While in a few civil cases the Supreme Court has ruled that there is a right to appointed counsel, the general rule is that there is no right to appointed counsel in civil cases, even when a party faces incarceration.

The Supreme Court has ruled that the Sixth Amendment right to counsel only applies to criminal cases, Yet in some civil cases defendants are facing significant jail time. In Turner v. Rogers, decided Monday, the question was whether the Fourteenth Amendment’s Due Process Clause required the appointment of counsel in civil contempt proceedings resulting from the failure of a non-custodial parent to pay child support. One of the differences between civil contempt and criminal law is that in a criminal case a defendant may be incarcerated as a form of punishment. In civil contempt proceedings, incarceration may be ordered but its purpose is to coerce a defendant into complying with a court order. Incarceration is only permitted in a civil contempt proceeding if the defendant willfully refuses to comply with the court order. Thus if a defendant is unable to comply–in this case if the defendant does not have the money to pay the child support–incarceration is not a appropriate remedy. Once the defendant complies, such as by paying the arrears of the child support, he or she is released from custody.

Michael Turner was ordered to pay $51.73 per week to Rebecca Rodgers for support for their child. While he made some payments it was generally to avoid incarceration and he spent several periods in jail. On January 3, 2008 he was held in contempt for being $5,728.76 behind on his payments. Neither Turner pr Rodgers was represented by counsel. At no time was he asked about his finances. Nor was he told that inability to pay the child support was a complete defense. When given a chance to address the court he did not discuss his ability to pay. Rather he discussed his history of drug abuse. The Court held him in contempt and ordered him to do a year in jail without good time or work time. The court allowed him to be released on work furlough but there is no evidence that he had a job. With help from pro bono counsel he appealed.

The court assessed three factors in determining whether there is a due process right to appointed counsel:

(1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an ‘erroneous deprivation’ of that interest withand without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’

Both the private interest–incarceration versus liberty and the risk of erroneous deprivation of the right are great and favor the appointment of counsel. But the court found countervailing issues. The primary issue during a hearing on civil contempt is the ability to pay and in order to get appointed counsel that decision needs to be decided before the hearing since only the indigent will get appointed counsel. Often the opposing party does not have counsel and the court was afraid that the defendant might have an unfair advantage.

The court held that as long as specific safeguards were present appointed counsel is generally not necessary to meet Due Process requirements. Specifically it held that indigent individuals charged with contempt must either have appointed counsel or “(1) notice to the de-fendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.” Where the opposing party has counsel the alleged contemner is entitled to appointed counsel.

Since Turner had neither appointed counsel or the requirements of due process his finding of contempt is reversed.

Today, we’ve got a quiz. How many violations of the Constitution can Berkeley County, South Carolina Sheriff Wayne DeWitt commit simultaneously? DeWit is responsible for the Berkeley County Detention Center, otherwise known as the county jail.

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)

William S. MacDonald was convicted for sodomy in 2005 in Virginia. The law bans oral and anal sex between consenting adults. The age of consent in Virginia is 15. The court found that he had sex with two female co-workers aged 16 and 17. He was sentenced to 20 years in prison with 17 of those years stayed.

A similar sodomy law in Texas was declared unconstitutional by the Supreme Court in 2003. At the time everyone thought that the Supreme Court action would affect the Virginia law and those of other states that banned sodomy. But thus far MacDonald’s efforts to clear his record have been rebuffed since the Supreme Court exempted cases involving minors in Lawrence v. Texas However this leads to a confusing situation. Since the Virginia age of consent is 15 enforcing the anti-sodomy acts against those that have anal or oral sex with 16 and 17 year olds does not make vaginal sex with 16 and 17 year olds illegal. The California Supreme Court has ruled that making anal and oral sex illegal while allowing vaginal sex violates equal protection. The Constitution’s equal protection clause prohibits making illegal one activity and allowing another when there is no rational reason to differentiate between two similarly situated groups in an unequal manner.

While waiting for a Supreme Court decision on whether to hear the case MacDonald is subject to Jessica’s Law. He told the New York Times that he is unable to live with his wife and he is forced to be homeless.

The sodomy law appears to be aimed particularly at Gay and Lesbian citizens since it does not ban male/female vaginal sex. But as in MacDonald’s case it can be used against consenting heterosexuals also. No doubt it was used in this case because of the 25 year difference between MacDonald and the two teenagers. ¹

Last year the Supreme Court held in Arizona v. Gant that law enforcement officials cannot search a vehicle, pursuant to a legal arrest when the suspect is out of the vehicle and is not within hand’s reach of the passenger compartment of the automobile.

