Category Archives: Civil Rights

…and out comes the Wolf-PAC: An Amendment to Be

There are a lot of political “donors” who have got too much freedom / I want to make it easier for policemen to beat ‘em. I do, but that’s not the goal of Wolf-PAC, an organization founded by Young Turks host and political commentator Cenk Uygur. The goal is to reduce the political influence of corporations, unions and other organizations by limiting their campaign spending. This limits our liberties because individuals are dwarfed by big contributors.

Diamond Joe Quimby finds a briefcase left for him by a campaign contributor.

But why can’t we just make laws against what certain organizations can broadcast or spend during elections? Because after the Citizens United decision, that kind of law would be unconstitutional. And we know that only the Supreme Court can limit constitutional rights.

“But if we changed the Constitution…” …we could make some good laws. Enter Wolf-PAC. Wolf-PAC is a grass roots movement urging state legislatures to pass resolutions demanding a national constitutional convention to propose an amendment. Remember that Article V provides that an amendment may be proposed by 2/3 of both houses of Congress or by a convention called by 2/3 of state legislatures. Wolf-PAC is opting for the convention proposal because it does not think Congress would pass such a proposal. Based on Congress’ inability to pass much of anything worthwhile, it is probably correct.

Although I don’t like limiting speech, I think restrictions on types of political spending and advertising are necessary to encourage and protect all political speech. Politicians from both parties are beholden to money and the people or groups who supply it. When someone slips a representative a briefcase full of money in exchange for a vote or favor, that’s bribery. When the money is a donation to a campaign or an ad on TV, then it’s all good. Additionally, representatives spend most of their time fundraising instead of legislating. All of this harms democracy.

This should be a nonpartisan issue. After all, politicians on both sides of the aisle are bought. If you’re a liberal, you should want your elected Democrats to support progressive ideals and not what the money tells them too. Conservative individuals’ interests do not always line up with corporate interests. It is important to note that unions will also have their influence restricted under this amendment. Unions, while often allied with Democrats, represent themselves and their members, not necessarily all working people’s interests.

Big bucks can turn any politician into a monster.

The convention method has never before been successfully used to propose an amendment. But there’s a first time for everything and this is a good idea. So is eliminating the electoral college.

Say a Prayer For the First Amendment

The bright side of the Supreme Court’s holding in Town of Greece v. Galloway is that it will be easier to give the Establishment Clause the funeral and Christian burial that it deserves.

I wrote about this case before it was argued and criticized Pres. Obama and the administration for siding with the town. This was the case wherein the town of Greece, NY opened its town meetings with prayers given by local citizens and clergy. An unsurprising majority of Justices Kennedy, Roberts, Scalia, Thomas and Alito reversed the Second Circuit and held that the town did not violate the First Amendment. To be clear and fair, the issue wasn’t whether prayer before town meetings violates the First Amendment but whether the prayers should follow guidelines so as not to offend or endorse religion (even the dissenting justices–the “liberal” wing of the Court–opined that prayer itself is not violative of the First Amendment). The majority opinion essentially allows a person to lead the meeting in any prayer

Is Rev. Lovejoy speaking in church or at a Springfield town meeting? After the Greece decision, it’s hard to tell.

To recap, the First Amendment provides the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The first line contains the Establishment Clause and the Free Exercise Clause, which form the bases for the supposed separation of church and state. Organized prayers in public schools and before football games have been held unconstitutional because such prayers show a government preference for religion instead of non-religion and any prayer would likely be an endorsement/establishment of that prayer’s religion. So why are town meetings different?

The majority opinion, using Justice Kennedy’s typical judicial gymnastics, is based primarily on tradition: Congress and state legislatures have been opening sessions with prayers and have employed chaplains since the beginning of the nation. He based it on the Court’s decision in Marsh v. Chambers, which upheld legislative prayer and chaplains. Kennedy further reasoned that the prayer is not coercive (which school prayer is) because people are free to leave the meeting or arrive late. Additionally, it is done for ceremony and not as government business.

This decision wouldn’t be monumentally awful if it just maintained the law of Marsh. The devil is often in the details in these cases. Legislatures (including Congress) give their chaplains guidelines and offer broad prayers (ones that focus on nature, creation, strength etc. and not specific theology such as Jesus or Muhummad). The Greece decision will allow any prayer, even something clearly proseletzying in nature.

