Jeanie Bueller may have finally gotten the last laugh on Mr. Rooney and her brother Ferris.
Recently two Third Circuit panels handed down polar opposite decisions with respect to students and the First Amendment. One case is Layshock v. Hermitage School District, and the other case is J.S. v. Blue Mountain School District.
Substantially similar facts in both cases involved student speech on social networking sites resulting in severe school sanctions. Any reasonable principal would take offense at the speech. But as sure as these students live under their parents' roofs, it should be equally obvious that the school officials clearly exceeded their authority in punishing these students for off-campus speech using private property. The First Amendment precedent, at least from the Supreme Court, does not appear to deal with facts like these. Rather, the case law appears to involve penalties for student speech while on campus. Furthermore, from a more general position, the law vests school officials with power, but that power should be limited to their official school duties.
The problem here extends beyond the disparate results. Lawyers rely on precedent not only to litigate disputes, but also to help clients plan for the future. The divergent opinions involved here will impair lawyers in both situations. Perhaps of greater concern to the Third Circuit, the results will hamper judges from reaching consistent results. Therefore, the Third Circuit should rehear these controversies.
3rd Circuit Asked to Clarify Student Internet Speech Cases
And now for some lighter fare . . .
Ruling Out Federal Review Requires Proof "Beyond A Shadow Of A Doubt"
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| Study for Patriotism Pierre Puvis de Chavannes (1824 - 1898) [Public domain], via Wikimedia Commons |
I blogged here recently about "New Judicial Federalism and the Federal Courts."
Under the "adequate and independent" doctrine, the U.S. Supreme Court will not exercise jurisdiction over a question of federal law decided by a state court if two criteria are met.
The "adequate and independent" doctrine is not new, yet a majority and dissenting opinion about it appeared recently in Florida v. Powell (U.S. Feb. 23, 2010).
State courts have interpreted the "adequate and independent" doctrine as an invitation to develop state constitutional law as distinct from federal jurisprudence.
In Florida v. Powell (U.S. Feb. 23, 2010), the State charged the defendant with possession of a weapon by a prohibited possessor. Moving to suppress statements to the police, the defendant argued they were procured in violation of the privilege against self incrimination. More specifically, he claimed the police did not properly notify him of his right to counsel. The trial court denied the motion, and the jury found defendant guilty at trial.
Based on a certified question from the Florida Second District Court of Appeal, the Florida Supreme Court set forth the legal requirements of notifying an arrestee of his rights. Seemingly their answer relied on jurisprudence under the Fifth Amendment and the Florida Constitution.
In an opinion joined by a majority of United States Supreme Court, Justice Ginsburg addressed the "plain statement" rule.
The U.S. Supreme Court will not exercise jurisdiction only if the state court decision clearly and expressly indicates that it is based on bona fide separate, adequate, and independent state law grounds. In short, this is the "beyond a shadow of a doubt" standard. Otherwise if there is any question, the U.S. Supreme Court will review the case.
This demonstrates the extent to which the U.S. Supreme Court will go to protect the integrity of federal law. Clearly this prevents the development of state court precedent that dilutes federal law with state law.
Justice Stevens dissented, however, based on two separate policy grounds for the "adequate and independent" doctrine.
Despite the reasoning Justice Stevens advanced, Florida v. Powell (U.S. Feb. 23, 2010) stands for the proposition that state courts adjudicating state law must expressly state this in their written decision.
Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the violation of individual rights.
Call Now—(856) 812-0321.
www.smolenskylaw.com
Click "New Judicial Federalism," labeled in the post footer, for more examples and explanations about this topic.
Under the "adequate and independent" doctrine, the U.S. Supreme Court will not exercise jurisdiction over a question of federal law decided by a state court if two criteria are met.
- The State court decision rests on a state law ground independent of federal law.
- The decision based on state law adequately supports the judgment.
Coleman v. Thompson, 501 U.S. 722, 729 (1991).
The "adequate and independent" doctrine is not new, yet a majority and dissenting opinion about it appeared recently in Florida v. Powell (U.S. Feb. 23, 2010).
State courts have interpreted the "adequate and independent" doctrine as an invitation to develop state constitutional law as distinct from federal jurisprudence.
In Florida v. Powell (U.S. Feb. 23, 2010), the State charged the defendant with possession of a weapon by a prohibited possessor. Moving to suppress statements to the police, the defendant argued they were procured in violation of the privilege against self incrimination. More specifically, he claimed the police did not properly notify him of his right to counsel. The trial court denied the motion, and the jury found defendant guilty at trial.
Based on a certified question from the Florida Second District Court of Appeal, the Florida Supreme Court set forth the legal requirements of notifying an arrestee of his rights. Seemingly their answer relied on jurisprudence under the Fifth Amendment and the Florida Constitution.
In an opinion joined by a majority of United States Supreme Court, Justice Ginsburg addressed the "plain statement" rule.
The U.S. Supreme Court will not exercise jurisdiction only if the state court decision clearly and expressly indicates that it is based on bona fide separate, adequate, and independent state law grounds. In short, this is the "beyond a shadow of a doubt" standard. Otherwise if there is any question, the U.S. Supreme Court will review the case.
