LAW & CRIME: Trump’s deployment of military to the streets of Los Angeles exceeds his presidential authority

Matthew T. Mangino
LAW & CRIME
June 14, 2025

President Donald Trump’s deployment of nearly 4,000 National Guard troops and 700 U.S. Marines to Los Angeles has exceeded the legal limits of how the military can be used to enforce domestic laws in American cities.

The Governor of California, Gavin Newsom, intends to prove that in a court of law. The state has filed a lawsuit alleging, “President Trump has repeatedly invoked emergency powers to exceed the bounds of lawful executive authority.”

“On Saturday, June 7, he used a protest that local authorities had under control to make another unprecedented power grab, this time at the cost of the sovereignty of the state of California and in disregard of the authority and role of the Governor as commander-in-chief of the state’s National Guard,” says the complaint, which was filed in federal court.

U.S. District Judge Charles R. Breyer agreed. Breyer, a Bill Clinton appointee who also happens to be the brother of retired Supreme Court Justice Stephen Breyer, declared that Trump’s “actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution,” and ordered control of the National Guard returned to Newsom. The order was supposed to take effect Friday at noon, but the 9th U.S. Circuit Court granted an administrative stay late Thursday night, pausing — at least temporarily — Breyer’s order.

What this lawsuit comes down to is the Insurrection Act versus the Posse Comitatus Act. One act is more than 200 years old and the other, nearly a century and a half.

The Insurrection Act, passed in 1807, authorizes the president to deploy military forces inside the United States to suppress rebellion, invasion or to enforce federal law in certain situations. The Posse Comitatus Act, passed in 1878, was put in place to ensure that the federal military would not be used to intervene in the establishment of Jim Crow laws in the former Confederacy after Reconstruction. The overarching principle of the Act is to prevent the military from interfering in the affairs of civilian government.

When it comes to the Insurrection Act, troops can be deployed under several sections of the law. The statute’s requirements are not clearly defined, leaving some aspects of the law to the discretion of the president. One provision provides that the president can send in troops at a governor’s request. A second provision provides the president with the authority to deploy troops to “enforce the laws” of the United States or to “suppress rebellion” whenever unlawful obstructions make it difficult to enforce federal law — even against the state’s wishes.

A third provision provides if anyone in a state is being deprived of a constitutional right and state authorities are unable or unwilling to protect that right — think Presidents Dwight D. Eisenhower and John F. Kennedy following Brown v. Board of Education — the president can deploy troops.

“He [Trump] is declaring utterly bogus emergencies for the sake of trying to expand his power, undermine the Constitution and destroy civil liberties,” Ilya Somin, a libertarian professor at Antonin Scalia Law School, told the New York Times.

Now let’s juxtapose the Insurrection Act with the Posse Comitatus Act. The Posse Comitatus Act consists of just one sentence: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

In practice, this means that members of the military who are subject to the law may not participate in civilian law enforcement unless doing so is expressly authorized by a statute or the Constitution. Supposedly that statute would be the Insurrection Act — but clearly there is no insurrection or rebellion, and Trump has said as much.

Here is Trump’s rationale, straight from a June 7 White House memo:

In light of these incidents and credible threats of continued violence, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property.

Section 12406 provides that the President may active the National Guard if the country” is invaded or is in danger of invasion by a foreign country”; there is a “rebellion or danger of rebellion”; or the president is unable with regular forces “to execute the laws of the United States.” None of those circumstances exist, and even if one did, Section 12046 concludes with, “Orders for these purposes shall be issued through the governors of the States …

The White House is violating, in the most blatant way, the United State Constitution. But why? The New York Times suggests, after talking with various experts that the “real purpose, they worry, may be to amass more power over blue states that have resisted Trump’s deportation agenda. And the effect, whether intentional or not, may be to inflame the tensions in L.A., potentially leading to a vicious cycle in which Trump calls up even more troops or broadens their mission.”

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 www.mattmangino.com and follow him on Twitter @MatthewTMangino.

This is an opinion piece. The views expressed in this article are those of just the author.

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Law and Crime News: ‘Slipping into the clutches of an authoritarian’: Trump’s potential defiance of Supreme Court could lead to a full-blown constitutional crisis

Matthew T. Mangino
LAW AND CRIME NEWS
February 23, 2025

In this winter of political uneasiness, it is important to look back on Articles I, II and III of the United States Constitution.

High school civics class taught us that the first three articles of the Constitution established the structure of America’s government. Congress, the legislative branch, makes the laws of the United States; the Supreme Court — the judicial — interprets the laws; and the president — the executive — enforces the laws.

Each of the branches are coequal and provide a system of checks and balances. The Framers created this system to ensure that no branch becomes dominant. Each branch of government is vested with the ability to respond to the actions of the others.

The president can veto legislation created by Congress, as well as nominate heads of federal agencies and Supreme Court appointees. Congress confirms or rejects the president’s nominees. It can also remove the president from office in exceptional circumstances.

The justices of the Supreme Court, nominated by the president and confirmed by the Senate, can overturn unconstitutional laws.

For nearly 238 years this structure of checks and balances have held the “Great American Experiment” together, but the experiment has faced challenges in the past. Founding Father Thomas Jefferson, as president of the United States, was part of the first potential constitutional crisis when the Supreme Court in February 1803 decided the case of Marbury v. Madison, which established the principle of judicial review. Years later, in 1834, President Andrew Jackson, unhappy with a Supreme Court decision that favored Cherokee Indians in the region that would eventually become northern Georgia, is believed to have said of Chief Justice John Marshall: “[He] has made his decision; now let him enforce it.”

The Civil War saw the nation split in two. President Franklin D. Roosevelt decided to run for an unprecedented third and fourth term as president. In the 1950s, southern states defied the Supreme Court’s ruling against segregation in public schools. In more recent times, the country endured three presidential impeachments in 16 years.

Is America in a constitutional crisis today? Adam Liptak of The New York Times recently defined a constitutional crisis as “the product of presidential defiance of laws and judicial rulings.” Trump has signed more than 60 executive orders so far, the most in a president’s first 100 days in more than 40 years. As of this writing, Trump has been in office a little more than 30 days.