Although Justice Kagan in dissent did not argue that government-sponsored prayer was unconstitutional in all circumstances, she did hammer the majority’s coercion argument:

Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture. See Thomas Jefferson, Virginia Act for Establishing Religious Freedom (Oct. 31, 1785), in 5 The Founders’ Constitution 85 (P. Kurland & R. Lerner eds. 1987) (“[O]pinion[s] in matters of religion . . . shall in no wise diminish, enlarge, or affect [our] civil capacities”). The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceeding—I could go on: to a zoning agency, a parole board hearing, or the DMV—government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose. Why not, then, at a town meeting?

I think that any government endorsement of religion goes against the First Amendment because for the freedom of religion to work, one must also have the freedom from religion. The ideas that people should pray and that prayer works (after all, someone or something must be listening to the prayer in order to do it) are themselves theological. The major reason that individual denominations have thrived in the United States is because the government by not establishing a religion did not discourage others. Non-religious schools of thought such as agnosticism and humanism deserve the same privilege. Countries that have official or at the very least dominant religions do not have the same plurality and diversity of religious ideas that we have here. It is with great irony that England with its official church–which the Quakers and Pilgrims so famously fled–is now a much more secular country than our own.

Corporations Can’t Use Contraceptives

For those of you who go to church, how often do you see corporations in attendance? Not employees or stockholders of corporations, but the corporations themselves, the certificate and articles of incorporation sitting in a pew and going up for communion. I don’t belong to or attend any church but am pretty sure that they do not.

People in the United States have the right under our Constitution to freely exercise their religious beliefs and also to not have that right unduly burdened by government action. Many people are claiming that various aspects of the Affordable Care Act (popularly known as Obamacare) is violating their religious beliefs, especially the contraceptive mandate. The mandate was argued at the Supreme Court last week in the Sebelius v. Hobby Lobby Store, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

In those cases, for-profit businesses (note the Inc. and Corp. in the litigants’ names) argued that the ACA’s contraceptive mandate violated their religious liberties. Here is the actual issue: Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners (emphasis added).

The National Constitution Center has a very good analysis and expectations by Constitutional scholar Lyle Denniston and attorney/Harvard law professor Alan Dershowitz. Both see in the tea leaves that the Court will decide the case on narrow grounds, either that the Religious Freedom Restoration Act does not apply to corporations or that it does but only to closely held entities. Knowing the Roberts court, I would agree. But that is not how I’d rule.

I would reject the companies’ arguments on the basic grounds that neither the RFRA nor the free exercise clause apply to corporations: that corporations are not people and do not have religious rights. The text of the RFRA applies only to persons. But what of the fact that corporations are owned by people (stockholders)? That does not matter. Corporations are legal entities separate from their owners. Business owners choose to form corporations or LLC’s (limited liability companies) so that they will not be personally liable for the business. For example, if a corporation can’t pay its bills, absent personal guaranties, the creditors cannot hit the individual owners. The same is true for lawsuits: in order to hit an owner personally in an action against a corporation, a plaintiff must pierce the corporate veil which is not easy to do. This is called limited liability. It is not a constitutional right but a protection granted by the states. Business organizations that do not enjoy limited liability include sole proprietorships (not even an entity–really the person doing business in his own name) and partnerships. The owners of these businesses are personally liable for company debts and judgments.

If Hobby Lobby wins, it can decide if it’s employees are sponge-worthy.

Because a corporation is an entity separate from its owners, its providing of healthcare to its employees is the action of the corporation itself, not its owners. The owners are of course free to use or not use contraceptives in their own lives.

In short, if you want to form an entity separate from yourself so that you can protect yourself from liability, then you should not be allowed to use your personal beliefs to circumvent a law that applies to your company. When your company enters the marketplace, it must follow the rules of the marketplace. I don’t think any business, whether a limited liability entity or not, should be allowed exemption from a neutral business requirement but I’d be willing to compromise: if you organize as a sole proprietorship or partnership, you can claim that your company shares your religious beliefs because it can’t be separated. I don’t see Hobby Lobby doing that.

Snoop Dogg has a pocket full of rubbers and his employees do too:

Duck Fails — A&E, Duck Dynasty and the First Amendment

It’s been a while since we’ve had a pop culture fake First Amendment incident. More than two years have passed since ESPN dropped Hank Williams Jr. from the Monday Night Football opening after Hank got all rowdy and compared Pres. Obama to Hitler.

Why must you live out those songs that you wrote, Hank?

