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.

President Obama has authorized the capture or killing of Anwar al-Awlaki. Al-Awlaki is an American citizen, born in new Mexico of Yemeni parents. Allegedly he is a recruiter for al-Qaeda.

He may be the first American citizen placed on the targeted killing list. Although I’m not sure what difference it makes whether he is an American citizen or not. We are supposed to be a nation of law. The proper thing to do is to indict him, perhaps on treason charges, and ask the Yemeni government to arrest him and extradite him. This is the legal thing to do.

At this point he is in hiding in Yemen and neither the Yemeni government or the American government know exactly where he is. Though there are all sorts of rumors about his conduct and participation in al-Qaeda, I suspect the government wants to kill him because it does not have enough solid evidence to indict him.

The government will probably justify the killing of al-Awlaki by asserting that international law permits the killing of individuals who pose an imminent threat to a country and also it will point out that we are at war with al-Qaeda. But even if he poses an imminent threat and even if his killing would be permissible under international law it does not mean that we should kill him. We like to think of ourselves as a humane example to the rest of the world–as a nation that believes in the rule of law. Even if it is permissible under international law, it may not be permissible under out Constitution. Both the Sixth and Fourteenth Amendments require due process of law. The Fifth Amendment states in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . .

His killing may be justified under the Fifth Amendment as being in time of war. It would appear to me, however, that the Fifth Amendment allows for the killing of members of the military by court marshal without an indictment during war but not of US citizens who are not members of the military. But the sad fact is that the Courts will never get a chance to decide whether the killing is legal or not because he will not be indicted and charged.

The Eighth Circuit Court of Appeals upheld the search of three residences in a Kansas City methamphetamine case in United States v. Cisneros-Gutierrez.

Immigration and Customs Enforcement (ICE) Special Agent Mark King set up surveillance at 323 South Brighton Avenue. Along with other agents he decided to conduct a “knock and talk.” A “knock and talk” is used by narcotics agents when they want to search a residence but they do not have probable cause to get a search warrant. They knock on the front door and when someone answers it they try to talk their way into the house and get consent from the residents to search the house. Of course the residents do not have to answer the door. Nor do they have to talk to the officers or give them permission to enter the house.

But King was either good or lucky. Justino Ruiz-Ramos answered the door. He said he did not live at the residence but Salvador Jesus Velasco-Saldana came to the door. Velasco-Saldana said he resided there and gave the officers permission to enter. He consented to the officers searching the residence. They found methamphetamine and related items. They interviewed Velasco-Saldana and he told them that Gerardo sold him three pounds of methamphetamine and that Gerardo’s brother delivered it. He drew the officers a map explaining how to get to Gerardo’s house.

Several officers including King and Luis Ortiz of the Kansas City Police Department Gang Unit went to 430 Donnelly Avenue and conducted another “knock and talk.” Miguel Angel Garcia-Bobadilla answered the door and again the officers were let in. They asked Garcia-Bobadilla if he was alone. When he answered yes they asked asked if they could perform a protective sweep in order to confirm that no one else was in the house. He gave permission. A protective sweep is done to make sure the officers are safe while in the house. But they also know that any illegal substances they see in “plain view” can be seized. They found a significant amount of methamphetamine in the house.

During the sweep they ran into Alfredo and Dehli Hernando-Pena. Alfredo and Garcia-Bobadilla said they lived in the house. Both gave verbal and written consent to the search. Dehli agreed to cooperate. She told them that Alfredo’s brothers lived at 3907 East 12th Terrace. After the officers search the Donnelly Avenue house they went to the 12th Terrace house. They knocked on the door and Gerardo answered. While talking to Gerardo they noticed Alphonso entering the kitchen with large baggies of powder and they heard what they thought to be Alphonso flushing something down the sink. The officers thinking that evidence was being destroyed entered the residence without a warrant.

