tag:blogger.com,1999:blog-75172754237104428872024-03-13T10:29:07.933-04:00The Law BloggerThe 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.<br> For more information email: <a href="mailto:tflynn@clarkstonlegal.com">tflynn@clarkstonlegal.com</a>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.comBlogger636125tag:blogger.com,1999:blog-7517275423710442887.post-58620302109609088652024-02-06T00:17:00.016-05:002024-02-06T19:36:15.883-05:00Groundbreaking Manslaughter Case Submitted to Oakland County Jury<div><span style="font-family: inherit;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgV106WZIlxOL5Pzb5s0bhCVsyt0i4seL8kEHzxAC_nv91YqoM6uI9X9TOM_MqjhJjndqfKUvKNd0FKtJLz45EuaROXjroS_lT-Cxw9PsHUzb3N5wEH3FprfOHkRttuzT2ZHapavqWc72jDDcg-FFMdYtFHdCXNhGDXtfTiaGOpdIJP-STFcuUwpdyUUCU/s658/crumbley.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="364" data-original-width="658" height="177" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgV106WZIlxOL5Pzb5s0bhCVsyt0i4seL8kEHzxAC_nv91YqoM6uI9X9TOM_MqjhJjndqfKUvKNd0FKtJLz45EuaROXjroS_lT-Cxw9PsHUzb3N5wEH3FprfOHkRttuzT2ZHapavqWc72jDDcg-FFMdYtFHdCXNhGDXtfTiaGOpdIJP-STFcuUwpdyUUCU/s320/crumbley.jpg" width="320" /></a></div>There can be no doubt that America is in the midst of a protracted epidemic of mass shootings. Over the past decade, barely a month goes by where we are not treated to horrific headlines from some type of shooting where multiple people are killed. </span></div><div><span style="font-family: inherit;"><br /></span></div><div><span style="font-family: inherit;">A mass shooting in the United States is defined as an incident where four or more people are shot, wounded, or killed in a single event, not including the shooter. On November 30, 2021, four students were killed by another student at Oxford High School in Oakland County, MIchigan. </span></div><div><span style="font-family: inherit;"><br /></span></div><div>The case against Jennifer Crumbley, Mother of the Oxford High School shooter, was submitted to an Oakland County jury last Friday. The shooter's father is scheduled for trial in March. In this pair of truly groundbreaking cases, the shooter's parents were each charged with four counts of involuntary manslaughter. Their son has already pled guilty to four counts of first degree murder and was sentenced as an adult to life without the possibility of parole. </div><div><br /></div><div><div><h3 style="text-align: left;">Groundbreaking Case; Complicated and Unusual Circumstances</h3><div>America has become accustomed to mass shootings; we've become numb to these frequent tragic events and their painful aftermath. Congress cannot pass effective gun control measures and, even if they did, our Second Amendment right to bear arms is a foundational bar to comprehensive gun regulation. </div><div><br /></div><div>Mass shootings usually end with the shooter taking his or her own life, or being charged with multiple counts of murder and other capital felonies. In Michigan, a capital felony is any crime where life imprisonment is a potential sentence upon conviction. </div><div><br /></div><div>Mental illness is highly correlated with mass shootings; a very high percentage of mass shooters have some form of acute mental illness. The Crumbley case is no different.</div><div><br /></div><div>The Oxford High School shooting was the first mass shooting -according to the above referenced definition- in Oakland County, Michigan. The case has some very unusual factual aspects. </div><div><br /></div><div>First, following the shooting, the Oakland County Sheriff attempted to locate the shooter's parents but were unable to do so because, as it turned out, they went on the lam in Detroit. As a result, the Oakland County Sheriff scrambled a state-wide manhunt for James and Jennifer Crumbley, locating them cowering in a warehouse in the 313.</div><div><br /></div><div>Second, the Crumbleys allegedly purchased the Sig Sauer 9 mm used in the shooting rampage for their son as a Christmas gift, although he was not elibigle to legally own or possess a gun due to his minority. Jennifer Crumbley testified in her own defense; always a highly risky prospect. She testified that she helped her son research and purchase the weapon.</div><div><br /></div><div>Third, any time an attorney allows her client to testify, evidentiary doors often get opened that damage the defendant on cross examination. In this case, Jennifer Crumbley testified about her son's text communications about ghosts and demons; trying to explain it all away and to justify why she neglected to get her son professional help. </div><div><br /></div><div>The jury heard evidence that Jennifer thought her son was "weird"; that his only hobby involved shooting guns; that they, as a family, made trips to the shooting range; that she researched mental illness on the eve of her son's shooting rampage, but never took him to a professional or even thought he had a mential illness. </div><div><br /></div><div>On and on it goes. No wonder the Oakland County Prosecutor believes she can convict on a manslaughter theory. Technically, the prosecutor tried the case under two separate and distinct manslaughter theories; more on that below. </div><div><br /></div><div>To be fair, national headlines and publicity notwithstanding, the prosecutor had to bring these charges. Under such facts, not to do so would be political suicide. Nor could she have extended the Crumbleys any plea offer; also political suicide. Karen McDonald had to go to a jury trial in this case. In Michigan, county prosecutors are up for election every four years. In the midst of America's mass shooting epidemic, lack of parental supervision is a legitimate theory to assign culpability in some cases. </div><div><br /></div><div>In some ways, the Crumbleys are in a similar liability position as the parent of an infant or toddler who staggers into a room with a loaded weapon and shoots someone. We've seen dozens of such cases across the country. </div><div><br /></div><h3 style="text-align: left;">Jury Instructions</h3><div>In criminal cases, there are a set of standard jury instructions that set forth some of the basic procedural and substantive concepts involved in our criminal justice system. They are standard to the extent that they are read to juries in every criminal case. There are also special jury instructions that cover some of the unique circumstances of a particular case, like the case of the Crumbley parents.</div><div><br /></div><div>The Oakland County jury was charged with the following instructions for involuntary manslaughter. The jury instructions, read to the jury by Oakland County Circuit Judge Cheryl Matthews, included two separate theories of manslaughter; one involving the legal duty of due care contained within the concept of neglegence, the other involving gross neglegence. </div><div><br /></div><div>Regarding the gross negligence theory, Judge Matthews charged the jury that the Oakland County Prosecutor had the burden to prove each of the following two elements <u>beyond a reasonable doubt</u>, which is the highest evidentiary burden in Michigan:</div><div><ul style="text-align: left;"><li>First, that the defendant caused the death of the student(s), that is, that the student(s) died as a result of storing a firearm and its ammunition, so as to allow access to the firearm and its ammunition by her minor child; and </li></ul><ul style="text-align: left;"><li>Second, in doing the act that caused the student's death, the defendant acted in a grossly negligent manner.</li></ul>These instructions were repeated for each of the four deceased Oxford High School students. </div><div><br /></div><div>Regarding the ordinary negligence theory, a special jury instruction was fashioned and read to the jury:</div><div><br /></div><div>The defendant is charged with the crime of involuntary manslaughter resulting from the failure to perform a legal duty. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:</div><div><ul style="text-align: left;"><li>First, that the defendant had a legal duty to the decedent. The legal duty here is one imposed by law. In Michigan, a parent has the duty to exercise the duty of reasonable care to control their minor child so as to prevent the minor child from harming others or prevent the minor child from conducting themselves in a way that creates an unreasonable risk of bodily harm to others. This duty arises when both of the following are true: a) the parent knows or has reason to know that they have the ability to control their minor child; and b) the parent knows the necessity and opportunity to exercise such control.</li></ul><ul style="text-align: left;"><li>Second, that the defendant knew of the facts that gave rise to the duty.</li></ul><ul style="text-align: left;"><li>Third, that the defendant neglected or refused to perform that duty and that her failure to perform it was grossly negligent to human life.</li></ul><ul style="text-align: left;"><li>Fourth, that the death of the student(s) was directly caused by defendant's failure to perform this duty, that is, that the student(s) died as a result of the defendant's failure to exercise reasonable care to control her minor child so as to prevent the minor child from intentionally harming others or the minor child from so conducting himself so as to create an unreasonable risk of bodily harm to others when the defendant knew she had the ability to control her minor child and knew of the necessity and opportunity to do so. </li></ul></div><div>The jury was also instructed that the shooter's act of shooting was reasonably foreseeable; they were instucted that either or both of the prosecutor's theories were sufficient to convict the defendant. Because one of the prosecutor's witnesses qualified as an expert in computer forensics, the jury was instucted on consideration of expert witness testimony; that they did not have to believe the expert's opinion but that they needed to decide how much weight to give to such testimony. </div><div><br /></div><div>Because this is truly a momentus case under the intense scrutiny of our national media, the jury could be out for several days considering the complex jury instuctions. </div><div><br /></div><h3 style="text-align: left;">Involuntary Manslaughter Law in Michigan</h3><div>Involuntary manslaughter is a 15-year felony meaning that if convicted, Jennifer Crumbley faces up to 15-years in a Michigan Department of Corrections prison. Normally, defendants without significant prior felony convictions do not receive the maximum sentence. </div><div><br /></div><div>But this is not a normal case; this is a high-profile case that has the attention of the entire nation because it is believed to be the first time the parents of a mass shooter have been charged with manslaughter. </div><div><br /></div><div>Unlike voluntary manslaughter, involuntary manslaughter does not require establishing an intent to kill the victims. Involuntary manslaughter is highly circumstance dependent. The Michigan Supreme Court has described it as:</div><div><blockquote>Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony or naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty. </blockquote></div><div>This definition from our common law, of course, ties into the jury instructions above. Clear as mud, right?</div><div><br /></div><div>An average juror, understandibly, may have some difficulty keeping the concepts straight. Judge Matthews did instruct the Crumbley jury that they could convict Jennifer Crumbley if they were convinced of either of the prosecutor's theories of culpability, i.e. the gross negligence theory or the breach of parental legal duty theory.</div><div><br /></div><h3 style="text-align: left;">Full Disclosure</h3><div>We here at the <i>Law Blogger </i>go way back with many of the players in these groundbreaking cases. We've known Judge Matthews since she was an assistant prosecutor in Oakland County; this blogger appeared before Judge Matthews just last week; our lawyers go back with Oakland County Prosecutor Karen McDonald to the days when she was a family law lawyer with the Dickenson firm, and then a family court judge; we have had cases where Karen McDonald represented the opposing party and we appeared before former judge McDonald in dozens of cases when she was on the family court bench. </div><div><br /></div><div>We've known defense counsel Shannon Smith, and currently have our own capital case with Smith's former law partner Mariel Lehman, James Crumbley's defense counsel. Our law firm has had to coordinate the trial in our capital case in Livingston County with James Crumbley's trial. </div><div><br /></div><div>So, along with the rest of the country, we will anxously await the jury verdict in this groundbreaking case and the in the James Crumbley case. A guilty verdict could redefine a parent's duties to control the conduct of their minor children; something that many Americans believe is long overdue. </div><div><br /></div><div>On the other hand, Michigan jurisprudence has long been settled that the criminal acts of third parties are not deemed to be foreseeable. Should an exception be made when the criminal actor is your minor child? </div><div><br /></div><div>Post #638</div><div><a href="http://www.clarkstonlegal.com">www.clarkstonlegal.com</a></div><div><br /></div><div><br /></div></div></div>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0tag:blogger.com,1999:blog-7517275423710442887.post-12108052673719660332024-01-02T23:35:00.004-05:002024-01-03T16:47:37.981-05:00The Grey Lady Sues Open AI and Microsoft for Copyright Violations<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj0K7Px8mOYwOjpGffO7yfRLcNP1qtQo0rc-UDKKb6s_gquCndugOuBaquSjToZzVqY4y5oW5ZAP5dUfdCTsYwtAFj6qkHM98NZ_NhROMyLoXy_MUVhtMmxYOWf9vzzt73iyfaYolszD4n8rblqLE7qRiWoxywRhb4Ds7CB_AApe4J-fcdxKcwxbr3I94I/s1920/New-York-Times.jpg" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img alt="New York Times" border="0" data-original-height="1670" data-original-width="1920" height="174" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj0K7Px8mOYwOjpGffO7yfRLcNP1qtQo0rc-UDKKb6s_gquCndugOuBaquSjToZzVqY4y5oW5ZAP5dUfdCTsYwtAFj6qkHM98NZ_NhROMyLoXy_MUVhtMmxYOWf9vzzt73iyfaYolszD4n8rblqLE7qRiWoxywRhb4Ds7CB_AApe4J-fcdxKcwxbr3I94I/w200-h174/New-York-Times.jpg" width="200" /></a></div>The old sues the new; our latest "clash of titans" takes the form of one of the most significant lawsuits filed this year. Full disclosure: this post <u>was not</u> generated or assisted by any AI tool; it is the original work product of the author, Attorney Timothy P. Flynn.<p></p><p>Last week, the New York Times sued Open AI and its affiliated companies, along with Microsoft, alleging copyright infringement. The Times alleges that Open AI, in the development of its proprietary machine learning neural network, scraped millions of copyrighted Times' articles and other protected content from the Internet. </p><p>Further, the Times alleges that despite efforts to negotiate a resolution with the defendant companies, the paper is now owed money damages for the use of its content. This claim is based on the Times' allegations that they have made a significant investment, literally over centuries, in their news platform. <a href="https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf" target="_blank">Here is a link</a> to the complaint that was filed in the United States District Court in Manhattan.</p><h3 style="text-align: left;">Core Allegations in the NYT Complaint</h3><p style="text-align: left;">The first paragraph of the Times' complaint fittingly reads like a piece of finely-tuned journalism: </p><p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"></span></p><blockquote>Independent journalism is vital to our democracy. It
is also increasingly rare and valuable. For more than 170 years, The Times has
given the world deeply reported, expert, independent journalism. Times
journalists go where the story is, often at great risk and cost, to inform the
public about important and pressing issues. They bear witness to conflict and
disasters, provide accountability for the use of power, and illuminate truths
that would otherwise go unseen. Their essential work is made possible through
the efforts of a large and expensive organization that provides legal,
security, and operational support, as well as editors who ensure their
journalism meets the highest standards of accuracy and fairness. This work has
always been important. But within a damaged information ecosystem that is awash
in unreliable content, The Times’s journalism provides a service that has grown
even more valuable to the public by supplying trustworthy information, news
analysis, and commentary.</blockquote><o:p></o:p><p></p><p style="text-align: left;">These are the self-proclaimed attributes the Times asserts it brings to world-class professional journalism:</p><p style="text-align: left;"></p><ul style="text-align: left;"><li>Investigative reporting; </li><li>Breaking news reporting; </li><li>Beat reporting; </li><li>Reviews and analysis; </li><li>Commentary and opinion; </li><li>10.1 million digital and print subscribers worldwide; </li><li>250 articles publised every day; and </li><li>an unparalelled archive of content</li></ul>At certain points, the complaint editorializes that the cost of the world class journalism the Times brings to the news-consuming public has drastically increased due to general AI products and that flood "today's information ecosystem". The complaint notes the hundreds of newspapers that have gone out of business as a direct result of the Internet and laments the open floodgates of "misinformation".<p></p><p style="text-align: left;">To protect its work product, the Times alleges that it has copyrighted every edition of its newspaper for over 100 years; it has deployed a paywall; and has strict licensing agreements. </p><p style="text-align: left;">Here are the counts of the complaint which lay out the legal theories of liability for the Defendant companies: </p><p style="text-align: left;">Count I - Copyright Infringment</p><p style="text-align: left;">Count II - Vicarious Copyright Infringment</p><p style="text-align: left;">Counts III and IV - Contributory Copyright Infringment</p><p style="text-align: left;">Count V - Violation of the Digital Millennium Copyright Act</p><p style="text-align: left;">Count VI - Unfair Competition by Misappropriation</p><p style="text-align: left;">Count VII - Trademark Dillution</p><p style="text-align: left;">In their prayer for relief, the Times seeks statutory and compensatory damages; disgorgement; an injunction against ChatGPT; destruction of all ChatGPT models that use NYT content in violation of their copyrights, and, of course, attorney fees.</p><p style="text-align: left;">The NYT is bringing the house in this suit. All within the context of Artificial Intelligence, Artificial General Intelligence, and machine learning. </p><h3 style="text-align: left;">Machine Learning Basics</h3><p style="text-align: left;">The term "Artificial Intelligence" is one of the most grotesque misnomers of all time. Tech industry professionals eschew the term for the more proper: "machine learning". </p><p style="text-align: left;">Good old fashioned AI was a complex system of math-based rules. Then, sometime around the turn of the last Century, neural computing networks -computer networks designed to function more like a human brain- began to develop along with high-capacity supercomputers, giving birth to the new era of AI or, more appropriately, machine learning. </p><p style="text-align: left;">The idea behind machine learning is that language, through prompts, is broken down to its basic component parts -words and characters- and assigned numeric value. With massive computing capacity behind it, the machine then uses probability to determine an accurate, or humanly appropriate, output in response to a given prompt. In the coding and design process, various outputs are then ranked. Thus, through a series of prompts, the computer learns to provide a better, more responsive, higher quality output.</p><p style="text-align: left;">Another feature of modern machine learning is the large language model [LLM]. A massive amount of language data is stored in the machine from which it retrieves and fashions its natural language response to a specific set of prompts. While human users think up the prompts, its the machine that has total access to the massive LLM and vast stores of other data. Think in terms of the Library of Congress combined with every college library on the planet, and then some. </p><p style="text-align: left;">In the NYT copyright infringment lawsuit, the newspaper alleges that when Open AI's ChatGPT program scraped all manner of language data from the Internet, it swept proprietary NYT content along with it in the process. The Times further alleges that ChatGPT favors the NYT "style" of language as it lends itself to a highly ranked quality output. Makes sense when you think about it. If ChatGPT responds to a series of prompts in the manner of a seasoned NYT journalist, the AI user is ahead of the game. </p><p style="text-align: left;">One of the many interesting allegations contained in the NYT complaint is that ChatGPT's first two versions were constructed on open source platforms with detailed specifications made public. Not so with ChatGPT's third and fourth iterations, notes the Times. This is because, according to the newspaper, Open AI purposely concealed the data it copied from the Internet to train its latest computer models. </p><p style="text-align: left;">As an offer of proof set forth in the complaint itself, the NYT compares ChatGPT output and the text of a NYT article; the similarity is unmistakable. Plagiarism, says the Times. In another example, the times cites to a prompt complaining that the user was "paywalled out" of a specific NYT article, and asked ChatGPT to reproduce a portion of the article. The program complied with alacrity, reproducing the copyrighted and paywalled text. </p><p style="text-align: left;">Another very interesting offer of proof and allegation of injury is the Times assertion that ChatGPT committed what is known in AI parlance as "hallucination". Hallucination occurs when a machine, like a chatbot, generates seemingly realistic sensory experiences that do not correspond to real world input; "misinformation", says the Times. They cite to an example where the prompt seeks a reproduction of the sixth paragraph of a specific NYT article, referenced by date, title and author. The output, however, contains non-existent quotes and other text not found in the article. This has obvious implications to the Times' journalistic reputation and could lead to a claim for damages.</p><p style="text-align: left;">It will be interesting to see how Open AI and Microsoft respond to these highly specific allegations. </p><h3 style="text-align: left;">What's happening over at Open AI?</h3><p style="text-align: left;">You may have heard about all the drama over at Open AI when they suddenly fired their CEO, Sam Altman last fall. Open AI originally started out as a non-profit, as noted in the NYT complaint. Their stated mission back in 2015 was to develop AI for the good of humanity, not to maximize profits. The company's board of directors had a distinctly non-tech world look; mostly academics and other non-profit professionals, except for Altman, whose tech credentials are solid. </p><p style="text-align: left;">Despite its stated mission, as the potential for this powerful computing tool came into better focus, Microsoft jumped aboard with billions of venture capital in exchange for a 49% ownership of Open AI's for profit subsidiary. Microsoft, with its myriad tech professional contacts, supported Altman's installation as CEO. </p><p style="text-align: left;">Last November, however, a giant board of directors misunderstanding led to Altman's firing amid great backlash by Open AI's employees and by Microsoft, its benevolent investor. Some key folks at Microsoft quietly, then not so quietly, reached out to the Open AI board and reinstalled Altman. All seems to be well for the moment. Then, last week, here comes the NYT lawsuit. </p><h3 style="text-align: left;">What's Next in the Lawsuit?</h3><p style="text-align: left;">The Defendant companies now have the option to answer the Times' complaint or, in lieu of an answer, they can file a motion for summary judgment pursuant to the Federal Rules of Civil Procedure. </p><p style="text-align: left;">Given the recent board of directors drama, we will stay tuned to what Open AI and Microsoft do next. They need to focus on this lawsuit because if they lose, every content generator, including this 15-year old -nearly 650 post- blog, will have their collective hands out for a portion of Open AI's profits generated from our content. </p><p style="text-align: left;">With Manhattan as the venue, this lawsuit will feature a high tech litigation battle between some of the most sophisticated law firms in the world. Four <i>Big Law</i> firms representing the NYT hail from New York, Washington, DC, Seattle, and Los Angeles. </p><p style="text-align: left;">Post #637</p><p style="text-align: left;"><a href="http://www.clarkstonlegal.com">www.clarkstonlegal.com</a></p>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48329, USA42.6830185 -83.38962219999999142.185984068177191 -118.54587219999999 43.180052931822814 -48.233372199999991tag:blogger.com,1999:blog-7517275423710442887.post-44263010529074366202023-11-24T14:09:00.002-05:002023-11-26T13:23:37.498-05:00Michigan School District Joins Class Action Lawsuit Against Social Media Giants<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEibanUEiWVmltzm_g8sfNJzIo0OCCBqN9HyESjw7PxKCMlaUFo1emwnHPNq3qhK2ioSBdjuApQ-IGATk9BxCGdyWBGinQD4vpuy3ulWxCu4Eb-D8IaMgdiecWqMWdGXXv6Ti3EpWMJ3yWWWRk-4RrIO9GM4DaBPPA6qCmcNx7Dd955zdGp9LRGM4cKioNM/s700/CAPS%20mascot.