The orders, which Trump critics say greatly exceed his constitutional authority, range from tariffs on Mexico and Canada, to pauses on foreign aid and crackdowns on illegal immigration. Not to mention, bans on transgender people serving in the military or participating in athletics, revoking birthright citizenship, freezing federal spending, firing government employees who are subject to civil service protections and firing inspectors general — the government’s own watchdogs.

Saikrishna Prakash, a former clerk to conservative Supreme Court Justice Clarence Thomas who now teaches law at the University of Virginia told NPR, “The courts, you know, can issue orders and judgments, and, per the Constitution, I think the president is obligated to follow those orders and judgments. But, of course, there’s a practical question, which is how do you get someone to comply with the law?”

More than 10 federal courts have temporarily halted or rejected actions resulting from the new Trump administration’s actions. Last week, U.S. District Judge John McConnell found that the Trump administration has not fully followed his order to unfreeze federal spending and release billions of dollars.

However, statements by top Trump adviser Elon Musk and Vice President JD Vance appear to openly challenge judicial authority. The statements have raised concerns that the administration may ignore court rulings it opposes, reported the Brennan Center.

“It’s an open question whether the administration will be as contemptuous of courts as it has been of Congress and the Constitution,” Kate Shaw, a law professor at the University of Pennsylvania, told The New York Times.

In the first case to reach the Supreme Court in the wake of the onslaught of executive orders and actions taken within the first weeks of the new administration, lawyers for Trump have asked the justices to let him fire a government lawyer after a federal district judge ordered that the lawyer must be reinstated.

The Trump administration’s emergency application asked the high court to vacate a federal trial judge’s order temporarily reinstating Hampton Dellinger, the head of the Office of Special Counsel. Dellinger leads an independent agency charged with safeguarding government whistleblowers and enforcing certain ethics laws. The position is unrelated to special counsels, such as Jack Smith, appointed by the Justice Department.

The Supreme Court has a 6-3 conservative bent. If the court constrains the president’s authority to fire government employees, Trump’s potential defiance of the court’s ruling could lead to a full-blown constitutional crisis unlike anything the country has ever experienced.

But if the Supreme Court capitulates to the president, the crisis may be even more grave. With the GOP kowtowing to Trump and in the majority in both houses of Congress and the Supreme Court not imposing any restraints, this country may well be slipping into the clutches of an authoritarian.

(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 www.mattmangino.com and follow him on Twitter @MatthewTMangino)

This is an opinion piece. The views expressed in this article are those of just the author.

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Law & Crime--George Santos: A cautionary tale in an important election year

Matthew T. Mangino
Law & Crime News
August 22, 2024

 As we move toward Labor Day and the traditional start of the election season, the run-up to the 2024 election has not disappointed in its historic twists and turns. President Joe Biden is out, Vice President Kamala Harris is in, and former president Donald Trump survived an assassination attempt and is about as agitated as he has been since losing his reelection bid in 2020.

The recalibrated Democratic National Convention is underway in Chicago. It’s not quite the show we expected several weeks ago, when there was talk of an open convention to force out Biden. Instead, Biden magnanimously stepped down and is being exalted by Democrats far and wide.

While all this is going on, there is little mention of the guilty plea of George Santos – a cautionary tale for everything that is wrong, misleading and impossible to understand about modern American politics.

Santos, whose trial on 23 felony charges was scheduled to begin on Sept. 9, entered a guilty plea on Monday. He pleaded guilty to wire fraud and aggravated identity theft, and admitted he committed other crimes that could land him in prison for about seven years under the terms of a plea agreement, ABC News reported.

When Santos flipped New York’s Third Congressional District in 2022, he became the first openly gay non-incumbent Republican elected to Congress. Although his campaign biography said he lived in Long Island with his husband and four dogs, his husband never campaigned with Santos and there was no marriage license on record for a marriage to a man.

There was a marriage license to a woman in 2012 and a divorce in 2019.

That was only the beginning of the lies that Santos apparently told. He created a bio out of whole cloth. He was running for Congress, for the second time, in New York City. NYC may have one of the greatest newspapers in the world, The New York Times, and Santos’ deceit wasn’t exposed to the voters.

It wasn’t as though Santos had a sophisticated cover story that insulated him when he told mistruths. Santos apparently lied about everything. He lied about where he went to high school, where he went to college and where he worked.

This is the 21st Century — I can do a search to find out what Donald Trump had for breakfast this morning.

Santos said his mom was at the World Trade Center on 9/11. She was not.

He said his grandmother died during the Holocaust. She didn’t.

He said four of his employees died as a result of the Pulse Nightclub mass shooting. Not true.

Don’t forget this guy got elected to Congress! Then he used campaign money for Botox, travel and clothes. He deposited campaign contributions into private accounts. He used donor credit card information to make unauthorized charges.

He lied to Congress, and became only the sixth member of the House of Representatives to be expelled — although 114 members of Congress voted not to expel him.

Then, he was indicted.

He showed up for Biden’s State of the Union this year and announced he would be running for Congress in 2024, but that did not happen — and now he is more than likely headed to prison.

In Santos’ wake of lies and crimes, we are reminded of a couple important failures. As newspapers struggle to sustain their important role in American politics — remember Watergate? — failure to vet candidates opens the door to charlatans like Santos.

Social media has blurred the line between truth and fiction. Trump has reminded us, time and time again, that it does not matter what the media says about you as long as they keep talking about you.

Voters need to demand answers. There are red flags when things seem too good to be true. In the case of Santos, the red flags were revealed long before his election — but simply ignored. As former House Speaker Kevin McCarthy told reporters in January 2023, “I always had a few questions” about Santos’ resume.

However, McCarthy needed every vote he could get to become Speaker of the House, including Santos’ vote. McCarthy was apparently willing to overlook, downplay or hide the truth about Santos – and in politics, acts of omission can be as dangerous as the commission of mistruth, lies or deceit.

Voters — as the 2024 election approaches, keep up your guard.