After they were indicted the defendants brought motions to suppress the evidence. The court upheld all of the searches. As to the South Brighton Avenue search, it found that Velasco-Saldana gave consent to the entry and search. As a result it was not in violation of the Fourth Amendment.While there was some question about the facts of the Donnelly Avenue search. The police claim that the residents gave their consent and the residents say the police forced their way in, the court found the officers to be credible and the residents not to be. As a result it found that the entry and search was also the result of consent. As to the 12th Terrace search there is an exception to the Fourth Amendment when exigent circumstances exist. The courts have found that the eminent destruction of evidence is an exigent circumstance allowing the authorities to enter a residence without a warrant.

The question that constantly comes up in my mind is why would anyone allow the police to enter their house and search it knowing that there is a significant amount of methamphetamine in the house. If any of the defendants had just said “no” I will not talk with you or “no” you cannot come in, or “no” you cannot search none of this would have happened and they would not have be serving decades in prison. The Fifth and Fourteenth Amendments give people the absolute right not to talk to the police. The Fourth and Fourteenth Amendments Amendments give people the right to refuse entry to any officer who does not have a search warrant into their residence and to deny the officers the right to search the residence.

Even assuming that the police do not always tell the truth it is obvious that the defendants talked themselves into being arrested. Did they think that when talking with experienced officer they could talk themselves out of being arrested–unlikely. And I do not know about this case but by talking they endanger themselves because others get arrested and they may be killed. It makes no sense.

The question before the Seventh Circuit Court of Appeals in Tully v. Rush County Prosecutor Paul Barada et al was whether one who had been issued a citation and had not been incarcerated could sue for false arrest on the grounds that the prosecutor had violated their Fourth and Fourteenth Amendment rights when probable cause did not exist to charge them.

The Seventh Circuit ruled that a Section 1983 claim cannot be based purely on a citation without an actual arrest. A citation, unlike an arrest does not involve a seizure under the Fourth Amendment.

Michael Tully and Brock Carfield were convicted of shooting across a highway in Indiana after a citizen reported hearing gun shots and they were found with a gun and a dead raccoon in their vehicle. The conviction was reversed on appeal and they sued.

The Court found that they did not have a cause of action since they were cited and were not arrested. They had not been seized under the Fourth and Fourteenth Amendments and therefore could not sue. Probable cause, without an arrest, according to the Seventh Circuit is not cause for a 1983 cause of action.

Friday, we looked at Florida v. Powell in which the Supreme Court looked at a version of the Miranda warnings that did not clearly state that an arrestee had the right to have an attorney in the room with him/her while being interrogated while in custody.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview

The Florida Supreme Court held: “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.

The Third Circuit refused to find incompetence of counsel where trial counsel failed to make a Batson claim. In Batson v. Kentucky the Supreme Court ruled that the Fourteenth Amendment’s guarantee of equal protection mandates that jurors not be selected by race.

James Douglas Clausell was convicted of murder in New Jersey state courts. His trial counsel failed to raise a Batson motion despite the prosecutor’s use of peremptory challenges on five of the eight African American and Hispanic jurors in the venire.

In Clausell v. Sherrer he appeals the denial of his writ of habeas corpus to
the Third Circuit Court of Appeals on the Batson issue as well as on incompetence of counsel grounds for his attorney’s failure to raise the Batson issue in the trial court.

There are three steps to a Batson challenge. First, the defense must raise the issue and make a prima facie case. Second the prosecutor must show that he/she had legitimate not-racial reasons for the use of the peremptory challenge. Finally, the court must decide whether or not there was purposeful discrimination.

The Third Circuit denied the Batson claim. The Court ruled that since Clausell did not make a Batson claim in the trial court he waived the issue on appeal. Therefore he has to rely on his incompetence of counsel claim.

