Firearm attacks on police at 10-year high

The rate of assaults on American law enforcement reached a 10-year high in 2023, with more than 79,000 officer attacks reported, according to a new FBI report released according to The Associated Press. the U.S. to determine trends in violence against law enforcement. It shows that the number of officers assaulted and injured by guns is also climbing.

Agencies reported 466 assaults with firearms in 2023, which is the highest level in a decade, FBI officials said. That’s up from less than 200 officers assaulted and injured by guns in 2014.

There were 60 officers killed as the result of criminal acts in 2023, compared to 61 the year prior and 73 in 2021.

While those numbers declined over the last three years, there were more officer killings as the result of criminal acts in that time than any other three-year period in the last two decades, FBI officials said.

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Mangino discusses lenient poisoning sentence

Watch my interview with the Law and Crime Network discussing the lenient sentence in attempted poisoning case in Arizona.

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Faith in criminal justice system below 20 percent

Americans’ faith in major societal institutions hasn’t improved over the past year following a slump in public confidence in 2022, reported Gallup.

The five worst-rated institutions -- newspapers, the criminal justice system, television news, big business and Congress -- stir confidence in less than 20% of Americans, with Congress, at 8%, the only one in single digits.

Last year, Gallup recorded significant declines in public confidence in 11 of the 16 institutions it tracks annually, with the presidency and Supreme Court suffering the most. The share of Americans expressing a great deal or fair amount of confidence in these fell 15 and 11 percentage points, respectively.

Neither score recovered appreciably in the latest poll, with confidence in the court now at 27% and the presidency at 26%. However, the survey was conducted June 1-22, 2023, before the Supreme Court issued decisions affecting affirmative action in education, college loan forgiveness and LGBTQ+ Americans’ access to creative services. Any or all of these decisions could have altered the court’s image as well as that of President Joe Biden, who spoke out against the rulings.

Public confidence in each of the other 14 institutions remains near last year’s relatively low level, with none of the scores worsening or improving meaningfully.

Overall, the new poll finds small business enjoying the most public trust, with 65% of Americans having a great deal or fair amount of confidence in it. A majority, 60%, also have high confidence in the military, while less than half (43%) feel this way about the next highest-rated institution, the police.

The medical system and the church or organized religion round out the top five annually rated institutions, albeit with meager 34% and 32% confidence ratings, respectively. Another six -- the U.S. Supreme Court, banks, public schools, the presidency, large technology companies and organized labor -- earn between 25% and 27% confidence.

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Creators: 'History and Tradition': An Unpredictable Constitutional Interpretation

Matthew T. Mangino
Creators
May 13, 2024

The U.S. Supreme Court, whose members are certainly learned in the law, has taken to making decisions beyond their area of training and expertise — legal precedent — instead decisions infused with "history and tradition."

None of the six conservative justices are historians — yet some of the court's most momentous recent decisions are grounded in history and tradition.

Thomas Wolf and Alexander Keyssar, writing for the Brennan Center last fall, suggested that "history is more than looking at select old things." They argue that historians "write about the past, using methods and tools they've developed over time to make statements that are reliable."

The justices do not have the required expertise to make rational and honest assessments of history. Wolf and Keyssar opined, "To do their job well, historians must acknowledge the complexity of the past and the importance of context for making sense of things, among many other considerations."

According to Emily Bazelon of The New York Times Magazine, "history and tradition" is a spinoff of "originalism." Former Justice Antonin Scalia was a proponent of originalism.

Scalia argued that the high court decisions should be grounded in the moment the Constitution was written, to prevent judges from substituting their values for the wisdom of the nation's founders.

Bazelon contends that "originalism in practice never lived up to this promise, because judges used it inconsistently or to reach the results they preferred."

Dahlia Lithwick, writing recently for Slate, had a less flattering view of originalism. She wrote, "originalism ... hold(s) that judges and justices should ignore every interpretive methodology judges once used to understand a legal text in favor of free-floating feelings about history."

"History and tradition" is originalism on steroids and the conservative supermajority on the court are flexing their muscles. In 2022, the court made two major decisions utilizing history and tradition.

First, the court found that a New York gun law was not consistent with "historical tradition" against regulating guns. Then the blockbuster decision in Dobbs v. Jackson Women's Health Organization regarding the constitutional right to abortion — "whether the right to obtain an abortion is rooted in the Nation's history and tradition and whether it is an essential component of 'ordered liberty.' The Court finds that the right to abortion is not deeply rooted in the Nation's history and tradition."

A chief concern with history and tradition influencing the outcome of court decisions is, as Ruth Marcus wrote in The Washington Post, "the demonstrated willingness of the originalist justices to pick and choose the historical practices and traditions that best support the result they want, narrowing or expanding the relevant period as is most helpful to their cause; second, their tendency to abandon originalist arguments entirely when they turn out to be inconvenient."

Marcus provided vivid examples using the New York gun law decision and the Dobbs decision to demonstrate the idea of cherry-picking to justify a result. "In Dobbs, the majority reached back to the 13th century to find that the Constitution contained no protection for the right to abortion — even though, in the gun case decided just the day before, it declared that 'historical evidence that long predates [ratification] may not illuminate the scope of the right' at issue."

