Boots & Sabers

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Category: Law

SCOTUS Considers Consequential Docket

by | 0706, 3 Oct 22 | | 0 Comments

Fingers crossed.

It could be another really good session for expanding civil rights and ending institutional racism.

 

In cases from Harvard University and the University of North Carolina, the court could end any consideration of race in college admissions. If this seems familiar, it’s because the high court has been asked repeatedly over the past 20 years to end affirmative action in higher education. In previous cases from Michigan and Texas, the court reaffirmed the validity of considering college applicants’ race among many factors. But this court is more conservative than those were.

 

[…]

 

A new clash involving religion, free speech and the rights of LGBTQ people will also be before the justices. The case involves Colorado graphic and website designer Lorie Smith who wants to expand her business and offer wedding website services. She says her Christian beliefs would lead her to decline any request from a same-sex couple to design a wedding website, however, and that puts her in conflict with a Colorado anti-discrimination law.

 

The case is a new chance for the justices to confront issues the court skirted five years ago in a case about a baker objected to making cakes for same-sex weddings. The court has grown more conservative since that time.

 

[…]

 

In November, the court will review a federal law that gives Native Americans preference in adoptions of Native children. The case presents the most significant legal challenges to the Indian Child Welfare Act since its 1978 passage.

 

Teen Killed After Getting into Wrong Car

by | 2039, 20 Sep 22 | , | 4 Comments

This is a terribly tragic event, but it is also a really interesting case.

Carson Senfield, from Buffalo, New York, was shot dead at 1am on Saturday when he entered the stranger’s vehicle by mistake – but so far the unidentified shooter has not been arrested.

 

The sophomore, who was not known to the driver, was shot in the upper body and now the State’s Attorney is to decide whether the motorist was justified in killing the teen under Florida’s controversial ‘Stand Your Ground Law’.

 

[…]

 

The driver inside that car said he was in fear of his life when he shot and killed Seinfeld, according to investigators.

 

Tampa Police Department said that the driver was not arrested – and it’s now up to the State Attorney’s Office to decide if the shooter was justified in his actions or not.

Horrible, horrible, horrible event. But was it a crime?

It’s 1 am and some strange man gets in your car unannounced. We don’t really know what the behavior was, but the driver thought he was in danger and reacted. Did he think he was being carjacked? Robbed? Kidnapped? It could have been anything.

I’ve ridden Uber and Lyft hundreds of times. I don’t think I’ve ever just gotten into a car. Usually there is an exchange of greetings and I wait for the driver to say my name so that I know that he or she is actually on the other end of the app. I also check the license plate with the app. If I just jumped into a car uninvited, might the driver panic and take action? Maybe. I might if I were the driver.

I think it all comes down to whether or not we believe that it is reasonable for the driver to feel endangered when a man jumps in his car at 1 am.

Still, what a horrible loss for the family and a tragic death.

Judge Rules That People Under Felony Indictment Can Buy Guns

by | 1939, 20 Sep 22 | , | 0 Comments

The ruling seems sound.

Banning someone from buying a gun while under felony indictment goes against their Second Amendment right to bear arms, a federal judge in Texas ruled Monday.

 

“There are no illusions about this case’s real-world consequences—certainly valid public policy and safety concerns exist,” U.S. District Judge David Counts, a Trump appointee, wrote in his decision.

 

Counts cited a June Supreme Court decision, New York State Rifle & Pistol Association vs. Bruen, in which the justices rolled back concealed-carry permit restrictions for gun owners in New York state.

 

Counts’ opinion relied heavily on the framework set out by the high court in Bruen, saying that it was unclear after that ruling “whether a statute preventing a person under indictment from receiving a firearm aligns with this Nation’s historical tradition of firearm regulation.”

 

[…]

 

“No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition. The Government does not meet that burden,” Counts found.

This complies with due process. If a person is not convicted, they can certainly exercise other rights. It stands to reason that the 2nd Amendment shouldn’t be precluded.

It is unclear to me if a judge could make a prohibition to purchase firearms a condition of parole. It seems that it would be a way for a judge to lay this restriction on defendants who have a history of, and/or are accused of violent crimes, while still providing them due process. The problem with a blanket prohibition is that it is arbitrary and does not distinguish between violent felonies and white-collar felonies.

Jewish University Resists State Coercion

by | 0923, 17 Sep 22 | , | 0 Comments

It’s a shame that they are forced into this position.

