ICP front man Violent J

A few years ago, we posted about an ACLU lawsuit, filed in the United States District Court for the Eastern District of Michigan, seeking to have followers of the Insane Clown Posse, known as Juggalos, removed from the FBI's roster of dangerous gangs. The Juggalos appealed the dismissal of their case and won in the Sixth Circuit.

This week, the ICP was sued in the same court on a trademark infringement suit. The plaintiff, a poet, alleges that ICP frontman, "Violent J", co-opted his poem, "But You Didn't" without permission.

In his complaint the plaintiff alleges that he wrote the poem, and that his work, including this poem, is featured in the popular "Chicken Soup Series" and that it is copyrighted. Plaintiff further alleged that the ICP published a derivative of the poem without permission, causing damages to the poet plaintiff.

 The case is so fresh, the Farmington Hills-based ICP has yet to answer the complaint. If the allegations are true regarding the trademark registration of the poem, it will be a difficult case for the ICP to defend.

Are there any Juggalo attorneys out there?

Post #587
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Across the nation, many of the larger U.S. cities have significant populations of the homeless. When homeless persons congregate in specific areas, in camps, local authorities often push back with the execution of clearing sweeps.

This occurred a few years ago in Ann Arbor in a camp known as "Camp Take Notice". Slab City California is another example of a collision between homeless persons with little property and state actors.

In these encampment sweeps, personal property of the homeless is removed to aid the reclamation and gentrification process. More often than not, the sweeps -a form of state action- go too far, too fast.

Over the years, the encampment sweeps by local governments have led to a series of constitutional challenges courtesy of the American Civil Liberties Union and other legal aid lawyers. The U.S. Department of Justice has stated that anti-camping ordinances cannot criminalize persons for being homeless.

In one of the encampment lawsuits, a federal judge in Seattle ruled last Friday that the property of homeless persons was removed by Clark County officials without a determination as to whether the property was abandoned or "owned" by the homeless.

The property taken included broken furniture, backpacks, medication, clothing, various documents and photographs. A leather basketball can be seen in the above photo, taken in March beneath I-90 in Clark County, near Vancouver. When homeless, such implements can be vital to your survival.

In relevant part, the Fifth Amendment to the United States Constitution states that, "[n]o person shall be ...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Although not valuable, the property of the homeless was taken in Clark County without notice or any compensation, let alone just compensation.

Trial is scheduled for early October to determine the value of the property taken by the state actors in Washington. Settlement discussions continue between the former campers, their legal aid attorneys, and Clark County.

Stay tuned as the case could have local impact wherever municipalities attempt to outlaw camping via local ordinance. We will keep you posted.

Post #558

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In 2015, public outcry erupted on the issue of district judges jailing convicted defendants who could not pay their fines; the outcry was first manifest in Eastpointe, then throughout the district courts across the state. We emphasize that could not pay is distinct from did not pay.

38th District Judge Carl Gerds III of Eastpointe attracted headlines last summer, building a reputation for jailing folks convicted of minor offenses when they failed to pay their court-imposed fines. In doing so, he also attracted the attention of the ACLU who filed a complaint for superintending control against Gerds in the Macomb Circuit Court to put a stop to the practice.

The ACLU cited an example where a single mother who violated an ordinance by failing to obtain a dog license allegedly was warned by Judge Gerds that she would face a jail term if she did not pay the $435 fine by her sentencing hearing. The applicable court rule requires convicted misdemeanants and ordinance violators to pay the fines imposed at the time of sentencing, unless good cause is demonstrated.

In Judge Gerds' courtroom, however, a sign reads: "FINES AND COSTS ARE DUE AT SENTENCING: NO PAYMENT PLANS."  It was the "no payment plans" part of the sign that is troublesome. The law suit, assigned to Macomb Circuit Judge Maceroni, is scheduled for a review next week.

Meanwhile, the Michigan Supreme Court has proposed a rule change that would prohibit the incarceration of a person for failure to pay fines and costs unless the person, upon examination, is found to have the means to pay without manifest hardship but has not made a good-faith effort to comply with the court's order.  The proposed rule change directs a court to consider the following factors to determine a manifest hardship:

• the defendant's employment status and history; 
• the defendant's ability to be employed and to earn a wage;
• the willfulness of a defendant's failure to pay; 
• the defendant's financial resources; and
• the defendant's living expenses, including food, clothing, shelter, and child support obligations.

