Friday, October 23, 2020

Can a police officer pursue an alleged misdemeanor offender into a premises without a warrant?

The U.S. Supreme Court agreed to decide whether an officer can enter a garage without a warrant when in pursuit of a misdemeanor suspect, reported the ABA Journal.

The high court granted cert in the case of Arthur Lange, a California man who sought to suppress evidence of alcohol on his breath that led an officer to charge him with driving under the influence. The officer noticed the smell while in Lange’s garage after following him home. The officer first noticed Lange because he was playing loud music and occasionally honking his horn while driving his station wagon.

The state contended that the officer could enter Lange’s garage without a warrant because Lange failed to stop when the officer activated his overhead lights, which is a misdemeanor offense.

The case involves the Fourth Amendment, which requires police to obtain a warrant before entering a home, except in “exigent circumstances,” according to the cert petition. That kind of exigency may exist when a police officer is in “hot pursuit” of a suspect, but it’s unclear when the exception applies.

The Supreme Court has twice upheld warrantless entries by officers pursuing an armed robber and a drug dealer—both felons. But in a case involving a traffic violation that carried no possibility of jail time, the Supreme Court said a warrantless entry for such a minor offense “should rarely be sanctioned.”

The ambiguity has created a circuit split. Some courts hold that the pursuit of a misdemeanor suspect always qualifies as an exigent circumstance. Others decide on a fact-specific, case-by-case basis.

The officer who followed Lange home did not activate his siren or immediately turn on his overheard lights. When Lange opened his garage door, the officer turned on his overhead lights. Instead of pulling over, Lange drove into his garage, and the officer followed him on foot. As the garage door was going down, the officer stuck his foot under the sensor to open it back up.

In the garage, the office noticed the smell of alcohol on Lange’s breath. Lange was charged with driving under the influence and operating a vehicle sound system at excessive levels. Lange pleaded no contest to the DUI in Sonoma County, California, after his suppression motion was denied.

The case is Lange v. California.

To read more CLICK HERE

Thursday, October 22, 2020

Former Trump fundraiser pleads guilty to federal crime

The US Department of Justice (DOJ) announced that a former fundraiser for President Donald Trump has pleaded guilty to one count of conspiracy to violate the Foreign Agents Registration Act (FARA). Elliott Broidy was a fundraiser for Trump’s 2016 campaign and part of his inaugural committee, reported Jurist.

Broidy made the guilty plea before federal Judge Colleen Kollar-Kotelly, who did not immediately impose a sentence. Broidy was accused of attempting to lobby high government officials, including the president and attorney general, to drop an investigation into the embezzlement of billions of dollars from 1Malaysia Development Berhad (1MDB), an investment fund owned by the Malaysian government. As part of his plea, he admitted to receiving $9 million from an unnamed architect of the embezzlement scheme. FARA requires individuals who lobby the US government on behalf of foreign entities to register with the DOJ, which Broidy admits he did not do.

In addition to his attempts to get the government to drop the 1MDB investigation, he also attempted to persuade the administration and the DOJ to return a dissident Chinese national living in the US to Chinese authorities. Broidy expected to receive many more millions of dollars in fees for that effort, which was ultimately unsuccessful, as was his lobbying regarding 1MDB.

Of the $9 million he received, Broidy paid $2.4 million to Nickie Lum Davis, his co-conspirator, who has already pleaded guilty for her role in the lobbying effort. Broidy agreed to forfeit the remaining $6.6 million. He could face up to five years in prison at his sentencing hearing, set for next February.

To read more CLICK HERE

Wednesday, October 21, 2020

President asks attorney general to arrest his political opponent before election day

President Trump called on William P. Barr, the attorney general, to take action before Election Day against his Democratic opponent, former Vice President Joseph R. Biden Jr., over his son’s foreign work, an extraordinary attempt to pressure the government’s chief law enforcement to help him politically, reported the New York Times.

The president made the remark during an interview with “Fox & Friends,” after days of caustic criticism of Mr. Biden, the moderators of the presidential debates, the news media and, increasingly, Mr. Barr. He recently said the attorney general would go down in history “as a very sad, sad situation” if he did not indict Democrats like Mr. Biden and former President Barack Obama.

“We’ve got to get the attorney general to act,” Mr. Trump said on Tuesday, when asked whether he wants to see investigations into unverified information about Mr. Biden and his son Hunter that the president’s personal lawyer, Rudolph W. Giuliani, claims he recently obtained. Mr. Giuliani, who has made a range of outlandish and false assertions in an effort to damage the president’s rivals and critics, has refused to provide news outlets with the information he claims to have.

Mr. Trump called on Mr. Barr to appoint a special prosecutor or similar official, saying: “He’s got to act. And he’s got to act fast.”

To read more CLICK HERE

Tuesday, October 20, 2020

SCOTUS will hear search warrant exception case

The U.S. Supreme Court added three new cases to their merits docket for the term, reported SCOTUSblog. The justices announced that they will weigh in on the scope of the Fourth Amendment’s warrant requirement. The justices denied review in another Fourth Amendment case, prompting a statement from Justice Neil Gorsuch, while Justice Clarence Thomas dissented from the denial of review in a case involving the Indian Gaming Regulatory Act.

