Daily Archives: January 27, 2020

According to an advisory opinion issued in December by Virginia Attorney General Mark Herring, localities in the commonwealth cannot declare themselves exempt from laws passed by the state legislature. In support of his position, Herring cites both statutes and established common law doctrines [that] specifically limit the authority of local governments. He further states, It also bears emphasis that neither local governments nor local constitutional officers have authority to declare state statutes unconstitutional or decline to follow them on that basis.

Translated into plain English, Herring is telling jurisdictions that have identified themselves as Second Amendment sanctuaries meaning they will refuse to enforce any new state laws that impose mandatory gun registration to stay in their own wheelhouse and execute the laws passed by the legislature. Should counties and localities believe that a gun law passed by the Virginia Assembly is unconstitutional, they should follow proper procedure and either speak to their legislative representatives or file a lawsuit requesting that a court declare the measure unconstitutional.

Thats wise advice. Our governmental system is constructed as a pyramid. We have multiple levels of government that exercise limited authority. Local governments are not entitled to pick and choose which state laws they wish to enforce. Similarly, states are prohibited from engaging in selective enforcement of federal laws. When any level of government attempts to usurp responsibilities exercised by the tier above or below it, the whole pyramid collapses. Herrings memorandum advises municipal and county governments to stick to the format that has made our republic successful for the past 244 years.

So one wonders why Herring wishes to apply his logic only to Second Amendment issues. Virginia is full of so-called illegal immigration sanctuaries. In those jurisdictions, local governments refuse to cooperate with U.S. Immigration and Customs Enforcement (ICE). Whats more, they actively shield immigration violators from federal authorities. Clearly, those cities and counties are attempting to nullify federal immigration law and declare themselves exempt from it. And they do so with the full support of the Virginia state government.

In fact, Herring himself has strongly supported Virginia officials who have thumbed their noses at both the Immigration and Nationality Act (INA) and ICEs authority to enforce it. He has unabashedly declared that state law enforcement officials who hold immigration violators on the basis of detainer requests issued by ICE risk violating the Fourth Amendment prohibition against unreasonable seizure. And he has consistently interfered with efforts by Virginia law enforcement agencies to cooperate more closely with federal immigration authorities in order to remove dangerous, criminal aliens from Virginias communities.

But, according to Herrings logic, neither Second Amendment sanctuaries, nor immigration sanctuaries are lawful. The U.S. Constitution grants the federal government exclusive authority to regulate immigration. As a matter of law, state and local government officials have no say in how, where or when the federal government chooses to enforce the INA. In fact, the Supreme Court explicitly stated this, in 2012, in its holding in United States v. Arizona.

So, why did Second Amendment sanctuaries provoke a sternly-worded memorandum telling local officials to play nice when the attorney generals office has not uttered a single word about immigration sanctuaries? Clearly this is an instance of profound hypocrisy a case of, Do as I say, not as I do. Because, while he professes to believe that Virginians should hew closely to the principles of constitutional federalism when addressing public concerns over gun control legislation, Herring is perfectly comfortable obliterating any distinctions between federal and state powers or executive, legislative and judicial functions, for that matter when it comes to immigration.

If we, indeed, live in a country that is ruled by distinct levels of government that are intended to exercise limited powers in defined spheres, then state and local governments should, as Herring suggests, either petition Congress to change laws they dont like or file lawsuits seeking to overturn them. But that approach, which is dictated by our system of Republican democracy, should be the standard procedure regardless of the issue that is subject to debate guns, immigration or anything else.

Meanwhile, Virginia residents who support the rule of law are still waiting for Herring to advise illegal immigration sanctuaries that their policies are both illegal and unacceptable.

Matt OBrien is director of research at the Federation for American Immigration Reform (FAIR), a nonprofit group advocating for legal immigration. He previously served as assistant chief counsel with U.S. Immigration and Customs Enforcement and as a division chief with U.S. Citizenship and Immigration Services. He lives in Virginia.

Link:
Virginia AG's immigration hypocrisy | TheHill - The Hill

Whatever happened to the Eighth Amendment to the Constitution you know, the one prohibiting infliction of cruel and unusual punishment on prisoners?

Rep. Adam Schiff has already put 16 hours in on his opening arguments in the Senate, with a little help here and there from Rep. Jerry the Penguin Nadler and assorted other Democrat lunatics.

And the 100 members of the Senate also known as the prisoners have to put in another eight hours in stir today listening to Shifty Schiffs same old you-know-what.

If 24 hours of Adam Schiffs bug-eyed rants dont represent cruel and unusual punishment, then what does?

Sen. Dianne Feinstein fled Wednesday night, not even trying to cover her tracks, saying Goodnight to two reporters as she took it on the lam. Granted, shes 85 years old, but it has to be excruciating even if youre not knock-knock-knocking on heavens door.

Sen. Rand Paul was seen surreptitiously doing a crossword puzzle. Sen. Bernie Sanders, almost as ancient as Feinstein, dozed at his desk.

Of course the Democrats with press passes were swooning over Schiffs BS, claiming to be fascinated, enthralled, riveted breathless, as if they were reviewing opening night of a hit Broadway musical. Sen. Chuck Schumer went so far as to say that Schiff was delivering his remarks succinctly.

