found that courts trying cases brought under the act cannot award monetary damages.

Share/Save

While other jails may not ban books in quite the same drastic manner, the number of books being banned from prison libraries is increasing. In Connecticut a panel is reviewing the process used to approve books available in prison libraries and books such as In Cold Blood and Shakespearian plays may be removed if they are found to be too violent.

Most of the complaints involve issues of violence or sex. This is obviously not the issue in Berkeley County since the bible may be the most violent book around. The Federal government in light of terrorist attacks has limited religious books to a list of 150 titles for each religion in each prison district. But most “violent” books whether they be novels or nonfiction end up with the bad people learning their lesson. In fact many of them are sent to prison. This is hardly a message that prisons should censor.

Among those who have had books banned in Texas prisons are Jon Stewart, William Shakespeare, Sojouner Truth, Juan Williams, Jenna Bush, 50 Cent, John Grisham, Noam Chomsky, Stephen King, John Updike, Kurt Vonnegut, Jack Kerouac, Gore Vidal, George Orwell, Gustave Flaubert, George Carlin, and Sister Helen Prejean.

Are newspapers going to be banned? They certainly have more violence and sex than a book by Jenna Bush.

Prison authorities claim that the banning of some books is necessary for security and I can understand banning Locksmithing for Dummies. But Shakespeare? Books serve an important service in prisons. Many prisoners arrive at the prison illiterate and if they can be taught to read it will decrease recidivism. Furthermore it gives prisoners something to do with there time. It keeps many prisoners out of trouble while they are incarcerated.

Share/Save

At least until recently all books except for paperback copies of the Christian Bible were banned.That means the Jewish Torah and the Muslim Koran are banned. Also banned are novels, health books, books on law, etc. This may even exclude the constitution and the Declaration of Independence from the jail. It even includes Christian literature other than the Bible.

I wonder if the reason books are excluded is that the sheriff and his deputies cannot read.

The policy was recently changed but only after the ACLU filed suit. The Federal government has now joined the suit.

My answer to the question is seven. (freedom of speech, the establishment clause, freedom of religion, right to a fair trial, cruel and unusual punishment, due process, and equal protection)

Share/Save

The book includes first person observations of pedophilia allegedly written by children. Florida laws prohibit the “distribution of obscene material depicting minors engaged in conduct harmful to minors.” But presumably Greaves will challenge the law on First Amendment grounds. It is one thing to commit pedophiliac acts. It is another to write about pedophilia. As Kristen Wyatt and Tamara Lush point out in the Huffington Post would Polk County officials arrest Vladimir Nabokov for selling “Lolita”.

I have seen no allegations that the book contains obscene pictures and the alleged statements by children who have been the subject of pedophiles are clearly fiction. Greaves denies personally having sex with children. Thus the only allegations can be that he wrote a book advocating pedophilia and that that he sent the book from Colorado to Florida. Both of these activities are protected by the First Amendment.

Share/Save