The Fourth Amendment generally requires police officers to get a warrant before entering a home. The Supreme Court has recognized an exception to that rule for emergencies, such as when the police are in hot pursuit of a suspect. In Lange v. California, the justices agreed to decide whether that exception applies when police are pursuing a suspect whom they believe committed a misdemeanor.

The question comes to the court in the case of Arthur Lange, a northern California man whom a California highway patrol officer followed to his home because he believed that Lange had violated state traffic laws by listening to loud music and honking his horn a few times. After Lange pulled into his garage, the officer – who had turned on his overhead lights but did not use his siren as Lange approached his house – entered the garage by putting his foot under the garage door to block it from closing. When he spoke to Lange, the officer said that he could smell alcohol on his breath, and Lange was charged with driving under the influence.

At his trial, Lange argued that the officer’s entry into his garage without a warrant violated the Fourth Amendment, so that the evidence obtained in the garage should be thrown out. The trial court rejected that argument, and a state appeals court affirmed that ruling and, eventually, his conviction. The California Court of Appeal also upheld his conviction, rebuffing Lange’s contention that the exception to the warrant requirement for a “hot pursuit” of a suspect should apply only in genuine emergencies, rather than when the police are investigating minor offenses. Instead, the court of appeal concluded, the warrantless entry did not violate the Constitution because the officer was in hot pursuit of Lange, whom he had probable cause to arrest for a misdemeanor.

Lange went to the Supreme Court, asking the justices to review the state court’s decision. The lower courts are “sharply divided” on the question of whether pursuits for misdemeanors justify a warrantless entry, Lange told the justices. And the California court’s rule, he added, would allow “officers investigating trivial offenses to invade the privacy of all occupants of a home even when no emergency prevents them from seeking a warrant.”

California agreed with Lange that the federal and state courts have reached different conclusions on the Fourth Amendment question presented by his case, but it told the justices that Lange’s case is not an appropriate one in which to reach that question because Lange’s DUI conviction should stand regardless of the outcome of this proceeding. But, the state continued, if the court were to grant review, California agrees with Lange that pursuits for misdemeanors do not always justify a warrantless entry; instead, the state suggested, courts should use a case-by-case approach to determine whether there is a genuine emergency.

The case will likely be scheduled for argument in February 2021 or later.

To read more CLICK HERE


Monday, October 19, 2020

AG Barr doubles down on qualified immunity

Remarks by Attorney General William P. Barr on October 16, 2020:

The bottom line is that, if we are going to send our police officers into uncertain and potentially fatal encounters, we need to be fair to them in judging their actions.

The absolute worse thing would be to adopt the radical proposal to eliminate qualified immunity, which protects police officers from personal liability when they make good-faith errors in enforcing the law.  If an officer knowingly violates someone’s clearly established rights, personal liability may be appropriate.  But qualified immunity provides breathing space for officers to do their jobs without fear that an inadvertent or unpredictable error will subject them to financial ruin.  Without qualified immunity individual officers would be deterred from going into risky situations that are necessary to save lives.

If we wish to minimize excessive-force situations, the most important step we could take is to re-establish the principle that there is no valid justification for physically resisting a police officer.  The approach must be “comply first, complain later.”  This will save the lives of officers and of suspects.

To read more CLICK HERE

Sunday, October 18, 2020

Less than 20 percent of 911 calls are for serious crime

Michael Gelb of The Crime Report wrote:

Less than 20 percent of the 240 million 911 calls each year report a serious or violent crime in progress; the most frequent calls related to nuisance complaints and low-level crimes, according to a report issued by the Vera Institute of Justice.

In fact, the most common type of incident relayed to 911 dispatchers was noncriminal (i.e., a complaint or a request for a welfare check) —  calls which nevertheless consumed a “substantial proportion” of police officers’ time, wrote S. Rebecca Neusteter, Megan O’Toole, Mawia Khogali, and Abdul Rad – the report’s lead authors.

Despite the frequency of these “resource-intensive calls for service that do not involve a crime,” there is limited information about their causes and consequences.

To strengthen existing knowledge of 911 responses, the authors first analyzed the nature and outcomes of 911 calls as well as computer-aided dispatch data in Camden County, NJ; Tucson; Detroit; New Orleans; and Seattle.

The researchers then devised a so-called “system processing map” that tracked 911 calls from receipt through closure.

The data for this processing map was collected via focus groups, interviews and field observations in police departments and emergency communications centers in the five cities mentioned above.

Lastly, the Vera Institute convened police officers, dispatchers and researchers to discuss the report’s findings and examine “community-based responses that can help prevent a default to [law] enforcement and allow for more appropriate responses to calls for police service.”

In addition to concluding that most 911 callers reported noncriminal and nonemergency incidents, the report found that data collected and disseminated by dispatchers influences police officers’ decisions on the ground.