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="700" data-original-width="700" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEibanUEiWVmltzm_g8sfNJzIo0OCCBqN9HyESjw7PxKCMlaUFo1emwnHPNq3qhK2ioSBdjuApQ-IGATk9BxCGdyWBGinQD4vpuy3ulWxCu4Eb-D8IaMgdiecWqMWdGXXv6Ti3EpWMJ3yWWWRk-4RrIO9GM4DaBPPA6qCmcNx7Dd955zdGp9LRGM4cKioNM/s320/CAPS%20mascot.jpg" width="320" /></a></div><br />Earlier this year, at least one Michigan school district has joined a class action lawsuit against the social media application TikTok, its parent company, ByteDance, Inc., and other social media companies. The suit alleges that the social media conglomerates are deploying algorithms designed to create a connectivity addiction to social media sites like Tik Tok, Snapchat, Instagram, Meta, YouTube, Google, and others. <p></p><p>The lawsuit alleges that the addictive algorithms are causing a mental health crisis among adolescents across the country. The suit points to a string of suicides that seemed to be correlated to the decedent student's participation and use of various social media sites. </p><p><a href="https://www.documentcloud.org/documents/23708387-plaintiff-master-complaint-social-media-adolescent-addictionpersonal-injury-products-liability-litigation" target="_blank">Here is a copy of the Master Complaint</a>; the very first allegation contained therein states: American children are suffering an unprecendented mental health crisis fueled by Defendants' addictive and dangerous social media products. There is an impressive -and growing- roster of law firms representing the various school district plaintiffs from across the nation.</p><p>While the class action suit originated in federal court in Seattle, it has now been transferred to the Northern District of California. The multi-district litigation bears the following case caption: <a href="https://www.cand.uscourts.gov/in-re-social-media-adolescent-addiction-personal-injury-products-liability-litigation-mdl-no-3047/" target="_blank">In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation [MDL No. 3047]</a> </p><p>The tort theory alleged in the case is that the social media platforms are defective to the extent that they are designed to maximize screen time. For adolescents, plaintiffs allege that this flawed design has a high potential to become addicting. The suit alleges that the addicting behavior can lead to various mental and physical harm, including death.</p><p>This phenomenon, as it pertains to adults, was detailed in the 2020 documentary <i>The Social Dillemma. </i>To the extent that children are perceived to be the targets of these social media companies, there will be waves of litigation to come. [Think of <a href="https://en.wikipedia.org/wiki/Joe_Camel#:~:text=They%20concluded%20that%20the%20campaign,practices%20in%20or%20affecting%20commerce." target="_blank"><i>Joe Camel</i>'s extinction</a> in the late 1990s.]</p><p>So far this year, the following school districts have joined the litigation:</p><p></p><ul style="text-align: left;"><li>Cadillac Area Public Schools</li><li>Dexter Community Schools</li><li>Elkhart Community Schools</li><li>Penn-Harris-Madison School Corporation</li><li>School City of Mishawaka </li><li>Clarksville-Montgomery County Schools</li><li>Concord Public Schools</li><li>Seattle Public Schools</li></ul>Surely, more school districts will join the class action law suit in the months to come. More districts from Michigan are expected to join the suit as well.<div><br /></div><div>This multi-district litigation will go on for years; the stakes are high for the various communities and the social media companies. A structured settlement could cost billions of dollars. <p></p><p>Jennifer Brown, the superintendent for the Cadillac Area Public Schools had this to say about her district joining the class action lawsuit:</p><p><span style="background-color: white; color: #121212; font-family: "Open Sans"; font-size: 18px;"></span></p><blockquote>We are seeing increases in mental health struggles with our students - anxiety, depression - and it's no secret that the research supports a direct correlation to some of the mental health challenges that we're seeing as a consequence of social media use and technology access within our youth. It is going to take a community to care enough about kids to see that the negative impacts really require more management and regulation so that kids can be kids.</blockquote><p></p><p>We have all seen how children are drawn like gravity to the apps on a cell phone. They do not need much enticement to interact with social media; once there, most children exhibit difficulty putting the phone down. </p><p>Earlier this year, Seattle Public Schools filed a complaint against TikTok and Snapchat asserting that those and other social media platforms purposely deliver content that is mentally and physically harmful to students. They specifically cited to the "corpse bride" diet and other harmful but viral weight-loss challenges.</p><p>Last month in NYC, state attorney general Letitia James and prosecutors from 30 other states -including Michigan Attorney General Dana Nessel- sued Meta alleging that Facebook and Instagram featured content that was addicting to children. The complaint asserts that the business model for both platforms exploits young users by deploying harmful and manipulative features designed to maximize their time and attention on the site for profit. <a href="https://ag.ny.gov/sites/default/files/court-filings/meta-multistate-complaint.pdf">Here is a link</a> to the complaint; also filed in federal court in the Northern District of California. </p><p>For their part, the social media companies, asserting a content ban, have filed motions for summary judment based on First Amendment protections. The federal judge assigned to the case found that suit is more subtle than an outright content ban. The judge denied the defendants' initial dispositive motion, holding that the plaintiffs were more concerned about the technical algorithm, not the content. </p><p>Rather than banning specific content, the plaintiffs sought greater parental controls, easier ways to delete accounts, better age verification procedures, and the elimination of notification clustering designed to ramp up habitual use. On the heels of this law suit, many state legislatures are drafting laws proscribing certain types of emotionally disruptive content from young users. </p><p>The Law Blogger will continue to monitor this interesting and important litigation and legislation and alert our readres to significant developments in the cases and the laws.</p><p> Post #636</p><p><a href="http://www.clarkstonlegal.com">www.clarkstonlegal.com</a></p></div>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999999214.335044163821152 -118.56723339999999 70.955511836178843 -48.254733399999992tag:blogger.com,1999:blog-7517275423710442887.post-7868506102038826502023-11-05T14:28:00.002-05:002023-11-05T14:33:56.621-05:00Crypto King Gets Swift Guilty Verdict After Month-Long Trial<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh3QL7T_RLPX9JXNCQ2eZvB4O34h4AvaBS-SNVbwtQPW1F9sAsvDpJyRAHW5qDKAXm6Wy_EvPpccUZCamZxnkLYS3XX_Crd8vtBkOZlVexI_oOPlfqdPF1uY6CLX3YwDM8kXTwBp9GPEMy3P44E6ETLPA3TVAI0VQaq0lDZu_CHTUPMYjoyztOiXJ6vwdA/s1200/SBF.jpg" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="600" data-original-width="1200" height="160" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh3QL7T_RLPX9JXNCQ2eZvB4O34h4AvaBS-SNVbwtQPW1F9sAsvDpJyRAHW5qDKAXm6Wy_EvPpccUZCamZxnkLYS3XX_Crd8vtBkOZlVexI_oOPlfqdPF1uY6CLX3YwDM8kXTwBp9GPEMy3P44E6ETLPA3TVAI0VQaq0lDZu_CHTUPMYjoyztOiXJ6vwdA/s320/SBF.jpg" width="320" /></a></div>Wow, that was quick. After only four hours of deliberation, a federal jury in Manhattan returned a guilty verdict on all sever criminal fraud counts against Crypto King and FTX co-founder Sam Bankman-Fried; SBF, as he is widely known.<p></p><p>During the month-long trial, the Crypto Circus came streaming into Gotham. The trial featured all manner of self-proclaimed crypto experts that waited prior to daybreak to be allowed access to the trial. </p><p>The Crypto King was largely done in by three of his former colleagues and friends, all co-defendants in his case who turned state's evidence against Bankman-Fried. The co-defendants include FTX co-founder and former-Google employee Gary Wang, Caroline Ellison, CEO of FTX "sister" company Alameda Research, and Nishad Singh.</p><p>All three co-defendants pled guilty last December but did not receive plea deals. Instead, they traded their cooperative testimony for consideration via what is colloquially known as a 5k motion from the Manhattan United States Attorney's office. </p><p>This plea tactic calls for the prosecutor to file a motion under section 5k1.1 of the United States Sentencing Guidelines. Usually, the motion calls for a sentence that is under the guideline range; it is unclear whether this was done in the SBF case.</p><p>The maneuver calls for the US Attorney to write a detailed letter to the sentencing judge outlining the criminal conduct of each co-defendant as well as explaining how the co-defendants aided the government's case. The letter, however, makes no sentencing recommendation to the judge. In most plea deals, the prosecuting attorney agrees to request a specific sentence. </p><p>During his trial, SBF elected to testify on his own behalf; an always-risky proposition. He attempted to shift blame onto other players, including: FTX lawyers, and his 28-year-old co-defendant and on-again, off-again girlfriend, Caroline Ellison. </p><p>Asserting that he was an inexperienced businessman who got in too deep over his head, he relied on the advice of his laywers. This is known as the "advice of counsel" defense. Against this backdrop, jurors were informed about SBF's extensive blog posts, writings, and detailed interviews on all things crypto. </p><p>The United States Attorney alleged that SBF diverted FTX customers' funds to his personal use; they also alleged he diverted the funds from the Bahamas-based FTX to cover huge losses incurred by SBF's other company, Alameda Research, a crypto hedge-fund. Details in the case revealed that most of the assets of Alameda Research comprised of a specific type of digital token known as FTT; a token created by none other than FTX.</p><p>SBF and his three co-defendants are all scheduled to be sentenced before United States District Court Judge Lewis Kaplan in March 2024. For their part, Wang and Ellison both testified on cross-examination that they are hoping for a sentence of probation. </p><p>Over the years, we here at <i>Clarkston Legal </i>occasionally have represented clients charged with financial crimes in federal court. One of the primary factors contained in the federal sentencing guidelines considered by the federal judge is the amount of money the scam involved; the higher the amount of money; the longer the sentence guidelines. In this case, it is billions of dollars. </p><p>So it does not look good for these co-defendants realtive to receiving a sentence of mere probation. Some prison time is almost assured. The sentencing judge will weigh the co-defendant's cooperation and trial testimony aginst the fact that they helped misappropriate billions of dollars of other people's money.</p><p>For his part, Bankman-Fried, only 31 years old, is almost assured a sentence for a term of years that will constitute life in prison. A dastardly fate for the MIT gradiate whose parents are both law professors at Stanford Law School.</p><p>Post #635</p><p><a href="https://www.clarkstonlegal.com/?utm_source=google-local&utm_medium=organic&utm_campaign=3403" target="_blank">Clarkston Legal</a></p>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999999214.335044163821152 -118.56723339999999 70.955511836178843 -48.254733399999992tag:blogger.com,1999:blog-7517275423710442887.post-30817415633656097582023-10-30T18:07:00.005-04:002023-11-14T09:47:04.039-05:00First Amendment Right Does Not Include Recording Court Proceedings<p></p><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjx6Tcgna7GNEtr4Gam_K7ZNLK7oMJ2yu6ffBj7PNZ3Lk7vP_QHUi17hpLnOsFTGcgLAkh-QQ43h-_3XjsHp9gy7oyM5fFiednYxw3zDtHcn1Y4x0xHRBehR45mrCi8lVkhsIP1dzFiSQ2Fd1LIOf9EhZbyWReCtMA692IpvSI4oVc60lsgNmidKs6fswM/s500/somberg.jpg" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="500" data-original-width="500" height="233" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjx6Tcgna7GNEtr4Gam_K7ZNLK7oMJ2yu6ffBj7PNZ3Lk7vP_QHUi17hpLnOsFTGcgLAkh-QQ43h-_3XjsHp9gy7oyM5fFiednYxw3zDtHcn1Y4x0xHRBehR45mrCi8lVkhsIP1dzFiSQ2Fd1LIOf9EhZbyWReCtMA692IpvSI4oVc60lsgNmidKs6fswM/w233-h233/somberg.jpg" width="233" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Attorney Nicholas Somberg</td></tr></tbody></table>This case is a throwback to the COVID days. An attorney, piqued that he was disallowed from posting a screenshot from one of his state district court proceedings in the Zoom era, filed a federal lawsuit claiming violation of his first amendment rights. <p></p><p>The lawyer, Nicholas Somberg, posted the picture on his Facebook page and cast some shade on the assistant prosecutor with whom he was working in the criminal case. For their part, the prosecutor's office took great offense, and sought an order for the lawyer to show cause, asserting that photographing any of the court proceedings violated the rules of zoom court. </p><p>In May of 2020, at the very dawn of the zoom court era, the court issued a policy whereby:</p><p></p><ul style="text-align: left;"><li>No one may use a portable electronic device to take photographs or for audio or video recording, broadcasting, or live streaming unless the use is specifically allowed by the judge presiding over that courtroom through a written order; and </li></ul><ul style="text-align: left;"><li>In areas of the courthouse outside the courtroom, no one may photograph, record, broadcast, or live stream an individual without their express prior consent. </li></ul>Although the district court did not grant the prosecutor's criminal contempt charge, it was "chagrined and troubled by the allegations." The prosecutor's office elected not to appeal the dismissal of its contempt petition. <p></p><p>Somberg literally created a federal case out of his perceived snub a few weeks later when he alleged violation of his first amendment:</p><p></p><blockquote>right to photograph, screenshot, audio/video record, broadcast, report, distribute, share, and publish photographic, audio and video recordings of public live-streamed Michigan court proceedings without threat of or an actual prosecution...</blockquote><p></p><p>Attorney Somberg further alleged that he would seek to exercise his right to make such recordings in the future and that he does not wish to be subjected to fines or the contempt of court when doing so. </p><p>After a few years of procedural maneuvers related to summary judgment and an interlocutory appeal to the Sixth Circuit Court of Appeals, the prosecutor, on behalf of the State of Michigan, filed a motion for summary judment which was ultimately granted by Judge Gershwin Drain.</p><p>While recognizing that the public, and members of the bar, certainly have the right to access the courts of our state, this access, "does not require an unfettered access to government information." The federal court agreed with the prosecutor that courts constitute non-public forums; the zoom court rules are content-neutral; and the prohibition of recordings is a reasonable method for assuring the proper order and decorum in the court. </p><p>Recognizing that the plaintiff-lawyer's claim was a "right to access" claim as opposed to a "freedom of expression" claim, it granted the State of Michigan's motion and dismissed the case. <a href="https://law.justia.com/cases/federal/district-courts/michigan/miedce/2:2020cv11917/347952/37/" target="_blank">Here is a link</a> to the court's entire opinion that was issued in September. </p><p>Oakland County, where this case arose, has an interesting history regarding the use of recorded court proceedings. In the old days [i.e. prior to 2010], attorneys could order DVDs of court proceedings for $25 dollars per disc. That came to a screeching halt when one of the judges became the subject of an edited montage produced and posted to the Internet by one of our former clients. </p><p>The client, having lost legal custody of his two children, went through a platoon of lawyers, and ended up representing himself in various post-divorce custody and parenting motions. He was irreparably disgruntled by the family court system and decided to take matters into his own hands. </p><p>His solution was to sit through various motion calls and hearings of the targeted family court judge. Next, he ordered the DVDs for those hearings. He utilized his significant technical media skills to lampoon the judge in a one minute montage hatchet job. </p><p>When the targeted judge became aware of the litigant's unflattering roast, he successfully and permanently changed the court's policy of access to court proceedings. Now, litigants and their attorneys are monitored when they review court hearings. They must agree not to record the recordings and have to come to the court administrator's office to view recorded proceedings. </p><p>So much for obtaining DVDs of legal proceedings and taking them back to your office at your leisure. Prior to the change, our law firm took advantage of obtaining the DVDs and posted some examples of our representation in court to our web site. <a href="https://www.clarkstonlegal.com/videos/" target="_blank">Here is a link</a> to those videos.</p><p>Recently, former president Donald Trump's legal team has sought to have television cameras introduced into his federal court proceedings in the election interference federa; case in Washington DC. That was a flat-out "No", based on the long tradition of no camera access to federal court proceedings. </p><p>Again, these are "right to access" questions as opposed to "freedom of expression" issues. Most state court proceedings are recorded and the public has limited access to view recordings of the actual proceedings, as they occurred. In federal court, the public, and the legal professionals alike, are limited to written transcripts. </p><p>Post #634</p><p><a href="https://www.clarkstonlegal.com/?utm_source=google-local&utm_medium=organic&utm_campaign=3403" target="_blank">Clarkston Legal</a></p><p><span color="transparent" face="sans-serif" style="background-color: white; cursor: text; font-size: 19.4852px; left: 442.724px; margin: 0px; padding: 0px; position: absolute; top: 639.692px; transform-origin: 0% 0%; transform: scaleX(0.910961); white-space: pre;"><br /></span></p>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999999214.335044163821152 -118.56723339999999 70.955511836178843 -48.254733399999992tag:blogger.com,1999:blog-7517275423710442887.post-50329123635612142132023-10-08T20:32:00.000-04:002023-10-08T20:32:03.059-04:00Attorney-Client Privilege Pierced in Trump's Classified Documents Case<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjPzmXHgl4W8mTn4Q2vQrJoocFHXUxyecWn8sOMDHTFwaKd1elp1G0TpFI2vOKiHggmBoduml21fWEFdTXA8oXPGZ2u-DuQNvKX8tz_3wt95f53a279xu7d7VCcRlxSaQaWwdiF9MP29Yq2VwVS3VPNHL0Ul7fGS3zynRdsgAmFZ4-dvVnVUxVQ1tYayoI/s284/corcoran.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="284" data-original-width="230" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjPzmXHgl4W8mTn4Q2vQrJoocFHXUxyecWn8sOMDHTFwaKd1elp1G0TpFI2vOKiHggmBoduml21fWEFdTXA8oXPGZ2u-DuQNvKX8tz_3wt95f53a279xu7d7VCcRlxSaQaWwdiF9MP29Yq2VwVS3VPNHL0Ul7fGS3zynRdsgAmFZ4-dvVnVUxVQ1tYayoI/w162-h200/corcoran.jpg" width="162" /></a></div>Normally the attorney-client work product privilege is sacrosanct. Clients depend on this principle when discussing sensitive matters with their legal counsel.<p></p><p>Ethically, attorneys cannot divulge communications with their clients; nor can they disclose their work product. Recently, however, one of former President Trump's lawyers was compelled by a federal judge to turn over his detailed recorded statements and notes to Special Counsel Jack Smith.</p><p>The basis of this ruling is the crime-fraud exception to the attorney-client privilege. This exception allows prosecutors to pierce the attorney client privilege if they believe that the tendered legal advice was subsequently used in furtherance of a crime. </p><p>In Trump's case, prosecutors asserted that the former president deliberately misled his lawyer about the specific location of subpoenaed classified documents at Trump's Mar-a-Lago residence. The lawyer, M. Evan Corcoran, recorded his recollections of meetings with Trump concerning the documents. </p><p>Corcoran undertook a search at Trump's seaside residence in advance of the execution of a Justice Department subpoena seeking the return of classified documents. His recorded recollections of his initial meeting with Trump and his private document search of Mar-a-Lago, when transcribed, ran to dozens of pages.</p><p>According to a report in the NYT from last summer, the transcript of Corcoran's unusually detailed recollections factored heavily in the Special Counsel's decision to bring an indictment against former President Trump in the classified documents case. Corcoran's notes could eventually make their way into Trump's trial as evidence. </p><p>Talk about bulit-in appellate issues. Trump's legal team has correctly characterized the attorney-client privilege as one of the most fundamental principles of our legal system. Trump's lawyers, like in all of his other cases, have accused the Justice Department of trying to deny Trump his basic constitutional rights in order to obtain what they describe as "politically motivated" criminal convictions. </p><p>One of the details contained in attorney Corcoran's notes describes how Mr. Trump asked the lawyer whether he had a duty to comply with the subpoena at all; he was advised by counsel that he did have to comply with the subpoena. </p><p>In addition to submitting his notes, Corcoran also testified before the federal grand jury in the classified documents case. Corcoran's testimony indicated that Mar-a-Lago employees directed him to a specific storage locker where all of the documents were allegedly located. </p><p>Based on this direction, Corcoran retrieved and turned over to the Justice Department about three dozen documents. He indicated in his correspondence covering the transmission of the classified documents that the enclosed documents were the only ones he located pursuant to his due diligence at Mar-a-Lago.</p><p>Corcoran's notes do not suggest that Mr. Trump or the Mir-a-Lago employees misled him or warded him off from searching certain areas within the residence. The notes apparently do state, however, that no one told him to look elsewhere; in places other than the storage room to which he was directed. </p><p>Now, with hindsight, the Justice Department, and everyone else in the world, knows that Corcoran's search was incomplete to the extent that a subsequent Justice Department search turned up an entire additional trove of documents: hence the invocation of the so-called "crime fraud" exception to the attorney-client privilege. </p><p>As Special Counsel Smith's case careens toward trial, the facts surrounding who had access to the storage room, and who moved boxes into and out of that room are the central issues in the case. The Justice Department's theory is that Trump's team treated attorney Corcoran as an unwitting accomplice who officially interacted with the government's requests for the return of all the classified documents. </p><p>The federal judge's memorandum ordering Corcoran to produce his notes and to appear before the grand jury describe Trump's prior gamesmanship and "misdirection" as the central basis for piercing the veil of his attorney-client privilege. </p><p>We here at Clarkston Legal will continue to monitor this interesting case. Our scrutiny of the trial will be honed in on whether Mr. Corcoran testifies at the trial and whether the transcript of the lawyer's recorded notes are published to the jury for their consideration. </p><p>Post #633</p><p><a href="http://www.clarkstonlegal.com">www.clarkstonlegal.com</a></p><p><br /></p>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0tag:blogger.com,1999:blog-7517275423710442887.post-66313464369169369312023-05-11T11:11:00.012-04:002023-05-14T13:10:11.613-04:00Machine Learning Fail Leads to a Pair of Landmark Cases in Michigan<p><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: justify;"><span style="font-family: inherit; text-align: left;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgnHOi8-jrDUwHjDDWjSyh6hzvu8uiymzorsNFnJI52FSF4mUXJr0bY68df8tGysilarFQ53fU2CGPb23BrP4XAHEiJlQiwqoBURz_XheVHpiKH_oJL22i39Zi9z65GgSXZQ2x0p97K2NWQpMaTQVnWV73PHhCRsSXDV1aEr7ni_vc2i6AwPuiZt_7P/s2560/Bauserman%20post.