Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email:

Tuesday, March 20, 2018

Assault Rifles and the Right to Bear Arms

Given the regularity of mass shootings in the U.S., with their attendant state law reactions banning certain assault-style weapons, someday soon there will be a petition for certiorari granted by the SCOTUS to take yet another look at one of our bedrock individual liberties. The last time the high-court considered the merits of a Second Amendment right to bear arms case was back in 2010.

SCOTUS set the legal agenda relative to the right to bear arms in its 2008 District of Columbia v Heller decision. In that case and in McDonald v City of Chicago, Justice Antonin Scalia struck local ordinances banning handguns.

These cases, however, left open the question of what standard should be imposed in reviewing the constitutionality of state hand gun laws. The so-called intermediate standard requires that a state hand gun law be "substantially related to an important government interest". A lesser standard merely requires that gun laws be reasonable and bear a rationale basis to the state's interest in their regulation.

Second Amendment advocates prefer the "strict scrutiny" standard of review. This standard presumes the state law is invalid unless the state satisfied a burden to demonstrate a "compelling state interest" to justify the policy on which the gun law is based.

Over the decades, three principles of jurisprudence have emerged relative to the Second Amendment. First, there is no such right to unlimited gun ownership. In his Heller opinion, Justice Scalia stated that not all weapons are protected under the Second Amendment such as "weapons that are most useful in military service—M–16 rifles and the like."

Second, courts addressing gun law cases in the modern era of monthly, if not weekly, mass shootings, will draw from the principled regulations laid out in the Heller case. These principles include: a general ban on assault or military grade weapons; required child protection devices such as trigger locks; banning classes of individuals such as convicted felons and the mentally ill from gun ownership; and universal registration requirements.

As has been demonstrated by past decades of mass shootings, however, nearly every one of these laws, both federal and state, are broken by a  murderous shooter. With shocking ease, the mentally ill person, the terrorist, or the felon, wind-up at a gathering of many many innocent people, gun in hand, ready to deal-out death to everyone in range.

Third, with the absence of a clear ruling by the SCOTUS adopting a specific standard to review state gun laws lower appellate courts will have continued influence in shaping this area of law.

In this regard, we take note of a recent en banc decision coming from the 4th Circuit Court of Appeals. In the wake of the Sandy Hook tragedy, where first graders were shot to death, Maryland passed a comprehensive package of laws totally banning assault rifles. In the decision upholding this package of tough gun laws, the 4th Circuit took a significant step in establishing precedent and providing a gun control guidepost for the other circuit courts of appeal across the nation.

Kolbe v Hogan was decided by the entire 4th Circuit bench and holds that state gun laws are reviewed under the [more lenient] "intermediate scrutiny" standard. This means that the state gun law is more likely to withstand the so-called "intermediate" scrutiny. The first three-judge panel of the 4th Circuit -the panel originally assigned to decide the case- struck the Maryland law by utilizing the "strict scrutiny" standard.

Gun advocates will curse the decision. Consider, for example, this well-thought-out Op Ed piece from the Washington Post's Voloch Conspiracy. Of interest to Second Amendment proponents, this piece draws a technical distinction between military weapons and assault-style automatic weapons like the long-infamous AR-15.

America must await another Second Amendment case for SCOTUS to finally weigh-in on the proper standard under which state gun laws should be reviewed. Interestingly, last month the SCOTUS declined to hear the Kolby case.

Will tougher gun laws prevent mass shootings? Unfortunately, we here at the Law Blogger say, probably not. But it's a start.

We base our pessimistic view on the ease with which anyone can acquire an automatic weapon, both seller and purchaser violating laws without a thought. Youtube has featured several recent individuals demonstrating how easy it is to purchase an assault weapon and plenty of ammunition to go along with it.

A decade ago, Australia passed laws that struck at the root of their gun violence epidemic; the government confiscated assault rifles and banned their manufacture and importation. Going after the source of the gun problem -the manufacturers- in this country will ignite a massive legal battle on the level of slavery, abortion, civil rights, and marital equality. We're a long way off from that here in America.

Over here at the Law Blogger, we'll be searching for that case. And while we search, and monitor and wait for the right case to come along, we'll be hoping that none of us come across a deranged killer with a locked and loaded assault rifle like so many of our children do.

Post #616

Labels: , , , , , , , ,

Monday, February 19, 2018

Custody Ruling Impacts Transgender Teen

transgender child custody
Ohio Judge Sylvia Hendon
Interesting custody cases involving transgender-minded teenagers are emerging from family courts around the country. Many of these cases pit the minor children against their parents, and bring grandparents into play.

On Friday, an Ohio family court ruling modified custody of a transgender-hopeful teenager, terminating his parents' rights and awarding custody to his maternal grandparents. Hamilton County Juvenile Court Judge Sylvia Hendon was moved by the high school student's desire to begin hormone therapy; the first step to transforming from the male to female gender.