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

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Law & Crime: These cases will go away faster than you can say ‘President Trump’: For Trump’s legal team, it’s all about delay

Matthew T. Mangino
Special for Law and Crime News
July 8, 2024

The U.S. Supreme Court decision on presidential immunity is already having an impact on the pending criminal cases against Donald Trump. The former president’s lawyers are trying to apply the ruling in Trump v. United States to the Mar-a-Lago classified documents case. In a 10-page motion, lawyers have asked U.S. District Judge Aileen M. Cannon to allow them to file additional briefings on immunity and to freeze nearly all pretrial activity until she resolves the issue.

“Resolution of these threshold questions is necessary to minimize the adverse consequences to the institution of the presidency arising from this unconstitutional investigation and prosecution,” Trump’s lawyers wrote in the July 5 filing.

The second look proposed by Trump’s legal team was made possible by the Supreme Court’s recent ruling. The high court found “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” The Court ruled that the former president has absolute immunity with regard to his discussions with the Department of Justice about leveraging power to have states replace their legitimate electors and investigating sham allegations of election fraud.

The court found that the president is presumptively immune for allegedly “attempt[ing] to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.”

What’s more, the majority of the justices found that Trump’s communication by tweet and public address on Jan. 6 may be protected.

“The president possesses ‘extraordinary power to speak to his fellow citizens and on their behalf,” the decision said. “[T]he President’s] communications are likely to fall comfortably with the outer perimeter of his official responsibilities.”

Trump’s lawyers will likely seek to toss all of the federal charges for subversion of the 2020 election. The Supreme Court has remanded the case to U.S. District Judge Tanya Chutkan to determine which allegations in Smith’s indictment would be barred under the decision, and the justices said that additional briefing will be needed for the trial court to do so.

The portion of Smith’s prosecution dealing with scheming with the Department of Justice to pressure Georgia to investigate the election is dead in the water. Trump’s team will use the court’s opinion to fight evidence in the case still standing after Chutkan completes her analysis — like meetings Trump had with his top advisers and Vice President Mike Pence.

Some portion of the fake electors case might survive the court’s scrutiny and also the classified documents case which occurred after Trump left the White House.

Smith’s prosecutions have taken a blow, but it’s certainly not a knockout. However, Trump’s strategy from the beginning in dealing with the various criminal charges was delay. To that end he has been successful. Smith’s prosecutions will not be tried before Election Day, and if Trump ultimately wins in November these cases will go away faster than you can say “President Trump.”

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

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Capital-Star: We may never see police accountability in the Texas school shooting. This is why | Opinion

Matthew T. Mangino
Pennsylvania Capital-Star
June 8, 2022

The first 911 call from Robb Elementary School in Uvalde, Texas came at 12:03 pm. on May 24. Seventy-eight minutes later, a U.S. Border Patrol tactical team killed the 18-year-old gunman, who had by that time, killed 19 children and two adults.

According to The New York Times, a teacher, Eva Mireles, spoke to her husband, an Uvalde School police officer, while she was barricaded with her students in a classroom. Mireles was killed sometime after that call.

As America collectively shook its head, the obvious question was — why would law enforcement wait 78 minutes to enter the building? The next question — as Americans reach for the proverbial torch and pitchfork—can the police be held accountable criminally, or civilly, for their inaction.

As the police department, police chief and school district continue to revise, amend and disavow their original versions of what happened outside of Robb Elementary School on that fateful day, we may never truly know why the police did not immediately enter the building. We know that Uvalde School District’s policy with regard to active shooters, and the state of Texas policy, were very similar. Their training had units entitled “stop the dying” and “stop the killing”—neither of which happened for 78 minutes.

That brings us to the second question, accountability. The school police in Uvalde will not face criminal or civil liability for failing to confront the shooter who killed 19 students and two teachers. Most people would be surprised to know that the government is not required to protect its citizens — the U.S. Supreme Court has said as much.

The lack of accountability is not unique to Texas. The result would probably no different in Pennsylvania and probably every other state in the union.

Criminal Charges

Experts who spoke to The New York Times said a negligent homicide charge would revolve around whether the officers had a duty to act in that moment and whether the failure to do so amounted to deliberate indifference. The Texas penal code says criminal negligence results when a person “ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”

Uvalde school district’s police force had recently gone through active shooter training. The Texas Commission on Law Enforcement training “Active Shooter Responses for School Base Law Enforcement” warns participants that “first responders to the active shooter scene will usually be required to place themselves in harm’s way and display uncommon acts of courage to save the innocent.”

Initially, some law enforcement officers attempted to confront the shooter but were wounded. At that point the chief of police ordered down the officers on scene.  Apparently, the police command decided to pursue a different tactic. More than an hour passed before a second, and successful, confrontation with the shooter occurred.

Civil Liability

Qualified immunity provides enormous protection from civil liability for police officers when acting in the line of duty. Qualified immunity grants law enforcement officers performing “discretionary functions” immunity from civil liability unless the claimant can prove that the officer violated “clearly established statutory or constitution rights of which a reasonable person would have known”.

The U.S. Supreme Court has said that “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

The discretionary function in the Uvalde shooting was, “Is this an active shooter or a barricaded assailant?”

The U.S. Supreme Court has held that the government has no duty to act to save innocent lives. In 1989, the Supreme Court reviewed a case brought against a Wisconsin child welfare agency by the family of a child beaten so severely he would remain institutionalized for the rest of his life.

The suit was brought under Section 1983 of the Civil Rights Act—the federal statute that allows a claimant to sue state and local officials in federal court for violating federal constitutional rights—alleging the child welfare agency failed to intervene to protect the child.

The lawsuit alleged that the failure to act deprived the child of his liberty in violation of the 14th Amendment’s due process clause. The Supreme Court disagreed.

“Nothing in the language of the due process clause itself requires the state to protect the life, liberty and property of its citizens against invasion by private actors,” the high court found.

Sixteen years later, the U.S. Supreme Court agreed to hear the appeal of Jessica Gonzales against the Castle Rock, Colorado Police Department. Gonzales had a restraining order against her ex-husband.  He kidnaped their children and Gonzales pleaded with the Castle Rock Police to enforce the restraining order.

The officers made no effort to locate or arrest Gonzales’ ex-husband.  He later showed up at the police station and engaged in a gun fight with police resulting in his death.  Tragically, the police found the three children murdered and thrown in the trunk of the ex-husband’s car.

