Boots & Sabers

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Category: Law

Catholic School Sues MPS Over Busing Kids

by | 0857, 22 Mar 17 | , | 9 Comments

This will be an interesting case to watch.

Officials at a private school say the more than $100,000 they’re paying to bus its 70 students could be better spent on academics, and they’ve filed a federal lawsuit to get Milwaukee Public Schools to cover the costs.

[…]

St. Joan’s is represented by the Wisconsin Institute for Law and Liberty (W.I.L.L.), which says busing costs are an issue for the 27,000 kids in the Milwaukee Choice program.

“This is a justice issue,” said Paul Gessner, SJA’s Head of School. “Our kids really deserve to have safe and reliable transportation to and from school. That’s why we’re doing this.”

The state Constitution calls out transportation to school as a right:

Transportation of school children. Section 23. [As created April 1967] Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning. [1965 J.R. 46, 1967 J.R. 13, vote April 1967]
No, I don’t think that should be in the constitution, but it is. But WILL is suing in federal court, so it is unclear to me what basis they are suing under. Like I said, it will be interesting to watch.

Guy Arrested for Tweet

by | 1110, 19 Mar 17 | , , | 0 Comments

This will be an interesting bit of case law.

A man accused of sending a flashing image to a writer in order to trigger an epileptic seizure has been arrested, the US justice department says.

John Rayne Rivello, 29, of Maryland, sent Kurt Eichenwald an animated image with a flashing light on Twitter in December, causing the seizure.

He has been charged with criminal cyber stalking and could face a 10-year sentence, the New York Times reports.

“You deserve a seizure for your post,” he is alleged to have written.

Mr Eichenwald is known to have epilepsy. He is a senior writer at Newsweek magazine, a contributing editor at Vanity Fair and a best-selling author of books including The Informant.

On the one hand, if the allegations are true, Rivello clearly acted with malicious intent to cause harm to Eichenwald and succeeded in causing that harm. On the other hand, we are treading in dangerous territory if we are going to start arresting people for stuff that they wrote on Twitter.

Florida Evaluates Burden of Proof in Self Defense Cases

by | 1432, 2 Mar 17 | , , , | 0 Comments

Hmmmm… this is intriguing.

While at least 22 states have similar laws that say people can use force — even deadly force — to defend themselves from threats, Florida could soon be alone shifting the burden of proof to prosecutors.

Republican Sen. Rob Bradley says his bill “isn’t a novel concept.”

“We have a tradition in our criminal justice system that the burden of proof is with the government from the beginning of the case to the end,” he said.

Florida’s Supreme Court has ruled that the burden of proof is on defendants during self-defense immunity hearings. That’s the practice around the country. According to a legislative staff analysis of Bradley’s bill, only four states mention burden of proof in their “stand your ground” laws — Alabama, Colorado, Georgia and South Carolina — and all place the burden on defendants.

On the one hand, Bradley is correct. Our entire criminal legal structure is founded upon the notion that people are innocent until proven guilty by the government. The burden of proof is on the government to prove that someone broke the law. Why should it be any different in the case of self defense?

On the other hand, the government usually doesn’t have to prove intent. If I shoot someone, the government’s responsibility is to prove that I did it. Assuming that I did, then it would then be my responsibility to prove that the shooting was justified by self-defense. If the presumption if that every shooting is in self-defense unless the government proves otherwise, then it would be asking the government to enter the mind of the shooter to prove – beyond a reasonable doubt – intent. That would seem impossible in many cases. Then again, right now it is impossible for the shooter to prove his or her intent either.

Tough call… in the end, I would lean on the side on placing the burden of proof on the government.

Illegal Alien Detained After Speaking at News Conference

by | 2150, 1 Mar 17 | | 1 Comment

Generally speaking, it is not a good idea to speak at a press conference about one’s illegal activities.

Daniela Vargas, 22, was detained by ICE agents Wednesday morning, shortly after speaking at a news conference in downtown Jackson, according to her attorney, Abby Peterson.