In Tucson and Camden, when dispatchers labelled incidents violent, as opposed to nonviolent, police officers were more likely to arrest someone.

Meanwhile, incidents characterized as nonviolent were more likely to result in an arrest when initiated by a police officer, as opposed to a 911 call.

These findings led the authors to believe that additional research is necessary to explain and lessen the differential outcomes between police contacts that begin with a 911 call and those that do not.

Furthermore, most mental health- and medical-related incidents were diverted from law enforcement, a trend which benefits both civilians – because they have easier access to treatment outside prison walls – and police officers – because they can spend more time responding to serious and violent crimes.

In light of these and other findings, the authors offered the following recommendations: 

  • Adopt alternative reporting practices to minimize police response to 911 calls;
  • Implement universal and specialized call-taking training;
  • Explore and adopt alternatives to 911 hotlines;
  • Expand the 911 response to include resources for dealing with mental health and drug overdose crises, conflict resolution strategies that are unlikely to result in injury, suicide ambulances, and social net services;
  • Secure funding to 911 call centers and their employees; and
  • Implement national standards for 911 data collection procedures.

Whatever path dispatchers and law enforcement agencies take, the authors argue that creating alternatives to 911 and reducing unnecessary police response should be central to future reforms.

Rebecca Neusteter was formerly the director of the Vera Institute’s Policing Program and is currently the executive director of the University of Chicago Health Lab, and Megan O’Toole was formerly a research associate in the Policing Program.

Mawia Khogali was formerly a research associate in the Policing Program and is currently a research associate in the Center for Policing Equity, and Abdul Rad was formerly a research associate in the Policing Program and is currently an associate fellow at the R Street Institute.

The report’s authors, in addition to the ones mentioned above, include Frankie Wunschel, Sarah Scaffidi, Marilyn Sinkewicz, Maris Mapolski, Paul DeGrandis, Daniel Bodah, and Henessy Pineda.

The Vera Institute of Justice’s full report can be accessed here.

More of the Vera Institute’s research publications can be accessed here.

Additional reading: “Phila. Behavioral Health Expert Helps Answer 911 Calls” by Crime and Justice News, The Crime Report, October 12, 2020

See also: “Police get 911 Calls about Coughs, Toilet Paper,” by Crime and Justice News, The Crime Report, March 19, 2020

To read more CLICK HERE

Saturday, October 17, 2020

GateHouse: Recreational marijuana: Coming soon to a state near you

 Matthew T. Mangino
GateHouse Media
October 16, 2020

There is a “green wave” sweeping the country. Ballot initiatives in Arizona, New Jersey, South Dakota and Montana are seeking to legalize marijuana for recreational use.

Don’t be fooled, the green does not represent marijuana - it represents money. More and more states are legalizing marijuana, not because there has been a massive shift in public sentiment on marijuana use, but because states can raise revenue from marijuana sales.

Ever since Colorado and Washington became the first two states to approve marijuana legalization in 2012, nine states and three territories have joined them including Alaska, California, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, the District of Columbia, the Mariana Islands and Guam. Another 16 states and the U.S. Virgin Islands have decriminalized marijuana and 33 states allow medical marijuana use.

It was not long ago that gambling was illegal everywhere outside of Nevada. Today, you can bet inside some ballparks while games are in progress - try justifying that to Pete Rose or the descendants of Shoeless Joe Jackson. Why? States have made about $1.8 trillion in tax revenue from gambling.

How much tax revenue can marijuana generate?

Legalizing marijuana nationwide would create at least $132 billion in tax revenue and more than a million new jobs across the United States in the next decade, according to a new study by New Frontier Data. The marijuana industry could create an entirely new tax revenue stream for the government, generating millions of dollars in sales tax and payroll deductions.

The analysis shows, according to the Washington Post, that if marijuana were fully legal in all 50 states, it would create at least a combined $131.8 billion in federal tax revenue through 2025.

What is on the ballot for Nov. 3?

In New Jersey, Governor Phil Murphy made a campaign promise to legalize marijuana suggesting that legislation could generate hundreds of millions of dollars in tax revenue.

New Jersey’s Public Question No. 1 would legalize marijuana for adults 21 and older. The sale of recreational marijuana products would be subject to the state’s 6.2% sales tax.

New Jersey first legalized medical marijuana and is now taking on recreational marijuana. South Dakota is going straight to recreational marijuana.

Measure 26 would establish a medical marijuana program and registration system for people with qualifying conditions, as well as on Amendment A, which would legalize marijuana for all adults. According to the Argus Leader a majority of South Dakotans support the measure.

In Arizona, where four years ago residents narrowly defeated an initiative to legalize recreational marijuana, the issue is back on the ballot.

Proposition 207 is structured similarly to 2016′s measure. It would allow adults to possess, consume or transfer up to 1 ounce of marijuana and create a regulatory system for the products’ cultivation and sale.

According to CNN, recreational sales in Arizona could total more than $700 million by 2024.

In Montana policymakers expect recreational marijuana sales to total nearly $193 million by 2025, generating $38.5 million in tax revenue.