In this case, known as In re: JNS, the teenager disagreed with his parents about whether he could begin hormone therapy. Eventually, things became so bad at his home over the past year, the teenager reached out via email to a crisis hotline and was admitted to the Cincinnati Children's Hospital. 

From there, the teenager provided details of his home life and mental condition to doctors. The hospital refused to return the teenager to his parents and the matter was referred to the family court.

Over the past two years, the teenager's parents struggled with their son's deep depression. When they sought treatment from Children's Hospital, they were shocked by a diagnosis of acute gender diaspora [strongly identifying with the opposite of one's biological gender]. 

A juvenile abuse and neglect case opened last February and several "best interests" hearings were conducted to determine where the boy should live until he emancipated into adulthood. Placement was an issue because the boy's parents objected to case plans stating that Children's Hospital "would like" to begin hormone therapy consistent with the diagnosis of gender diaspora.

Eventually, and according to the family court judge, inexplicably, the hormone therapy case plan was withdrawn after the abuse and neglect charges were dropped. From there, the boy was interviewed by the judge and a 4-day trial was conducted in January on the maternal grandparents' petition for custody.

During trial, proofs went in detailing the boy's struggle with severe depression; about acute gender diaspora; about the role of the Children's Hospital Transgender Program; and the methods of treatment such as psychotherapy, hormone therapy, and surgical intervention. Judge Hendon expressed concern in her opinion and order that the director of the hospital's Transgender Program testified that 100% of all the patients seen were considered appropriate for continued transgender therapy. 

Therefore, the order changing custody to the maternal grandparents -who purportedly support the 17-year old's transgender ideation- entered last Friday; the order contained a few conditions. First, the teenager will undergo a psychiatric evaluation by a professional not associated with the hospital's transgender program; and the boy's parents were awarded reasonable visitation and were "encouraged to work toward a reintegration of the child into the extended family."

In papers filed with the family court, the boy stated that he fears returning to his parent's home. He claimed his parents are in denial of his gender diaspora and have attempted to reprogram their son by reading passages from scripture for up to six hours at a time.

Judge Hendon carefully articulated her rationale for changing custody:
The parents acknowledged the child expressed suicidal intent if forced to return to their home. It is unfortunate that this case required resolution by the Court as the family would have been best served if this could have been settled within the family after all parties had ample exposure to the reality of the fact that the child truly may be gender nonconforming and has a legitimate right to pursue life with a different gender identity than the one assigned at birth.
The judge's opinion and order also called for legislation to provide a framework for courts to assess a juvenile's request to explore gender therapy. 

We here at the Law Blogger agree with Judge Hendon that many similar cases are "out there". Yet we are perhaps somewhat naively surprised that children have such acute sexual preference awareness and gender nonconformity alienation at such an early age.

Kids these days; they're growing-up fast, that's for sure.

Labels: , , , , ,

Friday, January 26, 2018

Judges and the Media

Judge Rosemarie Aquilina
This post addresses the intersection between the judicial branch and the fourth estate. As lawyers practicing in the trenches of the courtrooms in Michigan, we here at the Law Blogger appreciate judges that eschew the media rather than bask in the glow of its camera lights.

That's why we were taken back by Judge Rosemarie Aquilina's recent commentary from the bench at the conclusion of Larry Nassar's epochal sentencing hearing. Judges must be impartial and Judge Aquilina probably crossed the line between impartial jurist and victim's advocate in the Nassar case.

The Ingham County Circuit Judge told Nassar that she was "honored and privileged" to sentence him; that she "signed his death warrant"; and that if our Constitution did not proscribe "cruel and unusual punishment", she would allow "people to do to him what he did to others." She also referred to Nassar's legion of victims as "sister survivors", many of whom were allowed to speak during the sentencing hearing, without being listed as complaining witnesses in the charging instrument.

Um, we don't have the death penalty here in Michigan judge. And, could you please stop handing-out appellate issues as if they were candy.

Judge Aquilina succumbed to a classic courtroom sketch. An evil villain is convicted of heinous crimes and the sentencing judge chooses colorful words and phrases designed to fit into media sound-bites.

Although a very human way to react to a horrible situation, the principle of judicial impartiality is bedrock and must be sacrosanct regardless of the media attention surrounding a particular case.

We can already smell the political possibilities flowing from this case: Judge Aquilina for Michigan Supreme Court? Somewhere along the line, Judge Aquilina assured the media that this criminal proceeding was not about her. "The lady doth protest too much", we think over here at the Law Blogger.

We love to hear from our readers on these high-profile cases that point to the heart and soul of our justice system. Do you think the judge crossed the line with her comments in this case?


Labels: , , ,

Friday, January 5, 2018

Recreational and Medical Marijuana: The Empire Strikes Back

For the past 10-years, the marijuana legalization process has gained traction in the United States and other Western countries. Canada and California went legal last week; 8 states have legalized recreational use of marijuana; another 20 states have legalized medical marijuana.