Gonzales also sued the police department under Section 1983. She argued that the Colorado legislature had made enforcement of the restraining orders mandatory and that, as a result, the police had violated the Due Process Clause by not carrying it out.

Again, the Supreme Court disagreed. Justice Antonin Scalia wrote “were a mandate for enforcement to exist, it would not create an individual right to enforcement.”

The Uvalde School District itself will be insulated from liability through the doctrine of sovereign immunity. Other than the scrutiny of a U.S. Justice Department investigation and an investigation by the Texas legislature, there does not appear to be any clear path to accountability in Uvalde, Texas.

Opinion contributor Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, Pa. His work appears frequently on the Capital-Star’s Commentary Page. He is the author of The Executioner’s Toll, 2010.  Readers may follow him on twitter @MatthewTMangino or email him at mmangino@lgkg.com.

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Capital-Star: Congress shouldn’t stop with Trump in applying the 14th Amendment

Matthew T. Mangino
Pennsylvania Capital-Star
January 15, 2021

The 14th Amendment to the United State Constitution has been proposed as a means to disqualify President Donald Trump from running for a second term.

Section Three was cited in the article resulting in the Presidents second impeachment. The articles alleges that Trump disqualified himself from office by inciting his followers to violently obstruct the congressional certification of President-elect Joe Biden’s victory.

The history of disqualification from public office goes back to the earliest years of the republic. In 1861, Sen. John C. Breckinridge of Kentucky was expelled from the United States Senate. The resolution, which passed unanimously, declared Breckinridge “has joined the enemies of his country, and is now in arms against the government he had sworn to support.”

Between 1856 and 1860 Breckinridge was a heartbeat away from being president of the United States.  He was President James Buchanan’s Vice-President. Within months of being elected to the U.S. Senate he was a general in the Confederate army.

Following the Civil War, in what some have called the second Constitution, the Congress passed, and the states ratified, the 13th, 14th and 15th Amendments to the Constitution. The Reconstruction Amendments were meant to abolish slavery, lessen the power of states and extend the right to vote to all former slaves.

The 14th Amendment is best known for the Equal Protection Clause which made the Bill of Rights applicable to the states and set in motion a plethora of Supreme Court decisions defining the rights of those accused of a crime.

The 14th Amendment has another, lesser known, rarely used, provision that in light of the Capitol insurrection, may have renewed relevance.

Section Three of the amendment was enacted to prevent Confederate officials who had served in the Unites States government or armed forces before the Civil War from regaining a position of authority in the post-bellum government. Former Confederates were barred until 1872 when Congress granted amnesty to civil and military officials of the Confederacy.

If Section Three is good enough to impeach the president why not use it to expel senators or house members who helped incite the Capitol insurrection?

Section Three provides, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who . . . shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

According to the St. Louis Post-Dispatch, U.S. Rep. Cori Bush, D-Mo., introduced a resolution in the House with 47 co-sponsors directing the House Ethics Committee to commence a review of more than 100 Republicans who voted to overturn the election results to see if they should be censured or expelled.

There have been calls for U.S. Sens. Josh Hawley, R-Mo., and Ted Cruz, R-Texas, to resign for their role in the Capitol insurrection.

Hawley was the first senator to say he would object to the certification of November’s election, based on patently false accusations that the presidential election was stolen. Hawley and Cruz led a group of Senate Republicans who helped Trump turn what is normally a routine certification vote into an attack on democracy. Even after the insurrection, Hawley, Cruz and four other senators continued to object to the certification.

U.S. Sen. Sherrod Brown, D-Ohio, has called for Cruz’s and Hawley’s resignation, saying they “betrayed their oaths of office and abetted a violent insurrection on our democracy.”

According to the HuffPost, Brown said, “If they do not resign, the Senate must expel them.”

U.S. Sen. Sheldon Whitehouse, D-R.I., also has called for an ethics investigation to consider expulsion of Cruz and Hawley.

Inciting, or actively participating in, an insurrection must have consequences.  A two-thirds majority of the House or Senate can insure that no one in Congress is above the law.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, in New Castle, Pa. He is the author of The Executioner’s Toll, 2010. His weekly syndicated column is distributed by GateHouse Media. Readers may contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino. His work appears occasionally on the Capital-Star’s Commentary Page. 

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Capital-Star: It’s time to step up, and say ‘Enough is enough’ to gun violence | Opinion

Matthew T. Mangino

Op-Ed, Pennsylvania Capital-Star

September 26, 2019

Last winter, my son’s high school baseball team had a community fundraiser. The “wing bash” as we called it was held in a social hall in a small town about an hour north of Pittsburgh. Amid all the hot wings and baseball memorabilia was a guy wearing a side arm.

There he was, plate in hand, event program under his arm and firearm on his hip as uneasy patrons pretended not see. He wasn’t a police officer or security guard. He was a private citizen who apparently felt so threatened at our wing bash that he had to come armed.

How did we get to a point where private citizens need to carry firearms when they leave their homes? This isn’t Dodge City, Kansas circa 1878, or a John Wayne movie on the silver screen — this is reality and an obvious step backward for a civilized society.

The proliferation of gun ownership has increased the potential for unnecessary violent confrontations. Lawmakers recognized this concern centuries ago.

According to a New York Times op-ed by Robert J. Spitzer, a professor at the State University of New York-Cortland, in 1686, New Jersey enacted a law against wearing weapons because they induced “great Fear and Quarrels.”

Massachusetts, North Carolina, and Virginia passed similar laws in the 18th century. By the 19th century, 37 states joined the list prohibiting concealed weapons. Today, more than 11 million Americans have concealed carry permits.

A 2017 Harvard/Northwestern University joint study estimated that our country’s 319 million citizens currently own about 265 million guns. And while in 1994, the “typical gun-owning household” owned 4.2 guns, in 2015, the Washington Post revealed that the average number of firearms owned has nearly doubled to 8.1 guns per household.

Why so many guns?

It certainly is not due to out of control violent crime. The U.S. Bureau of Justice Statistics and the FBI Annual Crime Report, according to the Pew Research Center — two of most trusted names in crime analysis — found a substantial decline in the violent crime rate since it peaked in the early 1990s.