According to the Billings Gazette, there are two measures on Montana’s ballot. First, the state is asking voters to amend the state Constitution to authorize a minimum age for alcohol and marijuana purchases, and second, to allow adults in the state to possess, buy and use marijuana for recreation.

Some proponents of criminal justice reform suggest that legalizing marijuana will have a positive impact on racial justice initiatives.

“Cannabis criminalization is a cornerstone of the war on drugs,” Jared Moffat of the Marijuana Policy Project, told The Appeal.

According to the Pew Research Center, 40% of all drug arrests in 2018 were marijuana-related. The overwhelming majority were for possession, as opposed to sale or manufacture.

Legalizing marijuana will have a two-fold effect - pump new revenue into state and local economies and reduce the inequity of racially disparate mass incarceration and the residual ill effects of having a criminal conviction.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

Friday, October 16, 2020

COVID-19 has infected 147,000 prison inmates nationwide

 As of October 15, at least 147,051 people in prison had tested positive for COVID-19, a three percent increase from the week before, reported the Marshall Project. This was the lowest weekly increase among prisoners since June. The numbers suggest infections are slowing in prisons, while the rest of the nation on the outside starts to observe rising numbers of new cases as autumn sets in.

New cases among prisoners reached an all-time high in early August after slowing down in June, driven by big jumps in prisoners testing positive in Florida, California and the federal Bureau of Prisons as well as outbreaks in Arkansas, Hawaii and Oklahoma.

Reported cases first peaked in late April, when states such as Michigan, Ohio, Tennessee and Texas began mass testing of prisoners. Those initiatives suggested that COVID-19 had been circulating among people without symptoms in much greater numbers than previously known.

To read more CLICK HERE

Thursday, October 15, 2020

Dangerous right-wing militia groups grow in Pennsylvania and across the country

The leader of an armed standoff with federal authorities at an Oregon wildlife refuge and his allies have exploited COVID-19 fears to build a dangerous network of militia members and other far-right factions, according to a new report by two groups that track extremism, reported the Kansas City Star.

Ammon Bundy, who led the 41-day occupation of the Malheur National Wildlife Refuge in 2016, began building the People’s Rights network in March, says the report by the Institute for Research and Education on Human Rights and the Montana Human Rights Network. Since then, the report says, the network has rapidly grown to more than 20,000 members across the country.

Bundy rose to prominence in the so-called “patriot” movement after leading an armed standoff in 2014 at his father’s ranch in Nevada. He and his father, Cliven Bundy, faced federal charges following the confrontation over land grazing fees. The case was dismissed in 2018.

Ammon Bundy did not return a call for comment Wednesday. His father told The Star that “he’s hard to get ahold of a lot of times.”

“I’m not really part of that group,” Cliven Bundy said. “I try to keep up with what’s going on a little bit.”

The network, which the report refers to as “Ammon’s Army,” includes militia members, anti-maskers, conspiracy theorists, preppers and anti-vaxxers. Its rapid growth has been boosted by the joining of Bundy’s far-right paramilitary supporters cultivated from armed standoffs over the years with a large base of new activists radicalized through protests over COVID-19 health directives, the report says.

Bundy has put together a team of 153 “assistants” in 16 states, it says, including Missouri.

 “Since the early days of the COVID-19 pandemic, we’ve documented the division and violence sown by Ammon Bundy and his far-right followers in the Northwest,” said Devin Burghart, president and executive director of IREHR. “To see Ammon’s Army continue to grow and gain a foothold in Missouri is cause for deep concern, for both democracy and public health.”

Despite all the talk of rights and freedom, the report says, “a culture of violence and fear lies at the center of the People’s Rights message.”

“As Bundy told the crowd at the third meeting of the group, if local, state, or federal officials attempt to enforce laws that the group doesn’t like, People’s Rights is prepared to adopt a violent posture. … Already there have been significant clashes and growing rage. In the context of the pandemic, it puts the lives of community members and public servants at risk, straining democratic institutions and damaging civil society.”

The other states in the network, the report says, are Arkansas, California, Florida, Georgia, Idaho, Kentucky, Montana, Nebraska, Nevada, North Dakota, Oregon, Pennsylvania, Texas, Utah and Washington. Many of the “assistants,” it says, have been involved in extensive far-right activism. And the majority of those in its local leadership positions are women, which the report says is a first for modern far-right networks.

People’s Rights leaders also have proposed armed enclaves in which “righteous” neighbors stand against the “wicked,” the report says.

Bundy’s violence-tinged rhetoric — such as telling followers that they would “be like a den of rattlesnakes” if their rights are threatened — has attracted many militia members, Three Percenters, Oath Keepers and other paramilitary groups, according to the report. People’s Rights leaders have been members in the Southwest Missouri Militia, Montana Militia, Washington State Militia, III% United Patriots and Southern California Patriots, among others, it says.

The People’s Rights network has many similarities to the paramilitary movements of the past, such as the Posse Comitatus — which rose to power during the farm crisis in the 1970s and 1980s — the report says.