The news conference was hosted by local immigration attorneys, churches and the Mississippi Immigrants Rights Alliance to bring attention to families impacted by deportation.
Vargas’ brother and father were detained outside their home by ICE agents in February. Vargas hid in the closet. When she was discovered by agents, she was temporarily handcuffed and then released.

Vargas was 7 years old when her family came to America from Argentina, placing her under the Deferred Action for Childhood Arrivals, or DACA, immigration policy. Under the policy, DACA recipients have to reapply every two years. Vargas’ DACA is expired but her renewal application is pending.

Peterson said she told agents via telephone Vargas had a pending DACA case. However, agents reportedly told Peterson that Vargas was a “visa overstay” and will be detained.

Vargas has no bond and is in ICE detention.

Syrian Refugee Becomes Truly American

by | 1657, 13 Feb 17 | , , , | 0 Comments

Yup.

A Syrian man who fled the war-torn city of Aleppo in 2014 after suffering torture and imprisonment is suing President Donald Trump and other U.S. officials over an executive order issued by Trump last month that still effectively bars the man’s wife and daughter from joining him in the U.S., where he was granted asylum.

The man filed the lawsuit anonymously, to protect the identities of his wife and daughter, who still live in hiding in Aleppo. It was filed Monday afternoon in the U.S. District Court for the Western District of Wisconsin, located in Madison. The case was assigned to U.S. District Judge William Conley.

The lawsuit doesn’t state where the man lives, only that he’s a resident of the Western District of Wisconsin.

Democrats Warming to Gorsuch?

by | 0812, 12 Feb 17 | , | 3 Comments

I doubt it, but here’s why they might.

Like the late Justice Antonin Scalia, whose seat he will take if confirmed, Gorsuch has often ruled in favor of criminal defendants over the government – rulings not uncommon for strict “textualists” and their razor-close readings of the statutory texts.

And unlike many other federal judges, Gorsuch has been a fierce critic of the so-called Chevron doctrine, which holds that judges should generally defer to the executive branch and its agencies when they have any reasonable interpretation of federal statutes.

“That basically gives people comfort that didn’t have comfort,” said Sen. Joe Manchin, the conservative Democrat from West Virginia after meeting Gorsuch. “That has helped him” in his quest for confirmation, he said.

ICE Does Its Job

by | 1715, 11 Feb 17 | , | 1 Comment

My, my… by the cries and wails of the Left, one would think that this is a big deal.

(Reuters) – U.S. federal immigration agents arrested hundreds of undocumented immigrants in at least four states this week in what officials on Friday called routine enforcement actions.

Reports of immigration sweeps this week sparked concern among immigration advocates and families, coming on the heels of President Donald Trump’s executive order barring refugees and immigrants from seven majority-Muslim nations. That order is currently on hold.

“The fear coursing through immigrant homes and the native-born Americans who love immigrants as friends and family is palpable,” Ali Noorani, executive director of the National Immigration Forum, said in a statement. “Reports of raids in immigrant communities are a grave concern.”

The enforcement actions took place in Atlanta, New York, Chicago, Los Angeles and surrounding areas, said David Marin, director of enforcement and removal for the Los Angeles field office of U.S. Immigration and Customs Enforcement.

First, advocates of immigration, of which I am one, are not concerned. Advocates of illegal immigration are concerned, and should be. But even then, this provides a little window into what’s going on:

Only five of 161 people arrested in Southern California would not have been enforcement priorities under the Obama administration, he said.

[…]

He said that of the people arrested in Southern California, only 10 did not have criminal records. Of those, five had prior deportation orders.

So a scant minority of those being picked up might not have been under Obama. And the vast majority of them are criminals, which even Democrats used to agree should be deported.

Why am I supposed to be outraged that ICE is doing its job? Don’t we pay them to find and deport illegal aliens? Don’t we tell them to prioritize ones with criminal records first? Yes, yes we do. And I thank them for their efforts.