In addition to these factors, Hazel Park District Judge Charles Goedert has suggested that the willfulness determination take into account a defendant's prior track record of failures to appear and failures to pay fines. He also suggests the liberal judicial use of community service to defray the fines when a defendant does not have an ability to pay.

In the background of all this is the sometimes not-so-subtle pressure district judges are under to collect the imposed fines. The operating budget of the court depends on revenues generated from those fines and costs.

We have seen that in communities like Pontiac and Detroit, where a high percentage of violators never pay their fines and costs, the local district courts go broke. Vigilance from the bench relative to the collection of fines is one thing; but incarceration of a defendant that lacks any ability to pay constitutes a debtor's prison.

Incarceration for the inability to pay fines and costs was proscribed by the United States Supreme Court in the 1983 case of Bearden v Georgia. The SCOTUS analysis from that case gives us the "ability to pay" and "willful" refusal to pay concepts that are embedded in the Michigan Court Rules.

We here at the Law Blogger will monitor the plight of Judge Gerds and track the proposed change to the fines and cost court rule. After all, if you are broke, it would be good to know what your options are going into court.

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Post #516

Not a gang, just family.

The good news from Cincinnati is that Juggalos are not gang members. Whew; now I can get a good night sleep.

Juggalos are followers of the Farmington Hills-originated rap duo, Insane Clown Posse. Think: hard-core, off-color drug-addled rap version of Jimmy Buffet's "parrotheads".

The band and its followers are making headlines again from a lawsuit that is grinding along in the federal court system. A small group of Juggalos appealed the dismissal of their federal civil rights lawsuit and the United States Sixth Circuit Court of Appeals reversed the dismissal and remanded the case back to Detroit for further proceedings.

The beef arose in 2011 when a much-publicized FBI report characterized Juggalos as a loosely-organized hybrid gang; whatever that means. The Sixth Circuit's opinion states that, "Juggalos are easily spotted because they display, on person or property, insignia representative of the band."  [Yes, in fact, they do  r-e-p-r-e-s-e-n-t, and the "insignia" most commonly displayed is a crazy man running with a hatchet, pictured above.]

The rap group's devotees cried foul in the wake of the FBI report, claiming their civil liberties were impinged through such heavy-handed law enforcement tactics. Juggalos are not a gang, they proclaim, just one big happy sloppy family.

The Sixth Circuit's opinion details the specific transgressions claimed by each of the six plaintiffs, two of whom claim their ICP-themed tattoos caused them grief with the U.S. Army because of their perceived association with a gang on the "government gang list."  Accordingly, plaintiffs claim violations to their First and Fifth Amendment rights under the United States Constitution.

In reversing the federal court in Detroit, the Sixth Circuit held that Juggalos did have proper standing to sue in the federal court under the Administrative Procedure Act and the Declaratory Judgment Act. The appellate ruling, however, also directed the lower court to now consider the governments claim-based motion to dismiss the case.

So this litigation will be around for awhile. If you are a Juggalo, it certainly does not hurt to have Michigan's largest law firm, Miller Canfield, representing your interests along with the ACLU.

Nevertheless, Juggalos beware. This was merely a [small] procedural victory. For his part, the local cop on the beat will always view you a part of a crime gang.

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Moving quickly this week, the Michigan legislature passed, and Governor Rick Snyder signed into law, an act that allows private faith-based adoption and foster care agencies to decline services to applicants that are not aligned with the agency's world view. The act, House Bill 4188, thus allows such agencies to refuse services to same-sex or unmarried couples.

Perhaps because the authors knew their bill would be subjected to strict scrutiny, enacted on the very eve of the SCOTUS' same-sex adoption and marriage cases, the preamble clearly lays out critical constitutional distinctions between private and state action. The act declares private agency placement decisions to be outside the scope of state action; the act declares private faith-based agencies free to make decisions pursuant to their stated mission.