Every year, the FBI reviews crime reporting from 18,000 police departments around the country. The Bureau of Justice Statistics surveys more than 90,000 households asking Americans whether they were victims of crime, regardless of whether they reported those crimes to the police.

Using the FBI numbers, the violent crime rate fell 49 percent between 1993 and 2017. Using the Bureau of Justice Statistics data, the rate fell 74 percent during that same period.

Yet in spite of those statistics, Gallup polling found that the percentage of gun owners who possessed a firearm for hunting purposes fell from 60 percent in 2000 to 36 percent in 2013. The number of respondents who cited gun ownership for “sport” fell even more.

According to a Harvard University School of Public Health survey, 63 percent of gun owners in 2016 reported self-defense as their primary motivator, up from 46 percent in 2004.

Some suggest the recent widespread adoption of state stand-your-ground laws has fueled firearms sales. These laws permit people who feel threatened to use deadly force without the need to retreat.

Twenty-five states have stand-your-ground laws, including Florida which brought us George Zimmerman’s acquittal in the killing of Trayvon Martin and the recent would-be robbery victim who killed three young teens — ages 15, 16, and 16 — in an alleged robbery gone awry.

The Congress can’t even decide if it wants to consider any options on gun violence. Legislators in many states, in deference to the power and money of the NRA, pretend like there isn’t a gun problem in this country. According to the CDC, middle-and high school-age children in the U.S. are now more likely to die as the result of a firearm injury than from any other single cause of death.

How can anyone, much less a lawmaker, look the other way?  Pretending it’s not a problem, much the same way patrons at my son’s baseball fundraiser did, is not the answer.

That uneasy feeling that makes you look the other way when someone walks into your neighborhood grocery store with a gun, is the very feeling that should cause you to stand up and say “enough is enough.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. in New Castle, Pa., and the author of “The Executioner’s Toll, 2010.” @MatthewTMangino. He welcomes feedback at mattmangino.com.

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Philadelphia Inquirer: Time may be at hand to end insanity of the death penalty

Matthew T. Mangino
Philadelphia Inquirer
Commentary, January 17, 2017

There is a crisis in America. Two-thirds of the states in this country, and the federal government, are spending billions of taxpayer dollars caring for a small group of people in need of a rather simple medical procedure.

Although there are about 3,000 people waiting on the procedure, only about one-quarter of one percent receive the inexpensive procedure each year. As the cost for caring for these people increases annually - about $4.5 billion a year - the number receiving the procedure has decreased to a 25-year low.

The selection process has been labeled arbitrary and each and every recipient is tied up in years and years of litigation. The layered government bureaucracy begins at the county level and often ends up in the lap of the U.S. Supreme Court. The process is so flawed that medical practitioners want nothing to do with it.

Where is the outrage at this ridiculously dysfunctional government initiative?

Outrage? On Election Day, California, Nebraska, and Oklahoma had an opportunity to abolish the death penalty - the state-sponsored medical procedure used to end the life of condemned killers - and all three states declined. In fact, voters in California voted to speed up the execution process.

That is not a complete surprise. A Gallup poll in October found that support for the death penalty has remained consistent at about 60 percent. That number is still a solid majority of Americans, but far below where it was in the 1990s, when about 80 percent of Americans backed the death penalty.

If this were a medical procedure to save lives - as opposed to snuffing them out - and managed in a patch work of statutes and policies, congressional hearings would be convened and ultimately heads would roll ... so to speak.

If this were a life-saving medical procedure, the medical profession would adopt a best-practice and the process would be standardized and uniform. But then, medical standards are not promulgated by the legislature. Politics - posturing, looking tough, and getting re-elected - is not part of the equation in the medical profession.

Even though there are signs that some lawmakers and a majority of the public do not want to see the death penalty abolished, the decline is obvious.

There were only 20 executions nationwide this year - the fewest number in the United States in a quarter century. Executions have dropped dramatically from the late 20th-century peak of 98 in 1999.

Not only have executions dropped, the number of death sentences being imposed have declined even more precipitously. There will be a total of 30 new death sentences this year, the lowest number since the Supreme Court struck down the death penalty inFurman v. Georgia in 1972. According to the Washington Post, in 1996 juries in death penalty states across the country handed down 315 death sentences.

Just five states carried out executions this year. Sixteen of the 20 executions were carried out in only Georgia and Texas.

In Pennsylvania the process can only be described as bizarre. Gov. Wolf has declared a pseudo-moratorium on executions, an action for which the governor was skewered by lawmakers and prosecutors alike. In fact, the Philadelphia district attorney sued him to start re-imposing executions.

This in a state that has executed three people since the new death penalty statute was enacted in 1976. All three men volunteered to be executed. They waived their appeal rights and sought to be put to death. The last involuntary execution in Pennsylvania was in 1962.

Pennsylvania officials are fighting about something that, for all intents and purposes, will not happen any time soon, if ever. The time may be at hand to end the insanity of the death penalty.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. in New Castle, Pa., and the author of "The Executioner's Toll, 2010."@MatthewTMangino.

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Guest Column: It’s time to take another look at the Miranda ruling

Matthew T. Mangino
Delaware County Daily Times, Guest Columnist

June 28, 2016

Fifty years ago this month, the U.S. Supreme Court ruled in Miranda v. Arizona that police officers are required to inform a suspect that he has the right to remain silent and the right to legal counsel when being questioned. Those rights have evolved overtime and not necessarily for the better.

The landmark Supreme Court decision has become a part of American culture. Miranda’s conversion from legal holding to cultural icon is due mainly to the nation’s insatiable appetite for television crime dramas. Everyone with a TV has heard Miranda warnings.

What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested for robbery. While in the midst of a custodial interrogation by police he confessed to raping an 18 year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. He appealed and his case made its way to the U.S. Supreme Court.

The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court’s opinion finding a confession would be barred under the Fifth and Sixth amendments unless a suspect had been made aware of his rights and the suspect had waived them. Warren made it clear, “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”

As we mark the fiftieth anniversary of Miranda, it is important to note that the U.S. Supreme Court has continually tested, and at times, expanded and restricted, the decision.

For instance, in 1981 the Edwards rule was established. The court held once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel pursuant to Miranda, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.