The 9th’s Dangerous Ruling

by | 2224, 9 Feb 17 | , , | 1 Comment

The National Review does a concise job of breaking down the 9th Circuit’s horrible ruling without giving the Trump Administration any excuses for their slipshod executive order. This part is downright disturbing:

Finally, and crucially, the court made a statement near the end of its opinion that is deeply, deeply troubling. In discussing the evidence before the court, the panel says this:

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.

Putting aside, for the moment, the administration’s inexplicable failure to include in the executive order or the record the extensive documentation and evidence demonstrating the threat of jihad from the seven identified countries (including terror attacks in the U.S., plots in the U.S., and a record of plots and attacks abroad), whether an attack has been completed in this country is not the standard for implementing heightened security measures. The president doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike. Indeed, that’s the goal of national defense — to prevent attacks, not respond after the carnage.

MPS Principal Arrested for Intimidating Witness

by | 2208, 9 Feb 17 | , , | 2 Comments

Wow.

The criminal complaint alleges the Washington High School principal tried to silence the victim in a sexual assault because she was dating the man police said committed the assault.

Washington High School Principal Valencia Carthen, 42, is facing a felony charge and word of her arrest is spreading through the school.

“Everybody was on Facebook posting her mugshot and stuff,” Washington High School student Cherish Smith said.

The charges stem from a case last September in which Jason Cunningham is charged with sexual assault and strangulation/suffocation.

Carthen is accused of trying to intimidate the victim in that case, allegedly to get the woman to leave town.

Court documents show “Carthen told (the victim) that she knew where (the victim’s) family was in Mississippi.” And that the victim knew Carthen was an MPS principal, “which caused (the victim) to fear for her children’s safety as MPS students.”

Illegal Alien Felon Finally Deported After 9 Years

by | 2157, 9 Feb 17 | , , | 1 Comment

Finally.

(CNN)Guadalupe Garcia de Rayos went to Mass and said a prayer before her immigration check-in Wednesday in Phoenix.

It was her eighth visit since she was arrested in 2008 for using a fake Social Security number. After each meeting, the married mother of two went back to her family.
This time was different. She was detained and within 24 hours she was deported to her native Mexico. She was turned over to Mexican authorities at a border crossing in Nogales, Arizona, according to US Immigration and Customs Enforcement officials.
Her lawyers claim she is a victim of President Donald Trump’s tougher stance on illegal immigration.
[…]
“Ms. Garcia, who has a prior felony conviction in Arizona for criminal impersonation, was the subject of a court-issued removal order that became final in July 2013,” US Immigration and Customs Enforcement said in a statement. “(Her) immigration case underwent review at multiple levels of the immigration court system, including the Board of Immigration Appeals, and the judges held she did not have a legal basis to remain in the US.”
CNN is trying to portray this story as a bad thing and playing up the sympathy, but isn’t this exactly the kind of illegal alien that even Democrats said they wanted deported? You know… a felon?  The only thing outrageous about this story is that it took almost 9 years to get it done.

The power and politics of the court

by | 0700, 7 Feb 17 | , | 1 Comment

My column for the West Bend Daily News is online. Here you go:

Almost exactly a year ago, the Conservative Lion of the Supreme Court of the United States, Antonin Scalia, passed away. His death triggered a titanic political battle that is only now beginning its final phase.

The fact that the battle over a single appointment to the Supreme Court is so important and so heated is distressing because it is the result of two concentrations of power that should be abhorrent to small “r” republicans. The first concentration is into the federal government in distant Washington. Over the past two centuries we have allowed our federal government to grow so large and powerful that it wields an extraordinary amount of authority over our lives.

The second concentration is into the Supreme Court itself. While intended to be a coequal branch of government on equal footing with the Legislative and Executive branches, the Supreme Court, headed by Chief Justice John Marshall, quickly assumed the power to be the final arbiter of the constitutionality of laws in its 1903 decision, Marbury v. Madison.

The combination of the Supreme Court being the final arbiter of the constitutionality of laws for government with massive power and control over Americans’ lives necessarily makes the decisions of the court, and the people who make those decisions, of vital importance to all Americans. And the fact that Justices for the Supreme Court serve for life renders the decision regarding each selection of generational impact.