Critics point out that Governor Snyder signed the bill into law after it sailed through both House and Senate, and after it was swiftly placed on the legislative agenda at the "last minute", apparently without notice. The ACLU has already conducted press conferences to announce they are seeking well-positioned litigants to challenge the new law.

If any of the private faith-based agencies receive public funding or assistance, a constitutional challenge could be mounted, especially if the SCOTUS declares a constitutional right to marry regardless of gender. Without the public funding component, however, it would appear that private agencies would be free to make adoption referrals consistent with their faith-based missions.

Examination of the State of Michigan's fiscal budget for the current year reveals that nearly $20 million was spent on adoption and foster care agencies; about half of the funding allocation supported private agencies. Proponents of the bill assert that its passage was necessary in order to prevent the faith-based agencies from closing their doors rather than provide services to folks they deem to be unworthy.

Considering that current state practice allows an agency to decline services for any reason, this legislation seems preemptive in nature; perhaps to ward-off attempts to adopt by same-sex couples following a prospective [and somewhat anticipated] win in the DeBoer case.  When introducing the new law, the Governor even acknowledged he expected litigation to flow from its implementation.

We shall see how all of this plays out in light of the much-anticipated DeBoer decision expected as soon as next week.

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Last fall, when U.S. District Court Judge Bernard Friedman struck Michigan's state law ban on same-sex marriage and adoption as unconstitutional, dozens of county clerks' offices had their counters ready to issue marriages licenses to same-sex couples.  Some 300 couples were issued marriage licenses the very next day before the Sixth Circuit Court of Appeals stayed the decision pending appeal, swiftly closing the door on the issuance of additional marriage licenses to same-sex couples.

This appellate stay placed these presumably valid same-sex marriages in a legal limbo.  Enter the ACLU, who sued to enjoin the State of Michigan to recognize the marriages.  The case was assigned to federal judge Mark Goldsmith who ruled yesterday that any same-sex couple that was issued a marriage license has a valid marriage that now must be recognized by the state.

Judge Goldsmith's ruling comes a day before legal scholars predict that the SCOTUS, in their case conference this morning, may decide to grant certiorari in the April DeBoer case and the other consolidated cases from the Sixth Circuit; the only appellate circuit to uphold the constitutionality of state law bans on same-sex marriage.

Interestingly, Judge Goldsmith's decision plays on a Bible verse in upholding the validity of the marriage licenses issued by the county clerks. His decision states that, "under these circumstances, what the state has joined together, it may not put asunder."

Constitutional considerations aside, the judicial math was simple in this case: once a marriage license is issued by an arm of the state, Judge Goldsmith ruled that the state cannot withdraw the status it has granted.  To rule otherwise, said Goldsmith, would "catastrophically undermine the stability that marriages seeks to create", to say nothing of the damage done to the principle of certainty in the law.

No word from the Michigan Attorney General or the Governor whether it will appeal Goldsmith's decision. Meanwhile, the SCOTUS could advance the agenda today with an order granting the petition for certiorari in the consolidated DeBoer cases.

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Detroit's Insane Clown Posse

Juggalos: those zombie-like fans/groupies/followers devoted to the aging Detroit-based rap duo Insane Clown Posse.  Like them or not, ICP has a long tortured history, having been hatched in Detroit's service drive music scene back in 1987; an eternity in the music world.

According to Wikipedia:

The group is composed of Joseph Bruce and Joseph Utsler, who perform under the respective personas of the "wicked clowns" Violent J  and  Shaggy 2 Dope.  Insane Clown Posse performs a style of hardcore hip-hop known as horrorcore and is known for its elaborate live performances.  The duo has earned two platinum and five gold albums.  

The songs of Insane Clown Posse center thematically on the mythology of the Dark Carnival, a metaphoric limbo in which the lives of the dead are judged by one of several entities.  The Dark Carnival is elaborated through a series of stories called Joker's Cards, each of which offers a specific lesson designed to change the "evil ways" of listeners before "the end consumes us all."

Thus is the stage set for hordes of Juggalos.  With the band's history of assault convictions in the late 1990s, every concert retains its recipe for a suburban cult disaster.  And guess what, although the band-mates deny it, there have been incidents of violence, drugs and exhibitionism at many ICP concerts; law enforcement is on to "them".

