Kudos! - “VIDEO: Ohio Kids Recite Pledge of Allegiance at Home While Schools are Closed”
One hundred police departments use the ShotSpotter sensor system to triangulate the location of gunfire and send patrol cars to the scene. In a case of first impression out of Illinois, the 7th Circuit held that the use of ShotSpotter can be permissible under the Fourth Amendment to the U.S. Constitution. [United States v. Terrill A. Rickmon, Sr. (7th Circuit - March 11, 2020)]
The court started its analysis by referring to well-established Terry stops which have long been held constitutional if based on “reasonable suspicion”. The “reasonable suspicion” test, which is less stringent than the probable cause needed to support a warrant, is met when articulable facts suggest criminal activity, based on the totality of circumstances known to the officer at the time of the stop.
In the Illinois case, ShotSpotter alerted a system representative in California, a live person who determined the sound to be gunshots. The information was relayed back through the system to a patrol officer who stopped a car leaving the area where the gunfire was heard. With the driver’s consent, the officer searched the vehicle and found a gun underneath the passenger seat where the defendant was sitting. The defendant had a criminal history and was convicted of possession of a firearm by a felon.
The court wrote that the ShotSpotter alert was not enough by itself to justify stopping a vehicle, but went on to find the stop was reasonable based on the totality of the circumstances. The court analogized the ShotSpotter alert to an anonymous tip, which must be corroborated to pass constitutional muster. The corroboration in this case consisted of independent reports of cars and an individual on foot leaving the scene. Another circumstance was the dangerousness of the crime - here, gunfire, making this an emergency situation. Also, it was 4:45 a.m. and the officer found no other traffic on the street. This was the only car the officer saw coming from the scene. Finally, this officer had previously been called to several shootings in the same area of the city. Add it all up and the totality of the circumstances suggests the people in this vehicle were involved in criminal activity.
There was a dissent that found all of this rather thin. The officer had no information about this particular car and admitted he would have stopped any car leaving the scene. Thus, in the dissent’s view, there was no individualized reason to support the stop. “If the Fourth Amendment stands for anything, it stands for the proposition that the police cannot seize anyone without adequate, individualized reason to do so,” the dissent wrote.
Factual circumstances aside, the point for tonight’s purposes is that the Fourth Amendment has been applied to another new technology and the use of that technology has been upheld by a federal appeals court. A marker has been laid down and future cases will probably turn on fine shadings of fact. It would be an uphill climb at this point to get ShotSpotter disqualified as unconstitutional in all cases.
Coronavirus Restrictions Strike Some as Tyranny, But They’re Just State Police Powers in Action (Constitution news round-up)
“Nashville Business Owners Defy Mayor and Remain Open! – Say Order to Close Bars and Restaurants on Broadway Is UNCONSTITUTIONAL”
Police Powers: Yes, states can constitutionally close bars and ban large events to stop the spread of disease.
1A Compelled Speech: Ohio professor disciplined for refusing to use a transgender’s preferred pronoun will appeal dismissal of case
1A: Janus, who won Supreme Court case forbidding forced union dues, asks high court to order refund of $3,000 he paid
Free Expression: “Canadian dad trying to stop daughter’s ‘transition’ to male faces charges for speaking to media”
Freedom of Religion: Illinois religious freedom and conscience protection laws mostly protect Catholic nurse who objected to birth control and abortion-referral duties, state appellate court rules.
2A: mental patient released 20 years ago and living without incident can’t get his gun rights back because scientific evidence shows mental patient pose an increased risk of suicide and violence well after they are released.
4A: 7th Circuit upholds ‘ShotSpotter’ alert (which triangulates sound of gunfire) to justify vehicle stop; system in use by 100 police departments
8A Cruel and Unusual: denial of transitioning to transgender inmate is not deliberate indifference to a serious medical need (11th Circuit)
War Powers: If Congress is serious about wanting its war powers back, it must also be serious about the shouldering the responsibility that comes with it
Amendments: stopping Presidents from waging endless war, abolishing the income tax, and other ideas for amending the Constitution
State Constitutions: “Kentucky House Passes Constitutional Amendment Specifying There’s No Right to Abortion”; measure moves to state senate
The Florida Georgia Line is not just a country music act, it’s an illustration of the constitutional right to travel. People traveling between states don’t have to stop and show a passport every time they get to a state line.
