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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. 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. 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 Prepare to be confused. This is a tough one.
The Supreme Court recently heard oral arguments in another government aid to religious schools case, this one from Montana. The Court has been wrestling with this issue since at least the 1940s. The Court still has not enunciated a bright line test or clear framework for deciding these cases. A number of factors have been cited over time, producing a mish-mash of results. For example, the government providing buses to take children to and from religious schools has been upheld, but not buses for field trips. Government money for administering standardized tests in religious schools is OK, but not for administering writing tests. The cases are all over the lot, just like the Court’s decisions in the Christmas display cases. Both situations involve the Court interpreting what is and is not an unconstitutional establishment of religion under the First Amendment to the U.S. Constitution. [Chemerinsky, Constitutional Law - Principles and Policies, 4th ed., pp. 1275-76] At issue in the Montana case is a state tax credit program for people who donate to private schools. A state agency barred any of the donated money from ending up at religious schools, citing the so-called ‘Blaine Amendment’ in the state constitution which prohibits any direct or indirect aid to any school controlled by any church. The proposed Blaine Amendment to the U.S. Constitution was designed to deny any aid to religious schools. It passed the U.S. House in 1875, but failed in the Senate and never became law. However, 38 states including Montana adopted the provision in their own state constitutions. Much has been written about the motivation behind the Blaine Amendment - an attempt by bigoted anti-Catholic Protestants to deny aid to Catholic schools. Montana is arguing that its Blaine Amendment “promotes religious freedom by preventing the government from using its leverage to dictate religious policy." It also protects the rights of people who don’t want to be forced to support a religion they don’t believe in. The counter-argument is that it’s unconstitutional, as the Court has held, to deny a public benefit just because a church is involved. That would show impermissible hostility to religion. Justice Kavanaugh said something similar during oral arguments in the Montana case. He asked, if it’s OK to give a scholarship to students who are secular, how do you justify denying students scholarships just because they’re Catholic? One legal expert predicted another narrow 5-4 decision limited to the specific facts of the Montana case that will clarify absolutely nothing and give very little guidance for the next case, just like the Christmas display rulings. A decision is expected by June. My personal opinion, for what it’s worth, is that religious schools should not want to take any government aid, period. Where government money goes, government control follows. I’m not saying government money will have kids in religious schools praying to Chairman Mao tomorrow, but I am saying government money creates dependency and religious schools will eventually succumb to pressure to follow the government line on religion in subtle ways. Better not to get hooked on government money at all than to be subverted in ways you can’t anticipate. Let’s suppose you’re homeless and don’t have anywhere to sleep except a public park. Do you have a constitutional right to sleep in the park? Well, it’s a free country, isn’t it?
In December, the U.S. Supreme Court turned away a case out of Boise, Idaho involving a camping ban on the homeless, with criminal penalties. An advocate for the homeless said it was a good decision because authorities should not be criminally punishing homeless people in America who have nowhere to go. The Supreme Court’s decision let stand a 2018 ruling from the 9th Circuit that enforcing criminal penalties on the homeless for sleeping or camping in public places if shelter beds are not available violates the 8th Amendment ban on cruel and unusual punishment. But the 9th Circuit’s ruling hamstrung the ability of cities from Alaska to Arizona to deal with the homeless problem, local governments said. Boise had unsuccessfully argued its ordinance was necessary to prevent a humanitarian crisis on its streets and adversely affected public health and safety. The 9th Circuit ruling affects different cities differently. Spokane is not affected, because its ordinance already prevented enforcement if shelter beds are not available. The situation is less clear in neighboring Spokane Valley which restricts camping unless there’s no shelter space available elsewhere in the region. Olympia and Aberdeen have opened official camps. Homelessness is a complicated problem that may be exacerbated by bad policies and not letting the police enforce the drug laws, but it also intersects with difficult social problems like the opioid crisis. The 9th Circuit’s ruling only touches on one aspect of the overall situation. And, to be clear, it does NOT establish a blanket ‘right to camp’. It merely restricts the use of criminal penalties in certain instances. It says nothing about moving people to official camps or governmental inducements to get people to move to desired locations voluntarily. The next lawsuit might come out of Berkeley which banned ‘objects’ on sidewalks - presumably including grocery carts and tents - perhaps as a way to get around the 9th Circuit’s ruling. Or the next case might come from Seattle, which is flexible in how it enforces its ordinance depending on what is happening each day. Advocates for the homeless are already grumbling about the increasing involvement of Seattle’s police force in clearing city streets of the homeless. But whatever happens in the so-called ‘right to camp’ cases, the Supreme Court won’t be weighing in any time soon. President Trump commemorated National Religious Freedom Day with a group of teachers and students in the Oval Office this past week. During the event, the President affirmed the student’s right to pray in public schools. This is very much in keeping with the Trump administration’s efforts to support the free exercise of religion and improve how religious organizations are treated by the federal government.