(Reuters) – Yeshiva University, ordered by a judge to formally recognize an LGBT student group even as the Jewish school in New York City argues that doing so would violate its religious values, on Friday announced that it has halted the activities of all its undergraduate student clubs as it plans its next steps.

 

Yeshiva’s announcement came two days after the U.S. Supreme Court refused to block New York state judge Lynn Kotler’s June ruling that the university is subject to a city anti-discrimination law and must recognize the club called Y.U. Pride Alliance.

 

Citing upcoming Jewish holidays, Yeshiva said in an email to students that “the university will hold off on all undergraduate club activities while it immediately takes steps to follow the roadmap provided by the US Supreme Court to protect YU’s religious freedom.”

SCOTUS Allows State to Force University to Violate Religious Beliefs

by | 2047, 14 Sep 22 | , | 0 Comments

That’s a shame. Another blow against religious liberty.

WASHINGTON — The Supreme Court has cleared the way for an LGBTQ group to gain official recognition from a Jewish university in New York, though that may not last.

 

By a 5-4 vote Wednesday, the justices lifted a temporary hold on a court order that requires Yeshiva University to recognize the group, the YU Pride Alliance, even as a legal fight continues in New York courts.

 

Two conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, sided with the court’s three liberal justices to form a majority.

 

The disagreement among the justices appears to be mostly about procedure, with the majority writing in a brief unsigned order that Yeshiva should return to state court to seek quick review and temporary relief while the case continues.

 

If it gets neither from state courts, the school can return to the Supreme Court, the majority wrote.

Justice Sotomayor Supports Religious Freedom

by | 1909, 9 Sep 22 | | 2 Comments

Huh. Color me pleasantly surprised.

Reuters) -U.S. Supreme Court Justice Sonia Sotomayor on Friday permitted Yeshiva University to refuse to recognize an LGBT student club that the Jewish school in New York City has said violates its religious values, temporarily blocking a judge’s ruling ordering it to allow the group.

 

Sotomayor put on hold for now the judge’s ruling that a city anti-discrimination law required Yeshiva University to recognize Y.U. Pride Alliance as a student club while the school pursues an appeal in a lower court. The liberal justice handles certain cases for the court from a group of states including New York.

 

A stay Sotomayor issued of the judge’s injunction will remain in place pending a further order from herself or the entire Supreme Court, which has a 6-3 conservative majority.

Yeshiva’s student club application process was set to end on Monday, and the school said that absent the court’s intervention it would be forced to recognize Y.U. Pride Alliance in violation of its religious values.

 

“We are grateful that Justice Sotomayor stepped in to protect Yeshiva’s religious liberty in this case,” Eric Baxter, a lawyer for Yeshiva at the conservative legal group Becket Fund for Religious Liberty, said in a statement.

Judge Orders WEC to Follow Law

by | 0739, 8 Sep 22 | , | 17 Comments

The only reason this is even in court is because the WEC is a rogue agency that won’t follow the law.

WAUKESHA — A Waukesha County judge on Wednesday ruled that the Wisconsin Elections Commission’s guidance to municipal clerks about filling in missing witness information on absentee ballots runs counter to state law and banned the practice.

 

Waukesha County Circuit Court Judge Michael Aprahamian issued a temporary restraining order and injunction against the Wisconsin Elections Commission, barring it from advising clerks to follow guidelines it issued in 2016 regarding incomplete witness information on absentee ballots. The WEC in 2016 said if information pertaining to witnesses on absentee ballots is missing a component like an address, clerks are to do all the reasonably can to “cure” the ballot and get that missing information, including relying on election records, personal knowledge, or other databases. Voters or witnesses “may” provide the missing information in person, by phone, fax, email or mail, or voters can request a new ballot. Clerks were advised they could return the ballot envelope to voters to get the information.

Crooks Sue Evers Over Delays

by | 2009, 28 Aug 22 | , | 0 Comments

Between the crooks, the lawyers, and the governor, I kind of hope everyone loses.

Moore’s aunt said he spent an extra month in jail waiting for a lawyer to even ask for lower bail. He’s being held on a $30,000 bail for charges of armed robbery and possession of a firearm by a felon.

 

“This ain’t gonna be nothing but a lawsuit, they’re making it hard on themselves, too,” said Moore’s aunt Denise Cunningham about the delay in providing attorneys for the indigent.