This demonstrates the extent to which the U.S. Supreme Court will go to protect the integrity of federal law. Clearly this prevents the development of state court precedent that dilutes federal law with state law.
Justice Stevens dissented, however, based on two separate policy grounds for the "adequate and independent" doctrine.
- This doctrine respects the independence of state courts. This goes to the heart of federalist theory, recognizing the limited power of the federal government as contrasted with the plenary power of the individual states.
- This doctrine avoids advisory opinions.
Despite the reasoning Justice Stevens advanced, Florida v. Powell (U.S. Feb. 23, 2010) stands for the proposition that state courts adjudicating state law must expressly state this in their written decision.
Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the violation of individual rights.
Call Now—(856) 812-0321.
www.smolenskylaw.com
Click "New Judicial Federalism," labeled in the post footer, for more examples and explanations about this topic.
Diversity Jurisdiction
Hertz Corp. v. Friend, 130 S. Ct. 1181, 559 US ___, 175 L. Ed. 2d 1029 (2010)
Federalism is the backbone of American government. The Constitution of the United States of America vests the federal government with limited power. By contrast, state governments have plenary power under each state's constitution. This post will focus on the limited power of the federal courts as related to civil procedure.
The U.S. Constitution established and empowered the Supreme Court of the United States. U.S. Const. Art. III, § 1. The same provision empowered Congress to "ordain and establish" the lower federal courts. Ibid. Thus, Congress created the circuit courts of appeal and district courts. Furthermore, Congress has authority to determine the jurisdiction of the lower federal courts.
The U.S. Constitution limits the power vested in the federal courts by allowing it to extend only to certain cases and controversies. U.S. Const. Art. III, § 2. One category where a federal court may exercise its judicial power applies to "Controversies . . . between Citizens of different States." Ibid. Exercising its constitutional authority to ordain, Congress enacted the diversity of citizenship statute. The U.S. Constitution gives federal courts limited power, preventing them from adjudicating a lawsuit between two citizens of the same state.
A problem arises, however, when one of the parties is a corporation. The issue is how a court should determine the citizenship of the corporation.
Early in American history corporate entities were not citizens. Bank of United States v. Deveaux, 5 Cranch 61 (1809). Under Deveaux, corporate citizenship was determined by the citizenship of its members.
This changed, however, in Louisville, C. & C. R. Co v Letson, 2 How 497 (1844). There the Court determined a corporate entity is a citizen of the state of incorporation, separate and apart from the citizenship of its members. Importantly, only incorporated groups are considered as citizens for diversity.
The diversity statute enacted by Congress provides, a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U. S. C. §1332(c)(1) (emphasis added). Thus, a corporation may be a citizen of two separate states. For example, it may be a citizen of both Delaware and New Jersey when it has been incorporated under the laws of Delaware and its principal place of business is in New Jersey.
Until now, parties litigated the meaning of "principal place of business" either to assert or challenge the jurisdictional authority of the federal courts in civil matters. Federal case law on this issue had provided two distinct tests to determine the "principal place of business."
The following illustrates the confusion that ensued under this distinction:
The plaintiffs probably urged the court to follow Ninth Circuit precedent, which applied both the "nerve center" and "muscle center" tests, while the defendants probably insisted on following Third Circuit precedent, which only applied the "nerve center" test.
Most likely the defendants hoped not only to prevail in the removal to federal court, but also planned to argue the California venue was an inconvenient forum, and to transfer the venue to a federal district court in the District of New Jersey.
Along the way to reaffirming the "nerve center" test, the Hertz Court reasoned this test was most appropriate based on the statute's plain language and its legislative history. This means the "nerve center" test comports with legislative intent. In addition, the Court reasoned the single test would serve the purpose of promoting administrative efficiency, and establishing uniformity of federal law.
Hertz Corp. v. Friend, 130 S. Ct. 1181, 559 US ___, 175 L. Ed. 2d 1029 (2010)
Federalism is the backbone of American government. The Constitution of the United States of America vests the federal government with limited power. By contrast, state governments have plenary power under each state's constitution. This post will focus on the limited power of the federal courts as related to civil procedure.
The U.S. Constitution established and empowered the Supreme Court of the United States. U.S. Const. Art. III, § 1. The same provision empowered Congress to "ordain and establish" the lower federal courts. Ibid. Thus, Congress created the circuit courts of appeal and district courts. Furthermore, Congress has authority to determine the jurisdiction of the lower federal courts.
The U.S. Constitution limits the power vested in the federal courts by allowing it to extend only to certain cases and controversies. U.S. Const. Art. III, § 2. One category where a federal court may exercise its judicial power applies to "Controversies . . . between Citizens of different States." Ibid. Exercising its constitutional authority to ordain, Congress enacted the diversity of citizenship statute. The U.S. Constitution gives federal courts limited power, preventing them from adjudicating a lawsuit between two citizens of the same state.
A problem arises, however, when one of the parties is a corporation. The issue is how a court should determine the citizenship of the corporation.
Early in American history corporate entities were not citizens. Bank of United States v. Deveaux, 5 Cranch 61 (1809). Under Deveaux, corporate citizenship was determined by the citizenship of its members.