Yet not all Juggalos are committing crimes at concerts.  And not all Juggalos are bad; misunderstood and perhaps sorely misguided, but not all law breakers.  So over here at the Law Blogger, what we're wondering is whether such extreme yet collective bad taste should be criminalized?

Some time ago, the FBI glommed onto this game for bored suburbanites.  Back in 2011, the FBI's National Gang Intelligence Center designated "Juggalos" as a "loosely organized hybrid criminal gang."  In and around the 313, law enforcement has been on the lookout for Juggalo types, especially at ICP concert venues like the Royal Oak Music Theater.

Juggalos have been harassed, and the band has suffered; now they've stuck back.  The ACLU Detroit has filed a lawsuit in federal court on behalf of the fan base, seeking injunctive relief, i.e. the removal of Juggalos from the FBI gang squad's list of the infamous, and destruction of all Juggalo files and documentation: especially the photos, recording what has to be a rogues gallery of self-deprecation, if not self-mutilation.

After all, criminalizing bad taste is, in the words of the ACLU lawyer assigned to the case, "un-American".  If the First Amendment and its long tortured history means anything to the federal judge assigned to the case, this will be an ACLU victory.

Update:  Here is an update from the Detroit News in April 2014, with the ICP trying to change its image.

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By:  Timothy P. Flynn

Well, you had to see this one coming.  Something just does not seem right when a federal court adjudicates in secret, even if done under the provisions of the Patriot Act.

When Edward Snowden released a cashe of classified national security-related information earlier this summer, many in the legal blogosphere began to take note, and the Federal Intelligence Surveillance Court [FISC] was suddenly in the spotlight.

Much of the Snowden-generated furor involved government tracking and storage of email and cell phone transmissions; data, big and raw.  Here is our take on the issue in this post.

Thanks to the ACLU of Washtington, D.C., the FISC is again in the spotlight on a motion, brought pursuant to the Freedom of Information Act, to release certain opinions of the secret court which deal directly with the constitutionality of the court.  Opinions deciding the FISC's own constitutionality; now there is an interesting method of judicial review.

Here is the FISC Opinion, authored by Judge Dennis Saylor, ordering the federal government and the ACLU to submit a list of constitutional-threshold FISC opinions and a proposed declassification process by which the opinions can be submitted to the judge that authored the opinion for the author's judicial consideration as to whether they should be publicized.

Sound complicated?  Well, at least it is some progress toward openness.  The government list of opinions deemed suitable for publication and a proposed declassification procedure are due by October 4th.

The ACLU's filing sought publication of the FISC opinions directly from the stealth court itself, rather than as a component of separate litigation.  As noted in Judge Saylor's opinion, a similar request was lodged in 2011 by the ACLU in federal court in Manhattan which continues to be litigated.

When they are finally made public, these opinions will be very interesting.  We here at the Law Blogger cannot wait to see how the FISC passed muster on itself.

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Since 2008, the Michigan State Police apparently have used devices in their patrol cruisers capable of extracting data from a driver's cell phone.  The troubling part is that it may be possible to tap your cell phone during a routine traffic stop.

The data extraction device, Cellbrite UFED, can pull existing, hidden, and deleted phone data, including your call history, text messages, contacts, and images; even your geotags. It can also extract ringtones which can be highly incriminating in some situations. These devices can crack into more than 3000 cellphone models and easily blow-thru passwords.

All this, of course, raises some legitimate concerns under the Fourth Amendment's "search and seizure" clause.   Do you have a reasonable expectation of privacy in the data contained in your cell phone once you take that puppy on the road?

Along these lines, the Michigan Chapter of the ACLU has filed a freedom of information act request with the MSP seeking detailed information on how the device is used.  In response, the MSP has issued their own press release asserting that they do not use the data extraction device during routine traffic stops, do not use the device without a prior search warrant, and cannot extract data from the phone without first having possession of the phone.

The MSP has also asserted that compliance with the ACLU's document request would be costly but they would be delighted to produce the records in exchange for a half million dollars to cover the costs.

Stay tuned for the law suit.  In the meantime, to protect your privacy when the lights and sirens erupt behind you on your next traffic stop, you should probably power down your phone.