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="1440" data-original-width="2560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgnHOi8-jrDUwHjDDWjSyh6hzvu8uiymzorsNFnJI52FSF4mUXJr0bY68df8tGysilarFQ53fU2CGPb23BrP4XAHEiJlQiwqoBURz_XheVHpiKH_oJL22i39Zi9z65GgSXZQ2x0p97K2NWQpMaTQVnWV73PHhCRsSXDV1aEr7ni_vc2i6AwPuiZt_7P/s320/Bauserman%20post.jpg" width="320" /></a></div>Insurance litigation and government benefits law are some of the driest topics on the planet. But the two </span><i style="font-family: inherit; text-align: left;">Bauserman</i><span style="font-family: inherit; text-align: left;"> cases decided by the Michigan Supreme Court raise the timely issue of the role of artificial intelligence in making determinations of human intent; weighing evidence; and deciding between two versions of the same events. </span></div><p></p><h2 style="text-align: left;"><span style="font-family: inherit;">Machines Determining Benefits</span></h2><p><span style="font-family: inherit;">The problem arose when the Unemployment Insurance Agency [UIA], the government agency that processes Michigan's unemployment claims, eliminated human decisionmaking in the determination of unemployment benefits. UIA adopted a machine learning tool known as <span style="background-color: #f7f7f8; color: #374151; font-size: 16px; white-space: pre-wrap;">the Michigan Integrated Data Automated System (MiDAS). This program played a significant role in the <i>Bauserman</i> cases. </span></span></p><p><span style="background-color: #f7f7f8; color: #374151; font-size: 16px; white-space: pre-wrap;"><span style="font-family: inherit;">MiDAS is an automated system used by the UIA to detect fraud in unemployment claims. In 2013, the UIA implemented a new algorithm in MiDAS that automatically flagged certain claims as potentially fraudulent, triggering a review by a computer program rather than a human investigator. Their experimentation with AI was very short lived; the state stopped using MiDAS as its sole method of detecting unemployment fraud in 2015. </span></span></p><p><span style="background-color: #f7f7f8; color: #374151; font-size: 16px; white-space: pre-wrap;"><span style="font-family: inherit;">In just over two years, however, the damage had been done. In addition to detecting when unemployment claimants committed fraud in their applications, MiDAS also imposed quadruple penalties upon applicants it determined were intentionally fraudulent. Perhaps the straw breaking the camel's back was that MiDAS interfaced with the state and federal treasuries to claw back wrongfully paid benefits from a so-called fraudulent applicant's tax refund. </span></span></p><p><span style="font-family: inherit;"><span style="background-color: #f7f7f8; color: #374151; font-size: 16px; white-space: pre-wrap;">A report issued by the state's auditor general concluded that MiDAS incorrectly decided 92% of its cases. The result was that tens of thousands of applicants had their unemployment claims wrongfully denied by a machine learning program. The machine cost the state millions and led to the class action suit in </span><i style="color: #374151; font-size: 16px; white-space: pre-wrap;">Bauserman</i><span style="background-color: #f7f7f8; color: #374151; font-size: 16px; white-space: pre-wrap;">.</span></span></p><h2><span style="font-family: inherit;">The <i>Bauserman</i> Cases</span></h2><p><span style="background-color: #f7f7f8; color: #374151; font-size: 16px; white-space: pre-wrap;"><span style="font-family: inherit;">Grant Bauserman was one of the many claimants who were affected by the new MiDAS algorithm. After Bauserman filed his claim, MiDAS flagged it as potentially fraudulent based on the new algorithm; his benefits were denied. </span></span></p><p><span style="background-color: #f7f7f8; color: #374151; font-size: 16px; white-space: pre-wrap;"><span style="font-family: inherit;">Bauserman was fired from his job as a bartender after he got into an argument with a customer and used profanity. He applied for unemployment benefits, but his claim was denied by the state's Unemployment Insurance Agency because it determined that Bauserman was fired for misconduct.</span></span></p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;"><span style="font-family: inherit;">The bartender appealed the decision, arguing that the state's definition of misconduct was too broad and could include minor infractions. The case eventually made its way to the Michigan Supreme Court, which ruled in favor of Mr. Bauserman.</span></p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;"><span style="font-family: inherit;">In the first <i>Bauserman</i> case, the Michigan Supreme Court addressed when an applicant's claim must be filed in the Court of Claims. The second <i>Bauserman</i> case involved whether the MiDAS computerized denial of unemployment benefits impacted a constitutional right of the class members. </span></p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;"><span style="font-family: inherit;">The court held that the state's definition of misconduct was too broad and that claimants could not be disqualified from receiving unemployment benefits unless they engaged in willful and wanton misconduct. The court also noted that the burden of proof was on the employer to show that the employee's actions rose to the level of willful and wanton misconduct. </span><a href="https://www.courts.michigan.gov/49791c/siteassets/case-documents/uploads/opinions/final/sct/160813_113_01.pdf" target="_blank">Here is a link</a> to the Bauserman II case dealing with an state benefit applicant's constitutional rights.</p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;"><span style="font-family: inherit;">Ultimately, this class action case settled last September for $20 million. Eligible claimants who had their property seized by the state can apply for compensation from the settlement fund. The settlement still needs to be approved by the trial court; the next hearing on the matter is scheduled for July. </span></p><h2 style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; margin: 1.25em 0px; text-align: left; white-space: pre-wrap;"><span style="font-family: inherit; font-size: large;">The Nomenclature</span></h2><div><span style="font-family: inherit;">These cases are interesting because they involve "artificial intelligence" and "machine learning". <span style="background-color: #f7f7f8; color: #374151; white-space: pre-wrap;">Artificial intelligence (AI) and machine learning (ML) are related but distinct concepts in the field of computer science. </span></span></div><div><span style="background-color: #f7f7f8; color: #374151; font-family: inherit; white-space: pre-wrap;"><br /></span></div><div><span style="background-color: #f7f7f8; color: #374151; font-family: inherit; white-space: pre-wrap;">AI is a broad field that encompasses many different technologies and approaches, while machine learning is a specific approach to building AI systems that relies on data-driven algorithms and statistical techniques.</span></div><div><span style="background-color: #f7f7f8; color: #374151; font-family: inherit; white-space: pre-wrap;"><br /></span></div><div><span style="background-color: #f7f7f8; color: #374151; font-family: inherit; white-space: pre-wrap;">AI refers to the development of computer systems that can perform tasks that would normally require human intelligence, such as recognizing speech, making decisions, and learning from experience. AI involves the development of algorithms and computational models that can reason, perceive, and understand the world in a way that is similar to human cognition. This is what MiDAS attempted to pull off.</span></div><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; margin: 1.25em 0px; white-space: pre-wrap;"><span style="font-family: inherit;">Machine learning, on the other hand, is a subset of AI that focuses on developing algorithms that can automatically learn and improve from experience without being explicitly programmed. ML algorithms use statistical techniques to analyze data, identify patterns, and make predictions or decisions based on those patterns. </span></p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; margin: 1.25em 0px; white-space: pre-wrap;"><span style="font-family: inherit;">The goal of machine learning is to enable computers to learn from data and improve their performance over time, without the need for explicit instructions or intervention from a human programmer. MiDAS may have been learning from its high rate of mistakes, but financially strapped unemployed workers were being financially penalized on the machine learning curve. </span></p><div><span style="font-family: inherit;">The Bauserman cases are also of interest because they involve machines wrongfully affecting people's lives. The cases highlight concerns about our state government relying too-heavily on machine learning tools. The UIA's fateful decision to rely solely on a computer program to determine benefit eligibility was disasterous, harmful and expensive. </span></div><h2 style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; margin: 1.25em 0px; text-align: left; white-space: pre-wrap;"><span style="font-family: inherit; font-size: large;">Next Steps</span></h2><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;"><span style="font-family: inherit;">This will surely not be the last attempt by governments to replace the human decision making process with computers. In fact, these cases establish the fact that governments are already identifying and implementing machine learning tools. </span></p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;"><span style="font-family: inherit;">Until a piece of code can "get it right" at least 92% of the time, humans will continue to play a key role in the determination of state benefits. Machine interference with the process is unconstitutional says our Supreme Court. </span></p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;"><a href="https://www.clarkstonlegal.com/?utm_source=google-local&utm_medium=organic&utm_campaign=3403" target="_blank"><span style="font-family: inherit;">Clarkston Legal</span></a></p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;">Post #632</p>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0tag:blogger.com,1999:blog-7517275423710442887.post-30000023006980559192022-01-07T15:28:00.005-05:002022-01-08T12:50:49.484-05:00SCOTUS Addresses Vaccine Mandates<p></p><div class="separator" style="clear: both; text-align: left;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEh_IKudoYpZw0oaau4xxN150q1035J6XotY1AizIC4XFKRn7VgNhWmTHKlH7SKrhlqo1WLQGrYGb3PVmI9gtfBDPw_NeGW1ncTVWWzR6ScK2ZKkDrzjzpmFDe3zBNAGJ-g-YtS45cq5SpWPxgq3_1MLeEONRltmjQX7DuRV1RdXf4MCAtBoG6Q76vkf=s800" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="532" data-original-width="800" height="213" src="https://blogger.googleusercontent.com/img/a/AVvXsEh_IKudoYpZw0oaau4xxN150q1035J6XotY1AizIC4XFKRn7VgNhWmTHKlH7SKrhlqo1WLQGrYGb3PVmI9gtfBDPw_NeGW1ncTVWWzR6ScK2ZKkDrzjzpmFDe3zBNAGJ-g-YtS45cq5SpWPxgq3_1MLeEONRltmjQX7DuRV1RdXf4MCAtBoG6Q76vkf=s320" width="320" /></a></div>Today, oral arguments in two cases are scheduled at the SCOTUS to address whether the federal vaccination mandate is a is a constitutional exercise of executive power as the pandemic rages around us. At issue in one case is whether the US Labor Department can legally impose a "vaccine-or-test" mandate to large employers [over 100 employees]; the issue in the second case is whether vaccines can be mandated for health care workers at facilities that receive federal funds. </div><div class="separator" style="clear: both; text-align: left;"><br /></div><div class="separator" style="clear: both; text-align: left;">President Biden's administration implemented the "vaccinate-or-test" mandate through the Occupational Safety and Health Administration [OSHA]. Several challenges to the OSHA requirement arose immediately throughout the country; the dispute distilled into an appealed case right here in the Sixth Circuit. The Sixth Circuit panel assigned to the case reinstated the federal mandate <a href="chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fwww.opn.ca6.uscourts.gov%2Fopinions.pdf%2F21a0287p-06.pdf&clen=451756&chunk=true" target="_blank">in this opinion</a>. </div><div class="separator" style="clear: both; text-align: left;"><br /></div><div class="separator" style="clear: both; text-align: left;">The myriad parties to the suit that represented employers were granted certiorari; SCOTUS placed the case on its "fast track" merits docket. </div><div class="separator" style="clear: both; text-align: left;"><br /></div><div class="separator" style="clear: both; text-align: left;">The federal government's argument was crafted during a sustained world-wide surge of the fast-spreading Omicron variant; over 800,000 people have died in the United States from the virus. This compares to the roughly 650,000 deaths from so-called "Spanish Flu" just over a Century ago. </div><div class="separator" style="clear: both; text-align: left;"><br /></div><div class="separator" style="clear: both; text-align: left;"><span style="font-family: inherit;">Amy Howe of <a href="https://www.scotusblog.com/2022/01/biden-vaccine-policies-face-supreme-court-test-amid-nationwide-covid-19-surge/" target="_blank">SCOTUSBlog</a> summarizes the legal position of the Solicitor General:</span></div><div class="separator" style="clear: both; text-align: left;"><span style="background-color: white; color: #0c0c0c; font-size: 16px;"><span style="font-family: inherit;"><blockquote>OSHA simply exercised the power that Congress gave it under the Occupational Safety and Health Act of 1970, which directs OSHA to issue emergency rules when it determines that a rule is “necessary” to protect employees from a “grave danger” from exposure to “physically harmful” “agents” or “new hazards.” Emergency rules can go into effect immediately, without the notice-and-comment procedures normally required for agency rulemaking. In this case, [the Solicitor General asserts] OSHA concluded that the COVID-19 virus is “both a physically harmful agent” and a “new hazard,” and that unvaccinated employees who are exposed to the virus at work face a “grave danger.” </blockquote><p>Twenty seven states, led by Ohio, beg to differ. <span style="font-family: inherit;">The states argue that the pandemic is being used as a "pretext" simply to get more folks vaccinated; the states assert hat not all hazards -like COVID- should be considered work-related for purposes of the "grave danger" emergency OSHA regulations. </span></p><p><span style="font-family: inherit;">Another challenge to the OSHA emergency regulations comes from small business trade groups. They argue that forcing employers to implement a "vaccinate-or-test" policy foists unfair expenses on the company or their customers; the measures also disrupt an already-disrupted work force when workers [purportedly] quit in droves rather than comply with their employer's new COVID policy. </span></p><p>Ms. Howe's blog post summarizes the federal government's response to the trade group and states' arguments:</p><p><span style="font-family: inherit;"></span></p><blockquote><span style="font-family: inherit;">[A] physically harmful agent, exposure to it in the workplace presents a grave danger to employees, and the [mandate] is necessary to protect employees from that danger.” Moreover, the administration adds, Congress not only envisioned that OSHA might require immunizations to protect workers, but in the American Rescue Plan of 2021, it also instructed OSHA to use its authority to protect workers from COVID-19 – and even appropriated funds for it to do so.</span></blockquote><p></p><p><span style="font-family: inherit;">For their part, the health care workers' appeal focuses the Justices on the unprecedented "one-size-fits-all" nature of the OSHA mandates; they assert that the powers wielded by the Health and Human Services bureaucracy are too expansive without a clear statement from Congress. The Solicitor General, on the other hand, contends that Congress has already provided this power to OSHA and to HHS.</span></p><p><span style="font-family: inherit;">We here at Clarkston Legal will track this interesting case and let our readers know how SCOTUS decides the matter. These consolidated cases remind us of the Obamacare battles that made repeated trips up to the SCOTUS. </span></p><p><span style="font-family: inherit;">Stay tuned. </span></p><p><span style="font-family: inherit;">Post #631</span></p><p><span style="font-family: inherit;"><a href="http://www.clarkstonlegal.com">www.clarkstonlegal.com</a></span></p><p><span style="font-family: inherit;"><br /></span></p></span></span></div><p></p>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999999214.335044163821152 -118.56723339999999 70.955511836178843 -48.254733399999992tag:blogger.com,1999:blog-7517275423710442887.post-72741002323050858472021-12-31T16:37:00.011-05:002023-11-05T13:01:00.734-05:00Genetic Genealogy and Privacy<p><span style="font-family: Arial; font-size: 11pt; white-space: pre-wrap;"></span></p><div class="separator" style="clear: both; text-align: left;"><span style="font-family: inherit; white-space: pre-wrap;"><div class="separator" style="clear: both; text-align: left;"><span style="font-family: inherit;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEhEqBw0X7XRohaZAgBPXR2SHw-WZVAxnZkspSBiUnzzO_Bl90n7-hkNW2hcxkGs4l8B_b3d48UoiifvS0OVFMchXF5qraU09wrR5BvdAlB_xQW3Ua9hpwa1EzsoLgUKELbIpvxnzEnDaUdjdMVtqni-9VBfPtc_msCqOKBompFM8XJVRw4QTPPe4Stz=s798" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="350" data-original-width="798" height="88" src="https://blogger.googleusercontent.com/img/a/AVvXsEhEqBw0X7XRohaZAgBPXR2SHw-WZVAxnZkspSBiUnzzO_Bl90n7-hkNW2hcxkGs4l8B_b3d48UoiifvS0OVFMchXF5qraU09wrR5BvdAlB_xQW3Ua9hpwa1EzsoLgUKELbIpvxnzEnDaUdjdMVtqni-9VBfPtc_msCqOKBompFM8XJVRw4QTPPe4Stz=w200-h88" width="200" /></a></div>Procreation, by its very nature, implicates human sexuality; mysterious alluring -and sometimes illicit- sexuality. From time to time, people encounter the unexpected consequences of such procreative sexuality when searching for their ancestry. These days, with the assistance of genetic genealogy, family trees have come into much more detailed view.</span></div></span></div><p></p><span id="docs-internal-guid-6b3a943e-7fff-92d9-86ca-96dff9eb0ea0"><p dir="ltr" style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt;"><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Technological advances in genetic genealogy over the past decade have enabled genealogists to complete the branches of a family tree that were heretofore concealed. Sometimes those branches contain unwanted, even horrific, truths. Because procreation sometimes leads to court-admissible evidence of criminal conduct, law enforcement has long-realized the identification potential of the commercial databases. Genetic genealogy has become an all-purpose de-anonymizer. </span></p><p dir="ltr" style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt;"><span style="font-family: Arial; font-size: 11pt; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></p><h1 style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt; text-align: left;"><span style="font-family: Arial; font-size: 11pt; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">How it Works</span></h1><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Genetic genealogy resulted from the proliferation of DNA testing and profiling. Ever-larger private DNA databases allowed genealogists to more thoroughly chart family networks. Genealogists now use DNA like NASA uses ever-more-sophisticated telescopes, to look far back into the paternal and matrilineal lines of a person's ancestry. </span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit;"><span style="font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Genealogy enthusiasts readily submit to Y-chromosome and </span><span style="white-space: pre-wrap;">mitochondrial testing that results in a highly-defined family tree. Are the privacy rights of the members of that family tree violated by those test results that they did not request?</span></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">When you combine genetic genealogy with forensic genealogy, there is nary a soul on the planet who would remain unidentified so long as that person's DNA was available for analysis. Theoretically, the line of paternity of an unknown individual can be established using the latest DNA technology. </span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Until recent years, the national law enforcement database was limited to convicted offenders; if someone committed a horrible crime leaving DNA evidence at the crime scene, they could not be identified through the FBI's database unless they were a convicted criminal with DNA on file. </span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Where genetic genealogy comes into play is when law enforcement gains access to the private DNA genealogy databases to ascertain the identify of family members and other predominant biogenetic markers of suspects. Now, the data pool is broadened far beyond the convicted criminal population. This vastly improves the forensic identification process and has resulted in some spectacular cold-case convictions. </span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit;"><span style="font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Just as a cold-case defendant eschews forensic identification, sometimes family members do not welcome the "clarification" DNA tests bring to the family tree. DNA tests can roil the family waters. </span><span style="white-space: pre-wrap;">More than a few times in my law practice, the inconvenient truth erupting from an unwanted DNA test has resulted in the termination of a marriage. </span></span></div><p dir="ltr" style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt;"><span style="font-family: Arial; font-size: 11pt; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></p><h1 style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt; text-align: left;"><span style="font-family: Arial; font-size: 11pt; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">The Three-Quarter Sibling</span></h1><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">For example, the whole concept of the three quarter sibling and its correlation with illicit sexual liaisons. We all understand half-siblings; these occur when the parents of one set of children separate and have children with other people. Half-siblings and step-siblings are ubiquitous in contemporary society. </span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Three-quarter siblings are different. There are two ways to produce three-quarter siblings: two sisters each give birth to children with the same father; or when brothers each sire children with the same woman. </span></div><div><span style="font-family: inherit;"><br /></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Such circumstances could lead to cover-ups, fake paternity and faux maternity. The lies we tell ourselves can be foundational in such cases. In the genetic genealogy realm, an unsuspecting family member-malfeasant can be outed as having a direct -albeit concealed- paternity or maternity when another family member becomes curious about the family tree and submits a DNA sample. </span></div><p dir="ltr" style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt;"><span style="font-family: Arial; font-size: 11pt; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></p><h1 style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt; text-align: left;"><span style="font-family: Arial; font-size: 11pt; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Adoptees</span></h1><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Another area of law impacted by genetic genealogy is adoption. When adoptees come looking for their biological parents, genetic genealogy can be a powerful tool in this often-convoluted process. Privacy interests are also implicated.</span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">When a woman puts her child up for adoption, she may wish to preserve her privacy; forever. Does an adult child's right to ascertain the identity of their birth parents outweigh a mother's right to privacy in the adoption process? Genetic genealogy has the potential to circumvent privacy barriers, laying family data bare for all to see. </span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Technology allows genealogists to track down the birth parents by comparing DNA samples against a very large and growing body of data; patterns are discovered that lead to match-based identifications. An adoptee's paternity is revealed with the aid of a genealogist, known as a "search angel". When the genealogist identifies a pattern, the family tree can then be traced backward, filling-in descendants to the present day. </span></div><p dir="ltr" style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt;"><br /></p><h1 style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt; text-align: left;"><span style="font-family: Arial; font-size: small; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Persons of Interest</span></h1><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">Because genetic genealogy captures the living within its nets, identification by law enforcement is one of the functions of the technology. Genealogists have been involved in several spectacular cold case resolutions using the recently developed genetic genealogy to match DNA samples with a perpetrator. </span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></div><div><span style="font-family: inherit; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;">DNA taken from a crime scene can now be compared to the law enforcement and private databases to glean a genetic pattern. With that information, a suspect pool sometimes arises. Location, general characteristics, and eventually, a complete identification can be established through the DNA.