That changed in 2010. In a case out of Maryland, the court established a bright-line rule finding if at least 14 days passed from the time the suspect invoked his rights under Miranda the police could again initiate an interrogation of the suspect.

Although the Miranda warnings are etched in nearly everyone’s consciousness, the Supreme Court found that the police do not have to use those magical words to get the point across. In a 2010 case out of Florida, the court said as long as the rights are articulated to a suspect in a reasonable manner and the rights are understood they are sufficient. The rights that most of us can recite by rote do not need to be conveyed by the police with any precision.

Finally in 2013, in a case out of Texas, a murder suspect who answered questions for almost an hour was then asked by police if the shotgun shells found at the murder scene would match a shotgun found in his home. The suspect stopped talking.

The police made notes of his conduct once he stopped talking. According to the Supreme Court, the suspect “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.”

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court found that silence is not enough to invoke the right to remain silent. For purpose of the Fifth Amendment, silence isn’t what it used to be.

Miranda has been revered for half a century. The decision, which outlined specific rules for those accused of a crime, has evolved into a nuanced set of standards that can lure the unsophisticated person into a false sense of constitutional protection.

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

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The Inquirer:More at stake for justice system than case against Cosby

Matthew T. Mangino
Commentary

The Philadelphia Inquirer

March 30, 2016

The purported deal between former Montgomery County District Attorney Bruce Castor and Bill Cosby has had an immediate impact on Cosby's prosecution. No, it hasn't resulted in the case being thrown out - yet - but it has resulted in the prosecution being delayed and derailed.

Defense attorneys contend that the charges against Cosby violated an agreement struck in 2005 with Castor. Cosby's lawyers say Castor promised not to prosecute the comedian if he agreed to testify in a civil lawsuit filed by his accuser, Andrea Constand.

First the delay: The case is on hold while the Superior Court considers the current Montgomery County district attorney's motion to quash the appeal filed by Cosby challenging the court order allowing the criminal case to proceed.

Now the derailment: Setting aside that Constand is suing Castor and the new district attorney is fighting Castor's subpoena seeking his 2005 investigation files, there is a lot more at stake than the prosecution of a high-profile defendant for a particularly salacious crime.

The underlying issue is, can an accused rely on the promise of a prosecutor? The answer will have ripple effects for the entire criminal justice system.

When Cosby was charged, only days before District Attorney Kevin Steele took office, his attorneys immediately requested the charges be dismissed because of a deal with Castor more than a decade ago.

At a hearing seeking dismissal of Cosby's charges, Castor was called as the first witness. Castor testified that last year, he contacted then-District Attorney Risa Vetri Ferman to tell her to "tread carefully." The media attention was intense at the time as the Cosby case became an issue in the Montgomery County district attorney race between Castor and Steele.

"I knew that I had bound the commonwealth, as representative of the sovereign, not to arrest Mr. Cosby ... and I wanted to make sure that she [Ferman] didn't make a mistake and go ahead and move against Cosby," Castor testified.

Castor declined to prosecute Cosby for sexual assault of Constand in 2005. At the time, he explained, "The district attorney finds insufficient credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt." He continued, "Much exists in this investigation that could be used [by others] to portray persons on both sides of the issue in a less than flattering light."

Steele suggested that new evidence unearthed in the years since Castor declined to prosecute Cosby had made the case viable once again. He claimed that the information derived from Cosby's deposition was an important factor in his decision to file charges.

When he was asked why the agreement wasn't memorialized in writing, Castor's response, as summarized by the Legal Intelligencer, was that "he felt it was not appropriate at the time, since no civil case had yet been filed. He said it would be a suggestion that Cosby did something wrong, and that he wanted to use transactional immunity, which he said is a function of the district attorney."

District attorneys are bound by agreements, written or sealed with a handshake, every day. For instances, the plea bargain, the grease that keeps the criminal justice system rolling, is based on an offer and acceptance - known in legal parlance as a contract. A defendant who relies on a contract to his detriment can force that contract to be honored.

Cosby was not compelled to testify. He did not invoke his Fifth Amendment right. Cosby voluntarily entered into an agreement, a contract, to testify in the civil case in exchange for not being prosecuted criminally.

Cosby would have been protected by the U.S. Constitution if he refused to be deposed by Constand's attorneys. Instead, relying on the district attorney's promise, Cosby testified. Now, ignoring that commitment, the new district attorney is zealously trying to get out of the deal.

Such conduct is not without consequences - namely, distrust for the system and a chilling effect on cooperating, testifying, and even agreeing to plea bargains.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney of Lawrence County and the author of "The Executioner's Toll." mmangino@lgkg.com

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Guest Opinion: 'Porngate' is one hot mess

Matthew T. Mangino

Guest Opinion, Delaware County Daily Times

January 3, 2016

           Not long ago, I called an assistant prosecutor in a small, rural county in Missouri about an old warrant issued for one of my clients. Before I could get my question out he wanted to talk about ‘Porngate.’  He told me every morning he gets on the Internet to read the latest twists and turns in the Kathleen Kane saga.  He has had a lot to read about since our conversation.

            Pennsylvania is a mess and things are not getting better.  Another Supreme Court justice has been swept into the fray.  Justice Michael Eakin was suspended by the Judicial Conduct Board for his exchange of pornographic and insensitive emails.

            That is the same board that had its chief counsel recuse himself from the Eakin case because he failed to reveal that he was chums with the justice; and the same board the Supreme Court blunderingly tried to pack with an ally of Eakin prior to the suspension hearing.

            However, that is a side show to the main event.  Attorney General Kathleen Kane is under two sets of indictment.  Her law license has been suspended and her release of pornographic emails exchanged among government officials has resulted in the resignation of one Supreme Court justice, the suspension of another, the resignation of the Secretary of Environmental Resources and a member the Board of Probation and Parole.

            Kane, without a license to practice law, appointed the former attorney general of Maryland Doug Gansler as a special prosecutor to weed out pornography in all state government offices.  Her authority to do so--even with a law license--is in question and Gansler’s firm charging about $880 an hour has made even the few Kane supporters out there a little queasy.

            Then it’s revealed that Kane’s twin sister--who works in the AG’s office--has sent and received inappropriate emails.  There will be no disciple for Kane’s sister.  Although other members of the AG’s staff were disciplined for similar conduct--you can’t make this stuff up.