This changed, however, in Louisville, C. & C. R. Co v Letson, 2 How 497 (1844). There the Court determined a corporate entity is a citizen of the state of incorporation, separate and apart from the citizenship of its members. Importantly, only incorporated groups are considered as citizens for diversity.
The diversity statute enacted by Congress provides, a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U. S. C. §1332(c)(1) (emphasis added). Thus, a corporation may be a citizen of two separate states. For example, it may be a citizen of both Delaware and New Jersey when it has been incorporated under the laws of Delaware and its principal place of business is in New Jersey.
Until now, parties litigated the meaning of "principal place of business" either to assert or challenge the jurisdictional authority of the federal courts in civil matters. Federal case law on this issue had provided two distinct tests to determine the "principal place of business."
- The "Nerve Center" Test. This test refers to the place where high level officers direct, control, and coordinate corporate activities.
- The "Muscle Center" Test. This test refers to the place where most of the business activity occurs.
The following illustrates the confusion that ensued under this distinction:
- The "Center Of Corporate Activities" Test. Developed by the Third Circuit, this test searches for the "headquarters of a corporation’s day-to-day activity."
- A "Two Part Test." Developed in the Ninth Circuit, this test requires courts to:
- decide whether "a corporation’s activities are centralized or decentralized,” and
- apply either the “place of operations” or “nerve center” test.
The plaintiffs probably urged the court to follow Ninth Circuit precedent, which applied both the "nerve center" and "muscle center" tests, while the defendants probably insisted on following Third Circuit precedent, which only applied the "nerve center" test.
Most likely the defendants hoped not only to prevail in the removal to federal court, but also planned to argue the California venue was an inconvenient forum, and to transfer the venue to a federal district court in the District of New Jersey.
Along the way to reaffirming the "nerve center" test, the Hertz Court reasoned this test was most appropriate based on the statute's plain language and its legislative history. This means the "nerve center" test comports with legislative intent. In addition, the Court reasoned the single test would serve the purpose of promoting administrative efficiency, and establishing uniformity of federal law.
Hertz Corp. v. Friend, 130 S. Ct. 1181, 559 US ___, 175 L. Ed. 2d 1029 (2010)
New Judicial Federalism and Federal Courts
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Justice (or Prudence, Justice, and Peace) Jürgen Ovens (1623 - 1678) [Public domain], via Wikimedia Commons |
The issue in Clausell involved a claim of discriminatory use of the peremptory strike by the prosecutor.
Federal law prohibits race-based, sex-based, and religion-based discrimination in this context as a violation of Equal Protection under Batson v. Kentucky, 476 U.S. 79 (1986) and subsequent cases.
New Jersey law also prohibits this as a violation of the right to trial by a jury made up of a representative cross section of the community under State v. Gilmore, 103 N.J. 508 (1986).
The Gilmore court sought to expand individual rights under the New Jersey Constitution on state law grounds. Even so, the Third Circuit treated the federal and state tests to determine the discriminatory use of the peremptory strike as substantially similar. Nevertheless, the legal grounds upon which federal and state law base these tests are markedly distinct.
This distinction as between federal and state law illustrates a phenomena known as the "New Judicial Federalism." This involves the process of state courts elevating individual rights above the requirements of federal law. State courts are able to make lasting state precedent if, and only if, they root their decisions on state law grounds that are adequate and independent of federal law. While civil rights activists tend to laud these decisions, law enforcement may tend to criticize them.
Perceptions change, however, as the individual progresses through the layers of appellate and collateral review. State law may provide individuals with a broader scope of protection from state action during the early stages of the criminal system. In exchange, this necessarily places additional burdens on the State during those stages. This post will explain why New Judicial Federalism critics become staunch supporters, and vice verse, later in the process. It also brings to light the judiciary's interest in the administration of justice.
To explain this process, the first track criminal defendants may follow after conviction is "direct appeal." This track allows the individual to pursue claims arising out of the investigation and adjudication. A defendant on this track may seek a remedy from the state's Appellate Courts, the State's Supreme Court, and quite possibly the Supreme Court of the United States. Importantly, when the individual seeks a remedy for an alleged violation of state law that does not raise a question of federal law, the Supreme Court of the United States will not review it on direct appeal. This means the state's supreme court has the final word.
The next track is Post-Conviction Relief ("PCR"). Beginning in trial court, this track allows the defendant to pursue allegations that his lawyer failed to provide effective assistance of counsel. As with direct appeal, the Supreme Court of the United States will not review issues based on adequate and independent state law grounds that do not raise a question of federal law.
The final track is to petition the federal court for a writ of habeas corpus. Here the defendant may claim he is being held as a prisoner in violation of his federal constitutional rights.
New Judicial Federalism empowers state courts to prohibit federal courts from granting habeas corpus relief on collateral review. This is so when the following factors are met. First, a prisoner raises a state law issue in an application for habeas corpus relief. Second, the state law at issue in the application provided greater protection than federal law. Finally, the State met its burden of honoring these enhanced individual rights in the prisoner's particular case.
Under these circumstances, federal courts cannot possibly grant habeas corpus relief. This is because state law surpassed the requirements of federal law. Therefore, violation of federal law is impossible.