 

The lawyers bringing the lawsuit say Moore is among thousands of indigent defendants forced to wait months or more to get a lawyer. Milwaukee Attorney John Birdsall said the issue has been getting worse for at least 15 years.

 

“The reason is because the public defender office, which was created to meet our state’s constitutional obligations to provide counsel, has been chronically underfunded, and everybody knows it,” Birdsall said.

 

The lawyers hope this lawsuit will force the state to increase public defender funding affecting an estimated 35,000 defendants like Moore.

 

“Apparently, because there’s not enough public defenders to go around with the criminal system,” Norton said. “So he’s just sitting there.”

Leftists Eye Takeover of Court to Transform Wisconsin

by | 1717, 15 Aug 22 | , | 2 Comments

Knowing that they stand little chance of getting control of the legislature, Wisconsin’s liberals are looking to use the Supreme Court as an activist branch to enact their agenda. The November election is important. The April election may be more important.

Wisconsin Democrats are already envisioning, if they win the election in April and take a 4-3 majority, a political transformation of the state.

 

“In terms of the ability to change Wisconsin in two years, this could be an utterly different state,” said Kelda Roys, a Democratic state senator from Madison. “That is our real opportunity to not just stop the bad stuff from happening, but actually restore real democracy and accountability to Wisconsin, things like abortion rights and fair elections where your candidate might actually win.”

High Court Denies Drop Boxes for Elections

by | 1935, 8 Jul 22 | , | 5 Comments

This is the correct ruling. The law is clear. It’s a shame that it wasn’t unanimous. It is also a shame that the court took so dang long to rule. The people deserve a court that acts with some urgency when the ruling will impact ongoing elections.

MADISON, Wis. (AP) — Wisconsin’s conservative-controlled Supreme Court ruled Friday that absentee ballot drop boxes may be placed only in election offices and that no one other than the voter can return a ballot in person, dealing a defeat to Democrats who said the decision would make it harder to vote in the battleground state.

 

However, the court didn’t address whether anyone other than the voter can return his or her own ballot by mail. That means that anyone could still collect multiple ballots for voters and, instead of using a drop box, put them in the mail.

 

Republicans have argued that practice, known as ballot harvesting, is rife with fraud although there has been no evidence of that happening in Wisconsin. Democrats and others argue that many voters, particularly the elderly and disabled, have difficulty returning their ballots without the assistance of others.

 

Supporters argue drop boxes are a better option than mailing ballots because they go directly to the clerks and can’t be lost or delayed in transit.

The news story explains the issue poorly. The case wasn’t about whether drop boxes are a good idea or not. The case was about whether the law allows for drop boxes even though state elections officials allowed them. The law does not allow drop boxes. It’s a clear legal determination.

Furthermore, the news story fails to mention that Wisconsin did not use drop boxes at all until the pandemic. Their absence will not make it “harder to vote” in Wisconsin. It may make it harder to cheat, but it will exactly as easy or difficult to vote as it was before drop boxes began illegally appearing all over the state. If the state wants to have drop boxes in the future, it is a matter for the duly elected leaders of the state to pass a law saying so.

Power to the People

by | 1934, 2 Jul 22 | | 7 Comments

Here is my full column that ran last week in the Washington County Daily News. I’m glad to see that the rest of the rulings continued this theme.

It was a blockbuster week of rulings from the Supreme Court of the Unites States. With a few more important rulings to be released this week, we see a positive trend emerging from the rulings. SCOTUS is stripping back the power of government and returning it to the people.

 

Arguably the two most important rulings of this session have to do with gun rights and abortion. In New York State Rifle & Pistol Association, Inc. v. Bruen, the court was asked to evaluate if New York’s restrictive gun laws violated the 2nd Amendment. The law in New York prohibits people from carrying a firearm unless they obtain a permit to do so from the government. To obtain the permit, the applicant must cite a specific reason and it is up to the arbitrary judgment of the government official as to whether the given reason is good enough to get a permit. SCOTUS struck down New York’s gun restrictions. What is interesting, however, is that the court did not strike it down based on the 2nd Amendment protection of the right to keep and bear arms. Instead, the court struck it down based on the 14th Amendment’s protection for citizens being denied “life, liberty, or property, without due process of law.” Taking the rights guaranteed in the 2nd Amendment as already clarified by earlier case law, Justice Clarence Thomas brilliantly sums up the ruling by saying, “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”

 

In Dobbs v. Jackson Women’s Health Organization, the court issued a narrower ruling that, “the Constitution does not confer a right to an abortion.” Thus, “the authority to regulate abortion is returned to the people and their elected representatives.”