When Justice Scalia passed away, he left a Supreme Court with a slight ideological tilt to the Left after years of it having a slight tilt to the Right. President Obama had hoped to appoint another leftist Justice to the bench, thus cementing a leftist majority on the court for years to come. The Republicans who controlled the Senate exercised their authority to thwart the President and leave the choice to the next president. When the Senate took that action, the outcome of the Presidential election was months in the future and polls predicted a strong victory for Hillary Clinton. As we know, Donald Trump won the election against all odds and has now chosen his nominee to succeed Justice Scalia.

Despite fears from Conservatives and constructionists, President Trump made a choice that is exemplary in every regard. Neil Gorsuch is widely acknowledged as brilliant, eloquent, and well-liked by colleagues from all sides. He was unanimously confirmed to serve on the 10th Circuit Court of Appeals just eleven years ago. He has an impeccable resume including degrees from Columbia, Oxford, and Harvard, where he was a classmate of President Obama. Gorsuch was a clerk for two Supreme Court Justices, and has served with distinction for a decade in the Court of Appeals. It is also worth noting that Gorsuch, at 49-years-old, is young He has the potential to serve for a generation.

Most importantly, Gorsuch’s rulings indicate that he is a highly-principled judicial conservative, but one who is more constructionist of even the indomitable Scalia. Gorsuch is steeped in Natural Law and vehement in his protection of the individual from the overreaches of government. This might put him at odds with some conservatives in issues regarding the 4th Amendment, and with liberals regarding the 1st Amendment. But he clearly states in view in his 2006 book, The Future of Assisted Suicide and Euthanasia, “…the whole purpose pose and ideal of government as envisioned by the founding document of our country, is to establish a government that is aimed at securing and protecting what our founders considered to be self-evident human rights and truths.”

The Democrats have already reflexively announced their opposition to Gorsuch, even though their criticisms have failed to rise to any cogent standard. Wisconsin’s own Senator Tammy Baldwin has even refused to meet with Gorsuch, thus abdicating her role in the process and retreating behind nasty press releases and daft commentary.

Far be it from me to advise the Democrats, but their overreach on Gorsuch may neuter them further on future picks. Remember that former Senate Majority Leader Harry Reid killed the filibuster rule for all but Supreme Court picks in his effort to ram through President Obama’s lower court appointments, but left it in place for Supreme Court appointments. In doing so, Reid laid the ideological groundwork and precedent for killing the filibuster rule for Supreme Court picks too.

If the Democrats in the U.S. Senate choose to filibuster and obstruct what is clearly a brilliantly qualified choice for the Supreme Court, the Republicans can rescind the filibuster rule for Supreme Court picks too and confirm the appointment without needing to make a single concession to the minority party. The Democrats’ intransigence and unwillingness to even participate in the process, and the precedent already established by Harry Reid, will provide ample political cover for the change in rules.

Then, if and when Trump gets another opportunity to appoint a Supreme Court justice, the rules will already be set to allow an easy confirmation. If the Democrats participate and allow a vote – even if all of them vote against the nominee – they will likely preserve the filibuster for future Supreme Court nominations while undercutting the political justification to rescind it next time.

If the political battles of the past few years in Wisconsin have taught me anything, it is that Democrats will overreach. Their base of radicals demands unbending fealty to ideology – even at the expense of victory.

Neil Gorsuch is eminently qualified to sit on the Supreme Court and should be confirmed with broad support in the Senate. Then we should begin the process of reducing the scope and power of the federal government and the court so that these nominations wane in importance.

Reforming Civil Asset Forfeiture

by | 1705, 6 Feb 17 | , | 0 Comments

This is a reform that needs to pass.

Among the proposed requirements is that a criminal conviction must occur; that forfeiture be proportional to the crime committed; and that all proceeds from a forfeiture be set aside for schools. The bill also raises the burden of proof in forfeiture cases.