Just as state courts can insulate their decisions from federal review on direct appeal and post conviction relief, they can also shield their decisions from collateral habeas corpus review by federal courts.
This dynamic indicates the New Judicial Federalism involves not only protecting individual rights. It also involves preserving state court autonomy from federal courts. That, of course, is at the heart of our federalist system.
Clausell v. Sherrer (3d Cir. 2010)
Click "New Judicial Federalism," labeled in the post footer, for more examples and explanations about this topic.
Call Now—(856) 812-0321.
www.smolenskylaw.com.
Automobile Exception
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Stado wilków (A pack of wolves) Alfred Wierusz-Kowalski (1849 - 1915) [Public domain], via Wikimedia Commons |
The Bill of Rights and the New Jersey Constitution both prohibit the government from entering areas without a warrant where individuals hold reasonable privacy expectations.
One exception to the warrant requirement, the Automobile Exception allows the police to circumvent the warrant application process. But the Fourth Amendment and the New Jersey Constitution differ in respect of the Automobile Exception's elements.
Under federal law, a police officer may search a vehicle, its trunk, and all its containers without a warrant, so long as the circumstances provide the requisite probable cause to believe the vehicle has contraband. Some states are in lockstep with the United States Supreme Court in this matter.
New Jersey law, however, also requires the circumstances be exigent. Absent probable cause and exigency, New Jersey law requires police to obtain a warrant before conducting the automobile search.
Although this imposes a procedural hurdle, New Jersey law allows the police to obtain a warrant telephonically instead of appearing before a judge in person.
State v. Jason Lewis (App. Div. 2010) is a recent Appellate Division opinion involving the Automobile Exception.
Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the violation of individual rights.
Call Now—(856) 812-0321.
Click "New Judicial Federalism," labeled in the post footer, for more examples and explanations about this topic.
One exception to the warrant requirement, the Automobile Exception allows the police to circumvent the warrant application process. But the Fourth Amendment and the New Jersey Constitution differ in respect of the Automobile Exception's elements.
Under federal law, a police officer may search a vehicle, its trunk, and all its containers without a warrant, so long as the circumstances provide the requisite probable cause to believe the vehicle has contraband. Some states are in lockstep with the United States Supreme Court in this matter.
New Jersey law, however, also requires the circumstances be exigent. Absent probable cause and exigency, New Jersey law requires police to obtain a warrant before conducting the automobile search.
Although this imposes a procedural hurdle, New Jersey law allows the police to obtain a warrant telephonically instead of appearing before a judge in person.
State v. Jason Lewis (App. Div. 2010) is a recent Appellate Division opinion involving the Automobile Exception.
Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the violation of individual rights.
Call Now—(856) 812-0321.
Click "New Judicial Federalism," labeled in the post footer, for more examples and explanations about this topic.
The Shield has become a Sword
The Fourth Amendment protects individuals from unwanted government intrusion. Almost everyone accepts that theory, but unfortunately that does not always translate into practice.
Recently the Third Circuit handed down its opinion in United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010), and the results make absolutely no sense.
The Fourth Amendment governs police conduct when they approach citizens. The police may request permission to ask questions, and the citizen has every right to refuse. Police officers may also stop an individual temporarily, which means the individual is not free to leave. The police have this power even though the individual may not have been placed under arrest. But it is absolutely clear the police do not have carte blanche to exercise this authority.
The law allows this only if the circumstances provide a basis reasonably to suspect criminal conduct either has taken or is taking place. This means the police must be able to detail who, what, when, where, and how they perceived events.
Furthermore, those observations must provide an objectively reasonable basis for their beliefs. The authority to stop includes, but is not limited to, people walking on foot and driving in cars.
A tip from a citizen does not provide reasonable suspicion unless certain criteria are satisfied. I blogged more extensively about this here, so I will repeat only the general principles now.
When looking at information from a tipster, courts must use common sense. Common sense is, far and away, the biggest principle to remember. The law requires courts to consider the reliability, truthfulness, and knowledge basis of the tip. But the analysis does not end there. The court must find the police took steps independently to corroborate the tip before they took any action.
In summary, the overarching concepts here are simple. First, the Fourth Amendment protects individual freedom. It appears in the Bill of Rights, so clearly its purpose is not merely perfunctory. Second, the law requires the court to use common sense in making a determination.
Consider the facts of this case using common sense. The tipster called 911 to report things she thought she saw and heard. It was night time on January 7, 2007, and the rain was coming down hard.
Common sense instructs us it was cold outside and difficult to see for three reasons:
All of these details are important because they tend to undercut what the tipster thought she saw and heard. Despite the time and the weather, the tipster claimed she was standing in the front door. Despite the natural environment, she reported three things.
First, she thought she saw a white taxi with a green roof light park in a lot across the street. Notably, the taxi did not park on the street in front of her house. Furthermore, it did not park across the street opposite her house. Instead the taxi went into a parking lot on the other side of the street from her house on a dark, rainy night. Although the opinion does not indicate the distance, it clearly was not immediately in front of her. Additionally, the record is unclear whether the roof light was actually green or white.
Second, the tipster thought she observed two men exit two separate vehicles and wrestle on the ground in the lot across the street in the rain. But the tipster clearly did not provide any details at all about the men involved.