Like those in the Posse Comitatus movement, some People’s Rights groups have started sending bogus documents to lawmakers that they claim carry legal weight, it says. A “Petition to Cease and Desist and Demand to Restore the Republic” was recently sent to Idaho legislators calling for an end to the state’s COVID-19 restrictions.

And in Montana, a People’s Rights leader filed a grievance in Montana District Court against Gov. Steve Bullock, claiming he had no authority to issue a stay-at-home directive. The leader also threatened to have the militia “arrest” public officials who enforced stay-at-home orders and offered a $100 bounty for the mayor of Kalispell, Montana’s, address, which he said he needed in order to make a citizen’s arrest.

Another similarity between the People’s Rights network and the Posse Comitatus and militias, the report says, is the abundance of conspiracy theories it perpetuates — though it hasn’t yet come up with its own.

“Rather, the network rests upon a mélange of conspiracy theories brought in by the leadership from various corners of the far-right,” the report says. “Conspiracy theories from QAnon, the John Birch Society, Three Percenters and militia-types, Christian nationalists, and hardcore anti-Semites have circulated throughout the People’s Rights network.”

The name “People’s Rights,” the report says, “is a misnomer of epic proportions.”

“Don’t be fooled. Whatever they choose to call it, it is Ammon’s Army, and it marches to a far-right drumbeat of narcissistic rage and insurrection.”

To read more CLICK HERE

Wednesday, October 14, 2020

Canadian Supreme Court appointments avoid scrutiny--that's not a good thing

The death of Justice Ruth Bader Ginsburg — the U.S. Supreme Court’s most prominent liberal — and President Trump’s subsequent proposal to replace her with archconservative Amy Coney Barrett have provoked an avalanche of progressive Americans declaring their high court a broken and grotesque institution, reported the Washington Post.

The Supreme Court is too powerful, they say, too undemocratic and too partisan, making the United States a global outlier as far as judiciaries go. Canadian commentators, for their part, have been happy to imagine themselves among an enlightened global majority, peering at America’s post-RBG political brawl with pity and contempt.

Speaking to CTV, former chief justice of the Canadian Supreme Court Beverley McLachlin warned darkly of the “danger for judges or courts to become seen simply as an arm of political parties or political establishment,” as she claimed “is happening increasingly in the United States.”

Yet when it comes to supreme courts, Canada is far closer to the United States than Canadians may like to believe. Of the deviations that exist, Canada hardly seems like the model to copy.

Canada and the United States are certainly united in just how much power they place in nine elite judges. The Week’s Ryan Cooper notes that “judicial review” — wherein a high court is empowered to overturn, revise or expand the meanings of laws on the basis of their purported constitutionality — is a rare or non-existent practice in most other nations. “In no other developed democracy,” he writes, “does basically every piece of major legislation have to run a years-long gauntlet of tendentious lawsuits trying to get through the courts what parties could not get through the legislature.” But this also describes Canada, where policy on everything from abortion to medical marijuana is effectively judge-made. Indeed, judicial review is enshrined even more firmly in Canada, where it enjoys explicit constitutional status.

What distinguishes the United States is Senate judicial confirmations, a process Canadians are told to view as the root cause of the purported rank partisanship of the U.S. high court. Writing in Maclean’s, for instance, University of Toronto law professor Adam Goldenberg dismissed holding Senate votes on presidential appointments as “utterly insane” and a system Canada was “lucky” to not have. Yet the American process was created for a very sane and defensible reason: providing democratic balance to judicial supremacy.

The Canadian appointment system, by contrast, has no comparable democratic logic; the prime minister just unilaterally installs whoever he wants. Nothing about the Canadian process — now heavily puppeteered by a board representing Canada’s legal establishment — provides even a pretense of legislative oversight of the judiciary. Lacking veto power, newfangled parliamentary “hearings” for prime ministerial appointees are simply a PR exercise.

Though some Canadians claim blind trust in the executive “depoliticizes” appointments, as far as I can tell, the appetite for bringing this appointment process to the United States is precisely zero — not least because of American skepticism over that goal itself.When former Democratic presidential candidate Pete Buttigieg pledged to “depoliticize” the Supreme Court during his campaign, for instance, progressives criticized his naivete. As Vox’s Ian Millhiser explained, because much of the law and Constitution is “so vague that it is impossible to pin down one clear meaning,” by the time a case makes it to the Supreme Court “justices often can’t avoid drawing upon their own values to answer questions where the law does not provide clear answers.”

Millhiser notes people such as Buttigieg can’t coherently articulate what an “apolitical” court would even look like without implying a preference for certain outcomes — at which point we’re back to politics.

To what extent is Canada’s purportedly more “apolitical” Supreme Court actually so? It’s probably most accurate to say its politicization is simply masked by a high degree of ideological homogeneity. Canada’s court routinely rules unanimously on major cases, resolving legal ambiguities through values that tend to point only one way — what Americans would identify as the broadly liberal perspective, as opposed to the one championed by the Federalist Society and its supporters.