The right to interstate travel traces back to the Articles of Confederation: “the people of each state shall have free ingress and regress to and from any other state....” [Article IV]. You won’t find the right to travel in the text of the U.S. Constitution, but it’s now considered a fundamental right, one of the privileges and immunities of U.S. citizenship under the 14th Amendment. Courts have deemed the right to interstate travel a fundamental right since at least 1823, but it wasn’t until 1999 that the Supreme Court finally located the right in the privileges or immunities clause. [Saenz v. Roe]
Because the right to interstate travel is a fundamental right, it is given the highest level of constitutional protection. Laws that impinge on the right must pass strict scrutiny, that is, they must serve a compelling government interest, be narrowly drawn, and use the least restrictive means to achieve their purpose. All sorts of laws have been knocked down as offensive to the right to interstate travel - harbor taxes, a ban on bringing indigent persons into a state, restrictions on the use of highways and public accommodations on the basis of race, and limitations on state welfare benefits and voting rights for new residents. But the right to interstate travel, like every other right, is not absolute, and the Supreme Court has upheld simple state residency requirements that don’t have time periods attached, even if they might arguably discourage interstate travel - some voting restrictions, divorces, public employment, and free public education being some examples where simple residency requirements have been upheld. [Chemerinsky, Constitutional Law - Principles and Policies, 4th Ed., pp. 878-889]
What about the right to travel in our current circumstances of concern over coronavirus? President Trump said this past week he is considering travel restrictions to California and Washington, two states among the hardest hit so far. The analysis is similar to assessing whether a quarantine order is constitutional, as I reviewed with you three weeks ago. Courts will generally uphold quarantines and travel restrictions for public health reasons as long as those reasons are not arbitrary or oppressive. [People ex. rel. Barmore v. Robertson, 134 N.E. 815, 817 (citations omitted) (Ill.1922)] In 1965, the Supreme Court said the right to travel “does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area.” [Zemel v. Rusk, 381 U.S. 1, 15 (1965)] The CDC maintains Do Not Board and Lookout lists for sick passengers and those lists probably pass constitutional muster when viewed through the public health lens.
The right to foreign travel is on a different constitutional footing and is given less protection. Foreign travel is not a fundamental right. Therefore, restrictions on foreign travel do not have to meet strict scrutiny; they only have to pass the rational basis test. Very few governmental actions ever fail the rational basis test. So Trump’s travel ban on foreign nationals from European illness hot spots and the medical screening of Americans returning from those locations would more than likely be upheld in court as showing some semblance of rationality, screams from civil libertarians notwithstanding.
A recent book raises the question of whether or not Muslim politicians can truly swear to uphold and follow the U.S. Constitution. The issue arises because, according to Islam, sharia law is supreme and any human law - including a constitution - must yield if it is incompatible with sharia law. The book is Islamic Doctrine Versus the U.S. Constitution: The Dilemma for Muslim Public Officials, written by Stephen Kirby and published by the Center for Security Policy.
Kirby’s book sets forth a number of ways Muslim politicians can appear to take the oath of office, but not truly be bound under Islamic doctrine by what the oath says. First, an oath is not binding unless it is sworn in the name of Allah or one of his attributes. Even the phrase ‘so help me God’ does not make the oath binding, because Allah is not the same deity as the God of Christians and Jews. Second, an oath is no longer binding if it becomes a hardship on the oath taker to follow it. Third, an oath is not binding if a Muslim says silently the phrase Inshah’ Allah - if Allah wills - while taking the oath. Thus, Muslim politicians can appear to outside observers to be taking an oath of office when they really are not. This is perfectly fine under Islamic jurisprudence given the religious duty to spread Islam in non-Muslim lands and to conceal one’s true intentions while doing so. Tricky stuff.
Add to all of this the basic problem of how any Muslim can truly swear to uphold the U.S. Constitution which conflicts with Islam in so many ways. There is no right to free speech, no right to bear arms, and no equal rights for women under Islamic doctrine, just to name a few of the ways sharia law and the U.S. Constitution are not compatible.
These are not just theoretical concerns. The author Stephen Kirby sent questionnaires to 80 Muslim public officials and 36 new Muslim candidates for office across the U.S. Kirby’s questions, among other things, probed the conflicts between Islamic doctrine and free speech, freedom of religion, and the 8th Amendment’s injunction against cruel and unusual punishment.
Only six Muslim public officials and three Muslim candidates who received the questionnaire indicated they would support the U.S. Constitution. Most of the people who were sent questionnaires did not reply to them. Among those who did reply was one Muslim political figure who accused Kirby of being racist for even asking the questions. Muslims playing the race card have always puzzled me. Islam is not a race. Islam is ascendant from Morocco to Indonesia. What race are we talking about, exactly?