Third, she thought she heard at least one gun shot, and saw the taxi leave. Calling 911 she told the dispatcher "I'm standing here on [sic] my front door," and during the call she said she saw a police car as it arrived on the scene.
It seems, based either on the time of night, the weather, or having heard the sound of gun fire, that any reasonable person would have stayed clear of the door in a place that was safe if not warm. It seems this would dissuade a court engaged in analysis that calls for common sense.
Even putting those things aside, this is all the information the police had when they spotted a taxi ten blocks away. The taxi matched the description the tipster had provided only in respect of its color. The record reflects the roof light might have been green, or it might have been white. She had not provided a license plate or any other identifying information. She had not provided any details about the occupants, which meant the police knew absolutely nothing about the people in the cab. Finally the police did not witness the cab commit any motor vehicle offenses. Apparently Harrisburg does not have many taxis.
Nevertheless the police stopped the taxi, approached with guns drawn, ordered the driver and the defendant out, handcuffed them, and secured the defendant's young son. This stop resulted in the seizure of a gun from the defendant who has a prior felony record.
Despite all the common sense problems with these facts, the Court reasoned the tip provided reasonable suspicion to stop the cab. Along the way, the court's reasoning not only gave the benefit of all doubts to the government, but also it allowed innocent facts to play into the calculation for reasonable suspicion. Apparently courts only require the police independently to corroborate innocent details, and will find reasonable suspicion based on this.
In all events, these are among the many reasons this opinion is troublesome. Here the United States Court of Appeals for the Third Circuit turned a shield, the Fourth Amendment, into a sword. Now precedent in this circuit, the police can intrude on the right to be left alone based on absolutely nothing suspicious at all.
United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010)
Recently the Third Circuit handed down its opinion in United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010), and the results make absolutely no sense.
The Fourth Amendment governs police conduct when they approach citizens. The police may request permission to ask questions, and the citizen has every right to refuse. Police officers may also stop an individual temporarily, which means the individual is not free to leave. The police have this power even though the individual may not have been placed under arrest. But it is absolutely clear the police do not have carte blanche to exercise this authority.
The law allows this only if the circumstances provide a basis reasonably to suspect criminal conduct either has taken or is taking place. This means the police must be able to detail who, what, when, where, and how they perceived events.
Furthermore, those observations must provide an objectively reasonable basis for their beliefs. The authority to stop includes, but is not limited to, people walking on foot and driving in cars.
A tip from a citizen does not provide reasonable suspicion unless certain criteria are satisfied. I blogged more extensively about this here, so I will repeat only the general principles now.
When looking at information from a tipster, courts must use common sense. Common sense is, far and away, the biggest principle to remember. The law requires courts to consider the reliability, truthfulness, and knowledge basis of the tip. But the analysis does not end there. The court must find the police took steps independently to corroborate the tip before they took any action.
In summary, the overarching concepts here are simple. First, the Fourth Amendment protects individual freedom. It appears in the Bill of Rights, so clearly its purpose is not merely perfunctory. Second, the law requires the court to use common sense in making a determination.
Consider the facts of this case using common sense. The tipster called 911 to report things she thought she saw and heard. It was night time on January 7, 2007, and the rain was coming down hard.
Common sense instructs us it was cold outside and difficult to see for three reasons:
- it was night time,
- it was raining, and
- it was the middle of a Pennsylvania winter.
All of these details are important because they tend to undercut what the tipster thought she saw and heard. Despite the time and the weather, the tipster claimed she was standing in the front door. Despite the natural environment, she reported three things.
First, she thought she saw a white taxi with a green roof light park in a lot across the street. Notably, the taxi did not park on the street in front of her house. Furthermore, it did not park across the street opposite her house. Instead the taxi went into a parking lot on the other side of the street from her house on a dark, rainy night. Although the opinion does not indicate the distance, it clearly was not immediately in front of her. Additionally, the record is unclear whether the roof light was actually green or white.
Second, the tipster thought she observed two men exit two separate vehicles and wrestle on the ground in the lot across the street in the rain. But the tipster clearly did not provide any details at all about the men involved.
Third, she thought she heard at least one gun shot, and saw the taxi leave. Calling 911 she told the dispatcher "I'm standing here on [sic] my front door," and during the call she said she saw a police car as it arrived on the scene.
It seems, based either on the time of night, the weather, or having heard the sound of gun fire, that any reasonable person would have stayed clear of the door in a place that was safe if not warm. It seems this would dissuade a court engaged in analysis that calls for common sense.
Even putting those things aside, this is all the information the police had when they spotted a taxi ten blocks away. The taxi matched the description the tipster had provided only in respect of its color. The record reflects the roof light might have been green, or it might have been white. She had not provided a license plate or any other identifying information. She had not provided any details about the occupants, which meant the police knew absolutely nothing about the people in the cab. Finally the police did not witness the cab commit any motor vehicle offenses. Apparently Harrisburg does not have many taxis.
Nevertheless the police stopped the taxi, approached with guns drawn, ordered the driver and the defendant out, handcuffed them, and secured the defendant's young son. This stop resulted in the seizure of a gun from the defendant who has a prior felony record.