</span></div><p dir="ltr" style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt;"><span style="font-family: Arial; font-size: 11pt; font-variant-east-asian: normal; font-variant-numeric: normal; vertical-align: baseline; white-space: pre-wrap;"><br /></span></p><h1 style="line-height: 1.38; margin-bottom: 0pt; margin-top: 0pt; text-align: left;"><span style="font-family: Arial;"><span style="font-size: small; white-space: pre-wrap;">Genetic Testing Company Links</span></span></h1><div><span><span style="font-family: inherit; white-space: pre-wrap;">Here are some companies that offer genetic testing services at reasonable fees. These companies are the source of the private DNA database. Some are in the process of modifying their user agreements. The old "default" was the election of shared data; the new "default" position is in favor of customers' privacy. Under the new default settings, law enforcement will need a search warrant to access the genetic data.</span></span></div><div><span><span style="font-family: inherit; white-space: pre-wrap;"><br /></span></span></div><div><span><span style="font-family: inherit; white-space: pre-wrap;"><a href="https://www.familytreedna.com/" target="_blank">FamilyTreeDNA</a></span></span></div><div><span><span style="font-family: inherit; white-space: pre-wrap;"><br /></span></span></div><div><span><span style="font-family: inherit; white-space: pre-wrap;"><a href="http://www.23andme.com/?bst=pff">23andMe</a></span></span></div><div><span style="font-family: inherit;"><br /></span></div><div><span style="font-family: inherit;"><a href="https://www.gedmatch.com/" target="_blank">GEDmatch</a></span></div><div><br /></div><h1 style="text-align: left;"><span style="font-family: inherit; font-size: medium;">We can help.</span></h1><div><span style="font-size: small;">If you or a family member have privacy concerns, or are confronted with an unwanted identification, contact our law firm to assess your options. </span></div><div><span style="font-size: small;"><br /></span></div><div><span style="font-size: small;">Post #630</span></div><div><span style="font-size: small;"><a href="http://www.clarkstonlegal.com">www.clarkstonlegal.com</a></span></div><div><span style="font-size: small;"><br /></span></div><div><br /></div></span>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999999214.335044163821152 -118.56723339999999 70.955511836178843 -48.254733399999992tag:blogger.com,1999:blog-7517275423710442887.post-71948679431929258632021-06-27T18:52:00.000-04:002021-06-27T18:52:12.167-04:00Evidence Collected From Drone Disallowed by Court<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-bcMFCuu9onw/YNjZd7dq6-I/AAAAAAAAEBM/03dXfG_Vs-U_1qayyOGkzL73NcdOcYJCQCLcBGAsYHQ/s940/drone%2Bcamera.jpeg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img alt="Clarkston Legal Drone Evidence Blog Post" border="0" data-original-height="627" data-original-width="940" height="213" src="https://1.bp.blogspot.com/-bcMFCuu9onw/YNjZd7dq6-I/AAAAAAAAEBM/03dXfG_Vs-U_1qayyOGkzL73NcdOcYJCQCLcBGAsYHQ/w320-h213/drone%2Bcamera.jpeg" title="Clarkston Legal Privacy Law" width="320" /></a></div>Recently, my wife and I were working in our backyard when we noticed a drone, floating by our yard just below tree-top level. As soon as we stood-up to look at the buzzing drone, it came closer to our position hovering just above our heads out of reach. <p></p><p>Yes, drones have become ubiquitous. In Texas, they shoot them down like game birds. Cases are now starting to percolate into the common law of Michigan that examine the relationship between evidence obtained from invasive devices like drones, and our privacy. </p><p>The Michigan Court of Appeals recently decided <a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20210318_c349230_47_349230.opn.pdf" target="_blank"><i>Long Lake Township</i> v <i>Maxon</i></a>, an interesting case pitting evidence gathered by a drone against a couple's right to privacy on their own property. The Township cited the couple for an ordinance violation; the Township was informed relative to the Maxon's alleged zoning ordinance violation via drone surveillance footage; the drone footage was obtained without a warrant. </p><p>The Maxons have a long history of litigation with Long Lake Township in Grand Traverse County over the Township's nuisance ordinance banning certain forms of salvage and junk operations. A settlement agreement had been governing relations between the parties since 2008, and prevented the Township from filing a violation against the homeowners. </p><p>In 2018, however, the Township complained that the Maxons had expanded their salvage operation over the past decade. To prove their contention, they hired Zero Gravity Aerial to make photographic drone flights directly over the Maxon's property in the years 2010, 2016, 2017, and 2018. </p><p>Throughout these years, the Township did not secure a warrant for the drone flights. The evidence collected clearly indicated an increase in the number of junked cars on the property. </p><p>Citing their right to be free from government searches without a warrant based on probable cause, the Maxons moved to supress the evidence obtained from the drones. In denying their motion, the trial court judge ruled that the homeowners had no expectation of privacy in their yard based on the "fixed wing" doctrine; therefore, without a privacy interest, a warrant was not required and the evidence gathered from the Township drones could be used to prove their case. </p><p>If a party has a reasonable justifiable expectation of privacy under the circumstances of a particular case, then the government must obtain a search warrant based on probable cause to invade that private sector. If there is no reasonable expectation under the circumstances, then no warrant is required. Within the jurisprudence of probable cause, warrantless searches are presumptively disfavored by the courts. This case is interesting because it adds a drone surveillance component that was not present in earlier cases.</p><p>Michigan has a drone statute which states:</p><div style="background-color: white;"><span style="font-family: inherit;"></span></div><blockquote><div style="background-color: white;"><span style="font-family: inherit;">(1) A person shall not knowingly and intentionally operate an unmanned aircraft system to subject an individual to harassment. As used in this subsection, "harassment" means that term as defined in section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i.</span></div><div style="background-color: white;"><span style="font-family: inherit;"> <b></b>(2) A person shall not knowingly and intentionally operate an unmanned aircraft system within a distance that, if the person were to do so personally rather than through remote operation of an unmanned aircraft, would be a violation of a restraining order or other judicial order.</span></div><div style="background-color: white;"><span style="font-family: inherit;"> <b></b>(3) A person shall not knowingly and intentionally operate an unmanned aircraft system to violate section 539j of the Michigan penal code, 1931 PA 328, MCL 750.539j, or to otherwise capture photographs, video, or audio recordings of an individual in a manner that would invade the individual's reasonable expectation of privacy.</span></div><div style="background-color: white;"><span style="font-family: inherit;"> <b></b>(4) An individual who is required to register as a sex offender under the sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.736, shall not operate an unmanned aircraft system to knowingly and intentionally follow, contact, or capture images of another individual, if the individual's sentence in a criminal case would prohibit the individual from following, contacting, or capturing the image of the other individual.</span></div></blockquote><p><i>Long Lake</i> v <i>Maxon</i> is one of the first cases to apply this statute to a proceeding. The Court of Appeals characterized the zoning ordinance proceeding as quasi-criminal given the state powers intersecting with private property. The appellate court conducts a <i>tour de force</i> of case law pertaining to our "expectation of privacy" within the Fourth Amendment search warrant context. Drones are distinguished from aircraft in the case; they are characterized as smaller, quieter and more discreet than fixed-wing manned aircraft.</p><p>The United States Supreme Court addressed these issues within the "aircraft" context and has opined that a property owner's reasonable expectation of privacy should not be, "at the mercy of advancing technology." The Court of Appeals agreed, holding:</p><p></p><blockquote>We
conclude that; much like the infrared imaging device discussed in <i>Kyllo</i>; low-altitude, unmanned,
specifically-targeted drone surveillance of a private individual’s property is qualitatively different
from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley. We
conclude that drone surveillance of this nature intrudes into persons’ reasonable expectations of
privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or
a traditional exception to the warrant requirement.</blockquote><p> Notably, the published opinion contains a <a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20210318_c349230_48_349230d.opn.pdf" target="_blank">dissent from Judge Karen Fort Hood</a>. She concludes that, since the Township operated the drone flights over the property just like any other drone operator, then the property owners did not have an expectation of privacy. </p><p>Post #629</p><p><a href="http://www.clarkstonlegal.com">www.clarkstonlegal.com</a></p><p><br /></p><div style="background-color: white;"><span style="font-family: inherit;"></span></div>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999999214.335044163821152 -118.56723339999999 70.955511836178843 -48.254733399999992tag:blogger.com,1999:blog-7517275423710442887.post-91905644432890035712020-04-16T00:06:00.001-04:002020-04-16T07:37:34.762-04:00Gun Stores: Essential Under State Mandated Business Closures?<div class="separator" style="clear: both; text-align: center;">
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To put it bluntly, some federal judges are saying, "NO", rejecting requests to open gun stores.<br />
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The COVID-19 pandemic is all-consuming. Of course then, one of its tendrils has intersected America's sacred Second Amendment right to purchase and bear arms.<br />
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States Determine What Businesses Are Essential</h2>
Whether gun stores are "essential" businesses and thus can stay open under various state stay-at-home orders is a hotly debated topic. The issue involves local law enforcement and the national gun lobby attempting to work out an answer in federal courts across the nation. As is so often the case in federal court, the answer depends on the judge, the region, and the circumstances.<br />
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With temporary but protracted government-forced business closures, the NRA, other pro-weapon organizations, and individual gun store owners are filing federal lawsuits by the hundreds, seeking to enjoin the local sheriff from shuttering gun businesses. These cases have a common ingredient: the gun-lobby puts the matter into suit with a motion seeking a temporary restraining order to enjoin the sheriff from closing the gun store.<br />
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Pro-gun groups assert that the forced government shut-downs violate citizens' rights to purchase and possess weapons under the Second Amendment to the United States Constitution. Further, the argument goes, the Second Amendment is unique in that it makes gun stores essential by its very text.<br />
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<h2>
The Second Amendment</h2>
The pithy text of the amendment states:<br />
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<span style="background-color: white; color: #282828;"><span style="font-family: inherit;"><i>A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.</i></span></span></blockquote>
On the other side of the argument, state actors -governors across the nation- assert that their "stay-at-home" business closure executive orders are consistent with a state's health and safety interests to the extent that closed businesses reduce the spread of the disease. Michigan would be "Exhibit A" in this debate.<br />
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<h2>
Executive Orders Here in Michigan</h2>
When word gets out in our local communities that certain businesses are in operation, the legal question becomes: is the business "essential" or "non-essential". Then the next question is whether the local county sheriff has the political will -the prosecutorial discretion- to ticket the local business for rogue operations.<br />
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Here in Michigan, four Northern Michigan sheriffs [from Mason, Manistee, Benzie, and Leelaneau Counties; contiguous counties along Lake Michigan] have banded together to protest Governor Gretchen Whitmer's latest executive shut-down order - <a href="https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html" target="_blank">Executive Order 2020-42</a>; arguably one of the most restrictive in the country.<br />
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The primary thrust of the critique is that EO 2020-42 contains vague and inconsistent language that has proven difficult to enforce. The Lake Michigan sheriff's group said that EO 2020-42 was "<span style="background-color: white;"><span style="font-family: inherit;">a vague framework of emergency laws that only confuse Michigan citizens."</span></span><br />
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Aside from the general protestation against a state's power to close a legitimate business, a secondary question is whether gun stores are "essential". There is no simple answer to that one. Gun groups contend that the ability to possess weapons and ammunition is as essential as electricity, fuel and groceries. This is especially the case, they say, in these uncertain and fearful times. [Contact your neighborhood prepper for more info.]<br />
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<h2>
Federal Courts Getting Drawn Into the Debate</h2>
Meanwhile, as this debate rages on, two federal judges in California, both Obama appointees, have refused to issue TROs sought by the NRA and other gun groups against the sheriffs in Ventura and Los Angeles Counties. These decisions will, no doubt, be appealed to the infamous Ninth Circuit Court of Appeals in San Francisco. We can expect one of the cases now percolating in the federal courts to emerge as a SCOTUS certiorari grantee.<br />
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We here at the <i><b>Law Blogger</b></i> anticipate that the various circuits will issue a patchwork of differing decisions; decisions highly-dependent on the specific texts of the state government orders. The right case going to the Supreme Court will offer a unique opportunity for a now-conservative Court to address the text of the Second Amendment. Look for such a case in the 2021-2022 term; we'll be monitoring the High Court's docket so we can report back to our readers.<br />
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<h2>
We Can Help</h2>
If you own or operate a business that has been enjoined from serving your customers and your business is arguably "essential", our law firm can provide assistance. Simply click on the link below to access our web site for contact information.<br />
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Post #628<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999999242.551849 -83.57234489999999 42.738707 -83.2496219tag:blogger.com,1999:blog-7517275423710442887.post-11746716839857716702019-12-02T22:17:00.000-05:002019-12-06T11:58:14.287-05:00SCOTUS Addresses Second Amendment for First Time in a Decade<div class="separator" style="clear: both; text-align: center;">
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Back in 2009, we were new to blogging over here at the <b><i>Law Blogger</i></b> when a very differently configured SCOTUS last applied state law to the Second Amendment. In <a href="https://oplawblog.blogspot.com/2009/12/second-amendment-may-gain-some-ground.html" target="_blank"><i>District of Columbia</i> v <i>Heller</i>,</a> decided in 2008, SCOTUS recognized for the first time an individual's right to bear arms in self defense.<br />
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Nearly 10-years ago to the day, we predicted that the 2nd Amendment cases yet to be decided that term would inure to the benefit of gun owners; we were correct. <a href="https://oplawblog.blogspot.com/2009/12/second-amendment-may-gain-some-ground.html" target="_blank">Our earlier post</a> sets the stage for the case argued today before the SCOTUS; a case straight out of New York City.<br />
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This recent case, known as <a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/" target="_blank"><i>New York State Rifle and Pistol Owners</i> v <i>New York City</i></a>, involves a relatively strict local ordinance banning transportation of personally owned firearms within the city. Eventually, NYC's licensed gun owners grew weary of violating this ordinance every time they wanted to take their weapons outside their homes outside the City. Asserting that the ordinance unconstitutionally interfered with their right to "keep and bear arms", they sued the Big Apple.<br />
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Both the federal court in Manhattan and the Second Circuit upheld Gotham's local ordinance. When the gun owners' petition for certeriorari was granted, our nation took note. Today, both sides argued before our High Court.<br />
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One of the first hurdles for the gun owner's this morning was the inconvenient fact that NYC amended its ordinance, gutting the onerous sections central to the litigation. In appellate terms, this rendered the issue moot; or at least arguably moot. Curiously, when NYC advised the SCOTUS of the amendment this summer, asking for a dismissal, the High Court declined to do so, scheduling the oral arguments for today.<br />
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Significantly, the mootness component of the New York case may give the SCOTUS the perfect cover to avoid a contentious 5-4 plurality on the hot-button issue of gun control. If the Court finds that the amendment rendered the gun ordinance constitutional, then there will be no merits decision or analysis of the Second Amendment.<br />
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According to the professional court watchers, the justices spent precious little oral argument time addressing whether NYC's former ordinance actually violated the Second Amendment. One clue from the Court's liberal wing arose when Justice Sonia Sotomayor characterized <i>Heller's</i> standard of determining whether the gun restriction was consistent with the "text, spirit and tradition" of the Second Amendment, was a "made-up" standard. On the other end of the SCOTUS spectrum, Justices Neil Gorsuch and Samuel Alito were focused on keeping the case from getting dismissed, and getting to the merits of the gun restriction.<br />
<br />
As the case goes to conference over the next few months, the internal debate will, no doubt, involve gun control in the light of America's protracted epidemic of gun violence, shooting rampages, and weapons-based mass murder. This blog touched this nerve about a year ago <a href="https://oplawblog.blogspot.com/2018/03/assault-rifles-and-right-to-bear-arms.html" target="_blank">in this post</a> on "assault rifles"; the post resulted in dozens of lively comments on both sides of the issue.<br />
<br />
We here at the <b><i>Law Blogger </i></b>will monitor the case and keep our readers posted. If the Court decides to address the merits of the case, an anxiously-awaited decision will be released in late May or June. Otherwise, expect a one paragraph mootness dismissal with Justices Gorsuch and Alito writing separately.<br />
<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
Post #627<br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999996442.551849 -83.572344899999962 42.738707 -83.249621899999966tag:blogger.com,1999:blog-7517275423710442887.post-4259938853614640962019-09-15T19:19:00.005-04:002019-09-20T06:26:07.177-04:00Facial Recognition and Your Privacy<div class="separator" style="clear: both; text-align: center;">
<a href="https://1.bp.blogspot.com/-1qk5xznhCBQ/XX5XGp1tJhI/AAAAAAAAD1Y/7SiDU5b7u9kIRciDecPT-gSm9nC9lV9GQCLcBGAsYHQ/s1600/facial%2Brecognition.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img alt="privacy" border="0" data-original-height="300" data-original-width="800" height="120" src="https://1.bp.blogspot.com/-1qk5xznhCBQ/XX5XGp1tJhI/AAAAAAAAD1Y/7SiDU5b7u9kIRciDecPT-gSm9nC9lV9GQCLcBGAsYHQ/s320/facial%2Brecognition.jpg" title="facial recognition" width="320" /></a></div>
<h3>
Lots of Cameras; Lots of Data</h3>
In China, they say the "authorities" can identify anyone, in any public place, in seconds. With a population of nearly 1.4 billion, that kind of state power is scary. Can the United States be that far behind?<br />
<br />
This real-time identification is the latest technological rage; brought to us by a high-tech process known as facial recognition. Like the <a href="https://oplawblog.blogspot.com/2019/04/geofence-warrants-and-privacy-rights.html" target="_blank">geofence warrants</a> profiled in our last post, facial recognition is getting lots of love from law enforcement as a highly-effective investigative tool to solve crimes.<br />
<br />
Real-time facial recognition technology allows authorities to match any face, captured on a number of networked cameras, with an extensive and growing database. This is accomplished, by the way, in complete secrecy.<br />
<br />
But what happens to our privacy when law enforcement can track <u>all</u> of our moves? Our privacy erodes to the point of extinction, that's what happens.<br />
<br />
<h3>
Detroit Police Department's Real-Time Facial Recognition Software</h3>
Here in Michigan, the Detroit Board of Police Commissioners has been attempting to articulate a facial recognition policy. Whether the Detroit Police Department is allowed to implement facial recognition in real-time; and whether such implementation will result in racial injustice for African-Americans are two of the hot-button issues surrounding the recently-acquired facial recognition software.<br />
<br />
The DPD, with City Council approval, purchased the million dollar facial recognition software in January 2017. As soon as it was installed on the DPD's network, the scope of the software's implementation was the subject of a heated and protracted policy debate.<br />
<br />
Police Chief James Craig, along with Detroit Mayor Mike Duggan, favor implementation of the software with certain safeguards. Chief Craig says that no one will be the subject of criminal charges based solely on facial recognition; that the software would not be used for real-time identification; and that officers transgressing these limits would be subject to disciplinary and possibly criminal sanctions.<br />
<br />
As the <b><i>Law Blogger</i></b> was uploading this post, the Board of Police Commissioners approved the Chief's request for expanded use of facial recognition in a <a href="https://www.clickondetroit.com/news/detroit-police-commission-approves-expanded-use-of-facial-recognition-on-cameras" target="_blank">8-3 vote</a>. Now the expanded-use policy goes to the Detroit City Council for a ratification vote. With a top-ten big city murder rate, and enough unsolved case files to fill a good sized library, it is understandable why city leaders want broad implementation of the software.<br />
<br />
In Detroit, ubiquitous security cameras, standard for most retail businesses, provide an excellent image feed for comparison to the DPD's photo database. The so-called "green light partnership" requires participating businesses in Detroit to maintain a minimum standard of lighting on their premises, and also requires installation of high-definition security cameras that feed directly into the DPD's computer network.<br />
<br />
Most of the current green light partners are gas stations and liquor stores; high-profile crime targets. Soon, however, green light partners will include schools, churches and health care facilities. News stories about DPD's software also mention the potential for ubiquitous traffic cameras to be patched into the facial recognition software.<br />
<br />
Obvious targets here in Detroit are the legion of repeat offenders whose images currently reside in the DPD's database. The database against which images are compared can easily be expanded from the basic mug-shot collection, to include social media images, Secretary of State images, and other government-maintained digital photo databases. And yes, there is a mobile-device-version of the software.<br />
<br />
<h3>
Biometric Privacy Rights</h3>
The DPD's implementation of facial recognition, and the similar -suspected- use of this technology by the Chicago Police Department, precipitated a review and assessment recently published by the <a href="https://www.law.georgetown.edu/privacy-technology-center/publications/america-under-watch-face-surveillance-in-the-united-states/" target="_blank">Georgetown Law's Center on Privacy and Technology.</a> Pilot face recognition programs are rolling-out in New York, Washington D.C. and Orlando.<br />
<br />
Across the board, law enforcement officials issue assurances that the facial recognition software they are considering will not be used to monitor random citizens, immigrants, activists or people of color. Yet once implemented, the potential for serious Orwellian privacy invasion is certainly operational.<br />