The latest celebrity to be booted off the air for saying something controversial off the air is Phil Robertson of A&E hit “Duck Dynasty,” which follows a family in Louisiana who makes duck calls. In an interview with GQ, Mr. Robertson, an avowed Bible-reading Christian, stated, among other things, that homosexuality is sinful and on par with bestiality and prostitution. A&E suspended Mr. Robertson. Then the First Amendment “defenders” came out.

Louisiana Governor Bobby Jindal issued this statement:

“Phil Robertson and his family are great citizens of the State of Louisiana. The politically correct crowd is tolerant of all viewpoints, except those they disagree with. I don’t agree with quite a bit of stuff I read in magazine interviews or see on TV. In fact, come to think of it, I find a good bit of it offensive. But I also acknowledge that this is a free country and everyone is entitled to express their views. In fact, I remember when TV networks believed in the First Amendment. It is a messed up situation when Miley Cyrus gets a laugh, and Phil Robertson gets suspended.”

Other characters have joined Gov. Jindal in his support of Mr. Robertson, including a half-term half-witted former politician who had her own reality shows and will not be linked on this blog. They suggest that because we have a First Amendment, that Mr. Robertson should be allowed on the air to say whatever he wants. I’m all in favor of First Amendment protections and free speech but I have to admit that there is no First Amendment issue here. The First Amendment prevents the government and government actors from restricting expression. In this situation, it isn’t the FCC or any government branch that is suspending Mr. Robertson, but his broadcaster, A&E, by itself. The First Amendment does not usually apply to private relationships such as the one between A&E and its TV personalities (and ESPN and Hank Williams Jr.). There’s probably even a provision in their contracts that allows such as suspension or cancellation. The First Amendment creates no right to be on TV. I’m not surprised that Gov. Jindal is mixed up over the First Amendment because he has had some struggles with it in the past.

Mr. Robertson’s views might upset people but are far from unique. A great many politicians and clergymen say similar things and are allowed on TV, especially on news and political shows. A&E could have let him stay on the air and even give him an entire show of him ranting on whatever he wants. But would advertisers, viewers and cable subscribers like that? That’s probably what motivated A&E.

I base my decisions on business.

While we’re on the First Amendment, it should be noted that it also grants a right of free association and its inverse of dissociation. A&E is free to not associate with Mr. Robertson or his co-stars provided it satisfies any legal obligations it might have.

Breach of Peace Love and Understanding: How Can the Legal Carrying of a Firearm Be a Crime?

Connecticut law is relatively clear on the legality of carrying firearms. A permit is required to carry a pistol on the person and in a motor vehicle. No permit is required to carry a rifle or shotgun (provided the weapon is not one prohibited by state or federal law–e.g. a sawed-off shotgun). With a permit, a pistol may be carried concealed or openly–there is no law against openly carrying a pistol. Yet, as occasionally reported in the newspaper, people who were legally and openly carrying weapons have been arrested and charged not with weapons possession but with Breach of Peace. The Register published an article today on this phenomenon.

In the article Paul Vance of the State Police and Michael Lawlor, the governor’s criminal justice adviser, both state that a person can openly carry a firearm as long as it does not cause “annoyance or alarm.” Rich Burgess of the organization Connecticut Carry disagrees, saying, “The very premise of breach of peace is ‘violent or tumultuous behavior. Since carrying a weapon in public is legal, doing so is exempted from the breach-of-peace statute.”

Since we’re talking about Breach of Peace, let’s take a look at the actual statute: Sec. 53a-181 – Breach of Peace in the 2nd Degree. The statute reads in its entirety (with the most relevant language bolded):

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests. (b) Breach of the peace in the second degree is a class B misdemeanor.

Breach of Peace and its cousin Disorderly Conduct are among the broadest, open-ended statutes (along with Risk of Injury and a few others). It does not take much beyond being rowdy to get hit with this charge. Although Sec. 53a-181(a)(1) is the subsection that is applicable for weapons, it neither mentions nor excludes firearms or any kind of weapon. Mr. Burgess is incorrect is saying that carrying firearms is exempted from the statute because it is a legal activity. Many activities that are in themselves legal, such as speaking, are Constitutionally-protected until they are used in a threatening manner.