Craig argues the reforms are “an important step to ensure that no person is deprived of life, liberty or property without due process of law, as guaranteed by the 5th Amendment.”

Under current law, a person’s property can be taken from them not only without a conviction, but without even a criminal charge filed against them, Craig said.

We agree with Sen. Craig’s central point, that there should be no forfeiture in the absence of a conviction. We believe that if property is seized from a suspect as evidence, if that suspect is found not guilty the property should be immediately returned. State Sen. Bob Wirch, D-Somers, is a co-sponsor of the bill, and the American Civil Liberties Union has expressed support.

 Is there anything more fundamental to property rights than one’s property should not be seized by the government without due process?

 

Democrats Oppose Trump SCOTUS Pick

by | 0650, 1 Feb 17 | , | 6 Comments

As sure as the sun will rise in the east…

Leading Democrats have come out in staunch opposition to Donald Trump’s nomination of Neil Gorsuch for the vacant position on the Supreme Court.

President Trump named the Colorado appeals court judge on Tuesday to replace the late Antonin Scalia.

Senate Democratic leader Chuck Schumer said he had “very serious doubts” about Judge Gorsuch’s nomination.

Massachusetts Senator Elizabeth Warren accused the nominee of siding with large companies over American workers.

Two of Judge Gorsuch’s most high-profile appeals court rulings saw him side with business owners who objected on religious grounds to funding birth control via staff insurance plans.

All of their points of opposition lose all meaning when they told us before Trump made a selection that they would oppose the pick. They are not opposing the specific candidate. They are opposing Trump because they see it as their role to oppose anything Trump does. So we’ll go through the dance, but the result is already known.

Neil Gorsuch

by | 1912, 31 Jan 17 | , | 6 Comments

Our next Supreme Court Justice. Excellent choice. Kudos, President Trump.

Gorsuch has the typical pedigree of a high court justice. He graduated from Columbia, Harvard and Oxford, clerked for two Supreme Court justices and did a stint at the Department of Justice.

He attended Harvard Law with former President Barack Obama. On Tuesday, Obama’s former ethics czar, Norm Eisen, another classmate, tweeted: “Hearing rumors Trump’s likely Supreme Court pick is Neil Gorsuch, my (and President Obama’s!) 1991 Harvard Law classmate.If so, a great guy!”

Since 2006, he has served on the 10th Circuit Court of Appeals, in Colorado. His supporters note that he is an outdoorsman who fishes, hunts and skis. On the court, conservatives hope he could become the intellectual heir to Scalia, long the outspoken leader of the conservative bloc.

“The real appeal of Gorsuch nomination is he’s likely to be the most effective conservative nominee in terms of winning over Anthony Kennedy and forging conservative decisions on the court,” said Jeffrey Rosen of the National Constitution Center. “He’s unusual for his memorable writing style, the depth of his reading and his willingness to rethink constitutional principles from the ground up. Like Justice Scalia, he sometimes reaches results that favor liberals when he thinks the history or text of the Constitution or the law require it, especially in areas like criminal law or the rights of religious minorities, but unlike Scalia he’s less willing to defer to regulations and might be more willing to second-guess Trump’s regulatory decision.”

Let the confirmation battle be joined.

President Fires Acting Attorney General

by | 2039, 30 Jan 17 | , | 1 Comment

Well, that was quick. It’s nice to see some immediate accountability. And yes, this was the appropriate response when a subordinate openly and publicly defies the boss.

Washington (CNN)President Donald Trump fired acting Attorney General Sally Yates Monday night for “refusing to enforce a legal order designed to protect the citizens of the United States,” the White House said.

“(Yates) has betrayed the Department of Justice,” the White House statement said.
Dana Boente, US attorney for the Eastern District of Virginia, has been named new acting attorney general, the White House said.

Acting Attorney General Defies President

by | 1943, 30 Jan 17 | , | 3 Comments

I don’t recall this ever happening before.

The US acting attorney general has told the justice department not to defend President Trump’s immigration order.