Prior to the decision in Gant,Indianapolis police detained Dewayne Cartwright for driving a vehicle without a light illuminating the automobile license. He stopped his car in a grocery store parking lot but not in a legal spot. Cartwright was unable to produce a driver’s license and the police were unable to confirm the name he provided. They arrested him for driving without a license and providing a false name. After the arrest and following, then current, Seventh Circuit procedure, prior to Gant, the officers searched the car pursuant to a legal arrest. ¹ A gun was found in the back seat and Cartwright was charged with possession of a firearm by a convicted felon. He plead guilty, preserving his right to appeal the search of the vehicle, and he was sentenced to 84 months in prison.

Of course under Gant the search would be illegal. But the Seventh Circuit Court of Appeals upheld the search on inevitable discovery grounds. The Fourth Amendment does not ban all searches occurring without a search warrant. It states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . ” Thus it only prohibits “unreasonable” searches and seizures. As a result the courts have developed a number of exceptions to the warrant requirement. One of those exceptions allows for inventory searches of vehicles prior to their seizure. In order to protect the police from claims of theft of the contents of a vehicle, a city may develop procedures to permit the search and inventory of a vehicle prior to storing a towed vehicle. Indianapolis had a well developed written policy providing for inventory searches. It allowed a vehicle to be searched if the driver was driving without a license and no passenger in the car had a license and is capable of driving the car. Cartwright’s passenger, Ciera Golliday, did not have a license even though she owned the car.

Another approved exception to the warrant requirement is the eventual discovery rule. It provides that evidence is admissible at trial even if it was seized illegally.if law enforcement officers, using their normal procedures, would eventually discover the evidence legally. The Seventh Circuit upheld the search since even though the search was illegal as a search pursuant to an arrest under Gant the gun would have eventually been discovered when the car was inventoried.

Winston McGhee (aka Pooh) sold cocaine base to a confidential informant in a controlled buy, witnessed by the State Police, who then followed him back to his hotel. ¹A hotel employee told the officers that McGhee, who’s name they did not know was staying in room six. The officers got a search warrant.

That evening they stopped McGhee as he entered the hotel and searched the room. They found a knife on McGhee. They strip searched him, finding marijuana in his shoe and a baggie in his buttocks. The baggie contained 31 smaller baggies of cocaine base.

After McGhee was indicted he moved to suppress the cocaine claiming that the strip search was illegal. Precedent in the First Circuit Court of Appeals holds that normally a search pursuant to an arrest calls for a search of the person. But with increasing justification searches involving more intrusive measures (strip search, visual inspection of genitals and buttocks, and manual intrusions into such orifices) may be appropriate.

The District Court held that a strip search was appropriate. As the appellate court pointed out McGhee had hidden marijuana in his shoes and put up a struggle during the strip search indicating that he would try to hide drugs. ²McGhee challenged the characterization of the search as a strip search, claiming that the officers pulled his legs apart to inspect his buttocks but the Court ruled that such actions were necessary, in light of his struggling, to complete the strip search.

McGhee was not charged with the sale to the informant but it was put into evidence to show that he intended to sell part or all of the cocaine base found in his buttocks. He objected to the use of the chemist who tested the cocaine base found in his buttocks testimony in so far as she testified about the work of a different chemist who tested and weighed the cocaine sold to the informant. He claimed, citing the Supreme Court cases: Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) that the use of the hearsay violated his right of confrontation. However the Court ruled that even if it violated his right of confrontation the violation was harmless. There was plenty of other evidence (the quantity, the packing, multiple cell phones significant sums of money even though McGhee was unemployed, etc.) indicating that McGhee meant to sell at least some of the cocaine base. The weight of the sample was irrelevant, according to the Court.

As a result the Court upheld the conviction.

Arkansas Department of Community Correction Officer Craig Robie went to to a hotel in Fort Smith where he had heard one of his parolees, David Oteri was dealing drugs. They saw him enter and leave the hotel twice. When Officer Robie, accompanied by police approached Oteri he ran. When they caught him he had a large quantity of methamphetamine on him and he said he was dealing with DA in room 416. The only drug dealer Robie and the police knew with the initials of DA was Donnell Alston. As the officers entered the hotel they saw Alston leave. They detained him. When they checked at the desk they found out that room 416 was rented by Angela Groves. They went to the room and got Groves’ permission to search the room. They found more narcotic and Groves told them that the drugs belonged to Alston. They arrested Alston.

After he was indicted Alston moved to suppress the evidence as the fruit of an illegal detention. But at the time of his arrest he was on parole. Conditions of his parole included that he not associate with felons or people involved in crime and that he not change his address or sleep away from his approved residence without approval from his parole officer.

Under Arkansas law, parolees are subject to arrest if a police officer or a parole officer has a reasonable suspicion that the parolee is violating the terms of his/her parole. A reasonable suspicion is considerably less than probable cause. The court ruled that the fact that Oteri said that he was dealing with DA and that Oteri was a convicted felon provided a reasonable suspicion that Alston was associating with a convicted felon. Furthermore, Alston admitted to staying at the hotel, a violation of his parole.