I know what you’re thinking: what if someone is just carrying a weapon and minding his or her own business and someone who is extra-sensitive to guns sees it and calls the police? Many other people might’ve seen it and not cared a lick. Whether the act constitutes a breach of peace is a question of fact: it is up to a judge or jury to decide the intent of the defendant and if the alleged activity constitutes violent, threatening or tumultuous behavior. So, how does a fact-finder do that? Time to pull up the jury instructions for 53a-181(a)(1). Here is what the State must prove beyond a reasonable doubt:

Element 1 – Intent
The first element is that the defendant
-acted with the intent to cause inconvenience, annoyance or alarm. The predominant intent must be to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.

-recklessly created a risk of causing inconvenience, annoyance or alarm. A person acts “recklessly” with respect to a result or circumstances when (he/she) is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstances exist.

The words “inconvenience, annoyance or alarm” refer to what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.

Element 2 – Conduct
The second element is that the defendant engaged in fighting or in violent, tumultuous or threatening behavior that actually involved physical violence or portended imminent physical violence.2 The defendant’s conduct must be more than a display of mere bad manners. It must cause or create a risk of causing inconvenience, annoyance or alarm among members of the public.

Element 3 – Public Place
The third element is that the conduct took place in a public place. “Public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

The above-bolded language specifies that whether behavior is violent etc. is based on an objective standard–not the subjective feelings of an actual person (such as the one who witnessed the event, a police officer or Mr. Lawlor). The question is essentially would an ordinary person feel threatened by this? Context and circumstances are always key. Carrying a holstered handgun on your belt while you buy a sandwich? Probably not objectively threatening. Walking around pointing at your weapon and winking at people? Possibly threatening. Carrying your hunting rifle into the woods? Seems reasonable and non-threatening to me. Walking near a school with a rifle? I’ll let you think about that one.

Carrying your rifle in preparation for deer-hunting likely isn’t breaching any peace. Doing it at a wedding or while speaking like Christopher Walken just might be.

Is Breach of Peace overused, often as a fallback to make an arrest? I think it is and have had the clients that demonstrate that idea. But it’s hard to say that weapons should be exempt from Breach of Peace because one can–and I’ve had the clients to prove this too–be charged with Breach of Peace without having any weapons. I don’t write the laws but I defend people who are charged with breaking them and it’s tough to defend something as open as Breach of Peace.

Breach of peace? In Charles Bronson’s world, he is making peace.

Pres. Obama vs. the First Amendment — Scaling the Wall of Separation Between Church and State

Since he took office in January 2009, Pres. Obama’s opponents have asserted that he and his administration are shredding the Constitution–whether it be over guns, healthcare, national security, place of birth or just about anything else said and done in the past five years. I’m actually with them on a recent development…or am I?

Earlier this month, the United States, filed an amicus curiae brief in the case of Greece v. Galloway, which will be heard by the Supreme Court his fall. The issue is whether a town council opening its meetings with an official prayer violates the First Amendment. The town of Greece, NY has been leading prayers to open its meetings for well over ten years. The Second Circuit (in which Connecticut sits) held that the prayer does in fact violate the First Amendment and somehow avoids using “Are you kidding me?” in its opinion. The government’s official stance, through its amicus, is on the side of Greece and government-sponsored prayer which stands against the First Amendment and the separation of church and state.

The First Amendment in regards to religion contains both the Establishment Clause and the Free Exercise Clause. The Establishment Clause means that the federal (and state, as incorporated by the 14th Amendment) government may not establish a national religion, nor favor a particular religion or religion over non-religion. The Free Exercise Clause largely prevents governments from prohibiting individuals and their religions from exercising their religious beliefs. This amendment has not been amended since its passage. There is, under the Constitution, a clearly defined separation of church and state.

Church and State should not intersect. In New Haven for instance, they do not.

Forty years ago, in Abington School District v. Schempp, 374 U.S. 203 (1963), the Supreme Court ruled that school-sponsored prayer in public schools violated the First Amendment. More recently, in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Court held that an official prayer before public high school football games was unconstitutional. Although Greece allows and invites people of all different religious denominations to lead prayers, the practice still favors religion over non-religion.

One of the common refrains in these situation is that our nation is Christian or was founded by Christians. That isn’t true. Many of our founders were Deists, not Christians. Even assuming arguendo that all of our nation’s founders were devout, church-going Christians, that does not mean that they wanted religion entangled with government. Two Connecticut connections illustrate this concept.