Yesterday, however, the other shoe fell in Washington D.C., with the United States Attorney General reversing USDOJ policy and instructing United States Attorneys to begin prosecuting marijuana violations of the Controlled Substance Act. Attorney General Jeff Sessions' policy statement rescinds the Obama-era Cole memo; a memo that included a series of enforcement directives designed to leave policing marijuana dispensaries to the individual states.

AG Sessions' personal animus against pot is well known. He has gone on record saying that marijuana users are "not good people".

Sessions' pronouncement sends a fledgling billion dollar industry into an era of uncertainty. For the past decade, banks, insurance companies and capital investors took baby-steps into the massive marijuana industry; an industry that, until the past decade, operated solely within the Wild West of the black market.

This policy shift will chill the macro moves of the major industry players. The combined markets of California and Washington, both recreational use states, were expected to eclipse the revenue of the alcohol industry. That's some big money folks.

And because it's such big money, you can bet some of the money will be spent to deploy lobbyists in a full-court-press on Congress to, once-and-for-all, remove marijuana from Schedule 1 of the Controlled Substance Act. We here at the Law Blogger are not holding our breath, as this has been tried before, and the efforts, of both lobbyists and litigants, have failed.

Unfortunately for the marijuana industry, Congress' attitude toward marijuana seems influenced by the hubris of a failed 30-year "war on drugs" that involves a series of mutual prohibition treaties with many of our trading partners to the South. This attitude does not take into account that the ganja smuggler is a thing of the past; today high-quality pot is produced in a 2x2 closet with a grow lamp and some TLC.

Seriously, it is now time to end marijuana prohibition. Marijuana should be removed from Schedule 1 and placed into its own category; a category most-closely related to alcohol. Yes there are problems, health and otherwise, that arise from chronic marijuana use.

Prohibition, however, is not the answer. Regulate the weed; tax the revenue generated from weed; just stop the prohibition of the weed.

Post Script: Some U.S. Attorneys have made ominous statements promising aggressive prosecution for pot distributors, Massachusetts, while others, Colorado, have said they will not prosecute federal marijuana cases.

Post #613

Labels: , , , , ,

Tuesday, January 2, 2018

Driver's License Cannot Be Suspended For Non-Payment of Traffic Fines

A federal judge has enjoined the Michigan Secretary of State from suspending drivers' licenses for failure to pay fines related to traffic tickets; for now anyway.

As should be the case, Michigan takes driving privileges very seriously. If you neglect to pay fines here in Michigan, even traffic tickets, your license can be suspended as a matter of law.

United States Federal Judge Linda Parker disrupted the legal landscape in this regard, enjoining the State of Michigan from suspending drivers' licenses for the failure to pay traffic ticket fines. In a federal class action law suit, Judge Parker determined that the drivers were likely to prevail on the merits that their licenses were suspended without due process.

Plaintiffs in the class action law suit, two drivers from the Detroit area, claimed Michigan's fine and suspension scheme was fundamentally unfair against; that it essentially equated to a "debtor's prison", unevenly punishing low income drivers. Specifically, the drivers claimed the statutory scheme violated the equal protection and due process clauses of the constitution.

Judge Parker ruled that drivers, at a minimum, are entitled to notice of an "ability-to-pay" hearing. In issuing her injunction against the state, she noted the significant interest people in Michigan have in maintaining a driver's license: the ability to get to and from work in a state that lacks an extensive public transportation system.

The current state of Michigan law as it relates to unpaid traffic citations, is that failure to pay 3 traffic tickets results in a license suspension. Legislation scheduled to take effect yesterday, increasing the number of unpaid tickets from 3 to 6, was rescinded by Governor Snyder; so the number of unpaid tickets that could result in losing your license remains at three.

When a driver's license is suspended, either through failure to pay traffic fines, or from an alcohol-related driving conviction, a "driver responsibility fee" is assessed that must be paid prior to re-issuance of the license. The amount of the fee depends on the underlying reason for the suspension. Although Michigan has maintained a robust fee structure to reinstate a driver's license, these fees are being phased-out by statute and will soon be eliminated.

In the drivers' class action law suit, the state asked the judge to stay her ruling so they could appeal her ruling, asserting that the judge tossed a proverbial "wrench" into the gears of a fast-churning machine.

Of course, with stakes this high, the Secretary of State immediately filed an appeal to the United States Court of Appeals for the Sixth Circuit. The appellate court did grant the state's request for a stay, but only for 30-days:
[t]he State argues that it will be difficult, if not impossible, to comply fully with the preliminary injunction in the immediate future. The injunction is broad in scope and provides very little direction as to what specific actions should be taken to comply with the constitutional due process requirements. Clearly, additional notice about the procedures available to persons facing license suspension is contemplated.
This limited stay was issued by the appellate court clerk; the full appeal will not be filed for several months.

The end-result in this case will be significant to both the drivers in our state, as well as the State of Michigan. We will monitor the case and report all of the significant developments.

Related Article: Federal judge eliminates bail for misdemeanors; click here.

Post #612

Labels: , , ,