Despite all the common sense problems with these facts, the Court reasoned the tip provided reasonable suspicion to stop the cab. Along the way, the court's reasoning not only gave the benefit of all doubts to the government, but also it allowed innocent facts to play into the calculation for reasonable suspicion. Apparently courts only require the police independently to corroborate innocent details, and will find reasonable suspicion based on this.
In all events, these are among the many reasons this opinion is troublesome. Here the United States Court of Appeals for the Third Circuit turned a shield, the Fourth Amendment, into a sword. Now precedent in this circuit, the police can intrude on the right to be left alone based on absolutely nothing suspicious at all.
United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010)
America's Dreamers, America's Doers
Many people know Camden's unfortunate reputation as the most dangerous city in the country. But even more people do not know about momentum by some of Camden's residents to change the city's face. Today's front page of the Philadelphia Inquirer features a report entitled Hispanic shoppers revitalize Camden's Federal Street (available online). Having blogged recently about the American Dream here, this article about Camden's Hispanic community is especially worthy of mention.
The growth epicenter's location is six blocks of Federal Street between Marlton Avenue and 27th Street. Long identified with abandoned buildings, Mexican and Dominican immigrants have resuscitated the "heart of East Camden." The lonely sound of the whistling wind has been replaced by upbeat music pouring out of restaurants and bustling businesses.
Where the Hispanic cross-section accounts for 42% of the city, Mexican immigrants make up the majority of the business owners in this area. Most of them come from Puebla, inspired by America's promise of opportunity. These industrious individuals have clearly taken responsibility for their own lives, and along the way they are improving Camden for everyone. This true story illustrates rugged individualism. Straight out of Camden, these men and women should inspire others to assess their strengths, capitalize on them, and move to improve every day. The opportunity to do this is one of the many things that makes America great.
The growth epicenter's location is six blocks of Federal Street between Marlton Avenue and 27th Street. Long identified with abandoned buildings, Mexican and Dominican immigrants have resuscitated the "heart of East Camden." The lonely sound of the whistling wind has been replaced by upbeat music pouring out of restaurants and bustling businesses.
Where the Hispanic cross-section accounts for 42% of the city, Mexican immigrants make up the majority of the business owners in this area. Most of them come from Puebla, inspired by America's promise of opportunity. These industrious individuals have clearly taken responsibility for their own lives, and along the way they are improving Camden for everyone. This true story illustrates rugged individualism. Straight out of Camden, these men and women should inspire others to assess their strengths, capitalize on them, and move to improve every day. The opportunity to do this is one of the many things that makes America great.
Facing the Music
State of New Jersey v. Cory Bieniek.
This opinion illustrates justification for punishment, a concept I blogged about here. Generally speaking two schools of thought occupy with this topic. One is utilitarian and the other is retributivist.
Utilitarians calculate for the net benefit of society. This involves using the law as a means to achieve what may be a politically expedient end. Utilitarians always calculate irrespective of public interest and media coverage of a case.
Retributivists, by contrast, focus on each individual offender. Here, a judge may focus on the defendant as a "whole person." Even though "whole person" evidence may be inadmissible at trial, the sentencing judge may rely on it without reservation thus focusing on the individual offender.
In my earlier post, I explained the broader distinctions between these two schools.
The above opinion, State v. Cory Bieniek illustrates these policy concerns under New Jersey law because it covers the sentencing judge's discretion. Legislature expressed society's interest in consistent sentencing through the New Jersey Code of Criminal Justice, N.J.S.A. 2C. Thus, it authorizes judges to exercise "structured discretion." A sentence will not be disturbed so long as the sentencing judge has adhered to these guidelines.
Accordingly, sentencing must be based on aggravating and mitigating factors set forth under N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-1(b). To do this, the parties and the court must develop the record with evidence, and the judge must apply that evidence to the factors in explaining his findings.
In State v. Cory Bieniek, the trial judge rejected a mitigating factor which requires finding the defendant did not contemplate his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2). The trial court referred to society's continuous campaign against drunk driving. This may be a utilitarian justification generally to deter others from driving under the influence. The court also emphasized this defendant did not get the message. This may be a utilitarian justification both generally to deter society by making an example of this defendant, and specifically to deter this defendant from driving under the influence again.
To illustrate retributivism, the defendant did not qualify for the mitigating factor under N.J.S.A. 2C:44-1(b)(7), which requires finding the defendant has no significant criminal history. Reflecting retributivist thought, the trial judge reviewed the defendant's juvenile record going back to the age of sixteen. In this way the trial court refused to apply the mitigating factor by focusing on the offender himself.
In conclusion, this case and the relevant statutes demonstrate sentencing policy under New Jersey law blends both utilitarian and retributivist rationales.
This opinion illustrates justification for punishment, a concept I blogged about here. Generally speaking two schools of thought occupy with this topic. One is utilitarian and the other is retributivist.
Utilitarians calculate for the net benefit of society. This involves using the law as a means to achieve what may be a politically expedient end. Utilitarians always calculate irrespective of public interest and media coverage of a case.
Retributivists, by contrast, focus on each individual offender. Here, a judge may focus on the defendant as a "whole person." Even though "whole person" evidence may be inadmissible at trial, the sentencing judge may rely on it without reservation thus focusing on the individual offender.
