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.
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Thursday, April 17, 2014

Oakland County Sheriff's Hailstorm Surveillance Device Raising Concerns

By: Timothy P. Flynn

Oakland County Undersheriff Michael McCabe told the Oakland Press this week that the surveillance device known as Hailstorm, recently acquired by the Sheriff Department for over $350,000, is a legal, constitutionally-sound, legitimate law enforcement tool.  Undersheriff McCabe said specific deployments of the device are supported by particularized search warrants and sworn law enforcement affidavits.

Nevertheless, the surveillance device is giving some of our county legislators cause for concern.  And, of course, the ACLU is looking into law enforcement's use of the device across the nation, including here in Oakland County.

Here is how it works.  The device, about the size of a suitcase, can be installed in a sedan-sized patrol vehicle, and operates essentially like a cell phone tower.  It's sole function, however, is to track and capture the metadata from targeted cell phones.

One of the troubling aspects of this newly developed technology is the highly secretive nature exhibited by both the manufacturer and the purchasers of the device; everyone involved is hiding behind the Homeland Security Act when asked about the details of how this technology works.  According to the ars technica blog:
The Hailstorm is the latest in the line of mobile phone tracking tools that Harris Corp. is offering authorities. However, few details about it have trickled into the public domain. It can be purchased as a standalone unit or as an upgrade to the Stingray or Kingfish, which suggests that it has the same functionality as these devices but has been tweaked with new or more advanced capabilities. Procurement documents show that Harris Corp. has, in at least one case, recommended that authorities use the Hailstorm in conjunction with software made by Nebraska-based surveillance company Pen-Link. The Pen-Link software appears to enable authorities deploying the Hailstorm to directly communicate with cell phone carriers over an Internet connection, possibly to help coordinate the surveillance of targeted individuals.
In addition to the Oakland County Sheriff, the police forces of Baltimore, MD and Phoenix, AZ have also acquired Hailstorm units.  Undersheriff McCabe told the Oakland Press that the Oakland County Sheriff acquired the unit from a federal grant known as the Urban Area Security Initiative [a 9/11 related grant].

Undersheriff McCabe, in his interview with OP reporter John Turk, provided assurances that only specifically targeted individuals would have their cell phone data tracked, and that this targeted surveillance was supported via search warrant.  Oakland County Commissioner Jim Runestad [R-White Lake] and State Rep. Tom McMillin [R-Rochester Hills], however, are not sleeping well at night with the Sheriff's assurances.

We here at the Law Blogger, like legislators Runestad and McMillin, and the ACLU, are concerned about the privacy of law abiding citizens.  More and more, such citizens simply do not have any reasonable expectation of privacy once they plug into the digital sphere and begin to enter data, for whatever purpose.

Apparently, if you are going to avail yourself of the post-modern smorgasbord of digitized conveniences, the price for doing so is your privacy.

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Saturday, April 5, 2014

Michigan Attorney General Seeks En Banc Appeal in DeBoer Same-Sex Marriage Case

By:  Timothy P. Flynn

You need to be an appellate lawyer to follow the recent high-speed developments in the same-sex marriage jurisprudence coming to a rapid boil across the country.  The principal case here in Michigan has had some complicated procedural developments over the past few weeks; we will break it down for you if we can.

As those that follow the news, and this blog well know, U.S. District Court Judge Bernard Friedman issued an opinion and order declaring Michigan's state constitutional ban to be a violation of the Equal Protection clause of the United States Constitution.

In conjunction with Governor Snyder, Michigan's Attorney General has aggressively pursued the state's appellate options in the DeBoer same-sex marriage and adoption case.  Since losing the case at trial, Attorney General Bill Schuette has done what any state actor appellate attorney would do: a) seek a stay of the trial court's ruling pending a resolution of the inevitable appeal, and b) expedite this inevitable appeals process by requesting what is inconveniently referred to as an "en banc" appeal.

These filings by the Michigan Attorney General make a lot of sense.  And the United States Court of Appeals for the Sixth Circuit seems willing to play along.