Thus, a Canadian Supreme Court justice such as Rosalie Silberman Abella can author a fawning tribute to Ginsburg’s legal philosophy without thinking she’s being “political.” As McLachlin declared, “the ideas Ruth Bader Ginsburg put forward resonate here in Canada very strongly.” In other words, the Canadian judicial establishment has simply decreed certain perspectives patriotic and normal by fiat.

A court of nine Ginsburgs might sound desirable to some, though Canada’s method for achieving it — a cozy consensus within elite law schools and lawyers’ guilds that there’s only one right way to resolve ambiguous legal questions — should be decidedly less so.

The American left has been forced by circumstance to think of creative solutions to their increasingly weak position on their nation’s high court. Most proposals — such as court packing or bipartisan appointment committees — willingly concede that in a democracy polarized around genuine disagreement, America’s top court can maintain legitimacy only to the degree it embodies those disagreements.

Canada’s pitch to just resign oneself to unaccountable judocracy through trust and deference remains the less persuasive offer.

To read more CLICK HERE


Tuesday, October 13, 2020

School employee's termination at virtual school board meeting violated PA Sunshine Act

In a civil dispute that raises novel issues involving the application of the Sunshine Act to virtual public meetings during a pandemic, a Lackawanna County Court of Common Pleas judge decided that a furloughed employee was able to prove that the virtual meeting where her job and health insurance were terminated was conducted in violation of the Sunshine Act, reported Suzette Parmley of The Legal Intelligencer.

Plaintiff Kelly McGrath contends that the Scranton School Board Directors and the Scranton School District violated the Sunshine Act by holding a Sept. 14 Zoom meeting despite technical glitches that prevented the public at large from viewing or participating in the meeting.

Presiding Judge Terrence R. Nealon in an Oct. 4 opinion said the same rules that apply to public agencies for in-person meetings also apply to virtual meetings and granted McGrath’s requested temporary injunction.

“Plaintiff’s motion for preliminary injunction enjoining defendants from furloughing 218 employees and terminating their health coverage based upon official action and deliberations at a public meeting Sept. 14, 2020, is granted due to defendants’ violations of 65 Pa.C.S. Sections 702(a)-(b) and 7101(a) and 35 Pa.C.S. Section 5741(c) and (f) in connection with that public meeting,” Nealon said.

On April 20, 2020, Act 15 was adopted and became effective immediately for public meetings conducted during the COVID-19 emergency after being declared by Pennsylvania Gov. Tom Wolf.

The statute authorizes an agency or board “of a political subdivision included in a declaration of disaster emergency” to conduct its “hearings, meetings, proceedings or other business through the use of an authorized telecommunications device during the public health crisis.”

The virtual meeting at issue occurred Sept. 14, 2020, where the Scranton School Board and District decided to furlough 218 members and terminate their health coverage, including that of McGrath’s—effective at the end of the business day Sept. 30.

“The evidence presented by the parties established the violation of [the] two statutes”—Act 15 and the Sunshine Act, the judge wrote.

The judge cited Section 704 of the Sunshine Act, which requires all official action and deliberations to “‘take place at a meeting open to the public,’ as well as Section 713 empowering courts to enjoin any official action taken at a public meeting that did not comply with the Sunshine Act,” as violated by the board’s and district’s unviewable virtual meeting.

But while Nealon granted McGrath’s request for a temporary injunction, he denied her being able to recoup attorney fees and costs associated with her civil action case on grounds the school board and district did not act “willfully or with in wanton disregard” in proceeding with the virtual meeting.

“Consequently, the employee’s request for a preliminary injunction will be granted, subject to her posting of nominal bond or deposit of nominal legal tender, but her request for an award of counsel fees under 65 Pa.C.S. Section 1714.1 will be denied,” Nealon said.

Attorney Marc L. Gelman of Jennings Sigmond in Philadelphia represented McGrath and issued this emailed statement Tuesday: “The judge’s ruling reinforces the notion that transparency cannot be compromised. We are pleased by his thoughtful and well-reasoned decision.”

John Audi of Sweet, Stevens, Katz & Williams in Pittston represented the Scranton School District and Scranton School Board, the defendants. Audi did not respond to a request for comment.

The case was argued Oct. 2.

Nealon said McGrath, a school district paraprofessional, met all six prerequisites for the issuance of a preliminary injunction, including immediate and irreparable harm that cannot be compensated adequately by damages would result, and so would greater injury from refusing the injunction than from granting it.

McGrath also proved her right to relief is clear in that she is likely to prevail on the merits, the injunction is reasonably suited to abate the offending activity; and the injunction will not adversely affect the public interest.

McGrath said the only public notice published for the Sept. 14 virtual meeting advised that the meeting would be conducted virtually on the Zoom platform, and that the public could “view the meeting” on the school district’s YouTube channel, prior to the start of the meeting.

But the school board and the school district “learned that the YouTube livestream was inoperable due to technical difficulties” and proceeded with the meeting anyway, McGrath contends.