In my earlier post, I explained the broader distinctions between these two schools.
The above opinion, State v. Cory Bieniek illustrates these policy concerns under New Jersey law because it covers the sentencing judge's discretion. Legislature expressed society's interest in consistent sentencing through the New Jersey Code of Criminal Justice, N.J.S.A. 2C. Thus, it authorizes judges to exercise "structured discretion." A sentence will not be disturbed so long as the sentencing judge has adhered to these guidelines.
Accordingly, sentencing must be based on aggravating and mitigating factors set forth under N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-1(b). To do this, the parties and the court must develop the record with evidence, and the judge must apply that evidence to the factors in explaining his findings.
In State v. Cory Bieniek, the trial judge rejected a mitigating factor which requires finding the defendant did not contemplate his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2). The trial court referred to society's continuous campaign against drunk driving. This may be a utilitarian justification generally to deter others from driving under the influence. The court also emphasized this defendant did not get the message. This may be a utilitarian justification both generally to deter society by making an example of this defendant, and specifically to deter this defendant from driving under the influence again.
To illustrate retributivism, the defendant did not qualify for the mitigating factor under N.J.S.A. 2C:44-1(b)(7), which requires finding the defendant has no significant criminal history. Reflecting retributivist thought, the trial judge reviewed the defendant's juvenile record going back to the age of sixteen. In this way the trial court refused to apply the mitigating factor by focusing on the offender himself.
In conclusion, this case and the relevant statutes demonstrate sentencing policy under New Jersey law blends both utilitarian and retributivist rationales.
Freedom Of Speech and the First Amendment
John McCain has said campaign finance reform is dead in response to Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010). Meanwhile opponents of this ruling have only just begun to lay bare the "parade of horribles." Although the political response may be riveting, this post will focus on the Court's opinion.
Citizens United v. Federal Election Comm'n involves Hillary: The Movie, a corporate-sponsored film produced by Citizens United. The McCain-Feingold Act, however, prohibits corporations and unions from sponsoring candidates with its funds.
The trial court denied Citizens United declaratory relief because the McCain-Feingold Act was consistent with established First Amendment precedent. Indeed, this reasoning was correct. Nevertheless, a majority of the Supreme Court decided this particular line of precedent diverged from earlier First Amendment jurisprudence. Thus, the Court returned to traditional legal roots. As a result, corporations may now use general funds for political speech.
On a simple level this makes a lot of sense. The First Amendment prevents Congress from, among other things, trampling on freedom of speech. Armed with this liberty, individuals with similar views naturally associate together, also protected by by the First Amendment. Their protected communications with one another undoubtedly brought them together. These like-minded individuals, now associated, may elect to formalize their relationship by forming an entity. A corporation is one possible form for this entity, and it allows individual members both to pool resources and uniformly to spread their views.
To permit the individuals freedom of expression but to prohibit their group makes war with common sense. Freedom of expression presumably brought the group together. Likewise, to grant individuals freedom to speak and to associate, but then to turn around and deny a resulting association such as a corporation freedom of speech is equally confounding. Notably, Justice Scalia's concurring opinion, which explains the textual and originalist understandings of the First Amendment, supports this line of thought.
For another perspective please listen to this podcast.
Citizens United v. Federal Election Comm'n involves Hillary: The Movie, a corporate-sponsored film produced by Citizens United. The McCain-Feingold Act, however, prohibits corporations and unions from sponsoring candidates with its funds.
The trial court denied Citizens United declaratory relief because the McCain-Feingold Act was consistent with established First Amendment precedent. Indeed, this reasoning was correct. Nevertheless, a majority of the Supreme Court decided this particular line of precedent diverged from earlier First Amendment jurisprudence. Thus, the Court returned to traditional legal roots. As a result, corporations may now use general funds for political speech.
On a simple level this makes a lot of sense. The First Amendment prevents Congress from, among other things, trampling on freedom of speech. Armed with this liberty, individuals with similar views naturally associate together, also protected by by the First Amendment. Their protected communications with one another undoubtedly brought them together. These like-minded individuals, now associated, may elect to formalize their relationship by forming an entity. A corporation is one possible form for this entity, and it allows individual members both to pool resources and uniformly to spread their views.
To permit the individuals freedom of expression but to prohibit their group makes war with common sense. Freedom of expression presumably brought the group together. Likewise, to grant individuals freedom to speak and to associate, but then to turn around and deny a resulting association such as a corporation freedom of speech is equally confounding. Notably, Justice Scalia's concurring opinion, which explains the textual and originalist understandings of the First Amendment, supports this line of thought.
For another perspective please listen to this podcast.
Devil in the Details
Energy efficiency can mean lower taxes
This headline illustrates the important concepts of primacy and recency. The leading words announce energy efficiency and the final words shout out lower taxes. These two catch-phrases pack a powerful punch.
Green policies have taken center stage in both the public and private sectors. I will even go out on a limb and suggest the prospect of reducing one's tax bill has never been unstlyish.