At the time of his trial, New Jersey followed a rule that to show a prima facie case you had to show that there was a “substantial likelihood” that the peremptory was based on race. Later the United States Supreme Court made it clear that Batson mandated that the initial showing only had to be enough to allow the trial judge to draw an inference of discrimination. Yet the majority opinion in Clausell found that there was insufficient evidence to meet the “substantial likelihood” test. Therefore, Clausell’s trial counsel was not incompetent in failing to raise the Batson issue. The concurring opinion by Judge Ambro points out that the majority uses the wrong standard by using the substantial likelihood test instead of the inference test but it claims that Clausell cannot even meet the inference test.

Thus Clausell’s incompetence of counsel claim is denied even though he may have had a legitimate Batson claim. His counsel, not only, did not make the claim but did not preserve a record upon which the appellate court could determine if there was sufficient information for the Batson claim. But it was his attorney’s job to preserve a record allowing for a Batson claim. Is it not incompetence not to investigate the claim?

In United States v. Johnson the Third Circuit Court of Appeals upheld the Terry search of Anthony Johnson and affirmed his conviction for possession of a weapon by a convicted felon.

Tammy Anderson a resident of Harrisburg, Pennsylvania called 911. She told them that she saw a white taxicab pull up next to a van across the street from her residence. She said she saw two men get out of the taxicab and she heard a shot. It was too dark to get a decent description of the men but she saw the cab and it had a green light on top. She told the operator her name and telephone number. She described the lot across the street. She told the operator when the the taxicab left and the direction it was going.

Officer John Doll arrived at the lot across the street from Anderson’s house before Anderson got off the phone with the 911 operator but after the taxicab left. He quickly found the taxicab and developed eye contact. However he waited until other officers arrived to stop the vehicle.

For the safety of the officers they took out their guns and ordered Anthony Johnson and the driver of the taxicab, Kenneth Cobb, out of the taxicab and handcuffed them. A revolver with two spent shells was found in the back seat near where Johnson had been sitting.

In analyzing a Terry stop the courts follow a two step process, First they look at the initial stop and then they look at whether steps following the stop were limited to discovering a weapon.

The court found that Anderson provided sufficient information to allow Officer Doll to stop the taxicab and that the searches were appropriate since Anderson’s claim that she heard a gun shot was credible and the safety of the officers demanded the search.

However, I would like to concentrate for a moment on Kenneth Cobb. Apparently he was not arrested. But he was ordered out of the vehicle, handcuffed and searched. When Officer Doll and his colleagues pulled over the taxicab they had a reasonable suspicion that someone in the vehicle had shot a gun. Both Johnson and Cobb had prison records so it was presumably illegal for either one to be in possession of a gun. But Terry says:

At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.

Anderson only heard one gun. Officer Doll only had a reasonable suspicion that one of the men was “armed and dangerous.” So it is equally possible that either Johnson or Cobb had the gun. Thus does that give Officer Doll the right to search both men or neither man?

The Supreme Court yesterday reversed the Georgia drug conviction of Eric Presley due to the judge’s refusal to allow Presley’s uncle to be in the courtroom, or even on the same floor of the DeKalb County Courthouse during jury voir dire.

The Sixth Amendment, among other things guarantees “the right to a speedy and public trial.” The trial judge stated that he did not want jurors to be put into a position where they might hear out of court statements related to the case. The Georgia Supreme Court in upholding the trial court said that the trial judge had the power to prevent jurors from hearing potentially prejudicial statements.

But the United States Supreme Court found that the Georgia Supreme Court’s holding could prevent the public from viewing voir dire in all cases and it would invalidate the Sixth Amendment. The Court admitted that there might be some cases in which the public could be prohibited from attending voir dire. But in such cases the court would have to make a specific finding that an overriding interest requires exclusion of the public from voir dire. Also the trial cases must make a finding that there are no alternative methods to prevent the specific damage that would be caused by voir dire being open to the public.

In this case the Georgia court made no attempt to find an alternative method to allow the public to view the voir dire and therefore the court reversed the conviction.