Sally Yates, appointed chief legal adviser by Mr Trump’s predecessor, Barack Obama, said she was not “convinced” the order was lawful.

The president’s ban on nationals from seven Muslim-majority countries sparked street protests in the US and abroad.

Last time I checked, the AG is an advocate for the government – not a judicial body. This reeks of political and personal posturing to me. After all, what does she have to lose? She’ll be out of a job and looking for her next opportunity in a few days. Look for Yates to be celebrated as a hero of the Left and land a cushy position somewhere.

Russia Decriminalizes Domestic Abuse

by | 1945, 29 Jan 17 | , | 35 Comments

Yikes.

But not in Russia, where the Duma (parliament) voted this week to decriminalise domestic violence against family members unless it is a repeat offence or causes serious medical damage. The change is part of a state-sponsored turn to traditionalism during Vladimir Putin’s third presidential term. It has exposed deep fault lines. Many Russians now embrace the liberal notion of individual rights, but others are moving in the opposite direction.

Activists warn that decriminalisation will legitimise abuse. “The overall message to Russian citizens is that domestic violence isn’t a crime,” says Andrei Sinelnikov of the Anna Centre, a violence-prevention charity.

Schumer Obstructs

by | 1702, 22 Jan 17 | , | 4 Comments

Remember when obstructionism was considered bad?

Senate Minority Leader Chuck Schumer, D-N.Y., said Sunday he will absolutely block President Trump‘s pick for the vacant Supreme Court seat if the nominee is not “mainstream” enough.

“If the nominee is not bipartisan and mainstream, we absolutely will keep the seat open,” Schumer told CNN’s Jake Tapper.

The New York Democrat, who was booed during a speech at Trump’s inauguration, had previously criticized his Republican colleagues for blocking former President Obama‘s nominee, Merrick Garland, last year.

Trump has said he plans to announce his pick to succeed the late Justice Antonin Scalia in the next two weeks. He released a short list of potential nominees last summer, one of whom he met with shortly before entering office.

This is one of the areas where Trump does have a mandate. He was very clear about his potential Supreme Court picks during the campaign and it was heavily reported. He even published a list. As long as his nominee comes off of that list, he or she should be confirmed.

Of course, none of that matters to Schumer.

Obama Forgives a Traitor

by | 1322, 18 Jan 17 | , , | 8 Comments

Help me understand this… Obama rattles his war saber at Russia over information they allegedly gave to Wikileaks about the Democratic Party, but he forgives a traitor who released classified military information to Wikileaks? I agree with this:

Manning isn’t a woman in need of rescue. He’s a soldier who committed serious crimes. He wasn’t a “whistleblower,” as many of his defenders claim. He just dumped hundreds of thousands of classified documents into the public domain for the purposes of “worldwide discussion, debates, and reforms” without the slightest regard for the lives of others. There is no excuse. Manning is a traitor who pled guilty to a lesser offense to avoid the full penalty for his crimes. He has received too much mercy already. Obama’s commutation of his sentence is a disgrace.

Another Act 10 Case Settled

by | 2242, 13 Jan 17 | , | 1 Comment

Excellent. Hopefully other districts will follow Neenah’s lead.

NEENAH – The Wisconsin Supreme Court has declined to review a case brought by Neenah teachers over a change in retirement benefits.

The court’s denial ends a process that has lasted nearly four years, the district said in a news release Friday.

After Act. 10 was passed, Neenah was prohibited from bargaining or contractually agreeing to any provisions other than base wages, according to a state Court of Appeals document.

“In response, Neenah drafted an employee policy manual, which established policies and procedures to address benefits and the terms and conditions of employment that had previously been addressed” in the collective bargaining agreement, the document states. Neenah then voted to change the retirement benefit plans, which applied to those retiring on or after Oct. 2, 2012.

The new plan significantly reduced retirement benefits.

The teachers argued that the original retirement plan was promised to teachers in return for lower salaries and benefits.

A Winnebago County Circuit Judge dismissed the case, a decision the state Court of Appeals for the Second District upheld, though on different grounds.

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