As a result Robie had a reasonable suspicion that Alston was in violation of his parole conditions. Under the Federal Constitution parolees are considered to have waived their Fourth Amendment rights against illegal search and seizure. In any case Groves rented room 416 and she gave the officers permission to search the room.

Yesterday, we looked at racial disparities in arrests for marijuana possession in California. Of course most drug arrests are based upon some type of search. There are three types of contacts between police and citizens. First there is the consensual contact in which both parties agree to the contact and can terminate it at any time. A search can only occur in a consensual if the citizen give knowing consent. In the second type of contact, the detention, the officer must have a reasonable suspicion of criminal activity in order to detain the person even for a short period of time and must also have a reasonable suspicion that the person is armed in order to frisk the outside clothing of the individual. In the third type of contact, the arrest the officer must have probable cause to believe that the individual violated the law in order to search the individual and the area within easy reach of the person.

Today we will look at a study done in New York for the Center for Constitutional Rights by Prof. Jeffrey A. Fagan of Columbia Law School. as part of their ongoing litigation over the New York Police Department’s continued use of questionable searches.

Between 2004 and 2009 the police searched 2.8 million people. ¹ During an earlier part of the litigation the city agreed to have officers complete forms providing justification for each search. This study looked at the forms completed by the officers.

In thirty per cent of the searches the police either lacked sufficient cause to complete the search or ignored important information allow Professor Fagan to decide whether or not the stop was legal. ²

In 150,000 stops where the officer used his/her discretion to make the stop without a citizen filing a police report or without prior investigation and where there was sufficient information to make a determination the search was illegal.

Professor Fagan found that the more African Americans in the neighborhood the more searches were performed. Two to three times as many searches occurred in neighborhoods having the most African Americans as in those neighborhoods having the least African Americans. In an eight block African American neighborhood in Brownsville, Brooklyn, thirteen times more searches were performed than the average for the city as a whole. According to an article in the New York Times, “force was 14 percent more likely to be used in stops of blacks and 9.3 percent more likely for Hispanics, compared with white suspects. ” But even in white and mixed neighborhoods African Americans were more likely to be searched.

One of the justifications given by the police for the searches is that they help get guns off the street. But guns were found in only 0.15 per cent of all searches and they were more likely to be found in searches of whites than in searches of either African Americans or Hispanics.

Furthermore if violations of the law were found during the searches African Americans were 31 per cent more likely to be arrested while white were given citations.

Besides Alito’s plurality decision in McDonald v. Chicago there are concurring opinions by Thomas and Scalia as well as dissents by Stevens and Breyer. It was a 5-4 decision with Alito, Thomas, Scalia, Kennedy, and Roberts in the majority. The most interesting of the decisions is Thomas’. He agreed with the plurality that the Second Amendment applies to the states. But instead of basing his decision on the Due Process Clause of the Fourteenth Amendment, he based his decision on the Privileges or Immunities Clause.

During the Twentieth Century the courts incorporated most of the rights guaranteed by the Bill of Rights. They found that the Fourteenth Amendment required state governments to respect the rights found in most of the first eight amendments to the
Constitution. They did this by saying that the Due Process Clause incorporated the rights.

The problem with this interpretation is that the language of the Due Process Clause only applies to procedural rights and not to substantive rights. It states: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.] Thus it would apply to the procedural guarantee of the right to a jury but not to the substantive right guaranteeing the right to assembly or to bear arms. Scholars have long recognized this fiction.

The easy answer to the problem is that the Privileges or Immunities Clause governs the incorporation of the substantive rights. It reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]” The language “privileges or immunities” is taken from Article IV, §2, cl. 1 of the Constitution which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” At the time the Constitution was written the term “privileges” was synonymous with the term “rights.” Thus on the face of it the Privileges or Immunities Clause guarantees that the states will not violate the rights that citizens of the United States are entitled to under the Federal Constitution.

But the problem with this is a long history of interpretation going back to the Nineteenth Century prior to any decisions involving incorporation. The Supreme Court in the 1873 Slaughter House Cases ruled that the Privileges or Immunities Clause only applied to those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws” and three years later in United States v. Cruikshank it ruled that the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because ‘the right . . . existed long before the adoption of the Constitution.’” Likewise it ruled that “the right to keep and bear arms was not a privilege of United States citizenship because it was not ‘in any manner dependent upon that instrument for its existence.’”