 

Abortion is not mentioned in the Constitution, but in Roe v. Wade the earlier court engaged in judicial activism to thrust the power of the federal government into the regulation of abortion. In Dobbs, the court corrected that wrong and transferred the power to regulate abortion from the unelected federal court system to the elected representatives of the people. This is how it was up until Roe.

 

While the court did confirm that aborting a baby is not a right guaranteed by the Constitution, it did not say that the Constitution protects someone from being aborted. The Constitution does protect citizens from being deprived of life without due process, but to make such a ruling, the court would have had to define when life begins. That was not the question before the court and to rule on that issue would have been an act of judicial overreach. Perhaps a future court will have the opportunity to consider that question.

 

In both cases, we see the court reducing the power of government. In the case of Bruen, the court checked any government from restricting the 2nd Amendment without the same kind of extraordinary justifications we require of government to restrict other rights enumerated in the Constitution. This will have a cooling effect on zealous gun grabbers.

 

In the case of Dobbs, the court returned the power to regulate abortion to the people to exercise through their elected representatives. While the federal legislature could take up the issue, reaching a consensus across the broad ideological spectrum represented in the national legislature would be difficult. The state legislatures will more practically take up the arduous task of regulating such a politically contentious issue. Since the government closest to you generally governs the best (a reliable, if not unfailing, truism), the court’s ruling has empowered the people.

 

As the courts final rulings are released, we may hope to see more of this trend of limiting the power of government and returning powers heretofore usurped by government to the people.

SCOTUS Rules in Favor of Biden on Immigration

by | 1136, 30 Jun 22 | , | 2 Comments

While the policy is abhorrent, cruel, and destructive to the nation, I think the court got it right on the law. Essentially, one administration should be able to change discretionary policy that a previous administration made. This ruling will be important in 2025. Also, I agree with Kavanaugh in his consent opinion:

One final note: The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings. But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems

SCOTUS Reins In Power of Regulatory Agencies

by | 1127, 30 Jun 22 | , , | 0 Comments

Excellent.

But he added that the Clean Air Act does not give the Environmental Protection Agency (EPA) the authority to do so.

 

‘A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,’ he wrote.

Much like with the other rulings, this court is returning power to the people and their elected representatives from courts, executives, and agencies who have usurped that power over time. We WANT big questions to be debated and decided by the representative part of our government. Yes, it’s harder that way. It’s cumbersome, slow, inefficient, and often ineffectual. But representative government is far superior to the arbitrary rule of bureaucrats whether they wear black robes or suits.

Evers and Kaul Sue Over Wisconsin’s Abortion Law

by | 0756, 29 Jun 22 | , | 19 Comments

Interesting.

MADISON, Wis. (AP) — Wisconsin’s Democratic attorney general filed a lawsuit Tuesday challenging the state’s 173-year-old abortion ban, arguing that statutes passed in the 1980s supersede the ban and it’s so old no one can say it passed with the consent of modern generations.

To the layman (me), this seems like a legitimate question. If the state has two laws about the same thing, which one governs? I don’t think that the most recent one necessarily wins. In this case, the older law bans almost all abortions. The newer laws in which the legislature implemented regulations on abortions under the framework that the old law was invalid, but not repealed. Common sense says to me that you overlay the two sets of laws and that is the law. So, in effect, the newly valid older law essentially invalidates the new laws.

But… Rick Esenberg, esq., opined on the Jay Weber Show that the cases are invalid on procedural grounds. Normally, someone has to be impacted by a law in order to have standing to sue. So, if an abortionist did an abortion and was being prosecuted under the old law, the doctor would have standing to potentially sue on these grounds. But the governor and AG are essentially suing the legislature for a law that was passed before any of them were born.

What’s interesting is that Kaul’s and leftist DA’s refusal to prosecute anyone under the old law may mean that the law is never challenged in court at all. If the law is not being enforced, then nobody will ever be being prosecuted and have the standing to appeal over it. Kaul may need to prosecute and convict someone just to create a case to challenge the law. I still don’t think they would win, but at least they would have a case to use.

Power to the people

by | 0734, 28 Jun 22 | , , | 13 Comments

My column for the Washington County Daily News is online and in print. Here’s a part:

It was a blockbuster week of rulings from the Supreme Court of the Unites States. With a few more important rulings to be released this week, we see a positive trend emerging from the rulings. SCOTUS is stripping back the power of government and returning it to the people.