In addition, McGrath said the public, who had not signed up in advance to view or speak at the Sept. 14 Zoom meeting, were disconnected from the Zoom platform and “were unable to observe the remainder of the meeting” since the YouTube livestream was inoperable.

The board and district contend that “the public interest does not favor the issuance of a preliminary injunction” since “it is not in the public interest to delay a needed furlough because of a technical glitch,” according to the case.

Nealon disagreed.

“Once again, the issue of whether the furloughs are warranted is not relevant in this matter,” the judge wrote.

Nealon said that, by adopting the Sunshine Act, the Pennsylvania Legislature specifically declared it to be a matter of sound public policy to allow public access to such meetings.

The Sept. 14, 2020, meeting “violated the public’s right to view the board’s meeting, deliberations, and decisions. For that reason, the grant of a preliminary injunction will not adversely affect the public interest,” Nealon wrote.

Nealon said the board’s and district’s reasoning that a preliminary injunction was not reasonably suited to avert the furloughs was insufficient to deny McGrath a preliminary injunction.

“The ‘wrongful conduct’ at issue is the violation of the public’s rights to observe and participate in public meetings,” Nealon said. The Sunshine Act also prescribes public participation requirements for those meetings, said the judge.

Nealon said the fact the board or district belatedly created virtual access via the district’s Facebook page more than two hours after the meeting began did not remedy the Sunshine Act violation since Facebook was not identified as the “technology to be used” in the public notice, as required.

In addition, Nealon said making a video of the meeting available on the district’s YouTube channel the following day also did not cure the real-time violations of those statutory rights.

If McGrath’s requested injunction is granted, the board and district may cure their violations by entertaining the motion to furlough and terminate health care insurance at a subsequent public meeting that conforms to the Sunshine Act’s requirements, Nealon wrote in the Oct. 4 opinion.

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Monday, October 12, 2020

Book: Trump has tapped into a current of authoritarianism among American voters

A new book by a psychology professor and a former lawyer in the Nixon White House argues that President Trump has tapped into a current of authoritarianism in the American electorate, one that’s bubbled just below the surface for years, reported the Washington Post. In “Authoritarian Nightmare,” Bob Altemeyer and John W. Dean marshal data from a previously unpublished nationwide survey showing a striking desire for strong authoritarian leadership among Republican voters.

They also find shockingly high levels of anti-democratic beliefs and prejudicial attitudes among Trump backers, especially those who support the president strongly. And regardless of what happens in 2020, the authors say, Trump supporters will be a potent pro-authoritarian voting bloc in the years to come.

Altemeyer and Dean define authoritarianism as what happens “when followers submit too much to the authorities in their lives.” They measure it using a tool Altemeyer developed in the early 1980s, called the right-wing authoritarian (RWA) scale.

The “right-wing” label refers not to left and right political leanings as they’re popularly understood today, they write, but rather to a more legalistic sense of “lawful, proper, and correct.” It’s used to identify authoritarian tendencies among people of any political persuasion — supporters of the Communist Party in the former Soviet Union, for instance, would have scored high on the scale despite having decidedly leftist economic and political views. The scale remains one of the most widely used measures of authoritarianism to this day.

Altemeyer’s scale measures respondents’ agreement or disagreement with 20 statements, such as: “Our country desperately needs a mighty leader who will do what has to be done to destroy the radical new ways and sinfulness that are ruining us” and “It is always better to trust the judgment of the proper authorities in government and religion than to listen to the noisy rabble-rousers in our society who are trying to create doubt in people’s minds.”

For each statement, a respondent can select an answer on a sliding scale ranging from 1 (total disagreement) to 9 (total agreement). The final score on the 20-question survey ranges from 20 (total opposition to authoritarianism) to 180 (total support).

The authors enlisted the help of the Monmouth University Polling Institute to pose these questions to 990 American voters in fall 2019. They asked participants to answer the questions on the RWA scale, as well as some separate measures of authoritarian beliefs and prejudice toward minority groups.

Supreme Court brinkmanship, ‘anarchist’ cities are latest stops on road to autocracy

They found a striking linear relationship between support for Trump and an authoritarian mind-set: The stronger a person supported Trump, the higher he or she scored on the RWA scale. People saying they strongly disapproved of Trump, for instance, had an average RWA score of 54. Those indicating complete support of the president, on the other hand, had an average score of 119, more than twice as authoritarian as Trump opponents.

Many fervent Trump supporters, Altemeyer and Dean write, “are submissive, fearful, and longing for a mighty leader who will protect them from life’s threats. They divide the world into friend and foe, with the latter greatly outnumbering the former.”

Trump’s personal authoritarian bona fides are well-established, with experts across numerous academic fields warning that his attacks on basic democratic principles present a clear danger to the American political system. But his beliefs and actions are toothless without the support of millions of followers.

“Donald Trump only has the power to flaunt American institutions, treaties, and laws because he has a large, dedicated base who will believe whatever he says and do whatever he wants,” Altemeyer and Dean explain.