One student, a Catholic boy from Utah, told Trump during the commemoration how he was forced to remove ashes from his forehead at his largely Mormon school. Another student, a girl from Texas, told how a teacher reprimanded her after she was seen praying with friends for a student who had been hurt in an accident. The teacher told her to hide her prayers in some secluded area in the future. Trump told the group the right to pray is a very important right. There’s nothing more important than that, he said. A student’s personal right to pray is separate and distinct from the issues decided by the Supreme Court in the school prayer cases starting in the 1960s. The personal right to pray involves the free exercise of religion under the First Amendment. The Supreme Court cases were about government-sponsored prayers amounting to an unconstitutional establishment of religion, under the establishment clause of the First Amendment. In 1962, the Court - after a campaign by atheists - held that a nondenominational prayer composed by the government could not be read at the beginning of the school day. [Engel v. Vitale] The Court focused on the fact that the government wrote the prayer and directed it be read in school. A year later, the Court knocked down a state law and city rule requiring students to read Bible verses and the Lord’s Prayer in unison at the start of school every day. [Abington School District v. Schempp] The cases went on from there to cover moments of silence, graduation ceremonies, and other particular questions. Some of the cases involved coercion, subtle or otherwise, where students would feel forced to go along with prayer or be made to feel unwelcome. The Court has ruled that even encouraging students to deliver prayers at a school football game constitutes an unconstitutional government endorsement of religion under the establishment clause. [Santa Fe Independent School District v. Doe, 2000] [see discussion of cases in Chemerinsky, Constitutional Law - Principles and Policies (4th Ed.) at pp. 1260-1265] Even though the commemoration in the Oval Office this past week involved personal prayer, not state action, the Freedom from Religion Foundation and other activists still criticized President Trump for blurring the lines between separation of church and state. They say there is an increasing number of instances of public schools promoting prayer in constitutionally impermissible ways. But we’ve seen this before, where the authoritarian Left twists existing law and bullies people with it way beyond what the law actually says. It’s a leap to say that court decisions prohibiting public schools from opening with a government prayer each day also force kids to hide away somewhere if they want to pray on their own. That’s what former Justice Kennedy and former Chief Justice Rehnquist would call “hostility” to religion and it’s time for the Freedom from Religion Foundation and other militant atheists to live and let live. President Trump is to be commended for restoring some balance and common sense to the issue of personal prayer. The Equal Rights Amendment was back in the news this week. All eyes are on Virginia where a bill to ratify the ERA is working its way through the state legislature. The bill is expected to pass, making Virginia the 38th state to ratify the amendment, setting up a big constitutional fight.
Congress set a seven-year deadline for ratification and only 35 states had done so before the allotted time expired in 1982. Recently, three states - Alabama, Louisiana, and South Dakota - have sued the Archivist of the U.S. for illegally holding the ratification process open beyond the deadline and refusing to recognize the fact that five states rescinded their ratification by 1982. This past week, the Justice Department Office of Legal Counsel weighed in with an opinion stating “because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States.” It would be unusual for the Archivist, who is part of the executive branch, to ignore the definitive statement of the executive branch on the subject. Democrats have introduced legislation to have Congress remove the deadline. The Justice Department opinion said there is no constitutional text or judicial precedent allowing for that. [p.28] While Congress has already extended the ERA deadline once, the Justice Department said the pending legislation is different this go-around because it purports to remove ANY deadline, not just extend the ERA again for another definite period of years. [p. 26] Also, removing the deadline would raise a whole host of nettlesome questions, such as whether a future Congress could kill a proposed amendment by shortening the deadline, and whether a two-third’s vote would be required for all questions relating to changing the substance or procedures of proposed amendments. But the Justice Department does not have the final say. Virginia Attorney General Mark Herring has already said he will defend the ERA in court when the state ratifies it. You can be sure all of this will end up in the Supreme Court eventually. Don’t forget the question of whether states can rescind their ratifications. The Constitution is silent and the Justice Department gave no opinion. Lots of unanswered constitutional questions here. The show is about to begin. If a tree falls in the forest and no one is around to hear it, did the tree really fall?