            This whole thing started when Kathleen Kane campaigned on an issue that resonated with Pennsylvania voters--did the AG’s office drag its feet on the Penn State/Jerry Sandusky investigation to shield the former AG--Tom Corbett--during his campaign for governor.       Kane’s investigation of the investigation revealed no wrong doing, but it sure did make some people mad.

            The man who headed up the Sandusky investigation, Frank Fina, quietly went about trying to discredit Kane.  He found a willing partner, his new boss the district attorney of Philadelphia Seth Williams.  Fina and Williams publicly challenged Kane’s decision to drop a corruption prosecution.  The Philly DA refiled the charges.

            Then there was the knife wielding senior judge Barry Feudale who presided over the statewide grand jury that investigated Sandusky. His impartiality was challenged by Kane.  Feudale went to media and he included none other than Mr. Fina on his emails.  The chief justice revoked Feudale’s senior status.

            Amid growing public concern over Fina’s involvement in Porngate, Williams transferred Fina from criminal trials to civil a much less glamorous position.  The calls for Fina’s termination continue.

            Amid all this, the Pennsylvania legislature is pursuing Kane’s removal. This is a body that has had at least 20 members convicted of crimes in the last 15 years.  A hearing in the Senate has been scheduled for January 12, 2016.

            Oh, and don’t forget that the Governor and legislature have not agreed on a budget for going on six-months. As the GOP members of the House grumble about unseating the speaker of the house, school districts across the state need to borrow money to keep our children in class.     Instead of addressing the growing financial crisis in this state, the legislature will seek to unseat the lamest of lame-duck officials in Pennsylvania history.

            House Minority Leader Frank Dermody (D-Allegheny) was one of the prosecutors in the impeachment of Justice Rolf Larsen, the last impeachment in Pennsylvania.  “People thought it was very serious business,” he said. Kane is not subject to impeachment, but rather an obscure constitutional provision known as direct removal.

             According to The PLS Reporter, Dermody reflected on his impeachment work, “it is important to ensure that the process does not come down to political bickering and that, due to the nature of impeachment as a political trial, it is a process used only when absolutely necessary.”

(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 www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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The Delaware County Daily Times: Individual liberties at risk if Ebola hits Pa.

Matthew T. Mangino
The Delaware County Daily Times, Guest Column
August 22, 2014
Tom Frieden, the director of the U.S. Centers for Disease Control, said recently that there’s a very real possibility that someone infected with Ebola will enter the United States. However, he suggested the chances of a U.S. outbreak are highly unlikely, “it is a matter of isolating patients.” Can a patient with Ebola, or merely exposed to Ebola, be isolated or quarantined in Pennsylvania?

The U.S. Constitution prohibits the federal government as well as state governments from depriving individuals of specifically protected liberty rights. There are exceptions. In Pennsylvania, the health and well being of the community at large may supersede individual rights of freedom and liberty.

Although matters relating to public health have been left largely to individual states to manage, the federal government does have jurisdiction over cases where communicable disease is introduced into this country from a foreign source or to prevent or curtail the interstate movement of communicable disease.

In more than 40 years, only one person — Andrew Speaker a newlywed form Georgia who was honeymooning in Europe in 2007 and contracted a drug-resistant form of tuberculosis — has been isolated under federal law.

In Pennsylvania the Disease Prevention and Control Law (DPCL) provides that the state Department of Health, county/municipal health departments or a local heath authority may — without court intervention — order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and no lesser restrictive means is warranted.

The DPCL defines quarantine as the “limitation of freedom of movement of persons ... who have been exposed to a communicable disease.” The limitations may continue for a period of time equal to the incubation period of the disease. Isolation is the separation of persons already infected, from other people to prevent direct transmission of disease.

“Ebola is so scary and so unfamiliar; it’s really important to outline what the facts are, and that we know how to control it,” Frieden told NBC News.

In 2002, only months after the 9/11 attacks, the Pennsylvania Legislature went even further by enacting the Counterterrorism Planning, Preparedness and Response Act. The law provides the governor with authority to order the temporary isolation or quarantine of individuals or groups. The law was intended for use following a suspected act of bioterrorism. The statute does not specifically preclude the law from being utilized during a pandemic.

The governor also has the authority to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such an act by the government has serious civil rights implications. People who have no apparent manifestations of a disease are forced, against their will, to remain in an area where other people are infected.

Another concern is the cost of quarantine or isolation and who bears the responsibility for payment. A 1990 tuberculosis outbreak in Fort Worth, Texas, resulted in various levels and durations of quarantine and isolation for 10 patients. The cost reached nearly $1 million. Pennsylvania public health authorities may be required to provide reimbursement for costs associated with isolation or quarantine.

In Pennsylvania, the local health office may order treatment, put restrictions on an individual’s movement, restrict an individual to his or her home, put the individual under surveillance or even isolate the individual in an institution to ensure compliance.

However unlikely an outbreak of Ebola may be in Pennsylvania, it appears the commonwealth has the tools to deal with it in an effective and efficient manner -- even if it means some civil rights get trampled in the process.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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Book Review: Dignity Rights: Courts, Constitutions, and the Worth of the Human Person. By Erin Daly

This review by Matthew T. Mangino appeared in the April, 2014 edition of The Champion a national publication of The National Association of Criminal Defense Attorneys.

Erin Daly tells us that law is a practical enterprise that deals with a real problem in real peoples’ lives.  With that as a backdrop, Daly takes off on an ambitious journey to explain the evolution of dignity in American, and the world’s, jurisprudence.  Dignity Rights: Courts, Constitutions, and the Worth of the Human Person is worth the effort.

There was a  “cavalcade” of constitutional dignity rights after World War II. There was no denying that phenomenon as policymakers came to terms with the horrors that occurred in Asia and Europe. In 1948, the Universal Declaration of Human Rights (UDHR) inspired the postwar constitutional drafting.

By the end of World War II the U.S. Constitution had been examined, reviewed, analyzed, interpreted, expanded, restricted, revered and condemned countless times.  With that being said, the U.S. Constitution never mentions dignity.