First, consider that the Sixth Circuit immediately granted the AG's motion for an emergency stay, so Judge Friedman's ruling is held in abeyance for the time being; no more legal gay marriage licenses can be issued in Michigan.

Second, we here at the Law Blogger happen to think that AG Schuette's latest motion for en banc review makes a lot of procedural sense.  Generally, when a litigant loses a trial, our system of justice provides for a second look; the trial judge is not the final word in any given case.

When a losing litigant becomes an appellant, the case is assigned, in both state and federal courts, to a 3-judge panel to decide the matter via majority vote.  The party that loses an appeal has the option to inveigh the entire appellate court; an en banc appeal.  In the case of the Sixth Circuit, that includes 23 judges.

Most appellate litigants that apply for en banc consideration are rejected.  Rather than suffer this procedural rejection, many appellate litigants elect to push on the the High Court; the Supreme Court.

Not so with the DeBoer case; a case that has profound constitutional significance and that has become a symbol of the civil rights struggle of our time.  Attorney General Schuette is correct to seek en banc review rather than intermediate appellate review from a 3-judge panel; why waste the time and resources.

There is no doubt that this case, along with select others from across the nation, will be ultimately decided by the SCOTUS, as in the United States v Windsor.  Like the abortion issue, the same-sex marriage issue will be a deep and rich jurisprudence that will flesh-out over time.

Cutting to the chase, as the Michigan Attorney General wants to do, makes a whole lot of sense.

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Friday, March 28, 2014

International Street Artist Murdered in Detroit

Detroit Police are seeking anyone that knew the 23-year old international graffiti artist, Bilal Berreni, during his brief and fatal stay here in the 313.  The young VIP International was shot in the face at the long-abandoned Brewster-Douglass housing project on the East Side in July.

Until the DPD very recently discovered his identity, Berreni was just one among several unidentified corpses kept on ice at the Wayne County Morgue. The police were able to piece together the few available clues to identify the street artist from Paris.

At the time of his death, Berreni had survived refugee camps along the border of Libya; revolutionary Tunisia; he ran the streets of Paris his whole life; he roamed the lawless cities of Eastern Europe, covering abandoned concrete with black and white paint wherever he went; he flopped around Gotham in the summer of 2012; he was even arrested in Ohio.

St. Antoine St., here in the 313, however, was the end of the road for Berreni, described as an up and coming icon in the world of street art.  His works were profiled in Le Monde in 2011.

Berreni's father described his son as an enlightened artist, perhaps belonging to another century; he had a nose for the revolution in the air around Northern Africa in 2010; his father told the Freep that his son, "was not afraid of danger."  His father said he came to Detroit because he was interested in the creation that arises out of chaos.

Well, there's danger, and there's chaos...and there's the 313.  It's a real shame, but not all that surprising that a young international luminary had to be gunned down here in the D, and left to rot like trash.

Kudos to the DPD for tracking down the identity and the story behind this unfortunate artist.  Hopefully, they find his killer(s).

Perhaps someday, something good will emerge from the danger and chaos of Detroit.  As this young unfortunate artist's death tells us, however, that day is still a long long way off.

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Saturday, March 22, 2014

Michigan's Ban on Same-Sex Marriage Ruled Unconstitutional

Michigan's first couple
with their lawyer.
United States District Court Judge Bernard Friedman, in a historic ruling, not only held that Michigan's ban on same-sex marriages, set forth in our state constitution, violates the U.S. Constitution, he also refused to stay his ruling.  This means that marriage licenses are being issued here in Oakland County and across the state as this post is being composed.