One of the cardinal rules of interpretation is that no section of a document is meaningless. There must be a reason for every section. Yet if you accept the Slaughter House Cases and Cruikshank, the Privileges or Immunities Clause is meaningless. It adds absolutely nothing to the document. So the question is why is the plurality opinion based upon the Due Process Clause where it obviously does not fit and not on the Privileges or Immunities Clause where it is a much better fit. The answer is “tradition” or to put it in legalese “stare decisis.” “Stare decisis,” according to my old edition of Black’s Law Dictionary means “to abide by, or adhere to decided cases” or, alternatively, the “[d]octrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same.” Alito’s plurality opinion says

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Thus no one is saying that Thomas is wrong. But the other justices are merely saying we have accepted this fiction for years and we see no reason to change it. But as Thomas says, “stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. . . . It is not an inexorable command.”

The Supreme Court, in what is probably its most important decision of the year, decided that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment’s right to possess a gun. The ruling prevents the states from passing laws prohibiting people from owning guns, although it leaves the door open for limited exceptions such as preventing convicted felon from owning guns.

The plurality opinion, written by Justice Alito, relying upon the Court’s Heller decision of two years ago, finds that the right of self defense is a fundamental right and that in order to maintain the right citizens must be allowed to have guns in their homes. In the process the Court found statutes in Chicago and Oak Park, Illinois which limited the right to possess guns to be unconstitutional.

In applying the Second Amendment to the states the Court reversed case law that has existed since the Nineteenth Century. The Bill of Rights originally applied only to the Federal Government. But after the Civil War the Fourteenth Amendment was adopted. Section One states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Several years after the Fourteenth Amendment was adopted the Supreme Court decided Cruikshank. In Cruikshank The Supreme Court exonerated a group of white men accused of killing a group of African Americans who dared to march through their hometown on the Fourth of July. Among the charges were depriving their victims of various constitutional rights, including the right to bear arms. The Supreme Court held that the Constitution does not guarantee the right to bear arms and therefore Cruikshank and his fellow murderers could not be convicted of depriving the African Americans of the right to bear arms.

The McDonald Court found a long history of self defense. It traces the common law right to the 1689 English Bill of Rights. In 1765 Blackstone call self defense “one of the fundamental rights of Englishmen,” At the Constitutional Convention both Federalists and Anti Federalists recognized the importance of self defense. By 1820 thirteen states recognized the right to bear arms in the state constitutions.

After the Civil War, southerners attempted to disarm African Americans, many of whom served in the Federal army. Congress fought back. The Freedmen’s Bureau Act of 1866, recognized

“the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.”

During the debate on the Fourteenth Amendment Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” One of these,was the right to keep and bear arms: “Every man . . . should have the right to bear arms for the defense of himself and family and his home-stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”

The test for incorporation is whether a right is is fundamental to our scheme of ordered liberty and system of justice. The Supreme Court found that based upon the history of the country and the history of the Fourteenth Amendment the right of self defense is fundamental to our scheme of ordered liberty and system of justice. As such Second Amendment right are incorporated into the Due Process Clause and are enforceable against the states.

The Sixth Circuit Court of Appeals granted a writ of habeas corpus to Lewis Gagne after the trial court excluded prior sexual activity of the victim in a rape case pursuant to Michigan’s rape shield law.

While the rape shield law is not per se unconstitutional the court’s exclusion of prior evidence of group sex in which Gagne, the complainant, and others participated, in this case, violated Gagne’s constitutional right to present a defense.

Gagne and Donald Swathwood were convicted of raping Gagne’s ex-girlfriend, Pamela Lewis. Prior to trial Gagne’s attorney moved to allow three instances of group sex involving Gagne and Clark into evidence. The first instance involved Swarthwood also and the court allowed it to be used. Clark said she could not remember the incident and the prosecutor argued that it did not exist. The other two incidents, one involving a man by the name of Bermudez, and the other involving an invitation by Clark to Gagne’s father to join Clark and Gagne in sex were excluded. The excluded incidents, unlike the incident involving Swathwood, could have been proved by outside witnesses. There were no witnesses to the charged rape and no physical evidence. The only issue was consent.

In Crane v. Kentucky the Supreme Court ruled that trial courts cannot exclude evidence, the denial of which, denies the defendant “a meaningful opportunity to present a complete defense.” The Anti-Terrorism and Effective Death Penalty Act of 1996 limited the use of the writ of habeas corpus in Federal Courts to challenge state convictions. But the writ may still be granted if a state court violated a United States Supreme Court decision or if it unreasonably applies a Supreme Court decision. In this case the Sixth Circuit found that the Michigan courts unreasonably applied Crane by denying Gagne the right to introduce crucial evidence supporting his defense. The court found, not only, was the evidence of prior instances involving Clark and Lewis relevant but the admission of the evidence would not overly violate the state claims in enacting the rape shield statute. In fact the statute had an exception for prior sex acts involving the defendant. While the evidence that Gagne wanted to introduce involved either the sex acts between Lewis and third parties or her invitation to a third party to join in their sex acts the evidence was close enough to the exception as to limit its negative effect on the state’s interest.