Maybe that’s why the concept of human dignity has been a late-comer to American jurisprudence.

 Daly, a professor at Widener University Law School wrote, “The influence of World War II on dignity jurisprudence in America is visible, though less pronounced than in some other countries.”

            The U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent in U.S. v. Screws, Justice Frank Murphy wrote, “The right was his…because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”

From the mid-twentieth century up through the present, Daly points out that the concept of dignity arose “most clearly in the context of the police state, as defendants and inmates argued forcefully that the investigative, prosecutorial and punitive practices of the government violated their individual dignity.”

In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles.  The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”

Although dignity has seeped into high court decisions, Daly writes, “It cannot be denied that the U.S. Supreme Court has so far declined to embrace human dignity with the ardor of its global peers.” In fact, 95 percent of the opinions from the Roberts Court do not mention dignity and half of those that do mention dignity in connection with inchoate ideas.

Daly explains there is more to the story of the U.S. Supreme Court’s inattention to human dignity. The court has sparred over exactly what dignity means and what dignity is.  In a controversy over the right of self-representation at trial, Justice Stephen Breyer wrote that such action “will not ‘affirm the dignity’ of a defendant who lacks the mental capacity” to defend himself.   Daly wrote that Breyer “holds that the state can limit a person’s choice in order to enhance his or her personal dignity.”

Justice Antonin Scalia unabashedly takes another approach.  He wrote, in dissent, in Indiana v. Edwards, “the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the state—the dignity of individual choice.”

Daly reminds us of what Lincoln said more than a century and a half ago, when vital questions are left to the Supreme Court, “People will cease to be their own rulers.”  Daly doesn’t see it that way.

The dichotomy on the court with regard to dignity is a product of conservative and progressive agendas of the respective jurists.  There are fundamental differences as to the state’s role in supporting dignity.

As the role of government in promoting dignity evolves around the world there is no denying that the commitment to democracy is on the rise.  Daly asserts, as democracy spreads a new version of the judicial role it allows the people, their government and courts to work together to develop policy with constitutional values.

Daly suggests that dignity jurisprudence promotes democracy by recognizing that “[E]ach person has one very important, very valuable asset that is inalienable and irreducible and infinite”—dignity.  The concept of dignity also permits democracy to thrive, especially in the middle class.  Judicial pressure on political branches of government can promote worthy causes such as eradicating “extreme poverty.”  Finally, jurisprudence of dignity invites people into public discourse.

Daly wraps the connection of dignity, democracy and jurisprudence into a neat little bow.  Constitutions and courts protect human dignity.  People feel dignity—they are empowered and increasingly participate in politics.  That power forces policymakers to listen.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. in New Castle, Pennsylvania. You can read his blog every day at www.mattmangino.com and follow him on twitter @MatthewTMangino)

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Guest Column: Move military assault cases to civilian courts

Matthew T. Mangino, Times Guest Columnist
The Delaware County Daily Times
April 21, 2014
The U.S. Army recently endured an embarrassing and troubling public spectacle. The Army dropped sexual assault charges against Brig. Gen. Jeffrey Sinclair in exchange for his plea to less serious charges of misconduct.

He was spared prison and sentenced to a reprimand and a $20,000 fine. His plea ended the trial of the highest-ranking officer ever to face sexual assault charges.

The trial may have ended but the controversy will continue. Sinclair pleaded guilty to having improper relationships with three subordinate officers, including the female captain who accused him of assault. He also pleaded guilty to adultery, which is a crime in the military.

Defense attorney Richard Scheff told The Associated Press that Sinclair is admitting to his mistakes, but added that the general is pleading guilty to behavior that likely wouldn’t be criminal in the civilian world.

How can a military officer or enlisted person have “consensual” sex with a subordinate soldier? In Pennsylvania, Institutional Sexual Assault, 18 P.S. 3124.2 provides an employee or agent of the Department of Corrections or a county correctional authority, youth development center, state or county juvenile detention facility or school who engages in sexual intercourse with an inmate, resident or student is guilty of a felony of the third degree.

The inmate, resident or student cannot consent to sex with a guard, caretaker or teacher. Why? Just as in the military there is concern that consent is influenced by the real or perceived threat of consequences for failure to indulge in the sexual conduct.

In prison, the consequences might be a contrived misconduct and time in the “hole;” in a youth development center it might be loss of a home visit; in school, unwarranted discipline; in the military the loss of a promotion or worse.

Just this month a Cumberland Valley High School teacher, outside of Carlisle, was charged with institutional sexual assault for her alleged relationship with an 18-year-old student.

Although the victim is of the age to consent to sex, the 31-year-old teacher is charged with having sexual encounters with the student in her classroom.

The military’s unique hierarchy and strict adherence to discipline sow the seeds for abuse. Lawrence Korb, a defense official in the Reagan administration, and Anu Bhagwati, a former Marine Corps captain, wrote in a 2012 Baltimore Sun op-ed that military sexual assault “[s]urvivors are often punished after reporting, including being forced to work with their perpetrators; charged for ‘fraternization,’ ‘adultery’ or ‘conduct unbecoming’; demoted or denied promotions and awards; or discharged from service with a false mental health diagnosis.”

Criminal prosecutions of sexual assault cases are rare in the military and civil recourse is almost non-existent.

Korb and Bhagwati lamented the expansion of the U.S. Supreme Court’s decision in Feres v. United States, 340 US 135 (1950). In Feres, the court ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the military that are “incident to service.”

The decision makes sense in terms of limiting the military’s liability for injuries while training or in combat. The management of the military would grind to a halt if soldiers could sue their commanding officers.

Over time the term “incident to service” became all-encompassing even to include sexual assault or rape. Korb and Bhagwati suggested, “Carving out an exception to the Feres doctrine in cases of sexual assault must happen…Rape should not be considered an inevitable consequence of serving one’s country.”

Sinclair’s conduct, and the manner in which this prosecution unraveled, reveal what appear to be fundamental flaws in the way sexual assaults are handled under the Uniform Code of Military Justice.

With unreported sexual assault on the rise in the military, and with men entrenched in leadership positions, lawmakers should consider removing sexual assault investigations and prosecutions out of the military system and into civilian courts.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010” is due out this summer. Reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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