<br />
The Detroit chapter of the ACLU, of course, has been vocal in opposition to any adoption and use of facial recognition software, mostly on the basis such software has great potential to discriminate against people of color. Critics of the software claim it misidentifies people of color in a high percentage of cases. Perhaps for this reason, the City of San Francisco has banned all state use of this technology.<br />
<br />
<h3>
State Legislation</h3>
Here in Michigan, state legislators have <a href="https://www.legislature.mi.gov/documents/2019-2020/billintroduced/House/pdf/2019-HIB-4810.pdf" target="_blank">introduced a bill </a>prohibiting law enforcement from using any evidence obtained from facial recognition technology to enforce state law. The bill expressly calls for the exclusion of evidence so obtained as an express violation of the Fourth Amendment to the United States Constitution and section 11 of article 1 of Michigan's constitution.<br />
<br />
This bill, of course, represents the other end of the spectrum. Placing an absolute bar to law enforcement's use of facial recognition technology will not likely pass any legislature, regardless of the political climate; such a bright-line bar is simply too restrictive.<br />
<br />
A strong public interest exists in the privacy of our biometric data. One problem with facial recognition is that there is no way to "opt-out".<br />
<br />
Illinois passed the nation's first biometric privacy legislation back in 2008. The Biometric Information Privacy Act proscribes the collection, use and dissemination of a citizen's biometric data without consent. This act, however, does not apply to state actors; only commercial entities.<br />
<br />
<h3>
Constitutional Concerns</h3>
Freedom of assembly under the First Amendment, and the Fourth Amendment's requirement that seizures be based on probable cause are fundamental rights. To the extent that collecting and transmitting our biometric data constitutes a seizure, minimum constitutional standards are sure to be developed.<br />
<br />
Surprisingly, the Roberts Court is turning a studied eye toward not only selecting, but properly deciding some very interesting privacy cases. Last August, we blogged about the most recent such case: <a href="https://oplawblog.blogspot.com/2018/08/police-need-warrant-to-download-cell.html" target="_blank"><i>Carpenter</i> v <i>United States</i></a>.<br />
<br />
<i>Carpenter</i> was summarized in our post:<br />
<blockquote class="tr_bq">
<span style="font-family: inherit;"><span style="background-color: white; color: #363636;">Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.</span></span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: inherit;"><span style="background-color: white; color: #363636;">Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.</span></span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: inherit;"><span style="background-color: white; color: #363636;">The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In </span><i style="background-color: white; color: #363636;">Carpenter</i><span style="background-color: white; color: #363636;">, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.</span></span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: inherit;"><span style="background-color: white; color: #363636;">Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.</span></span></blockquote>
In the 5-4 opinion that granted Carpenter a new criminal trial, Justice Roberts declared that we do not waive our Fourth Amendment protections simply by taking a step outside of our homes. SCOTUS held that secretly monitoring and cataloging every single move across an appreciable span of time violated Carpenter's Fourth Amendment rights.<br />
<br />
Given the growing list of U. S. cities bidding on facial recognition software, and considering the increasingly high-tech methods of data collection [i.e. geofence warrants, police drones, facial recognition] a case will come along soon that is ripe for a petition for certiorari before the SCOTUS.<br />
<br />
Until then, our privacy rights continue to erode. Where we go, when we go there, and with whom, are now as much a part of our digital profile as our key-strokes on Internet-connected devices. Should the state have unfettered access to our profiles?<br />
<br />
<h3>
We Can Help</h3>
If you or a family member have been the subject of a warrant or criminal charge, based in whole or in part, on facial recognition technology, or on a geofence warrant, contact our law firm to have your options assessed.<br />
<br />
Post #626<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999996442.551849 -83.572344899999962 42.738707 -83.249621899999966tag:blogger.com,1999:blog-7517275423710442887.post-19427124833103806872019-04-28T18:56:00.000-04:002019-04-28T19:17:24.921-04:00Geofence Warrants and Privacy Rights<div class="separator" style="clear: both; text-align: center;">
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Geofence warrants, also known as <i>reverse location warrants</i>, are new to the law enforcement toolbox. Now these warrants are quickly becoming recognized by law enforcement as an effective method to gathering evidence of crime.<br />
<br />
In some cases, evidence gathered by multi-step reverse location warrants is the only evidence available in the case. These warrants are also getting attention from the national media and soon could be heading to the SCOTUS for a show-down with our privacy rights and the Fourth Amendment's probable cause requirement.<br />
<br />
<h3>
What is a Geofence Warrant?</h3>
<div>
In recent years, police, investigating a crime with few or no clues, have increasingly turned to almighty Google to help them find the perpetrator. First, law enforcement issues a warrant to Google requesting data about any and all devices present within certain spatial and temporal parameters matching an unsolved crime.</div>
<div>
<br /></div>
<div>
Google then responds to the multi-step warrant by transmitting to the requesting agency a log designating -anonymously- all registered devices that fit the warrant's parameters. Law enforcement then takes that anonymous raw data and determines which code-designated devices merit further information. These suspect devices then become the subject of a second warrant to Google; more personal and identifying information is requested. [Note: <a href="https://oplawblog.blogspot.com/2018/08/police-need-warrant-to-download-cell.html" target="_blank">the SCOTUS has already held</a> that law enforcement must first obtain a search warrant pursuant to the Fourth Amendment prior to forcing access to a suspect's password protected cell phone.]<br />
<br />
After providing lip service to their policy of narrowly construing such warrant requests, Google responds by tapping into its <i>Sensorvault</i> database, created in 2009. <i>Sensorvault</i> is connected to Google's "Location History" service, as well as other location-based apps such as the <i>Web & App Activity</i>; a separate database.<br />
<br />
We've all noticed when our iPhones or Android devices prompt us to enable the location history function. This allows Google to provide you with directions to anywhere in the world along with many other spatially-related information services.</div>
<div>
<br />
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: black; font-family: "times new roman" , serif;">The first-known Geofence
warrant was issued in 2017 in North Carolina. The case related to the suspected arson of a 7-story apartment complex. Raleigh Police had no leads to bolster their suspicions; for a year, their investigation bore no fruit until they requested a warrant for information from Google.</span><br />
<span style="color: black; font-family: "times new roman" , serif;"><br /></span>
<span style="color: black; font-family: "times new roman" , serif;">Often, judges issue such warrants
under seal to protect the privacy of the many users having nothing to do with the crime being investigated. The Raleigh Police, for example, have made reverse location warrant requests in murder and sexual assault cases in addition to the arson suspect.</span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: black; font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: black; font-family: "times new roman" , serif;">Google now processes hundreds of such multi-step warrants weekly; that number
is expected to rise significantly as law enforcement agencies become aware of
this new investigative practice. You don't have to be a tech genius to realize the significance of such warrants for law enforcement.</span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: black; font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: black; font-family: "times new roman" , serif;">One of the drawbacks to securing such warrants are the significant processing delays. The multi-step reverse location warrant requests have become so numerous, Google has a separate division dealing exclusively with such requests. 8-weeks to six-month delays are not uncommon; there are also two components to the request.</span><br />
<span style="color: black; font-family: "times new roman" , serif;"><br /></span></div>
<h3 style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Geofence
Warrants Provide Circumstantial Evidence of Crime.</span></h3>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Law
enforcement has been securing location data from a specific suspect’s or
witness’ digital devices for over a decade. Reverse location warrants,
however, constitute a relatively new digital dragnet for when a case has gone cold, or has no viable clues.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">This new multi-step warrant process is much more comprehensive than a cell tower data dump. For decades, police and prosecutors have been using data pulled from cell phone towers to solve crimes. </span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Data from cell towers is limited and incomplete relative to the <i>Sensorvault</i> and <i>Web & Activity App</i> databases. For example, Google's data is ultra-precise and historically detailed, even when a suspect or witness <u>does not</u> place a call on their cell. In other words, Google's data depicts every aspect of our lives, not just the patterns elicited when actual calls are placed.</span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Such comprehensive information about suspects and witnesses constitute a veritable treasure trove of circumstantial evidence for law enforcement. </span><span style="font-family: "times new roman" , serif;">Digital
location tracking of a specific Android or iPhone device can produce circumstantial evidence of a
suspect’s relationship to an unsolved crime. </span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">In every criminal jury trial here in Michigan, <u>circumstantial evidence</u> is commonly defined as: </span><br />
<br />
<ul>
<li><span style="background-color: white;">Facts can be proved by direct </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> from
a witness or an exhibit. Direct </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> is </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> about
what we actually see or hear. For example, if you look outside and see rain
falling, that is direct </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> that it is
raining.</span></li>
</ul>
<ul>
<li><span style="background-color: white;">Facts can also be proved by
indirect, or </span><span class="sthcircumstantial" style="background-color: white;">circumstantial</span><span style="background-color: white;">, </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;">. </span><span class="sthcircumstantial" style="background-color: white;">Circumstantial</span><span style="background-color: white;"> </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> is </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> that
normally or reasonably leads to other facts. So, for example, if you see a
person come in from outside wearing a raincoat covered with small drops of
water, that would be </span><span class="sthcircumstantial" style="background-color: white;">circumstantial</span><span style="background-color: white;"> </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> that
it is raining.</span></li>
</ul>
<ul>
<li><span style="background-color: white;">You may consider </span><span class="sthcircumstantial" style="background-color: white;">circumstantial</span><span style="background-color: white;"> </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;">. </span><span class="sthcircumstantial" style="background-color: white;">Circumstantial </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> by
itself, or a combination of </span><span class="sthcircumstantial" style="background-color: white;">circumstantial</span><span style="background-color: white;"> </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> and
direct </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;">, can be used to prove the
elements of a crime. In other words, you should consider all the </span><span class="sthevidence" style="background-color: white;">evidence</span><span style="background-color: white;"> that
you believe.</span></li>
</ul>
<br /></div>
<div class="content-body" style="background: white; line-height: 15.75pt;">
<o:p></o:p></div>
<span style="font-family: "times new roman" , serif;">Judges always instruct juries that an accused can be convicted solely on the
basis of circumstantial evidence. Direct evidence tends to be higher-quality
evidence, but circumstantial evidence is often sufficient to convict the accused.</span><br />
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">There
are no known cases, however, where a suspect has been charged <u>solely</u> on the
basis of a geofence warrant. An independent criminal investigation must still
be conducted using the reverse location data. </span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Over time, however, a case based solely on circumstantial evidence cultivated from a geofence warrant is sure to present itself to the court's. In the proper judicial and appellate hands, a sensible policy can be fashioned going forward. At present, privacy concerns, relative to the law enforcement process -as envisioned by the drafters of the 4th Amendment- is <i>at risk</i>. </span><br />
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<h3 style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Geofence
Warrants Raise Privacy Concerns.</span></h3>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">There
can be many legitimate –non-criminal- reasons for an individual’s presence
within the parameters of a reverse location warrant. In fact, usually, all but
one device has a legitimate and potentially relevant reason for leaving a particular digital footprint.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<i style="mso-bidi-font-style: normal;"><span style="font-family: "times new roman" , serif;">Sensorvault</span></i><span style="font-family: "times new roman" , serif;"> and the <i>Web & Activity App</i> contains an
enormous amount of our personal data. The database contains detailed historic records of our locations -both temporal and virtual- the
products we use, the products we view, the identities of our friends, and it can match-up times
associated with each of these and many other minutia of our daily lives. This, of course, raises significant privacy concerns.</span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Sometimes,
however, law enforcement simply gets it wrong. This was the case for Jorge
Molina who was mistakenly charged with murder in Phoenix, Arizona a few months
ago. Mr. Molina’s case was recently profiled in the <i><a href="https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html?searchResultPosition=1" target="_blank">New York Times</a></i>.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Turns
out, Molina’s mother’s boyfriend used his vehicle on occasion. So while the
reverse location warrant yielded some eventual fruit for law enforcement, it
disrupted Mr. Molina’s life first by violating his privacy and precipitating a
week-long incarceration.</span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Once you are identified as a witness or suspect, turning-off your Location History, opting out, or deleting the history can also be viewed as circumstantial evidence of guilt. Such acts can be held against a suspect, just as wiping a hard drive clean is often used against an accused. Covering your tracks constitutes circumstantial evidence of guilt; or at least it will be portrayed as such by the prosecutor.</span><br />
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<h3 style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Are Multi-Step Reverse Location Warrants Constitutional?</span></h3>
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<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
The Fourth Amendment to the United States Constitution states that, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." One concern with multi-step reverse location warrants is their wide spatial temporal breadth. </div>
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<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
Particularity is required under the Fourth Amendment, which calls for a limited search based on probable cause. Most geofence warrants, on the other hand, by their nature, seek raw data covering potentially thousands of individuals over a wide-span of time. </div>
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<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
In addition, the two-step warrant process scoops-up scores of innocent bystanders within its dragnet. Courts usually abhor the fishing-expedition technique for issuing warrants for the main reason that fishing expeditions are not based on probable cause.</div>
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<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
Multi-step reverse location warrants can also be technical in nature. A neutral magistrate or judge, as well as law enforcement personnel, defer to Big Data technicians to properly tailor such warrant requests and the raw data resulting from the requests. </div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
The NYT examined initial warrants used the first-step of the geofence warrant process. Those warrants merely sited the fact that: a) most Americans have cell phones; and b) Google possessed location data for many of those phones.<br />
<br /></div>
<h3 style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Geofence
Warrants Will Become A Pervasive Law Enforcement Technique.</span></h3>
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<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Reverse location warrants are becoming a well-known jackpot among federal and state criminal investigators. In addition to the increased requests, it will not take long for law enforcement to overreach, placing the process squarely before the appellate courts, on its way to the SCOTUS.</span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Last
year’s series of bombings around Austin, Texas presented a perfect opportunity to utilize geofence warrants. A series of geofence warrants for each bomb site would yield
raw anonymous data pertaining to devices around those specific bombing locations at or about the time-frame
of the explosions.<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">This
data could then be mined for patterns of activity and for the presence of a
common device appearing in several locations. Federal investigators could then
bring the resources of the United States to bear on identifying the patterns or
the commonly present devices.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<br /></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">This,
of course, presumes that the bomber would be simple enough to have a geo-tracking
device on his or her possession when committing these crimes. These days, however, try getting off the data grid. Data is collected when your phone is turned-off; when your vehicle is turned on; and with your every key-stroke tracked.</span></div>
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<span style="font-family: "times new roman" , serif;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif;">Even if a suspect does not carry a geo-tracking device, or has an older model vehicle not wired to the Internet, the presence of potential
witnesses also can be identified. Some witnesses may not even realize they were
near the scene of a crime until confronted by law enforcement investigators.</span><br />
<span style="font-family: "times new roman" , serif;"><br /></span>
<br />
<span style="font-family: "times new roman" , serif;">We here at the <i><b>Law Blogger</b></i> don't see these warrant requests going away anytime soon. Nor do we anticipate Google changing its stated policy of only providing information they are required by law to provide.</span><br />
<span style="font-family: "times new roman" , serif;"><br /></span>
<br />
<h3>
<span style="font-family: "times new roman" , serif;">We Can Help.</span></h3>
<span style="font-family: "times new roman" , serif;">Our criminal defense and appellate practices have provided us with decades of experience in such matters. If you or a family member are the subject of such a warrant request, or have intersected with law enforcement in any way, give us a call to discuss your options. </span></div>
<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
Post #625<br />
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The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Waterford Twp, MI 48327, USA42.645278 -83.41098339999996442.551849 -83.572344899999962 42.738707 -83.249621899999966tag:blogger.com,1999:blog-7517275423710442887.post-50404350931228526882019-03-23T22:53:00.001-04:002019-03-23T22:54:59.252-04:00State Fines & Forfeitures May be Excessive<div class="separator" style="clear: both; text-align: center;">
<a href="https://2.bp.blogspot.com/-En714bVP-2U/XJbv72P_FqI/AAAAAAAADzI/fmDdtSXPaIIGtqCdd60vulQVayAu9k_ygCLcBGAs/s1600/Timbs.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="602" data-original-width="1000" height="192" src="https://2.bp.blogspot.com/-En714bVP-2U/XJbv72P_FqI/AAAAAAAADzI/fmDdtSXPaIIGtqCdd60vulQVayAu9k_ygCLcBGAs/s320/Timbs.jpg" width="320" /></a></div>
Last month, the SCOTUS ruled in <a href="https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf" target="_blank"><i>Timbs</i> v <i>Indiana</i></a> that a state's fine or forfeiture scheme may be excessive and thus unconstitutional under the 8th Amendment of the United States Constitution. This ruling means that persons convicted of crimes under state law, or found responsible under a municipal ordinance, can challenge the ultimate fine on the new-found constitutional grounds that the fine is excessive.<br />
<br />
Tyson Timbs, an Indiana man, was convicted by his own plea of dealing in a controlled substance and conspiracy to commit theft. After he was arrested and charged, the police seized his Land Rover SUV for which he paid approximately $44,000. This forfeiture seemed unfair considering the express prohibition of excessive fines in the 8th Amendment.<br />
<br />
<h2>
Ill-Gotten Gains Can Be Forfeited</h2>
The uncontested facts in the case are that Timbs used proceeds he received from his father's life insurance policy to purchase the vehicle. One of the chief rationales underpinning state forfeiture laws is to punish felons for using ill-gotten gains to purchase assets that often assist them in their chosen criminal enterprise.<br />
<br />
In this case, Timbs successfully challenged Indiana's forfeiture statute that allowed the state to attach his expensive Land Rover SUV. Timbs argued that the forfeiture was excessive relative to his drug conviction.<br />
<br />
The state court agreed that taking the Land Rover was excessive considering that the maximum fine for heroin possession was less than 25% of the value of the vehicle. Of course, the State of Indiana appealed but the trial court was affirmed; the forfeiture was deemed excessive. At the Indiana Supreme Court, however, Timbs lost when the trial court and intermediate appellate court were reversed.<br />
<br />
In granting certiorari, the SCOTUS examined whether the 8th Amendment's prohibition against "excessive fines". The 8th Amendment reads, "[e]<span style="background-color: white; color: #071b36;"><span style="font-family: inherit;">xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."</span></span><br />
<span style="background-color: white; color: #071b36;"><span style="font-family: inherit;"><br /></span></span>
<h2>
<span style="background-color: white; color: #071b36;"><span style="font-family: inherit;">Application to States as well as the Federal Government</span></span></h2>
<span style="background-color: white; color: #071b36; font-family: inherit;">During oral argument in the case last November, Indiana's Solicitor General went toe-to-toe with Justices Gorsuch and </span><a href="https://oplawblog.blogspot.com/2018/10/justice-kavanaughaustion.html" style="background-color: white; font-family: inherit;" target="_blank">Kavanaugh</a><span style="background-color: white; color: #071b36; font-family: inherit;">. Indiana argued that the 8th Amendment ban on "excessive fines" applied only to the federal government; not to the states. Gorsuch and Kavanaugh we not having it, asserting that in 2019, all of the rights contained in the Bill of Rights -the first 10 amendments to the Constitution- applied to states as well as to the federal government.</span><br />