It does not bode well for America when so many Muslim candidates and officials won’t affirm their support for our Constitution and dodge the question when asked about conflicts between Islamic doctrine and our founding documents. If they won’t affirm our basic law, why should they get to lead us? More to the point, we have only ourselves to blame if we elect people - Muslim or otherwise - who won’t acknowledge that the U.S. Constitution is the supreme law of the land, as it says in Article VI, or have no intention of following it.
“Alexander Hamilton's Influence on Free Press Law” (#10 in Volokh 1A video series)
1A v. Discrimination:
1A Religion: appeal expected after federal judge rules school district can fire football coach for silent post-game prayers
RLUIPA: “Muslim Inmate Objects to Strip Search with Transgender Female-to-Male Guard Watching” - #BraveNewWorld
2A: Gun sales up 50% in Virginia ahead of new gun control laws taking effect
Preemption / Supremacy Clause: Supreme Court rules illegal aliens can be prosecuted for identity theft under state law
8A: “Supreme Court to hear challenge over life in prison without parole for juveniles”
1A: teacher sues union for ignoring Supreme Court ruling against forced dues
1A: federal judge rules requiring landlords to give voter registration info to tenants is unconstitutional compelled speech
2A: New Mexico red flag law defective because it’s too easy to claim dangerousness and fails to include mental health and addiction treatment to help defendants regain their Second Amendment rights
8A: “Supreme Court to Consider Life Without Parole for Juveniles”
8A: 8th Circuit enjoins old St. Louis system of imposing bail without determining whether defendants are able to pay, a flight risk, or a danger to the public.
Discrimination: fact that male counterparts made more at their previous jobs not a defense against Equal Pay Act claims (9th Circuit)
Shame! on the Philadelphia Bar Association for urging judges, lawyers, and courthouse personnel to disregard the rule of law and resist ICE arrests in courthouses. What was that oath you took when you were sworn in as lawyers?
Separation of Powers: 2nd Circuit panel allows the Justice Department to block certain funds to sanctuary jurisdictions; Congress delegated authority to Attorney General to set conditions on grants in question
Separation of Powers: Supreme Court hears oral arguments on constitutionality of CFPB; Director not answerable to the President
Separation of Powers: federal judge rules Trump’s diversion of $90M in Pentagon funds for border wall unlawful when Congress tried to stop it and $90M military project in Washington state was delayed; decision appears to buck Supreme Court ruling
2A: Supreme Court won’t block Trump’s bump stock ban for now
1A: 9th Circuit shoots down PragerU free speech appeal, rules YouTube may be a ‘virtual public square’ but not a state actor subject to the First Amendment
Electoral College: LULAC fails in bid to rewrite Electoral College rules by awarding electoral votes proportionally; 5th Circuit upholds winner take all system
Electoral College: Virginia Senate committee punts National Popular Vote proposal to next year
Equal Rights Amendment: Careful what you wish for - Mother’s Day, single-sex education, Roe v. Wade, transgenderism, 230 pages of distinctions between men and women in the U.S. Code, and other imponderables await
1A: 5th Circuit hears oral arguments in UTexas ‘hate speech police’ case; trial judge found colleges have a right to balance free expression with civility
Eminent Domain: Federal Circuit upholds landowners’ right to sue for just compensation when government converts railroad track into recreational trail
Eminent Domain: class action seeks just compensation for thousands of parking ticket recipients whose vehicles were seized and sold by city towing contractor
14A: article argues forgotten words of 14A Section 2 could be used to decrease representation in Congress of states that infringe the right to vote
Shame! on the high school in Ohio that told Future Farmers of America they could not fly Trump flags on their tractors, and Kudos! to the kids who staged a tractor parade to school, flags waving high in defiance
Trump says Sotomayor and Ginsburg should recuse themselves for political bias (Constitution news round-up)
It’s Not Fair, Change the Rules - Why We Have the Electoral College (new article)
Trump says Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg should recuse themselves from any cases involving him or his administration because of the hostile political opinions against him they have expressed.