Citing United States v Windsor, the federal court ruled that Article I, section 25 of Michigan's Constitution violated the Equal Protection clause of the U.S. Constitution, as applied to the states through the 14th Amendment's Due Process clause.  Judge Friedman concluded his 30-page opinion in very plain terms:
In attempting to define this case as a challenge to the 'will of the people', state defendants lost sight of what this case is really about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court's fervent hope that these children will grow up, 'to understand the integrity and closeness of their own family and its concord with other families in their communities and in their daily lives.' [quoting SCOTUS language from Windsor]
Because Judge Friedman refused to stay the effect of his ruling to accommodate an appeal from the state defendants, the Michigan Attorney General filed an emergency motion for a stay with the United States Sixth Circuit Court of Appeals.  Look for Judge Friedman's ruling to be appealed and consolidated with other similar federal court rulings on same-sex marriages currently pending throughout the Sixth Circuit [Michigan, Ohio, Kentucky, and Tennessee].

Meanwhile, however, game on!  Before the press even got hold of the DeBoer opinion and order, county clerks in Ingham, Oakland, Washtenaw and Muskegon announced Saturday hours for the express purpose of issuing same-sex marriage licenses.

According to the Freep, the first official same-sex marriage took place shortly after 8:00 am today in the lobby of the historic Mason courthouse.

Update: Sunday, 03/22/2014.  Not so fast.  In an apparent reverse of their earlier indication that they were not planning to interfere with Michigan's federal same-sex marriage case, the U.S. Sixth Circuit Court of Appeals issued a temporary stay until this Wednesday, "to allow a more reasoned consideration of the [Michigan Attorney General's] motion to stay.". This means that no more same-sex marriage licenses can be issued by the county clerks until the federal appellate court lifts the stay.

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Tuesday, March 18, 2014

Colorado's Prison Director Goes Solitary To Prompt Reform

By:  Timothy P. Flynn

One year ago today, a released inmate from the Colorado prison system stalked Tom Clements, the executive director of prisons, and shot him dead at point blank range in the front door of his home.  His replacement, Rick Raemisch, a former deputy sheriff and prosecutor from Wisconsin, has been on the job for only 7-months but has been making headlines for his progressive tactics.

Troubled like his predecessor was by the overuse of solitary confinement by prison administrators, Director Raemisch brought attention to the problem by doing a brief stint in solitary himself, and writing about his experience in a NYT Op Ed.  Colorado's new executive director of prisons was deeply troubled by Clemens' murder; he is also concerned that 97% of all inmates will one day be released into "the world".

As he explained in his Op Ed piece, Raemisch was charged by Colorado's Governor to address three prison objectives: a) eliminate administrative segregation for the mentally ill; b) address the problem of protracted assignment to solitary confinement [the Colorado average is 23-months @ 22-hours per day in the cell]; and c) avoiding release of inmates into the world directly from administrative segregation.

Colorado's prisons, like here in Michigan, New York and many other states, have become a dumping ground for the mentally ill.  In his Op Ed piece, Director Raemisch ruminates about his 20-hour stint in Ad Seg:
 First thing you notice is it's anything but quiet.  You're immersed in a drone of garbled noise- other inmates' blaring tvs, distant conversations, shouted arguments.  I couldn't make sense of any of it, and was left twitchy and paranoid.  I kept waiting for the lights to turn off to signal the end of the day.  But the lights did not shut off.  I began to count the small holes carved in the walls.  Tiny grooves made by inmates who'd chip away at the cell as the cell chipped away at them.
Director Raemisch's point: solitary confinement, daunting even for a sound mind, has become a dumping ground for America's mentally ill; the "worst-of-the-worst".  Ironically, the gang member that shot Mr. Clements was a direct release from the Ad Seg unit of one of Colorado's prisons.

While Director Raemisch recognizes that inmates placed in Ad Seg units have committed serious crimes, often while in prison, he does not have a specific solution to the problem of the overuse of solitary confinement other than to administratively reduce the numbers, as his predecessor was in the process of doing.

Prison administrators use Ad Seg to control short-term problems.  But Director Raemisch is looking to the long game: he strives to reduce the number of direct releases from Ad Seg back to the world.

America has one of the highest proportions of incarcerated people in the world.  Therefore, unless the entire population of prison inmates is reduced, it is a very worthy goal to aid the inmates' reentry to society so that our societal cost of recidivism is also reduced.

It is obvious to us here at the Law Blogger that overuse of solitary confinement does not serve that end.

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