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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Friday, January 7, 2022

SCOTUS Addresses Vaccine Mandates

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. 

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 in this opinion

The myriad parties to the suit that represented employers were granted certiorari; SCOTUS placed the case on its "fast track" merits docket. 

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. 

Amy Howe of SCOTUSBlog summarizes the legal position of the Solicitor General:
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.” 

Twenty seven states, led by Ohio, beg to differ. 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. 

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. 

Ms. Howe's blog post summarizes the federal government's response to the trade group and states' arguments:

[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.

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.

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. 

Stay tuned.  

Post #631

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Friday, December 31, 2021

Genetic Genealogy and Privacy

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.

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.

How it Works

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.

Genealogy enthusiasts readily submit to Y-chromosome and 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?

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.

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.

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.

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. 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.

The Three-Quarter Sibling

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.

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.

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.


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.

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.

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.

Persons of Interest

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.

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.

Genetic Testing Company Links

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.

We can help.

If you or a family member have privacy concerns, or are confronted with an unwanted identification, contact our law firm to assess your options. 

Post #630

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Sunday, June 27, 2021

Evidence Collected From Drone Disallowed by Court

Clarkston Legal Drone Evidence Blog Post
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. 

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. 

The Michigan Court of Appeals recently decided Long Lake Township v Maxon, 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. 

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. 

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. 

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. 

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. 

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.

Michigan has a drone statute which states:

(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.
  (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.
  (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.
  (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.

Long Lake v Maxon 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 tour de force 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.

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:

We conclude that; much like the infrared imaging device discussed in Kyllo; 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.

 Notably, the published opinion contains a dissent from Judge Karen Fort Hood. 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. 

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Thursday, April 16, 2020

Gun Stores: Essential Under State Mandated Business Closures?

Law Blogger
To put it bluntly, some federal judges are saying, "NO", rejecting requests to open gun stores.

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.

States Determine What Businesses Are Essential

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.

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.

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.

The Second Amendment

The pithy text of the amendment states:
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.
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.

Executive Orders Here in Michigan

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.

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 - Executive Order 2020-42; arguably one of the most restrictive in the country.

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 "a vague framework of emergency laws that only confuse Michigan citizens."

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.]

Federal Courts Getting Drawn Into the Debate

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.

We here at the Law Blogger 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.

We Can Help

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.

Post #628

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Monday, December 2, 2019

SCOTUS Addresses Second Amendment for First Time in a Decade

Back in 2009, we were new to blogging over here at the Law Blogger when a very differently configured SCOTUS last applied state law to the Second Amendment. In District of Columbia v Heller, decided in 2008, SCOTUS recognized for the first time an individual's right to bear arms in self defense.

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. Our earlier post sets the stage for the case argued today before the SCOTUS; a case straight out of New York City.

This recent case, known as New York State Rifle and Pistol Owners v New York City, 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.

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.

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.

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.

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 Heller's 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.

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 in this post on "assault rifles"; the post resulted in dozens of lively comments on both sides of the issue.

We here at the Law Blogger 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.
Post #627

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