<span style="background-color: white; color: #071b36;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: white; color: #071b36;"><span style="font-family: inherit;">Indiana also asserted that a "forfeiture" was distinct from a fine or other sanction. The SCOTUS shot that argument down too, but on technical grounds. </span></span><br />
<span style="background-color: white; color: #071b36;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: white; color: #071b36;"><span style="font-family: inherit;">Justice Ruth Bader Ginsburg wrote the majority opinion, noting that the State of Indiana did not raise the <u>forfeiture</u> vs <u>fine</u> argument in its brief filed in the Indiana Supreme Court thus, it could not argue the point to the SCOTUS. </span></span><span style="background-color: white; color: #071b36; font-family: inherit;">We here at the <i><b>Law Blogger</b></i> are thinking that the proverbial heads rolled in Indianapolis over that non-preserved argument. The SCOTUS routinely avoids deciding weighty issues on technical grounds.</span><br />
<span style="background-color: white; color: #071b36; font-family: inherit;"><br /></span>
<span style="background-color: white; color: #071b36; font-family: inherit;">Whenever litigants pose weighty issues that can be decided narrowly, without a constitutional basis or rationale, the SCOTUS usually takes the bait and declines to make momentous constitutional decisions. </span><br />
<span style="background-color: white; color: #071b36; font-family: inherit;"><br /></span>
<h2>
<span style="background-color: white; color: #071b36; font-family: inherit;">Justice Ruth Bader Ginsburg's Opinion</span></h2>
<span style="background-color: white; color: #071b36; font-family: inherit;">This case was an example of this principle. <a href="https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf" target="_blank">In her opinion</a>, Justice Ginsburg, having recovered from her lung operation, put together a veritable <i>tour de force</i> to frame the issue:</span><br />
<blockquote class="tr_bq">
<span style="background-color: white; color: #071b36;"><span style="font-family: inherit;">The Excessive Fines Clause traces its venerable lineage
back to at least 1215, when Magna Carta guaranteed that
“[a] Free-man shall not be amerced for a small fault, but
after the manner of the fault; and for a great fault after
the greatness thereof, saving to him his contenement . . . .” As relevant here, Magna Carta required that economic
sanctions “be proportioned to the wrong” and “not be so
large as to deprive [an offender] of his livelihood.” "[N]o
man shall have a larger amercement imposed upon him,
than his circumstances or personal estate will bear . . . .”). Despite Magna Carta, imposition of excessive fines
persisted. The 17th century Stuart kings, in particular,
were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay. When
James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s
guarantee by providing that “excessive Bail ought not to
be required, nor excessive Fines imposed; nor cruel and
unusual Punishments inflicted.” Across the Atlantic, this familiar language was adopted
almost verbatim, first in the Virginia Declaration of
Rights, then in the Eighth Amendment, which states:
“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”
Adoption of the Excessive Fines Clause was in tune not
only with English law; the Clause resonated as well with
similar colonial-era provisions. (“[A]ll fines shall be moderate, and saving men’s
contenements, merchandize, or wainage.”). In 1787, the
constitutions of eight States—accounting for 70% of the
U. S. population—forbade excessive fines. [Citations omitted.]</span></span></blockquote>
Justice Ginsburg next examined several instances of state law schemes over the centuries and in more recent decades where fines seemed excessive, despite the 8th Amendment. She cited to the excessive post-Civil War fines in the South designed to subjugate newly freed slaves and maintain the racial hierarchy.<br />
<br />
Citing the landmark case, <i>Harmelin</i> v <i>Michigan</i>, Justice Ginsburg continued:<br />
<blockquote class="tr_bq">
For good reason, the protection against excessive fines
has been a constant shield throughout Anglo-American
history: Exorbitant tolls undermine other constitutional
liberties. Excessive fines can be used, for example, to
retaliate against or chill the speech of political enemies, as
the Stuarts’ critics learned several centuries ago. Even absent a political motive, fines may be employed “in a measure out of
accord with the penal goals of retribution and deterrence,”
for “fines are a source of revenue,” while other forms of
punishment “cost a State money.” [Citations also omitted.]</blockquote>
Her opinion next focused on the 14th Amendment's Due Process clause, which requires that the Bill of Rights, the first 10 amendments to the U.S. Constitution, apply to the states. She rejected Indiana's argument that the forfeiture law was civil in nature and, as such, was not a fundamental right.<br />
<br />
The bottom line: Indiana's civil forfeiture laws are invalidated. This holding has implications for forfeitures here in Michigan. Justices Gorsuch and Thomas concurred in the result but wrote separately.<br />
<br />
<h2>
We Can Help</h2>
We here at the <b><i>Law Blogger</i></b> have had many cases where, as a part of a felony arrest, cash, a vehicle, or other asset -even a house- was forfeited under Michigan's forfeiture statute. The SCOTUS' Timbs decision will now throw some shade on the forfeiture process here in Michigan.<br />
<br />
If you or a family member have experienced an excessive fine or a similar forfeiture like in the Timbs case, contact our law firm for a free consultation. We can assess your legal options.<br />
<br />
Post #623<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Independence Charter Township, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-90035854149595160982019-01-31T21:06:00.000-05:002019-03-26T07:26:33.140-04:00Arctic Man Goes to SCOTUS<div class="separator" style="clear: both; text-align: center;">
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As extreme sports go, <a href="http://www.arcticman.com/" target="_blank">Arctic Man</a> must be a trip. To paraphrase Chief Justice John Roberts, when you put 10,000 mostly drunk people in the middle of nowhere, 8 cops are just not enough to keep the peace.<br />
<br />
We here at the <i><b>Law Blogger </b></i>would add: the object of the event is to determine who can ski the fastest being pulled behind a snowmobile. Physical limitations and judgment come into play from the outset, to be sure.<br />
<br />
Nevertheless, that was the situation in central Alaska that led to <a href="https://www.supremecourt.gov/DocketPDF/17/17-1174/35704/20180216142746355_Nieves%20et%20al.%20v.%20Bartlett%20cert.%20petition.pdf" target="_blank"><i>Nieves</i> v <i>Bartlett</i></a> which has been winding its way to the SCOTUS for the past 4-years. The state troopers perhaps best set the stage in their petition for certiorari:<br />
<blockquote class="tr_bq">
Every spring, thousands of extreme skiers, snowmobilers, and
spectators gather in the remote Hoodoo Mountains of interior Alaska for Arctic
Man, a multi-day festival centered around a high-speed ski and snowmobile race.
Campers congregate at night to drink and party, and rampant alcohol use compounds
safety concerns at the event.</blockquote>
<blockquote class="tr_bq">
On the last day of Arctic Man in 2014, Troopers Luis Nieves
and Bryce Weight were on duty, patrolling a large outdoor party where minors
appeared to be drinking alcohol. Nieves encountered respondent Russell Bartlett
at the party and attempted to speak with him, but Bartlett declined to talk to
Nieves. Meanwhile, Trooper Weight spotted a minor who appeared to be drinking
alcohol and began speaking to him at the edge of the crowd. Bartlett marched up
to Weight, loudly demanding that Weight stop talking to the minor.</blockquote>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
<o:p></o:p></div>
Trooper Nieves asked Bartlett to identify himself and requested that he move a tapped keg inside his tent. Instead, Bartlett refused the trooper's commands exhibiting belligerent behavior toward the troopers.<br />
<br />
In front of the troopers, Bartlett instructed the minor not to answer their questions; no parents or guardians of the boy were anywhere to be located.<br />
<br />
Bartlett's conduct resulted in resisting arrest and disorderly person charges. When his criminal charges were dismissed, Bartlett filed suit against the troopers.<br />
<br />
His separate civil rights law suit was filed in a federal court under 42 USC 1983; now, the case has made it all the way to the SCOTUS. Oral arguments were presented last November; a decision will be issued this spring.<br />
<br />
This case is the latest in a series of what is known as "contempt of cop" or "retaliatory arrest" cases: an arrest based on an officer's perceived slight, with the occasional emphasis on the content of the accused's speech. The collateral civil litigation in Arctic Man claims that the subject of such an arrest was merely exercising his right to free speech under the First Amendment to the United States Constitution. To arrest someone under such circumstances, the claim goes, violates the speaker's fundamental right to free speech and thus constitutes an illegal seizure under the Constitution.<br />
<br />
On the other hand, the petitioners, Alaska State Troopers, assert an age-old common law principle that law enforcement officers are immune from civil liability wherever probable cause to arrest exists. The troopers argue they had probable cause to arrest Bartlett on multiple charges thus, they are immune from his civil rights law suit.<br />
<br />
The civil rights law at issue in the case, 42 USC 1983, provides a cause of action where a state actor, under the color of state law, subject a person to the deprivation of any right provided by the Constitution; in this case, the First Amendment and its attendant right to free speech.<br />
<br />
How far can you go in your speech when interacting with a peace officer? Can you insult, challenge, disparage, offend, mischaracterize, or demean the officer?<br />
<br />
Not to put too fine a point on it, but the precise issue argued at the SCOTUS was whether Bartlett, the declarant, had the affirmative duty in his civil lawsuit to demonstrate that the troopers lacked probable cause to make an arrest. Which party shoulders the burden of evidence production affects the trajectory of the case.<br />
<br />
Alaska argues that under the civil rights statute, Bartlett must prove a negative [i.e. that no probable cause existed allowing the officers to intervene] or he must prove his arrest was executed pursuant to a municipal policy of retaliation.<br />
<br />
The Troopers' reply brief frames the issue posed in this case, facing officers each and every day as they go about fulfilling their duties:<br />
<blockquote class="tr_bq">
A policeman’s lot is not so unhappy that he must
choose between being charged with dereliction of duty
if he does not arrest when he has probable cause, and
being mulcted in damages if he does.</blockquote>
Of course, the officer must have the power to exercise his professional discretion to make an arrest in light of probable cause that a crime is being committed. Our safe society depends on this basic law enforcement power.<br />
<br />
Against this tapestry is also the backdrop of the Roberts Court's vigorous protection of First Amendment freedom of speech, and its contrasting penchant to defer to law enforcement's discretion of how they do their job, assuming probable cause exists to intervene with the citizenry.<br />
<br />
We here at the Law Blogger will anxiously await the Supreme Court's decision.<br />
<br />
Post #623<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Independence Charter Township, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-12566491288677855862019-01-13T13:56:00.003-05:002019-02-17T06:23:44.783-05:00The Bezos' High-Value Divorce<div class="separator" style="clear: both; text-align: center;">
<a href="https://2.bp.blogspot.com/-A_T6RpOztbA/XDtnubweG1I/AAAAAAAADx4/tZtjKZX-Tt0x4ulW25tEyvZbSakmx495wCLcBGAs/s1600/bezos-divorce.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="645" data-original-width="970" height="132" src="https://2.bp.blogspot.com/-A_T6RpOztbA/XDtnubweG1I/AAAAAAAADx4/tZtjKZX-Tt0x4ulW25tEyvZbSakmx495wCLcBGAs/s200/bezos-divorce.jpg" width="200" /></a></div>
<span style="font-family: inherit;">This post was primarily authored by <a href="https://clarkstonlegal.com/attorney/austin-probst/" target="_blank">Austin Probst</a> of the <a href="https://clarkstonlegal.com/" target="_blank">Clarkston Legal </a>law firm.</span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">After a Quarter-Century of marriage, one of world's wealthiest and best known couples, MacKenzie and Jeff Bezos filed for divorce. Jeff announced the split on his Twitter feed: "After a period of loving exploriation and trial separation, we have decided to divorce <span style="background-color: white; color: #333333;">and continue our shared lives as friends."</span></span><br />
<span style="font-family: inherit;"><span style="background-color: white; color: #333333;"><br /></span></span>
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<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">As two of the wealthiest individuals in the world, the property division in this divorce will be complex. This complexity could deepen given the couple's desire to continue as business partners in joint ventures and other projects. </span><br />
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<h2 style="text-align: justify;">
<span style="font-family: "times new roman" , serif; line-height: 107%;"><span style="font-size: large;">The World's Wealthiest Couple</span></span></h2>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12pt;">According to Forbes, Jeff Bezos is estimated to be worth $137 billion
dollars. His wealth thus eclipses Warren
Buffet and Bill Gates; Bezos is arguably the world’s richest man. The Bezos marital estate will
undoubtedly be comprised of complex stock grants, vesting schedules and shareholder agreements. The marital estate will also include business interests separate and apart from Amazon, like the aerospace company </span><i style="font-family: "Times New Roman", serif; font-size: 12pt;">Blue Origin</i><span style="font-family: "times new roman" , serif; font-size: 12pt;">, the venture capital
firm </span><i style="font-family: "Times New Roman", serif; font-size: 12pt;">Bezos Expeditions</i><span style="font-family: "times new roman" , serif; font-size: 12pt;">, and </span><i style="font-family: "Times New Roman", serif; font-size: 12pt;">The Washington Post</i><span style="font-family: "times new roman" , serif; font-size: 12pt;">. </span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">While Michigan is a separate
property state, and the law differs from the state of Washington, the Bezos' divorce is nevertheless instructive. This divorce is instructive here in Michigan from a </span><span style="font-family: "times new roman" , serif; font-size: 16px;">high-value </span><span style="font-family: "times new roman" , serif; font-size: 12pt;">property division perspective. </span><br />
<span style="font-family: "times new roman" , serif; font-size: 12pt;"><br /></span>
<h2>
<span style="font-family: "times new roman" , serif; font-size: large;">Lack of a Prenuptial Agreement</span></h2>
<span style="font-family: "times new roman" , serif; font-size: 12pt;">Much already has been written about this inchoate divorce in the press. Monday morning analysts remark how strange it is that the world's richest couple purportedly do not have a post-nuptial agreement. Well, when you think about the fact that this couple was relatively young when they met, that neither was wealthy, Amazon did not exist, and that they may have been in love, the lack of a post-nuptial agreement is really not surprising. Even if Amazon was around at the time of the Bezos nuptials, MacKenzie was a laboring oar during the company's early years and added value during the marriage. Thus, any pre-nuptial agreement would have come under close scrutiny in the court of equity that is the family court.</span></div>
<br />
<h2 style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: large; line-height: 107%;">Property
Division in Divorce</span></h2>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12pt;">The key issue for resolution in a high-asset divorce is the division
of property. Different states have different rules relating to the division of the marital estate. Michigan,
unlike Washington, is a separate property state, which operates on a principle
of equitable distribution. Equitable does <i>not</i>
mean <u>equal</u>. While often times a marital estate is divided approximately 50/50,
this is not always the case.</span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12pt;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">As a practical matter, most stock has some value. In the case of Amazon, the stock has significant value; its value has increased markedly over the past 3-years.</span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">Jeff Bezos owns approximately 16% of Amazon stock, worth over $130 billion. Unlike a traditional financial instrument like a 401k or IRA,
this stock position often complicates the property division in divorce. </span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">Generally, stock acquired during marriage is subject to division. Often, however, such stock is neither marketable nor liquid at the time of a divorce. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">In the Bezos’ divorce, the couple
was married at the time Jeff began developing Amazon. Little known fact: MacKenzie helped Jeff grow and develop the company when they moved to Seattle in 1994 during the first year of their marriage; MacKenzie functioned as Amazon's first controller.</span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">Since both spouses added value to the venture during the marriage, they each have an interest in Jeff's stock position. This begs the question,
how should the Bezos' Amazon stock be divided? The answer: it
depends. There are a number of legal and equitable considerations that must go into the division of
the Amazon stock. These considerations present a set of pros and cons that may benefit or
detract from a spouse's position. </span><br />
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<h2 style="text-align: justify;">
<span style="font-family: inherit; font-size: large;">Stock Split</span></h2>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12pt;">One approach splits the stock in like kind. This would result in
Mackenzie being awarded about $65 Billion in Amazon stock. It would make her the second-largest shareholder in the company and the world’s richest
woman in front of Alice Walton of Walmart, Laurene
Powell Jobs of Apple and Disney Co., as well as </span><span style="font-family: "times new roman" , serif; font-size: 12pt;">Francoise Bettencourt Meyers of
L’Oreal. </span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">Such a stock transfer could significantly impact the value of Amazon. However, this seat change may have an effect on the stock value as a
whole. Recall the fervor resulting from Steve Jobs’ untimely death and the
ensuing mania regarding the future of the company and its value devoid of one
of its key founders. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">A second option is a
buy-out of value whereby Jeff transfers value, but not Amazon stock, to MacKenzie. In this scenario, Mackenzie receives cash and other assets in place of the stock. The limitation of this approach is the couple's liquidity. Is there sufficient cash to make this work? This is a common concern in most high-asset divorces.</span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">The buy-out approach allows Jeff to retain his 16% stock position in Amazon while Mackenzie would be made whole via cash payments and other asset transfers. Here in Michigan, ‘equitable distribution’ is the key principle. In that way, separate property
interests can be deducted and taken into account, assuming those interests and
their value can be appropriately traced and that the assets have not been
co-mingled. </span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12pt;">A third option transfers the entirety of the Amazon stock into a single entity or trust under which the couple would
have joint control along with a neutral advisor -a trustee- acting as a deciding vote on all
issues related to corporate decisions. In this way, negative investment
perception can be assuaged in that, there would not be two separate
shareholders with separate agendas and voting rights relative to the company. This would alleviate concerns
that there could be an injection of potential divorce-drama within the operations of the company. However, the equity-transfer option is rare and requires the right type of company and divorcing couple to be viable. </span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">
</span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">Even with these options, complications often persist. Emotional turpitude, behavioral variants, and the overall relationship history often cause aberrant
results. Domestic violence,
infidelity, and substance abuse skew a parties’ perception of what is ‘fair’ and ‘equitable’. </span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">Unfortunately,
emotional damage is not well compensated in divorce.
Notably, Michigan has a no-fault divorce system which minimizes infidelity and devalues the most of the gain by the faithful party over the adulterer. </span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">As such, though
the process can be difficult, it is to the parties’ advantage to remain as
level-headed and financially forward looking as possible. An acrimonious
divorce, especially in the Bezos case, could be bad for business. </span><br />
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: "times new roman" , serif; line-height: 107%;"></span></div>
<h2 style="text-align: justify;">
<span style="font-family: "times new roman" , serif; line-height: 107%;"><span style="font-size: large;">Business Ownership in Divorce</span></span></h2>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit;">Related to stock interests in a publicly traded company is business ownership. Although the Bezos divorce
does not exactly present this issue, often times high net worth individuals own
separate pass-through companies such as an S-corporations or variants of sole-proprietorships. These business assets are
usually subject to a high degree of emotional attachment. Family businesses often pass from one generation to the next. An S-corporation is the brain-child of a spouse, constituting her life work. </span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;">Emotional attachment to a business asset poses the
potential for an increase in acrimony, bitterness, antagonism, and even
hostility for the divorce. And yes, it also frequently distorts the true value of an asset.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;">For example, A enters
into an agreement to purchase his father’s widget business 6 months into A’s
marriage to his new wife, B. A has worked with widgets and his father for 12
years in the company and finally can make the improvements he wishes to implement
while his Father can happily retire. Over the next 15 years, A negotiates a
myriad of successful contracts, resulting in a spike in business revenue.
However, in the sixteenth year, a new administration threatens the price and
marketability of widgets. At the same time, B decides that she needs to divorce
A. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;">The problem here is
obvious: the business itself is a marital asset. As such, it needs to be valued
and equitably divided. However, A has a deep emotional connection to the
business and B has never contributed to the businesses success in the eyes of
A. Spouse A has a difficult time rationalizing the fact that B will likely need to be
compensated for her interest in the widget business. But just how much is that
interest?<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;">Often times, parties will
engage their own respective business evaluators in an attempt to numerically
value a complex asset. However, these evaluations can sometimes lack integral
information. In the example, A is the key employee of the widget business. He
has negotiated contracts, built relationships, and increased value. Without A,
the business may not be as lucrative. Additionally, the new administration guidelines
may cause a forecast of the business revenue to substantially decrease given
negative market constraints on widgets. There are a number of ways to analyze
the division of an asset like this. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;">First, the business may
be valued and A would buy B out of her 50% interest with some other value offset or
cash. This option is straightforward and provides B with the comfort of
additional liquid assets or otherwise. Meanwhile, A continues to run the
business in an attempt to further revenue generation. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;">Another option would make
A and B joint owners, much like the Bezos example of the 16% Amazon stock position.