 

[…]

 

While the court did confirm that aborting a baby is not a right guaranteed by the Constitution, it did not say that the Constitution protects someone from being aborted. The Constitution does protect citizens from being deprived of life without due process, but to make such a ruling, the court would have had to define when life begins. That was not the question before the court and to rule on that issue would have been an act of judicial overreach. Perhaps a future court will have the opportunity to consider that question.

 

In both cases, we see the court reducing the power of government. In the case of Bruen, the court checked any government from restricting the 2nd Amendment without the same kind of extraordinary justifications we require of government to restrict other rights enumerated in the Constitution. This will have a cooling effect on zealous gun grabbers.

 

In the case of Dobbs, the court returned the power to regulate abortion to the people to exercise through their elected representatives. While the federal legislature could take up the issue, reaching a consensus across the broad ideological spectrum represented in the national legislature would be difficult. The state legislatures will more practically take up the arduous task of regulating such a politically contentious issue. Since the government closest to you generally governs the best (a reliable, if not unfailing, truism), the court’s ruling has empowered the people.

Supreme Court Affirms Religious Freedom

by | 1924, 27 Jun 22 | | 40 Comments

Another great SCOTUS ruling.

The court said, “The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.”

 

The case deals with First Amendment protections of personal religious expression and the school system’s fears of being seen as endorsing a religion, which deals with the Constitution’s “Establishment Clause.” There are also questions about the rights of school employees vs. the duty of that employee not to coerce students, particularly on religious matters.

 

The majority said he was offering a “quiet prayer of thanks,” while the school system expressed concern about the visibility of the prayer at mid-field.

In the majority opinion, Gorsuch wrote, “He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton school district disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the free exercise and free speech clauses of the first amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

Left Engage in Violent Protests

by | 0825, 25 Jun 22 | , , , | 3 Comments

If the ruling had gone the other way, there would not have been riots. We all know it. Only one side of the ideological spectrum routinely resorts to violence and rage when things don’t go their way.

Furious pro-choice demonstrators took to the streets in cities including Washington DC, Phoenix, New York City and Los Angeles as they begged the Biden administration to find a way to overrule the decision.

 

A group was spotted burning the flag of the United States in the capital while others gathered outside Supreme Court Justice Clarence Thomas’ home.

 

In Arizona, cops were forced to fire tear gas at protestors after they appeared to breach the State Senate building in Phoenix, with staff evacuated but no one reported to have been injured.

 

And at least 25 were arrested in New York City after around 17,000 descended on Washington Square Park before marching through the streets to Grand Central Station, Times Square, and Bryant Park.

 

They also stopped outside News Corp headquarters – home to Fox News and The New York Post – and yelled ‘Burn it down! Burn it down! F–k Tucker Carlson!’ Vandals also sprayed ‘F*** Fox’ on the side of the building.

 

Meanwhile pro-life protesters also amassed nationwide, some breaking down in tears as they celebrated the immediate end of abortions in 18 states.

SCOTUS Overrules Roe and Casey

by | 0914, 24 Jun 22 | | 30 Comments

Hallelujah. Pray for peace.

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives

5-1-3. I admit… I did not think I would see this in my lifetime.

Interesting note from the ruling:

our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests,

So the ruling still leaves it to state legislatures to decide when life begins and when rights are imbued. In this way, the ruling leaves an open question for future litigation.

New York Mayor Promises to Continue to Violate Constitution

by | 1537, 23 Jun 22 | , , | 6 Comments

Of course.

Adams insisted that despite the ruling, ‘nothing changes today’ and that the city would be reviewing its procedures to ensure that only those who are ‘fully qualified’ can obtain a concealed carry permit.

But, also of course, Adams already carries a gun. In normal elitist fashion, he thinks that his life is more important than other New Yorkers’.

Mayor Eric Adams, who qualifies for a permit both as a former police officer and a public figure, also revealed on the campaign trail that he planned to carry a concealed gun in public after taking office.

SCOTUS Rules In Favor of Civil Rights in Bruen

by | 0945, 23 Jun 22 | , | 7 Comments

They ruled that New York’s gun laws violate the 14th Amendment.

Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

 

[…]

 

A final word on historical method: Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. See, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250–251 (1833) (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.

 

[…]

 

At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions

 

[…]

 

The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

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