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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The stunning news swept the country over the weekend; the longest-serving SCOTUS justice on the current bench, Antonin Scalia, died suddenly in Texas at age 79. His death leaves a vacancy on the bench of the High Court that is sure to create political tensions in this, a highly contentious election year.

Justice Scalia was appointed to the Supreme Court by President Ronald Reagan in 1986 and was unanimously confirmed by a U.S. Senate vote of 98-0. Whoever is nominated by President Obama will not have it so easy with Republican members of the Senate vowing to block any appointment until after the election.

A conservative justice, Scalia disdained consideration of legislative commentary about the meaning and purpose of a particular law. He focused instead on the original intent and meaning of the U.S. Constitution, as ratified by its drafters; the so-called Founding Fathers.

An unusual paradox of Scalia's constitutional originalist philosophy was its effect on matters involving criminal defendants. Justice Scalia was consistent in his judicial philosophy, studying each case before the SCOTUS, with great regard for the text of the specific clause or amendment at issue.

In the cases of the Sixth Amendment confrontation clause and the Fifth Amendment right to a fair trial at the sentencing phase, citizens accused of serious crimes benefited from Scalia's originalist approach.

We here at the Law Blogger took advantage, for example, of Scalia's majority opinion in Crawford v Washington, a Sixth Amendment confrontation clause case, when the Washtenaw County Prosecutor convicted one of our clients based, in part, on a DNA analysis that featured testimony from only one of the 3 lab technicians that prepared the report. Scalia's majority opinion was very useful in the ultimate habeas corpus petition filed in the United States District Court for the Eastern District of Michigan.

Another example of Scalia's handiwork in the realm of the constitutional rights of the accused is his dissent in the 2000 case of Apprendi v New Jersey, which ripened into a majority opinion 4-years later in Blakely v Washington, holding that a judge cannot fashion a sentence based on facts that were not proved beyond a reasonable doubt by evidence submitted at a trial. This decision played a part in scraping the federal sentencing guidelines and, more recently, the Michigan sentencing guidelines. Now, facts that give rise to a punishment are either assented to by the convicted defendant, or determined by a jury beyond a reasonable doubt; they can no-longer spring from the pages of a probation intake officer's report.

Neither Scalia's Sixth Amendment confrontation clause opinions, nor his Fifth Amendment sentencing decisions are pro-conservative. Yet, they are consistent with his originalist theory of constitutional law; and they are necessary for a truly free society.

So now what? President Obama has vowed to do his duty as President and make an appointment to fill the vacancy under Article II, section 2 of the U.S. Constitution. The Constitution also provides, however, for such an appointment to receive confirmation by the Senate.

This is an election year and at least one of Justice Scalia's former law clerks, Ted Cruz, is running for the Republican nomination for President. Senator Cruz has remarked about an informal unwritten convention in American politics that a sitting but "lame duck" President does not get to have his SCOTUS nomination confirmed.

In the 20th Century alone, there were six justices appointed and confirmed during a sitting president's last year in office before an election: Justice Anthony Kennedy in 1986; Michigan's Justice Frank Murphy in 1940; Justice Benjamin Cardozo in 1932; Justices Louis Brandeis and John Clarke both in 1916; and Justice Mahlon Pitney in 1911. Therefore, we here at the Law Blogger have to wonder what Senator Cruz is talking about.

Post #524

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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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As summer concludes and the federal bureaucracy returns to their Washington offices, the fall-out from SCOTUS' United States v Windsor decision continues.  The latest example of bright-line policy declarations comes from Eric Holder, the U.S. Attorney General, regarding veterans benefits for same-sex couples.

In his letter last week to House Speaker John Boehner, the AG instructs Congress that the Executive Branch will no longer be enforcing various sections of federal law dealing with benefits to veterans and their spouses.  To the extent that the targeted portions of the statute mirrored definitions of a married couple as defined in the Defense of Marriage Act, they are stricken.

The effect of this new policy is to open up the availability of federal benefits to same-sex spouses of service members, both active duty and reserves.  Citing the Fifth Amendment's equal protection clause, as well as a recent federal judge's decision that the targeted provisions of the federal veterans benefits statute were unconstitutional on 5th Amendment equal protection grounds, Holder advised Congress that enforcement of these provisions were no longer appropriate.  In doing so, he also remarked that instances where the Executive Branch cannot enforce federal law are, "appropriately rare."

All of these policy pronouncements coming out of Washington over the past few months points to the massive task of re-writing a significant portion of the United States Code in light of the demise of DOMA, and in favor of valid same-sex marriages.  We here at the Law Blogger, while recognizing the significant gains this civil rights struggle has made, have to wonder how well-accepted these new federal laws and regulations will be across the board and throughout the country.

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We here at the Law Blogger have some friends among the ranks of state prosecutors and law enforcement.  From time to time, we are treated to the "nuts-and-bolts" of the cold-case process from these professionals.

This post involves the ultimate resolution of a cold murder case and the result of that case now affects all citizens in their [hopefully occasional] interactions with law enforcement.  SCOTUS ruled yesterday that the silence of an accused, during questioning from the police, can be used against the suspect at his trial unless the person affirmatively asserts his Fifth Amendment right to remain silent.

In Salinas v Texas, the defendant was voluntarily discussing the 1992 murders of two brothers when he accompanied police to the station.  He was not under arrest at the time, and continued to discuss his knowledge of the circumstances of the murders at the police station; no Miranda warnings were supplied advising him of his constitutional right to remain silent.

After answering all the detectives' questions, Mr. Salinas suddenly fell silent when asked whether the shot gun casings found at the murder scene matched his shotgun.  His demeanor turned clammy and nervous; Salinas clammed-up.

Now, normally, your silence cannot be used against you in court.  In this case, however, Salinas' trial featured evidence from police testimony about his demeanor and silence during the shotgun line of questions at the police station.

The now-convicted double murder defendant appealed his case all the way to the SCOTUS and just lost yesterday.  Each of us lost a little sliver of our 5th Amendment right to remain silent along with Salinas' affirmed conviction.

The plurality decision in this case seems to split a hair relative to our constitutional rights while being interviewed or, by extension, interrogated by law enforcement.  SCOTUS held in this case that, in order to invoke his constitutional right to remain silent, Salinas had to affirmatively assert his right to silence.  Since he did not do so while discussing the murders with the police, his conviction was affirmed.

The lesson in all this: ordinary citizens must keep-up with the nuances in the law in order to properly assert their constitutional rights.  Put another way: with regard to our right to silence, this ruling takes a "use it or lose it" approach.

Michigan Connection:  now-retired Wayne County Assistant Prosecutor and appellate specialist [i.e. legend] Timothy Baughman filed as an amicus on behalf of Wayne County.

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