However, this arrangement will likely require ongoing cooperative efforts and a
stable relationship between the parties which is, sometimes, unattainable. It
can also compromise the integrity and continuing operation of the business. Of course, investor perception is not a consideration in this case as
it is assumed the business in this example is a closely-held concern. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-family: inherit; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="line-height: 107%;"><span style="font-family: inherit;">Yet another option may be to
sell the business, assuming it is marketable. Often times though, a closely
held family business has little market value if any. The point here is that
these complex assets need to be dealt with appropriately and professionally. There
are no ‘hard and fast’ rules. Whether dealing with closely held
corporations, stock ownership, or traditional financial vehicles, when it comes
to equitable division, </span><i style="mso-bidi-font-style: normal;"><span style="font-family: inherit;">there are a
million ways to shear a sheep. </span><span style="font-family: "times new roman" , serif; font-size: 12pt;"><o:p></o:p></span></i></span><br />
<span style="line-height: 107%;"><i style="mso-bidi-font-style: normal;"><span style="font-family: inherit;"><br /></span></i></span>
<br />
<h2>
Child and Spousal Support</h2>
</div>
<div class="MsoNormal" style="font-size: 12pt; text-align: justify;">
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">The Bezos couple has four children. The children have yet to reach
the age of majority which generally means child support would be an issue in the divorce. Child support, in Michigan is
calculated pursuant to the Michigan Child Support Formula. The formula takes
into account several factors: parenting time (calculated numerically by the
number of overnights the parents have with the children); the relative incomes of the parties, insurance costs, daycare costs, and other factors. However, it should
be noted that given the relative wealth that both parties will undoubtedly see
at the conclusion of their divorce, child
support should be a minor issue. <o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">Coupled with the discussion
of child support is spousal support, traditionally known as alimony. Spousal
support is an equitable consideration and is often calculated based upon
factors such as length of marriage, income of the parties, ability to pay, and
the like. </span></div>
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">In the Bezos case, spousal support may not be a consideration,
even with a lengthy marriage, given that Mackenzie will be awarded substantial assets [i.e., in the billions]. In many cases, however, a spouse is not expected to use a property award to provide for their own support. In the Bezos case, the sheer size of the estate distorts these principles.</span></div>
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">In many divorce cases spousal support is a highly
contested issue. This is particularly relevant given the changes imparted by
the new Tax Cuts and Jobs Act. <o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><i style="mso-bidi-font-style: normal;">
</i></span><br />
<div class="MsoNormal">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;">Beginning January 1,
2019, support payments are no longer deductible to the payer and no longer
includable as taxable gross income to the payee. While this may initially shock
the conscience of potential higher-earning payer spouses, there are persuasive
interpretations and arguments that support formula should adjust for the
inclusion of this fact. Thus, the net effect would be that the total obligation
is lower than what it would have been had the tax laws remained the same. <o:p></o:p></span><br />
<span style="font-family: "times new roman" , serif; font-size: 12.0pt; line-height: 107%;"><br /></span></div>
</div>
<h2 style="text-align: justify;">
<span style="font-family: inherit; font-size: large;">
We Can Help</span></h2>
<div class="MsoNormal" style="font-size: 12pt; text-align: justify;">
<br /></div>
<div class="MsoNormal" style="font-size: 12pt; text-align: justify;">
If you have a high-asset divorce with complex holdings, consider scheduling a free consultation with our law firm. This way, you can assess your options.</div>
<div class="MsoNormal" style="font-size: 12pt; text-align: justify;">
<br /></div>
<div class="MsoNormal" style="font-size: 12pt; text-align: justify;">
Post #622<br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Independence Charter Township, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-26002758177198204842018-11-12T01:09:00.000-05:002018-12-04T21:00:50.083-05:00Revenge of the Stoners<div class="MsoNormal">
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Of the 33 states that have passed some form of lenient
marijuana-use legislation, 10 of those, most recently Michigan, have legalized
marijuana for recreational use. The District of Colombia is also in both groups
of states.<o:p></o:p></div>
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In Michigan, beginning next month, persons over 21-years of
age may purchase,possess and use recreational-use marijuana. The era of
prohibition, although not over, is deteriorating rapidly. <o:p></o:p></div>
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Coincidentally, one of the collateral consequences of
President Trump’s brusque dismissal of Attorney General Jeff Sessions last week removes from the USDOJ -at least temporarily- an outspoken opponent
of pot legalization. In the "old days" of the Obama Administration, the USDOJ's official policy was set forth in the so-called <a href="https://oplawblog.blogspot.com/2013/09/feds-back-off-legal-challenge-to-state.html" target="_blank">Cole Memo</a> where United States Attorneys were instructed not to pursue federal prosecutions for marijuana possession in states that had some form of lenient marijuana legislation.</div>
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Mind you, having just returned from California last week [a
state that is a half-decade ahead of Michigan relative to dispensing product]
this is not your father’s marijuana; the products are diverse, potent, cheaply
and locally produced. <o:p></o:p></div>
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Michiganders must keep in mind that, despite the new
recreational marijuana law, it still remains illegal: a) at the federal
“Schedule 1” level; b) to smoke marijuana in public places; and c) to drive
under the influence of active THC in your bloodstream.<br />
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<h2>
Highlights of Recreational Use of Marijuana</h2>
The new recreational marijuana law allows:</div>
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<ul>
<li>Persons 21 and older to
purchase, possess and use up to a dozen plants;</li>
<li>Keep up to 2.5 ounces of
marijuana in a locked container at one’s residence;</li>
<li>The promulgation of
regulations for all aspects of the marijuana business [i.e. growth, testing,
dispensing, and transportation];</li>
<li>Commercial sales of marijuana-infused
products via state-licensed dispensaries; and</li>
<li>Municipalities to
promulgate ordinances to ban, restrict or otherwise regulate the distribution
of marijuana.</li>
</ul>
Content has exploded across the local press with all sorts of useful tips on how to ride the recreational pot wave. Here are examples from the <a href="https://www.freep.com/story/news/marijuana/2018/11/07/michigan-marijuana-results-election-legalization/1835297002/" target="_blank">Freep</a> [which even went so far as publishing a handy <a href="https://www.freep.com/story/news/politics/2018/11/08/michigan-marijuana-cannabis-seeds/1932414002/" target="_blank">stoner's glossary</a> of sorts] and the <a href="https://www.detroitnews.com/story/opinion/2018/11/12/recreational-marijuana-provides-jobs/1933347002/" target="_blank">Detroit News</a>.<br />
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<h2>
Here Come the Regulations</h2>
If the regulations accompanying last year’s expansion of medical
marijuana licenses are any example, you can expect similar recreational-use state
regulations and local ordinances that: a) favor heavily-capitalized producers;
b) segregate different phases of the process [i.e. testing, growth, dispensary
and transport]; and c) tax the hell out of the still-cash-only revenue stream;
a very healthy revenue stream predicted to be on the par with liquor and
tobacco combined.<o:p></o:p><br />
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If Colorado, California and the State of Washington are
comparable examples, Michigan can expect well-run, fun stores that adopt the
Apple mode of retailing their in-demand products. It’s as if a “50-Shades of
Grey” mentality has taken over the populace now that these goods are so smartly
distributed at the retail level. Just as you can browse for a fine –and
expensive- cigar in a smoke-friendly cigar store environment, you can now
browse the isles and wall display units for a $25 doobie. With taxes, you’ll
part with nearly $30 for a high-quality joint.<o:p></o:p><br />
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Michigan’s Department of Licensing and Regulatory Affairs [LARA] seems
proactively positioned to utilize what our state government has learned from
the medical marijuana regulations for this next quantum leap. LARA certainly
recognizes the revenue potential to such the cash crop that is marijuana,
whether medicinal or recreational.<br />
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<h2>
Expungement of Prior Marijuana Convictions</h2>
Now that both medical and recreational use of marijuana are
legal in Michigan, some county circuit court judges may favorably consider
petitions to remove marijuana-based convictions from a person’s criminal
record. Currently, the state legislature has a <a href="http://www.legislature.mi.gov/documents/2017-2018/billintroduced/House/pdf/2018-HIB-6227.pdf" target="_blank">bill pending</a> to require judges
to consider such expungements. Also, governor-elect Gretchen Whitmer has
already indicated her willingness to utilize her clemency powers to expunge
low-level marijuana-based convictions and remove scores of inmates doing prison
time for such offenses.<o:p></o:p><br />
<br />
Here is a link to the <b><a href="http://persons%2021%20and%20older%20to%20purchase%2C%20possess%20and%20use%20up%20to%20a%20dozen%20plants%3B%20%20keep%20up%20to%202.5%20ounces%20of%20marijuana%20in%20a%20locked%20container%20at%20one’s%20residence%3B%20%20the%20promulgation%20of%20regulations%20for%20all%20aspects%20of%20the%20marijuana%20business%20[i.e.%20growth%2C%20testing%2C%20dispensing%2C%20and%20transportation]%3B%20commercial%20sales%20of%20marijuana-infused%20products%20via%20state-licensed%20dispensaries%3B%20and%20%20municipalities%20to%20promulgate%20ordinances%20to%20ban%2C%20restrict%20or%20otherwise%20regulate%20the%20distribution%20of%20marijuana./" target="_blank">Law Blogger post</a></b> detailing how a twice-convicted marijuana possessor and distributor is serving a life-sentence in Missouri.<br />
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<o:p></o:p></div>
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This must come as good news to the 3600 marijuana-based felons and the nearly 50,000 people
convicted of marijuana-related misdemeanors over the past 5-years.<br />
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<h2>
Getting Off Schedule 1</h2>
Getting off Schedule 1 will be complicated. There will have to be a Democratic majority in both houses of Congress for the stars to align for this prospect. Some Republican legislators acknowledge the job-growth and tax revenue attributes to a strong marijuana industry. So far, however, the political will to make this happen has not been exhibited.<br />
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Complications, no doubt, arise in the context of the war on drugs which has its roots back to the 1971 Controlled Substance Act which listed marijuana on Schedule 1 in the first place. In the decades since, many of the United States' multilateral treaties have marijuana prohibition as one of its central policy planks. A few referendums spread across a few states are not -yet- strong enough to derail these long-standing treaties.<br />
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Yes, it is very complex. To the North, Canada has legalized marijuana across all nine of her provinces. In Central and South America, to our South, multilateral treaties have provided the framework for the decades-long war on drugs, with military style interdiction of drug manufactures and couriers.<br />
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Until marijuana is off schedule 1, the industry has certain distinct risks. For example, do not look for marijuana-based business transactions to be conducted within banks for the next half-decade or so. Same for insurance.<br />
<br />
Therefore, in the short term, marijuana will continue to be a strictly-cash business. This will slow down its growth. Some people don't think this is a bad thing.<br />
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<h2>
We Can Help</h2>
Marijuana prohibition is a thing of the past. The new law in Michigan, and the general decriminalization process, will create some interesting opportunities for those individuals who have been burned by now-outdated laws.<br />
<br />
If you or someone you know has a marijuana-based conviction, simply click on the link below and give our office a call to schedule a free consultation to assess your options under the new landscape.<br />
<br />
Post #621<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
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The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Independence Charter Township, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-41324663997666165702018-10-06T09:26:00.004-04:002018-12-04T22:13:46.152-05:00Justice Kavanaughaustion<div class="separator" style="clear: both; text-align: center;">
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Unless we miss our guess over here at the <b><i>Law Blogger</i></b>, D.C. Circuit Court of Appeals Judge Brett Kavanaugh will be confirmed by the United States Senate later today. Kavanaugh will fill the SCOTUS seat vacated by Justice Anthony Kennedy.<br />
<br />
<h3>
<u>Advice and Consent of the Senate</u></h3>
Article II, section 2 of the United States Constitution, where the rubber meets the road on the concept of balancing the branches of government, states:<br />
<blockquote class="tr_bq">
<span style="font-family: inherit;"><i><span style="background-color: white; color: #222222;">[The President] shall have Power, by and with the Advice and Consent of the Senate ... [to] appoint ... Judges of the </span>Supreme Court<span style="background-color: white; color: #222222;">, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...</span></i></span></blockquote>
<br />
<h3>
<u>America is Divided</u></h3>
It is impossible to avoid the crush of 24/7 news coverage of Judge Kavanaugh's nomination to the SCOTUS. America is now divided into two intractable camps: those that support Judge Kavanaugh and those that stand by his accuser, Dr. Christine Blasey Ford.<br />
<br />
Judge Kavanaugh narrowly emerged from the Senate Judiciary Committee last week, irreparably damaged in the all-important court of public opinion. While the Judiciary Committee voted 11-10 to advance the nomination to the plenary Senate, a political compromise forced an expedited supplemental FBI investigation into Dr. Ford's allegations.<br />
<br />
Ford claims that Kavanaugh, when they were at a high school party in the early 1980s, groped her; that he laid on top of her placing her in fear that he was going to rape her; and that he placed his hand over her mouth to prevent her from calling for help. [Criminal conduct on behalf of Kavanaugh, if true; criminal conduct on behalf of Dr. Ford, if untrue.] But for these 30-year old allegations, Kavanaugh, a conservative jurist, should have been a lock for Senate confirmation to the SCOTUS as the latest Trump appointee.<br />
<br />
And of course, this being America, these allegations spawned other sets of allegations of more groping and excessive college drinking. All of the sudden, Judge Kavanaugh is no longer the conservative federal jurist from Yale Law School and the Georgetown Preparatory School [where SCOTUS <a href="http://oplawblog.blogspot.com/2017/04/justice-neil-gorsuch-sworn-in.html" target="_blank">Justice Neil Gorsuch</a> also attended].<br />
<br />
Although not a public document, the supplemental FBI investigation into Dr. Ford's allegations was supplied to Senators two days ago; the Senate vote is scheduled for later today. Apparently, in gleaning from statements by a few select Senators, the FBI report failed to corroborate any of Dr. Ford's specific allegations. We here at the <b><i>Law Blogger</i></b> would love to have been a fly on the wall when FBI agents interviewed Judge Kavanaugh's Jesuit prep-school wing-man, best-selling author, and general rabble-rouser <a href="https://en.wikipedia.org/wiki/Mark_Judge_(writer)" target="_blank">Mark Judge</a>. Alas, that's for another post.<br />
<br />
With all this drama, you would think that the Federalist Society and the White House would have caught some wind of the strange brew wafting their way, and simply avoided all the burnt political capital by going to another conservative choice.<br />
<br />
There is no question that Judge Kavanaugh, sitting on the D.C. Circuit through which momentous cases routinely flow, is a credentialed conservative jurist. The <i>Washington Post</i>, from an analysis of his published opinions over the past decade, concluded Kavanaugh was the most conservative jurist on the D.C. Circuit Court of Appeals in every policy area. [Note: consider the source; this is the same newspaper that initially reported Dr. Ford's letter to Senator Feinstein.] Nevertheless, his published decisions are along the lines of Justice Antonin Scalia; he is an originalist and a textualist, meaning that he does not find individual rights by reading "between the lines" of the Constitution. Like Scalia, he is far more conservative than moderate, and exhibits an expansive view of executive power.<br />
<br />
This last bit is especially troubling during the Trump era. Listening to President Trump this week, grandstanding for Republicans on the eve of the mid-term elections, trying to minimize and dismiss Dr. Ford's allegations -comparing them to his own women troubles- was pathetic. If he could, Trump would do away with this "Advice and Consent" stuff altogether. Trump was particularly un-Presidential when he mocked Dr. Blasey-Ford -her diction and her lack of memory on some details.<br />
<br />
So here we are, with another Advise and Consent process that has torn the country apart. One thing is painfully clear: <i><b>someone is lying</b></i>.<br />
<br />
There are no procedural rules for the Advise and Consent process. The Judiciary Committee is not a courtroom subject to rules of evidence and procedure. The nominee is not afforded the same constitutional rights as an individual accused of a crime. Likewise, an accuser does not need to prove allegations "beyond a reasonable doubt", the highest evidentiary standard.<br />
<br />
<h3>
<u>Dr. Blasey Ford's Camp</u></h3>
Dr. Ford's allegations provide yet another high-profile example of the power, yet limitation, of the #metoo movement. Maddeningly for this camp, these allegations are so stale they are nearly impossible to corroborate. Thus, for this group, the allegations are destined to go down in history, like those of Anita Hill and Justice Clarence Thomas, as another unresolved allegation of "he said, she said" sexual assault.<br />
<br />
Yesterday afternoon, Senator Susan Collins [R-Maine] focused on a lack of corroboration to an ancient allegation, signaling that she would be voting for Kavanaugh's confirmation. Under the threat of a felony charge [lying to a federal agent], apparently none of the individuals specifically mentioned by Dr. Ford, corroborated any of the basic details of her account to the FBI investigators.<br />
<br />
Victims of sexual assault, for many different reasons, decide to suffer in silence for decades. Professionals in the criminal justice industry know that many survivors take their plights to their graves.<br />
<br />
Criticism of the Ford supporters includes calling the detonation-event itself into question: the so-called leaking of Dr. Ford's letter to Senator Diane Feinstein to a ravenous media-machine that simply cannot get enough sexual raw meat. When the media took this ball and ran with it, Dr. Ford was the one that made the down payment up front. Some say she was betrayed by the very people she turned to as a #metoo survivor. For her part, Senator Collins does not believe that her colleague from California disseminated the original letter to the press. These and other Senators are now all running for political cover.<br />
<br />
<h3>
<u>Judge Kavanaugh's Camp</u></h3>
The Judge's supporters are glad that Senator Collins saw things their way and did not find Dr. Ford's allegations persuasive by even a preponderance of the evidence in the Senate record. Certainly not persuasive enough to block Kavanaugh's nomination. Also, the judge's camp is quick to point out that this has become a derailed media circus -which is true- focusing on sex, beer and <a href="https://www.youtube.com/watch?v=cC-rdaat9HI&start_radio=1&list=RDcC-rdaat9HI" target="_blank">UB40,</a> rather than the judge's 12-year record from the federal bench.<br />
<br />
These supporters emphasize that Judge Kavanaugh has already undergone half a dozen FBI investigations during his storied career as a federal judge. This conservative group is looking forward to possibly 4-decades of right-leaning opinions from this truly conservative jurist, especially when paired with Justice Gorsich, his Jesuit-trained prep school classmate. The Federalist Society recognized that Kavanaugh, unlike his Reagan-appointee predecessor, Justice Anthony Kennedy, who became the infamous "swing vote" on the SCOTUS, will remain true to his conservative faith.<br />
<br />
If the right cases come along, you can expect this jurist to increase the powers of the executive branch, and limit individual rights in favor of the powers of the state. In a perfect storm, a case involving abortion may get teed-up for his deciding vote; he may even be assigned by Chief Justice John Roberts to write the historic opinion.<br />
<br />
Like Dr. Ford, however, Judge Kavanaugh is not getting out of this process unscathed. His otherwise stellar career as a conservative federal jurist now bears this horrid permanent stain.<br />
<br />
As with the Federalist Society, we do not think this episode will affect the tone or tenor of now-Justice Kavanaugh's prospective SCOTUS opinions, yet plenty of questions remain in our minds about this jurist; this person. Despite his apology in the <a href="https://www.wsj.com/articles/i-am-an-independent-impartial-judge-1538695822" target="_blank">Wall Street Journal</a>, we saw his core-temperment in the heat of battle when he testified; it was not pretty; it was ugly. The picture above truly, is worth a thousand words. Where unproven allegations of sexual abuse are concerned, the smoke usually manifests some type of fire.<br />
<br />
While the fire in Kavanaugh's case was extinguished long ago, you won't be seeing this SCOTUS justice giving speeches or lectures at Harvard Law School. He will be hunted and confronted in public until the day he dies.<br />
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We shall see if he, like Clarence Thomas, sits silent during oral argument, never asking questions of the lawyers arguing their cases before him; preferring to communicate through written opinions. In any event, a decades-long tenure will be Kavanaugh's best revenge. His place in history, however, already has been set in stone.<br />
<br />
<h3>
<u>America Gets Screwed</u></h3>
Because one of these two people is lying, America gets screwed. If Dr. Ford told the truth, this guy's transgressions, albeit over 30-years ago, belie a violent and abusive core, inappropriate -even disqualifying- for any judge, let alone a Supreme Court Justice. If Judge Kavanaugh told the truth to the Judiciary Committee, then a special place in Hell awaits women that manufacture and weaponize false allegations of sexual abuse. Take your pick; it's all bad folks.<br />
<br />
Our take-away from all this drama is that public respect and trust in our all-important judicial system is eroded by spectacles like this one. The lawyers at our firm are constantly advancing the legitimate causes of our clients before county and state judges. We depend on these judges to fairly resolve important legal conflicts.<br />
<br />
In times like these, we thank our colleagues on the bench that have remained ever-vigilant for the right result in every case, and who have remained just and impartial despite the strong, often pungent, political currents of the day.<br />
<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
Post #620<br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Independence Charter Township, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-77889119749648225742018-09-06T07:30:00.001-04:002018-12-04T22:10:44.018-05:00Surfers vs the Billionaire<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://2.bp.blogspot.com/-HbDqov8RyKc/W5D1BErX1OI/AAAAAAAADwk/wmshipnwmcQbPKfLo62RCXyTzfR6XY8fQCLcBGAs/s1600/martins%2Bbeach.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img alt="land use " border="0" data-original-height="786" data-original-width="1400" height="177" src="https://2.bp.blogspot.com/-HbDqov8RyKc/W5D1BErX1OI/AAAAAAAADwk/wmshipnwmcQbPKfLo62RCXyTzfR6XY8fQCLcBGAs/s320/martins%2Bbeach.jpg" title="Martins Beach" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Martin's Beach courtesy of the LA Times</td></tr>
</tbody></table>
<span style="font-family: inherit;">If you attempt to remove access to a good surf spot anywhere along the Southern California coastline, be prepared to spend some money. That's what billionaire <span style="background-color: white;">Vinod Khosla, co-founder of Sun Microsystems, has vowed to do: spend his money -and he has a lot of it- to make a legal point in a significant piece of property litigation heading to the SCOTUS.</span></span><br />