Other researchers have reached similar conclusions using very different methods. Vanderbilt political scientist Larry Bartels, for instance, recently used YouGov survey data to find that many Republican voters hold strong authoritarian and anti-democratic beliefs, with racism being a key driver of those attitudes. Researchers have also consistently found that separate measures of authoritarian belief, such as a short survey of attitudes toward child-rearing, are reliable predictors of Trump support.

Not all of the president’s supporters fall into the “authoritarian” category, however. Monmouth’s polling director Patrick Murray, who administered the survey, recently wrote that about 23 percent of strong Trump supporters scored in the middle or bottom of the authoritarian scales used in the survey. Moderate Trump supporters, meanwhile, are split roughly 50/50 between “high” and “moderate to low” on the scales.

Many, however, express extremely authoritarian viewpoints. Roughly half of Trump supporters, for instance, agreed with the statement: “Once our government leaders and the authorities condemn the dangerous elements in our society, it will be the duty of every patriotic citizen to help stomp out the rot that is poisoning our country from within,” which Altemeyer and Dean characterize as “practically a Nazi cheer.”

Among people who disapproved of Trump, just 12 percent agreed with that statement.

“Trump’s supporters are much more inclined to stomp out the people they dislike than Trump’s opponents are,” Altemeyer said in an email. “This reflects the authoritarian aggression that is a central part of the RWA personality.”

One common criticism of the RWA scale is that it could simply be a proxy for generic conservative or religious beliefs, such as respect for tradition or a deference to religious authority. Murray tested this idea by running the scale without questions touching on religious identity and sexual norms. He found the different versions of the scale produced findings that were nearly identical to the original 20-question battery, suggesting the scale is measuring a distinct psychological attribute that can’t be explained away by religiosity or political ideology.

Contemporary discussions on authoritarian backsliding in the United States tend to focus on Trump and his allies in Congress. But Altemeyer and Dean’s work is a reminder that his followers will remain a potent force in American politics for years to come.

“Even if Donald Trump disappeared tomorrow,” they write, “the millions of people who made him president would be ready to make someone else similar president instead.”

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Violent crime rising in New York subways still much safer than 70s and 80s

It began in the early days of the pandemic in March, when someone lit a fire inside a subway car that killed the train operator and injured 16 others. In the following months, nearly 500 subway car windows were smashed on the No. 7 line. In August, a man tackled and tried to sexually assault a young woman at a station on the Upper East Side. And in September, a train derailed after a man threw metal clamps that he had stolen onto the tracks.

When the pandemic hit New York and subway ridership plunged, misdemeanor and felony crimes dropped to record lows: Between January and the end of September, the number of reported crimes in the system fell roughly 40 percent compared with the same period last year.

But even as overall crime has declined, violent crime and episodes of vandalism are rising, a trend that is stoking fear among passengers and posing another challenge for a transit system crippled by a virus outbreak that has deprived it of riders and money, reported the New York Times.

So far this year, the number of reported homicides, rapes, burglaries and robberies in the subway are higher than during the same period last year, according to Police Department statistics. Incidents of vandalism have also spiked, transit officials say.

Robberies have risen 16 percent, to at least 457 so this year, compared with 394 during the same period last year. The number of burglaries, including breaking into shops on platforms, stands at 22 so far this year, compared with five in the same period last year. And acts of vandalism have spiked 24 percent to 868 so far this year, compared with 702 last year, according to the transit agency.

Police officials have cautioned against being overly alarmist, noting that crime is nowhere near as bad as it was in decades past, when violence plagued the entire city, including the subway.

The subway is still far safer than during the dark days of the 1970s and 1980s, when violence on the graffiti-filled system was rampant and riders feared riding at night or in empty cars. But after two decades of steady declines in felonies, the recent uptick in major crimes — several of which have been captured on video and circulated on Twitter — has fed a perception among many riders that the system is slipping back into disorder.

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Sunday, October 11, 2020

Supreme Court nominee goes under the Senate microscope tomorrow

The Senate Judiciary Committee begins confirmation hearings on Monday for Amy Coney Barrett, President Trump's pick to replace Justice Ruth Bader Ginsburg on the Supreme Court, reported NPR.

The hearings are moving ahead under exceedingly unusual circumstances with an election looming and an outbreak of the coronavirus still roiling Washington. Republicans are aiming to stick to a tight and closely choreographed timeline that would allow Barrett to join the court before Election Day on November 3.

Senate Majority Leader Mitch McConnell, R-Ky., has been adamant that the Judiciary Committee hearings should proceed despite 3 Republicans, including two members of the committee, testing positive for the virus. The Judiciary members were among those that attended an event in the White House Rose Garden to announce Barrett's nomination. That event has been at the nexus of the ongoing spread of the coronavirus in GOP political circles.

McConnell has said the committee is capable of holding hearings that are part virtual and part in-person and that the development will not prevent Barrett's confirmation. The GOP leader did postpone floor votes for two weeks after the news of the outbreak.

"We will be voting on the nominee, you know, very soon," McConnell said in a recent appearance on the Hugh Hewitt radio show. "I haven't picked an exact point to bring the nomination up, but it's front and center for the American people."

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