It cannot be seriously doubted, therefore, that the author intentionally placed these four words to encourage readers to read on. For these reasons it is no accident a tiny, three-letter word, the most crucial word of the message, is buried in the middle - "can." The author intentionally chose the word "can," like the other words in the headline. The title does not say "may," nor does it say "might." Time will tell whether the most accurate word choice would have been "might not."
This headline illustrates the important concepts of primacy and recency. The leading words announce energy efficiency and the final words shout out lower taxes. These two catch-phrases pack a powerful punch.
Green policies have taken center stage in both the public and private sectors. I will even go out on a limb and suggest the prospect of reducing one's tax bill has never been unstlyish.
It cannot be seriously doubted, therefore, that the author intentionally placed these four words to encourage readers to read on. For these reasons it is no accident a tiny, three-letter word, the most crucial word of the message, is buried in the middle - "can." The author intentionally chose the word "can," like the other words in the headline. The title does not say "may," nor does it say "might." Time will tell whether the most accurate word choice would have been "might not."
Winning the battle, losing the war
This news article is another installment in the saga of The Association of New Jersey Rifle & Pistol Clubs ("Association"). On January 2, 2007 the Association prevailed at trial in its challenge to a Jersey City ordinance. The ordinance limited the purchase of handguns to one per month. Ruling for the Association, the trial court ordered the ordinance as void on grounds of preemption, equal protection, and arbitrariness.
Jersey City appealed, and on September 29, 2008 the Association again prevailed. Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Jersey City, 402 N.J. Super. 650 (App. Div. 2008). The thrill of victory, however, did not last long. After the Supreme Court of New Jersey granted the parties certification, Gov. Corzine signed into law a state-wide limitation of one handgun purchase per month on August 6, 2009. The purpose of the limitation, according to the State, is to prevent illegal gun sales. The theory is that a person who qualifies for a permit to purchase a gun buys weapons for unqualified people.
Having won in court, the Association lost on the political battlefield. At this time the Second Amendment does not apply to the States. Interestingly, New Jersey does not have a provision in its state constitution securing the right to bear arms. Instead, it derives entirely from statute. As a result, it will be interesting to see how the Association does in federal court.
Group sues to overturn NJ's one-gun-a-month law.
Jersey City appealed, and on September 29, 2008 the Association again prevailed. Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Jersey City, 402 N.J. Super. 650 (App. Div. 2008). The thrill of victory, however, did not last long. After the Supreme Court of New Jersey granted the parties certification, Gov. Corzine signed into law a state-wide limitation of one handgun purchase per month on August 6, 2009. The purpose of the limitation, according to the State, is to prevent illegal gun sales. The theory is that a person who qualifies for a permit to purchase a gun buys weapons for unqualified people.
Having won in court, the Association lost on the political battlefield. At this time the Second Amendment does not apply to the States. Interestingly, New Jersey does not have a provision in its state constitution securing the right to bear arms. Instead, it derives entirely from statute. As a result, it will be interesting to see how the Association does in federal court.
Group sues to overturn NJ's one-gun-a-month law.
“Nothing so completely baffles one who is full of trick and duplicity himself, than straightforward and simple integrity in another.” Charles Colton
"Duplicity" is improper. Arising from joining distinct offenses in one count, duplicity analysis involves two steps. The first step involves statutory interpretation, and the second considers duplicity doctrine policies.
To elaborate, the first step ascertains whether an indictment properly charges a violation of the pertinent statute. To do this, courts look for legislative intent in a statute's plain text, legislative history, and judicial precedent. The second step examines concerns about charging in one count what could be several independent charges. A finding of duplicity is avoided only when these concerns are not implicated.
There are several purposes for prohibiting duplicity. First, based on a concern for accurate verdicts, duplicity can produce uncertain general verdicts of guilt which may conceal a finding of guilt as to one crime and not guilty as to another. The Second, concerned again with accuracy, to avoid the risk that the jurors may not have been unanimous about any one of the crimes charged. Third, to protect the defendant's right to notice of the charges, and to ensure notice is adequate. Fourth, to provide for appropriate sentencing. Finally, to protect against double jeopardy. These policy considerations overlap with concerns for fundamental fairness and due process. These areas of law may actually prohibit combining what could be several independent charges into a single count, even if a statute appears to allow it.
United States v. Thomas L. Root (3d Cir. 2009).
To elaborate, the first step ascertains whether an indictment properly charges a violation of the pertinent statute. To do this, courts look for legislative intent in a statute's plain text, legislative history, and judicial precedent. The second step examines concerns about charging in one count what could be several independent charges. A finding of duplicity is avoided only when these concerns are not implicated.
There are several purposes for prohibiting duplicity. First, based on a concern for accurate verdicts, duplicity can produce uncertain general verdicts of guilt which may conceal a finding of guilt as to one crime and not guilty as to another. The Second, concerned again with accuracy, to avoid the risk that the jurors may not have been unanimous about any one of the crimes charged. Third, to protect the defendant's right to notice of the charges, and to ensure notice is adequate. Fourth, to provide for appropriate sentencing. Finally, to protect against double jeopardy. These policy considerations overlap with concerns for fundamental fairness and due process. These areas of law may actually prohibit combining what could be several independent charges into a single count, even if a statute appears to allow it.
United States v. Thomas L. Root (3d Cir. 2009).
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