<span style="font-family: inherit;"><span style="background-color: white;"><br /></span></span>
<span style="background-color: white;">Martin's Beach is a secluded surfing spot south of Half Moon Bay in California. For more than a century, the owners of this 90-acre sand crescent provided liberal public access to the beach via a service road. In addition to the road, the owners improved the property with a parking lot, restrooms and a small store.</span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">A decade ago, Khosla purchased all 47-cottages that sit along this prime bundle of coastal parcels for a cool $32 million. Then he promptly closed the gate to the access road, hired security, removed the restrooms, shut down the parking lot and shuttered the store. He's been in litigation ever since and the case will be argued before the <a href="http://www.scotusblog.com/2018/04/petition-of-the-day-1355/" target="_blank">SCOTUS</a> this fall with an opinion resolving the matter -once and for all- in the spring.</span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">The <a href="https://www.surfrider.org/?gclid=EAIaIQobChMIrN6Pp5em3QIV1bXACh2xng7iEAAYASAAEgK8BvD_BwE" target="_blank">Surfrider Foundation</a> brought the law suit that has made its way to the SCOTUS. Public access to "the beach" is enshrined in California's state constitution and in the <a href="https://www.coastal.ca.gov/coastact.pdf" target="_blank">California Coastal Act</a>. </span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">Khosla, through his Martin's Beach LLC, is equating the the operation of the state constitution and the Coastal Act to an uncompensated "taking" of his property in violation of the 5th Amendment to the U.S. Constitution which provides that no private property shall be taken by the government without just compensation.</span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">For their part, both the California Coastal Commission and San Mateo County assert that Khosla must maintain the same level of access to the beach, or obtain a permit from the county allowing him to reduce the access. California has developed a long-standing governing principle: the beach cannot be privatized.</span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">Khosla, described in a recent NYT Sunday Business article as a typical venture capitalist -"aggressive, shamless, obsessive and optimistic", has vowed to litigate Martin's Beach for the rest of his life. At age 63, he is the latest billionaire to use his millions to seek privatization of a choice parcel of oceanfront property. Billionaire David Geffen's failed attempt at the turn-of-the-Century to close-off a chunk of Malibu comes to mind.</span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">Along the way in this litigation, the California Coastal Commission offered Khosla $3 million to open the gate to the access road and have his security guards stand down. In rejecting the offer, Khosla, through a phalanx of lawyers, put a much higher price tag for what he sees as a compromise in principle to his privacy and his right to private ownership of property. Ironically, Khosla openly regrets ever purchasing the property and claims to have never set foot on Martin's Beach.</span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">The case wound its way through California's state court system, culminating in a decision by the California Court of Appeal that upheld injunctive relief to beach access granted by the county trial court. Although the California Supreme Court declined further review, Khosla's highly-paid super-lawyers convinced the U.S. Supreme Court to grant certiorari.</span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">SCOTUS, in granting certiorari to the Martin's Beach petition, now considers the following issues:</span><br />
<blockquote class="tr_bq">
<span style="font-family: inherit;">1. Whether a compulsory public-access easement
of indefinite duration is a per se physical taking.</span> </blockquote>
<blockquote class="tr_bq">
<span style="font-family: inherit;">2. Whether applying the California Coastal Act to
require the owner of private beachfront property to
apply for a permit before excluding the public from its
private property; closing or changing the hours, prices,
or days of operation of a private business on its private
property; or even declining to advertise public access
to its private property, violates the Takings Clause,
the Due Process Clause, and/or the First Amendment. </span></blockquote>
The case will now be briefed by the parties with several interest groups expected to weigh-in via amicus status. Stay tuned as we update you on the briefing schedule and oral argument, expected to be scheduled some time next spring.<br />
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Post #619<br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Independence Charter Township, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-64433519122494027252018-08-01T00:00:00.001-04:002018-09-08T08:26:27.356-04:00FBI Needs Warrant to Download Cell Phone Data<div class="separator" style="clear: both; text-align: center;">
<a href="https://3.bp.blogspot.com/-Bd4ddkUyRuA/W2EwW6ypOgI/AAAAAAAADwY/2PHjgE0YZeMWe9BtVw7qUPLDFQJ0JNZ7gCLcBGAs/s1600/Cells.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="199" data-original-width="300" height="132" src="https://3.bp.blogspot.com/-Bd4ddkUyRuA/W2EwW6ypOgI/AAAAAAAADwY/2PHjgE0YZeMWe9BtVw7qUPLDFQJ0JNZ7gCLcBGAs/s200/Cells.jpg" width="200" /></a></div>
At the end of its term in late June, the SCOTUS decided a Michigan case, holding that police must obtain a warrant prior to obtaining location and other data inside a suspect's cell phone. In so ruling, Chief Justice John Roberts said that modern digital technology allows wireless carriers to collect "deeply revealing" information about its customers.<br />
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This poses a problem under the 4th Amendment of the United States Constitution. The ruling was narrow to the extent that the High Court held open the prospect that police still may not need a warrant to obtain information about the location of a suspect on the day a crime was committed.<br />
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Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.<br />
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Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.<br />
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The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In <i>Carpenter</i>, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.<br />
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Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.<br />
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Historic cell phone location data and "real-time" cell phone location data are distinguished in Roberts' narrow ruling. Only the former would require a warrant, not the latter.<br />
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The bloc of conservative Justices asserted that the 4th Amendment, in its original context, did not apply to the method law enforcement used to collect ordinary business records.<br />
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Thus, for now, cell phone records have significant 4th Amendment protection under this narrow ruling. What is less clear is whether other forms of personal digital data will receive the same level of protection.<br />
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We here at Clarkston Legal have seen many criminal cases turn on the admission of maps based on cell phone data. The exclusionary rule implicit in the 4th Amendment is directly at issue in such cases.<br />
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The SCOTUS has decided a half-dozen significant cell phone related privacy cases. We will continue to monitor the High Court's docket to report on these interesting decisions.<br />
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Post #618<br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Village of Clarkston, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-76446306296739075572018-06-19T23:18:00.000-04:002018-06-23T12:25:04.069-04:00Oakland County Embryo Case Heading for Evidentiary Hearing<div class="separator" style="clear: both; text-align: center;">
<a href="https://4.bp.blogspot.com/-yDbyrWevrcE/WynHTsecOeI/AAAAAAAADv0/lP5nT_41SUA9kNlcrOX2cnVuwp2XU7wtwCLcBGAs/s1600/frozen-embryo.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="351" data-original-width="847" height="82" src="https://4.bp.blogspot.com/-yDbyrWevrcE/WynHTsecOeI/AAAAAAAADv0/lP5nT_41SUA9kNlcrOX2cnVuwp2XU7wtwCLcBGAs/s200/frozen-embryo.jpg" width="200" /></a></div>
An interesting case from the Oakland County Family Court poses the question: is a fertilized yet frozen human embryo property or a person?<br />
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Oakland County Family Court Judge Lisa Langton has been assigned the task of deciding this question. One couple on her custody docket cannot agree on the disposition of a group of frozen embryos.<br />
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The couple, Gloria Karungi and <span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;">Ron Ejalu, contracted with an in vitro fertilization clinic whereby 10 of the couple's embryos were frozen from their genetic materials. According to the contract, the frozen embryos are characterized as the joint property of the parties; any disputes between the tissue donors and the clinic are to be settled through arbitration; the contract is silent as to disputes between the donors.</span></span><br />
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;">Unfortunately, the parties to the embryo contract have a daughter with sickle cell disease and Mom and Dad are no longer a couple. Mother believes that if she has another child with Father's DNA, using a frozen embryo, genetic material from that child may be able to help or cure her daughter.</span></span><br />
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;">Father will not agree with Mother's request to implant one of the embryos to beget a second child. So the matter was brought to the family court where Mother sought a legal ruling on the "custody" of the embryos. </span></span><br />
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;">Judge Langton ruled that she only had jurisdiction over the couple's daughter and limited her decisions in the case to custody, parenting time and child support relative to the daughter. In dismissing the embryo dispute, she based her ruling on a case-code selected by the parties when Mother initially filed the entire matter as a child support case.</span></span><br />
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;">Mother appealed Judge Langton's ruling to the Michigan Court of Appeals. In her appellate filings, Mother raised all manner of custody arguments relative to the embryos, claiming that the family court had jurisdiction on the basis that a frozen embryo was a "person".</span></span><br />
<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;"><br /></span></span>
<span style="color: #333333;"><span style="background-color: #fafafa;">One indication of the unusual nature of the case is that each of the three appellate judges assigned to the panel wrote a separate opinion. The case was remanded back to Judge Langton in a 2-1 vote.</span></span><br />
<span style="color: #333333;"><span style="background-color: #fafafa;"><br /></span></span><span style="color: #333333;"><span style="background-color: #fafafa;">In the <a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20170926_c337152_46_337152.opn.pdf" target="_blank">lead opinion</a>, Judge Colleen O'Brien -a former Oakland Circuit Court Judge herself- wrote that the lower court should have treated this case as a contract dispute, not a custody matter. In remanding the case back to the family court, however, the Court of Appeals noted that the record was insufficiently developed to determine whether the family court had jurisdiction.</span></span><br />
<span style="color: #333333;"><span style="background-color: #fafafa;"><br /></span></span>
<span style="color: #333333;"><span style="background-color: #fafafa;">The appellate court mused whether the subsequent conduct of the parties served to amend the contract; it also wondered whether one or both parties waived the arbitration clause of the contract by their filings in the family court; the court further speculated that the family court, and not the civil division, was the proper court to decide this dispute.</span></span><br />
<span style="color: #333333;"><span style="background-color: #fafafa;"><br /></span></span>
<span style="color: #333333;"><span style="background-color: #fafafa;">Taking issue with the dissenting opinion, Judge Christopher Murray felt compelled to write a concurrence, emphasizing that the majority opinion properly identified and corrected the family court's error: the lower court improperly dismissed the embryo dispute based on the case caption.</span></span><br />
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<span style="color: #333333;"><span style="background-color: #fafafa;">Judge Murray points out that in remanding the matter to further develop the record, the majority opinion merely points out that an issue may exist regarding the family court's primary jurisdiction due to the arbitration clause contained within the embryo contract.</span></span><br />
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<span style="color: #333333;"><span style="background-color: #fafafa;">In her <a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20170926_c337152_48_337152d.opn.pdf" target="_blank">dissent</a>, Judge Kathleen Jansen adopts a different approach than the majority, noting that the embryo contract technically was between the biological donors and the clinic, not between each other. Nor is Judge Jansen convinced that the arbitration language binds the former couple regarding the embryo dispute as between themselves. This view, of course, provides a green light to the lower court to conduct further proceedings in order to develop a record from which various custody rulings can emanate.</span></span><br />
<span style="color: #333333;"><span style="background-color: #fafafa;"><br /></span></span>
<span style="color: #333333;"><span style="background-color: #fafafa;">What Judge Jansen found most disturbing was the majority's characterization of the matter as a contract dispute when neither party raised that issue below but rather, couched all of their filings in terms of a custody dispute. Judge Jansen concluded that, "[t]he trial court ... lacked
legal authority to consider the disposition of the embryos in the context of a custody case."</span></span><br />
<span style="color: #333333;"><span style="background-color: #fafafa;"><br /></span></span>
<span style="color: #333333;"><span style="background-color: #fafafa;">Although the Michigan Supreme Court took a pass on this interesting case, Justice Bridget Mary McCormack wrote separately to opine:</span></span><br />
<blockquote class="tr_bq">
<span style="color: #333333;"><span style="background-color: #fafafa;"><i>....that the trial court should not avoid the question argued
by the parties: whether frozen embryos are persons subject to a custody determination.
The answer to that question could prove dispositive regarding whether the contracts
resolve this dispute. See Harvey v Harvey, 470 Mich 186, 194 (2004) (stating that
“parties cannot stipulate to circumvent the authority of the circuit court in determining
the custody of children”). And if the trial court concludes that embryos are not subject to
a custody determination, it is still bound to make a determination about the proper legal
disposition of those embryos, if not under contract law or child custody law. Under Const 1963, art 6, § 1, it has an obligation to exercise the judicial power to decide the
dispute before it. See also MCL 600.605 (circuit courts “have original jurisdiction to
hear and determine all civil claims and remedies, except where exclusive jurisdiction is
given in the constitution or by statute to some other court or where the circuit courts are
denied jurisdiction by the constitution or statutes of this state”). </i></span></span></blockquote>
<span style="color: #333333;"><span style="background-color: #fafafa;">With the case now remanded to her trial court, Judge Langton will re-consider Mother's motion for summary disposition tomorrow morning. She will decide whether a frozen embryo is a spec of property or a human life.</span></span><br />
<span style="color: #333333;"><span style="background-color: #fafafa;"><br /></span></span>
<span style="color: #333333;"><span style="background-color: #fafafa;">Post #617</span></span><br />
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<span style="color: #333333;"><span style="background-color: #fafafa;"><br /></span></span>The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Village of Clarkston, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-43885774833643208022018-03-20T08:58:00.000-04:002018-03-20T22:10:14.167-04:00Assault Rifles and the Right to Bear Arms<div class="separator" style="clear: both; text-align: center;">
<a href="https://2.bp.blogspot.com/-bOJMZxcwOwU/WrD3gWCzM1I/AAAAAAAADu8/2w6UMe-MhtEZK9cnR_TRq5AuwhsHuftowCLcBGAs/s1600/assault%2Bweapon.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="430" data-original-width="630" height="136" src="https://2.bp.blogspot.com/-bOJMZxcwOwU/WrD3gWCzM1I/AAAAAAAADu8/2w6UMe-MhtEZK9cnR_TRq5AuwhsHuftowCLcBGAs/s200/assault%2Bweapon.jpg" width="200" /></a></div>
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 <i>certiorari</i> 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 <a href="http://oplawblog.blogspot.com/2010/03/second-amendment-litigant-is-unlikely.html" target="_blank">Second Amendment right to bear arms case </a>was back in 2010.<br />
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SCOTUS set the legal agenda relative to the right to bear arms in its 2008 <a href="http://blogs.reuters.com/alison-frankel/files/2016/06/District-of-Columbia-v-Heller.pdf" target="_blank"><i>District of Columbia</i> v <i>Heller</i></a> decision. In that case and in <a href="http://oplawblog.blogspot.com/2010/02/city-of-chicago-hires-washington-dc.html" target="_blank"><i>McDonald </i>v <i>City of Chicago</i></a>, Justice Antonin Scalia struck local ordinances banning handguns.<br />
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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.<br />
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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.<br />
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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 <i>Heller</i> opinion, Justice Scalia stated that not all weapons are protected under the Second Amendment such as "<span style="background-color: white; color: #313132; font-family: , serif;">weapons that are most useful in military service—M–16 rifles and the like."</span><br />
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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 <i>Heller</i> 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.<br />
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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.<br />
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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.<br />
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In this regard, we take note of a recent <i>en banc</i> 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.<br />
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<a href="http://www.scotusblog.com/wp-content/uploads/2017/08/17-127-opinion-below.pdf" target="_blank"><i>Kolbe</i> v <i>Hogan</i> </a>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.<br />
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Gun advocates will curse the decision. Consider, for example, this well-thought-out <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/04/kolbe-v-hogan-4th-circuit-requires-strict-scrutiny-for-maryland-ban-on-magazines-and-semiautomatics/?utm_term=.3cd428ffcbbb" target="_blank">Op Ed piece</a> 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.<br />
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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 <i>Kolby</i> case.<br />
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Will tougher gun laws prevent mass shootings? Unfortunately, we here at the <i><b>Law Blogger</b></i> say, probably not. But it's a start.<br />
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We base our pessimistic view on the ease with which <u>anyone</u> 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.<br />
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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.<br />
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Over here at the <i><b>Law Blogger</b></i>, 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.<br />
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Post #616<br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com2Village of Clarkston, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-26509852306237762902018-02-19T08:36:00.002-05:002018-02-19T08:36:36.862-05:00Custody Ruling Impacts Transgender Teen<div>
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://1.bp.blogspot.com/-VvxvU5UY2Gc/WorSqW2RrXI/AAAAAAAADus/He_zX9MAIvI-UQdVs4KpPXY1CvZzfRzrgCLcBGAs/s1600/Judge%2BSylvia%2BHendon.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img alt="transgender child custody" border="0" data-original-height="138" data-original-width="107" height="200" src="https://1.bp.blogspot.com/-VvxvU5UY2Gc/WorSqW2RrXI/AAAAAAAADus/He_zX9MAIvI-UQdVs4KpPXY1CvZzfRzrgCLcBGAs/s200/Judge%2BSylvia%2BHendon.jpg" title="" width="155" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Ohio Judge Sylvia Hendon</td></tr>
</tbody></table>
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.</div>
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On Friday, an Ohio <a href="https://www.scribd.com/document/371667957/Ruling-from-Judge-Sylvia-Sieve-Hendon-on-transgender-boy#from_embed" target="_blank">family court ruling</a> 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.<br />
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In this case, known as <i>In re: JNS</i>, 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. </div>
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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.</div>
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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]. </div>
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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.</div>
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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.</div>
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During trial, proofs went in detailing the boy's struggle with severe depression; about acute gender diaspora; about the role of the <u>Children's Hospital Transgender Program</u>; 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. </div>
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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."</div>
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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.</div>
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Judge Hendon carefully articulated her rationale for changing custody:</div>
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<span style="background-color: #fafafa; color: #333333;"><span style="font-family: inherit;">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.</span></span></blockquote>
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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. </div>
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We here at the <i><b>Law Blogger</b></i> agree with Judge Hendon that many <a href="http://oplawblog.blogspot.com/2016/01/michigans-gender-reassignment-policy.html" target="_blank">similar cases</a> 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.</div>
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Kids these days; they're growing-up fast, that's for sure.</div>
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Post #615<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
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The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Village of Clarkston, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019tag:blogger.com,1999:blog-7517275423710442887.post-72638010148203030022018-01-26T09:20:00.002-05:002018-01-27T08:42:05.622-05:00Judges and the Media<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://4.bp.blogspot.com/-ZzDFJ7CTg5g/WmswuJddm5I/AAAAAAAADuI/ks5cA-EhNxQPfFByYRtyRya4sPPSV_XBgCLcBGAs/s1600/judge%2Baquilina.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="570" data-original-width="960" height="118" src="https://4.bp.blogspot.com/-ZzDFJ7CTg5g/WmswuJddm5I/AAAAAAAADuI/ks5cA-EhNxQPfFByYRtyRya4sPPSV_XBgCLcBGAs/s200/judge%2Baquilina.jpg" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Judge Rosemarie Aquilina</td></tr>
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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 <b><i>Law Blogger</i></b> appreciate judges that eschew the media rather than bask in the glow of its camera lights.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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. "<i>The lady doth protest too much"</i>, we think over here at the <b><i>Law Blogger</i></b>.<br />
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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?<br />
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Post#614<br />
<a href="http://www.clarkstonlegal.com/">www.clarkstonlegal.com</a><br />
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<br />The Law Bloggerhttp://www.blogger.com/profile/03691213277243372252noreply@blogger.com0Village of Clarkston, MI 48346, USA42.7244204 -83.43233750000001742.6310999 -83.593699000000015 42.8177409 -83.270976000000019