If the House votes articles of impeachment and doesn’t transmit them to the Senate, is the President really impeached? Can the Senate proceed to a trial without the House formally presenting articles of impeachment? We start, as always, with the Constitution but, unfortunately in this case, the Constitution doesn’t take us very far. Article I, Section 2 gives the House the sole power of impeachment. Article I, Section 3 gives the Senate the sole power to try all impeachments. Article II, Section 4 says the President and other civil officers of the U.S. “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” That’s pretty much it. Impeachment is mentioned in a couple other places in the Constitution not relevant to tonight’s discussion. So the Constitution is silent on the current situation where the House has voted to impeach but has, so far, refused to present the articles of impeachment to the Senate. I’m sorry to have to tell you there is no clear answer to this quandary. Legal experts disagree. Some of the commentary has focused on House and Senate rules. The Senate adopted its current impeachment rules in 1986. Rule 1 says the Senate impeachment process begins after the House appoints managers to carry the articles of impeachment to the Senate. Rule 3 says the Senate trial generally begins the day after the House formally presents articles of impeachment to the Senate. Could the Senate change its rules and proceed now? After all, none of these steps are set forth in the text of the Constitution. One argument is that the Constitution gives the House the sole power of impeachment and this implies it includes the power to specify when the act is final. The counter-argument is that all of this puts form over substance and the Constitution does not require formal presentment. The Senate has the sole power to try impeachments and therefore has the power to decide when and how that happens. If the Senate changed its rules, there would be a constitutional impasse. The Senate would say the President has been impeached and the House would say no, he has not. It’s not clear the courts would have any business wading in. Article I, Section 5 of the Constitution says each house of Congress may determine its own rules. If the courts do wade in, another question would be whether Supreme Court Chief Justice John Roberts would have to recuse himself since he would be presiding over any impeachment trial. That could leave the Supreme Court deadlocked at 4-4 and no way out of the impasse. I tell you folks, the November election can’t get here soon enough. You may have heard that the Second Amendment sanctuary movement is taking Virginia by storm. There are overflow crowds at city and county council meetings. Events are still unfolding. The best source for keeping up with the situation is the Virginia Citizens Defense League website - vcdl.org. At the moment, there are 93 Second Amendment sanctuary cities, towns, and counties. The number is sure to rise because sanctuary resolutions are being considered in two dozen more places.
There was a report that all of this caused the Democrats to abandon plans to introduce an assault weapons ban even though they now control the state legislature and have the Governor’s mansion. However, they modified their proposal to grandfather in existing weapons and want to require them to be registered. Critics say gun registration is the first step to gun confiscation and the Democrats’ new position must still be opposed. The Democrats are also talking about calling out the National Guard to enforce future gun control measures. Governor Ralph Northam said there would be no ‘retaliation’ but did say there would be unspecified ‘consequences’ if law enforcement officers refuse to enforce laws on the books. Legal analysts agreed the Governor could call out the National Guard, but said it would be unprecedented to do so given it would be the first time the National Guard will have been used to enforce laws many see as tyrannical. The Virginia National Guard released a statement saying it would not speculate on the possible use of the National Guard for law enforcement purposes. Other wild talk is flying around. A sheriff in Virginia threatened to deputize thousands of citizens to get around any gun control measures the new Democrat legislature might pass. One of the sanctuary counties passed an additional resolution allowing it to order up a militia to ensure that everyone can own a weapon. One commentator even said the globalists are trying to provoke a civil war and we might see a revolution if authorities try to use deadly force on the populace. So it’s all pretty amazing to watch, especially since I live in Virginia, but there may be less to gun sanctuaries than meets the eye. There is commentary to the effect these sanctuary resolutions are just symbolic. They don’t have any teeth and won’t stop the enforcement of any state or federal gun laws. Unlike illegal immigration sanctuary city laws, the Second Amendment sanctuary measures generally don’t prohibit local government employees from using funds or resources to assist in the enforcement of federal or state gun laws or regulations. Moreover, these measures are generally nonbinding resolutions, not laws at all. So it’s not clear how all this is going to shake out. I just wish there had been this kind of energy all along in Virginia. Then maybe Tea Partiers and others on the political right would not have to wonder what’s in store for us now that our state has gone blue. Finally, if you don’t know why we have the Second Amendment, it’s to prevent tyranny. My Potomac Tea Party made a short video on this last year and it’s still on our Potomac Tea Party website. (Citizens, Give Up Your Guns! - Why We Have the Second Amendment) |
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