The concept of history and tradition seems to be antithetical to the very thing it purports to provide — consistency. We know that history is always subject to interpretation. Go to your local library and check out the volume of books, new and old, on the historical influence of Abraham Lincoln.

It may be apt to conclude with an admonishment from a contemporary of Lincoln's. President Ulysses S. Grant wrote in his personal memoirs, "It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies."

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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Israel may has acted inconsistently with international humanitarian law

A US Department of State report summary claims that Israel may have used US-provided weaponry in an “inconsistent” manner with international humanitarian law (IHL) obligations but could not conclude whether US weaponry was used in specific incidents, reported Jurist.

The State Department’s NSM-20 report acknowledged that the US government received allegations of Israeli IHL violations since Hamas’ October 7 attacks from “[c]redible UN, NGO, and media sources.” Further, the State Department wrote that “certain Israeli-operated systems are entirely U.S.-origin (e.g., crewed attack aircraft) and are likely to have been involved in incidents that raise concerns about Israel’s IHL compliance.”

However, the State Department could not assess whether US weaponry was used in specific high-profile incidents, such as the Israeli attack on a World Central Kitchen convoy that killed seven humanitarian workers. The US reported that Israel’s information sharing regarding the use of US weapons has been limited and claimed that Hamas’s tendency to embed themselves in civilian populations makes it difficult to ascertain whether individual strikes violate international law.

Despite expressing concerns about Israel’s “action and inaction” that hampered the delivery of humanitarian aid into Gaza, the US acknowledged that Israel made steps such as opening the Kerem Shalom border crossing to allow more aid into the enclave. Thus, the US did not conclude that Israel is “prohibiting or otherwise restricting the transport or delivery of [US] humanitarian assistance” to Gaza.

The NSM-20 report also described the compliance of US partners Colombia, Iraq, Kenya, Nigeria, and Ukraine with IHL, concluding that, while Iraqi, Kenyan, Nigerian and Ukranian security forces may have been involved in human rights violations, no US weaponry sent to those countries was used in such breaches.

The Israel-Hamas conflict has drawn international scrutiny for its impact on civilians in both Israel and Gaza. Following Hamas’s October 7 attacks where more than 1,100 Israelis were killed and more than 250 taken hostage, Israel launched an offensive on Gaza that has reportedly led to the death of 30,000 Palestinians. In January, the International Court of Justice (ICJ) ordered Israel to take “all measures within its power” to prevent breaches of the Genocide Convention in Gaza following a complaint by South Africa. Then in March, the ICJ directed Israel to take all necessary measures to ensure the flow of humanitarian aid into the enclave.

Israel carried out strikes on the Gazan city of Rafah on Monday amid international concerns that Israel may invade the city, where 1.4 million people are sheltering.

US President Joe Biden issued memorandum NSM-20 in February, requiring the Departments of State and Defense to produce reports for various congressional committees describing whether US weapons and defense services are being used in compliance with IHL.

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SCOTUS: Police may seize property without immediate hearing

The US Supreme Court recently decided that police officers may continue to seize cars that defendants allegedly use to commit a crime, without an immediate hearing, reported Jurist. States often allow that kind of seizure—known as civil forfeiture—when officers believe that the car is connected to a crime in which the owner is not involved.

Justice Kavanaugh, writing for the majority, noted that the constitutional right to due process depends on the circumstances. States cannot take real property without a prior hearing, but personal property is different because it could be hidden before a hearing takes place. So when police officers seize cars, the owner only has a right to a timely hearing after the seizure, and not a prompt one, according to the Court.

The car owners in this case had argued that due process does give them a right to a prompt hearing under Mathews v. Eldridge. In that case, the Court created a test that balances the impact of seizing particular property or rights against the burden of having more procedures in place. Justice Kavanaugh responded that no prompt hearing is required under the Court’s precedent and that he would reach the same result under the Mathews test.

Justice Gorsuch concurred, but raised concerns about “whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.” He criticized law enforcement agencies for using civil forfeiture as a source of income, seizing property that is easily convertible to cash and small enough to discourage owners to go to court to get it back. He also noted that this practice disproportionately affects “the poor and other groups least able to defend their interests.”

In dissent, Justice Sotomayor echoed Justice Gorsuch’s concerns: “officers have a financial incentive to target marginalized groups, such as low-income communities of color, who are less likely to have the resources to challenge the forfeiture in court.” She also highlighted that many people need their car to get to work. And she pointed to law enforcement agencies imposing high fees and holding on to property for years before going to court—”all without any initial check by a judge as to whether there is a basis to hold the car in the first place.”

Civil forfeiture is a growing practice, although the government does not always win. For example, the US Court of Appeals for the Ninth Circuit ruled in January this year that the FBI went too far when it seized 700 safety-deposit boxes from private individuals.

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Mangino discusses Biden's Ohio ballot problem with WFMJ-TV21

Watch my interview with Lindsay McCoy on WFMJ-TV21 discussing the controversy over placing President Biden's name on the Ohio ballot this fall.

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