Trump Flips 9th Circuit - Sea-Change in Opinions Coming
Separation of Powers: Second Circuit allows Justice Department to block federal funds to sanctuary jurisdictions, finding that Congress had delegated authority to place conditions on the grants in question
5A: federal court rules border patrol holding cells unfit for stays longer than a few hours
Amendments: 5 states that rescinded their ratification of the Equal Rights Amendment sue to block its adoption into the Constitution
14 Equal Protection: Florida cannot ‘re-disenfranchise’ felons for nonpayment of fines after state constitution was changed to restore their voting rights (11th Circuit panel)
1A Religion: Supreme Court takes case testing whether Philadelphia can exclude Catholic agency from its foster care program because it refuses to place children with same-sex couples
Discrimination: Supreme Court turns away appeal of Seventh-day Adventist who asked Walgreens for a guarantee he would never have to work on Saturday
2A: New Mexico Governor signs red-flag law, tells sheriffs to enforce it or resign
1A: federal judge rules Chicago can’t keep Christian students from evangelizing in public park
1A: students sue Wisconsin high school after being told not to wear T-shirts depicting guns
5A Eminent Domain: another Hurricane Harvey case goes the other way, because the deliberate flooding this time occurred when a reservoir went over capacity (cause-in-fact: government’s actions made no difference to the outcome)
8A Cruel and Unusual: Supreme Court nixed most life-without-parole sentences for minors, but effective life sentence of 3 consecutive 30-year terms is perfectly OK (8th Circuit in triple murder case)
Georgetown Law starts constitutional book series
Follow along in the Declaration of Independence, trace its origins in Greco-Roman natural law theory, and be inspired by the Founders’ travails to pluck up your courage for the fights ahead
Tonight we take up the question: are quarantines constitutional?
China has locked down entire cities, shut down public transportation, blocked highways, and gone door to door to find sick people in response to the coronavirus outbreak there. Could governmental authorities in the United States impose similar quarantine measures in response to a disease outbreak here?
The answer is yes, and it would be perfectly constitutional. In a 1900 case, the Supreme Court said:
In 1905, the Court further explored the tension between individual liberties and the common good, coming down in favor of Massachusetts’ compulsory vaccination law. The Court said, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Generally speaking, states have broad powers to protect the health, safety, morals, and general welfare of their inhabitants under what was formerly called the police powers. The doctrine has changed a bit, but the power to safeguard public health remains.
U.S. law empowers governments to quarantine people, commandeer private property and personnel, and declare martial law in public health emergencies. These are broad, sweeping powers, but does this mean we are no different from communist China? The answer is no, first of all, because there are limits on governmental public health powers in the United States. Some constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve a health objective; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process.
A second key difference is that China attempts to control information, and we do not. China has been censoring social media, silencing doctors and others who speak out, and clamping down on media to the extent of expelling foreign reporters and threatening the press abroad. The end result of trying to cover everything up has been a bigger health disaster for the world than it needed to be. Thanks a bunch, China.
Finally, there’s a key philosophical difference between communist China and America. In response to the outbreak, Chinese citizens petitioned their government for the right of free speech. In America, we are born with the right of free speech and other natural rights. We don’t have to ask the government for our rights, and the government can’t take them away from us. China holds itself out as a ‘Model to the World’ but the coronavirus shows, once again, that it’s the American Founding - not ‘socialism with Chinese characteristics’ - that truly lights the way to human progress and flourishing
Quarantines are constitutional, but constitutional protections apply: “must use the least restrictive means consistent with medical guidance, and the government must have good reason to believe you’ve been exposed.”
14A privacy rights must yield to school district transgender bathroom/locker room policy (9th Circuit)
Amendments: House votes to remove ratification deadline for ERA
Religious Freedom Restoration Act interpreted to shield activist who leave food and water for illegal immigrants
Free Expression: Mark Zuckerberg again asks for regulations on social media to preserve free speech (‘somewhere between a publisher and a pipeline’) before China’s anti-democratic vision of the Internet holds sway. (Hmm.... should we take this at face value?)
Contracts Clause, etc.: federal judge upholds California’s ‘gig economy’ law making it difficult for employers to classify workers as independent contractors instead of employees with benefits
1A: Ohio state senate votes to ban free speech zones that limit speech on campus
Free Expression: Trudeau minister announces all Canadian news websites must now get a government license
2A: Florida officials mistakenly seize veteran’s guns in Red Flag law foul-up
4A: 9th Circuit to hear case of police officer in state that has legalized marijuana justifying car search on fact marijuana still illegal under federal law
Art V: If states can’t rescind ERA ratification, the consequence might be that we will have an Article V convention on the Balanced Budget Amendment
Kudos! - Black activists launch ‘1776 Project’ to counter NYT’s ‘lethal’ ‘1619 Project’ which tells blacks they are victims and still can’t get anywhere because of slavery
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