Thomas Jefferson, in his 1802 letter to the Danbury Baptist Association, wrote,

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

Joel Barlow, a statesman and Connecticut native for whom Redding and Easton’s high school is named, proclaimed in the Treaty With Tripoli, in 1796, the following

Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.

The Treaty of Tripoli was approved unanimously by the Senate in 1797. Vice President John Adams presided over that Senate (and supported the treaty) which included several nation builders (and future president Andrew Jackson), some of whom were themselves clergymen.

The separation of church and state is a concept that should be supported by both the religious and non-religious. The United States is home to many, many different religious groups which were able to flourish because there was no official religion or constraint. The administration and Supreme Court should see that and use the Greece case as an opportunity to keep the wall from cracking.

The Sound of Silence: Can a criminal defendant’s refusal to answer a question be used against him?

If a defendant talks to the police when he is not in custody and then goes silent, does he make a sound? To wit, can the prosecutor argue that the defendant’s silence or refusal to answer certain questions demonstrates his guilt? The U.S. Supreme Court will take up this question when it hears arguments for the case of Salinas v. Texas this week.

In Salinas, the defendant agreed to voluntarily talk to the police regarding a murder for which he was a suspect. He was not arrested at this time. After answering questions for close to an hour, he was asked about shotgun shells that were used in the murder. The defendant provided no further answers and was later arrested and charged with the murder. The State did not comment on the defendant’s refusal to continue answering questions in his first trial, which resulted in a mistrial by a hung jury. In the second trial, in which the defendant did not testify, the prosecutor asserted in closing argument that the defendant’s abrupt silence shows his guilt because an innocent person would have offered an explanation to the question about the shotgun shells. The defendant was convicted. The conviction was affirmed on direct appeal.

TV has conditioned most Americans into understanding the Miranda warning: that an arrested person has the right to remain silent and that anything he or she says in waiver of the right can be used as evidence against him or her. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda is not an issue in Salinas because Mr. Salinas was not in custody–Miranda only applies to people who are arrested or otherwise detained by the police–but instead voluntarily talked to the police. He could have left at anytime before being arrested. He also could have declined the police’s invitation to come down to the station. Miranda prevents statements obtained after a defendant invokes his right to remain silent or made absent a warning from being used as state evidence but do not invalidate the arrest or charges.

Despite having a Constitutional right to remain silent, a large majority of defendants waive that right. Few help themselves by doing so.

Defendants have the right to testify for themselves and also the right to not testify at all. The Fifth Amendment prohibits criminal defendants from being witnesses against themselves. In many if not most trials, the defendant does not testify. Jurors are instructed not to infer anything about a defendant’s decision not to testify (that he or she is hiding something…which many jurors do anyway). Prosecutors, by the rule articulated in Griffin v. California, 380 U.S. 609 (1965), are not allowed to comment on a defendant’s decision not to testify. The Griffin rule and the Fifth Amendment are rooted in our adversarial system of justice and to protect from inquisitorial-like proceedings.

Should a defendant’s silence be able to be used against him or her even though the verbal statements are admissible? It is my opinion (not surprisingly siding with the defendant in this one) that it should not be. A defendant’s refusal to answer questions should not be argued or construed to be evidence of guilt. Allowing such a practice would undermine the Fifth Amendment and unfairly shift the burden of proof onto the defendant, in violation of our presumption of innocence.

For starters, why should silence be considered incriminating? There are many reasons why a person may decline to give an answer to a question while being interrogated. One is that the person may be confused. Another is that the person may realize, upon hearing the question, that he or she may be under suspicion and should talk to a lawyer (better late than never). When a person gives an answer, there are words that were spoken for a fact-finder to read or hear. Whether those words are incriminating is up for the finder of fact to determine. There are no words in silence. Mr. Salinas’ silence only became incriminating because the prosecutor said it was. Using silence as evidence against a defendant effectively punishes him or her for invoking a Constitutional right. It is one thing when someone willingly says something incriminating. It is quite another when a person says nothing. The prosecuting authority should not be allowed to put words in a defendant’s mouth. Putting incriminating words into a defendant’s mouth makes that defendant a witness against himself.

As the petitioner (defendant) in Salinas argued in his brief, considering silence incriminating shifts the burden of proof. In the United States all criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt by the government. A defendant does not have to put on a defense to be acquitted. Allowing silence to be considered incriminating reduces the state’s burden on top of giving the state more evidence.

Justices, reverse this conviction.

The words of the prophets are written in the Common Law blog.