Cellbrite UFED

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Last March, we posted on the ACLU's constitutional challenge to Michigan's court-appointed attorney system. Duncan v Michigan was then heading for oral argument before the Michigan Supreme Court and it looked like the challenge was going to acquire some legs.  Here is an update.

After hearing arguments in the case in April, the Supreme Court at first affirmed the 2-1 decision of the Michigan Court of Appeals, sending the matter back to the Ingham County Circuit Court (the trial court) for further trial proceedings to determine whether our court-appointed criminal defense system supplied criminal defendants their constitutional right to legal counsel. The Supreme court held that it was too early to dismiss the case below and the Ingham Circuit Judge did so prematurely.

The Supreme Court reversed course in July, granting the Attorney General's motion for reconsideration, vacating its previous order, and expressly adopting Judge William C. Whitbeck's 35-page dissent in favor of dumping the case at the summary disposition level.

What changed? What happened?

The high court was divided 4 justices to 3 on this reversal, with Justices Corrigan and Young joining Justice Markman's statement of concurrence. The majority simply pronounced that their prior order was wrong.  Four justices held that allowing the case to proceed further would amount to having the judiciary inappropriately determine Michigan's system of local funding and control of legal services to indigent people.

Justices Cavanagh and Hathaway joined Justice Marilyn Kelly's dissent, claiming that the certified class of litigants did have a "justiciable" action; that nothing new had been raised on reconsideration to justify reversing the high court's prior order; and that, "[t]oday's order slams the courthouse door in plaintiffs' face for no good reason."

Among others, we here at the Law Blogger eagerly anticipated seeing how the proofs would have developed regarding the delivery of legal services to the poor people of neighboring Genesee County. For the moment, however, and probably forever, the appellate courts have passed on deciding the issue.

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Prior to the Civil War, Michigan was one of the first states to get in on the ground-floor of providing legal defense to the poor and the accused.  The constitutional right of the accused to an attorney was enshrined in the seminal case of Gideon v Wainwright, 372 US 335 (1963).

Things have changed.  Michigan has gone from the "first-floor" to the cellar in terms of the quality of court-appointed criminal defense; at least as measured in terms of compensation.

The ACLU is challenging the public defender system in the case of Duncan v State of Michigan.  The ACLU's brief argues that the quality of court-appointed legal defense in Berrien, Muskegon and Genesse Counties falls below the Sixth Amendment's guarantee of effective legal counsel.

The case was filed in the Ingham County Circuit Court where the trial judge certified Plaintiff's case as a class-action.

Defendants Governor Jennifer Granholm and the State of Michigan are represented by the Michigan Attorney General, Mike Cox.  The AG's brief asserts that the duty to appoint and compensate public defenders falls to the local circuit court judges.

The AG brought a motion for summary disposition which was denied by the trial court.  The court, however, granted the AG's motion to stay further proceedings until appeals from the decision were decided.  The Court of Appeals affirmed the Ingham Circuit Court's rulings granting class certification and denying summary disposition.  In a lengthily dissent, Appeals Judge William C. Whitbeck asserted that the case, which he described as a "fundamental challenge to Michigan’s system for operating and funding legal services for indigent criminal defendants" essentially could result in an unconstitutional violation of the separation of powers doctrine.

The case is scheduled for oral argument before the Michigan Supreme Court on April 13, 2010.  Meanwhile, the state legislature is considering HB 5676 which seeks to establish a state-wide public defender system, along with the essential funding.  The sponsors of the proposed legislation, Bob Constan and Justin Amash acknowledge they will have a very tough time to get this type of funding approved in the midst of the sustained economic downturn.

Never short on resources, however, the ACLU is bringing their game, on this same issue, to the United States Supreme Court in the case of Vermont v Brillon.

The ACLU's suit, and the proposed legislation have attracted national attention.  (The Law Blogger picked-up on a National Public Radio feature that addressed the critical state of Michigan's court-appointed criminal defense.)  The most likely result of all these efforts will be, "more of the same".  The defense bar will continue to soldier on, as underpaid under-resourced champions of the constitution.

Defendants, for the most part, will continue getting convicted.  No tears shed here, unless the accused is truly innocent.  Then it's a real tragedy as well as a threat to our individual rights and the criminal justice system.

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