Succinctly! I was a young man when Adam Schiff began speaking and he hasnt stopped yakking yet.

As a reporter, Ive always enjoyed covering trials. Its all right there in front of you, on the public record. When either side introduces a photo or document into evidence, you can put it into the paper. You can bring cameras into state courtrooms. At the Moakley Federal Courthouse, you can tweet.

But the fact is, even the best trials have shall we say dry spells. When technical testimony is being put into evidence, or the lawyers are arguing among themselves with the judge at interminable sidebar conferences.

Still, a spectator always know that eventually, the action in the courtroom is going to resume. Take opening arguments I dont think Ive ever heard one go on longer than a couple of hours. A judge wouldnt permit it. Beyond that, any lawyer that long-winded would lose the jury, before he even called his first witness.

But these Democrats just keep droning on and on and on.

And there seem to be no rules. First of all, the president is not charged with committing bribery, treason, or any other high crimes or misdemeanors. In a real trial, that would be enough for the defense counsel to immediately move for a directed verdict of acquittal. How can you convict somebody of nothing?

Another thing: Schiff has mentioned Russia, I believe, more than 40 times. Again, in a real courtroom, the defense lawyer would be on his feet, objecting. These same clowns tried to frame Trump on the Russian collusion hoax, and he was, in effect, acquitted.

So theres another amendment to the Bill of the Rights that the Democrats are trashing: the Fifth.

No person shall be subject for the same offense to be twice put in jeopardy of life and limb.

Unless, of course, your name is Donald Trump.

One by one, the Democrats are trashing the entire Bill of Rights. In 2016, Hillary Clinton openly ran on a platform of overturning Citizens United (the First Amendment) and D.C. v. Heller (the Second).

Then theres the Fourth Amendment, prohibiting illegal search and seizure. Ask Carter Page how that works out for you in the Democrats secret corrupt FISA courts with their secret Democrat police known as the FBI falsifying evidence against you.

Making up evidence under oath the Democrats dont care much about the 10 Commandments either, apparently. Remember Number 8 Thou shalt not bear false witness against thy neighbor.

Unless he works for Donald Trump and went to the U.S. Naval Academy. Then its okay, right Democrats?

How about the Sixth Amendment you know, the one that lets the accused confront his accuser. That ones out the window now too, at least for POTUS. The whistleblower must be protected at all costs, especially since he has no direct evidence, only hearsay, which used to be inadmissible in a court. But thats just the old Constitution, and,the Democrats go by the living Constitution, which means, they make it up as they go along, to frame anyone they disagree with, which is anybody who they disparage as a Deplorable.

Its bad for everybody, but especially Rand Paul. First a Bernie bro tried to shoot him at a baseball practice. Then his moonbat neighbor in Kentucky (originally from New Bedford) almost killed him in an unprovoked assault.

And now Paul has to listen to Adam Schiff for 24 hours, with only a crossword puzzle for comfort.

Are the nominations for the 2020 Profiles in Courage Award closed? Id like to make a motion for Rand Paul .

The rest is here:
Howie Carr: Weve all had just about enough of this Schiff - Boston Herald

"He obstructed us. He is trying to obstruct you. And he has violated the Constitution," Rep. Adam Schiff, D-Calif., thundered during his closing statement before the Senate Thursday evening. It was a powerful moment that belied an inconvenient truth about the impeachment trial of Donald Trump: Democrats ceded their moral authority in the case long ago.

As Truthdig columnist Chris Hedges argues in a new interview with "Rising's" Krystal Ball and Saagar Enjeti, the Democratic Party has been "selective" in its assessment of what rises to a constitutional violation, willfully ignoring a litany of crimes committed by the Bush and Obama administrations. "What are they?" he asks rhetorically. "Those would be nine illegal warswars are supposed to be declared by Congress; the war in Yemen; the wholesale surveillance begun by the Bush administration, exposed by Edward Snowden, in direct violation of the Fourth Amendment; [violations of] the Foreign Intelligence Surveillance Act, which makes it a crime for the government to surveil any U.S. citizens; the global programming of extraordinary rendition, kidnapping and torture; [and] the decision by the Obama administration to reinterpret the 2002 Authorization to Use Military Force Act to give it the right to act as judge, jury and executioner and assassinate U.S. citizens."

Later in the segment, Hedges claims the Democratic Party "engages in a form of demagoguery every bit as pernicious as the demagoguery that the Trump White House does." While the latter targets Muslims and undocumented immigrants, the former blames Russia for the results of the 2016 election rather than admit its complicity in the neoliberal policies that enabled Trump's victory. "Democrats are also living in an alternative reality," he says.

Watch the interview in its entirety above.

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Chris Hedges: Democrats Have No Moral Authority on Impeachment - Truthdig

A policy analyst with The Heritage Foundation says "red flag" laws, if not written well, tend to violate people's fundamental rights under the U.S. Constitution which is why she has a problem with what's happening in the Virginia legislature.

The Virginia Senate has passed legislation calling for a red flag law, but not everyone is on board with the legislation. Supporters of red flag laws say they're meant to disarm individuals who are believed to be dangerous or are showing they're a danger to themselves or others.

Amy Swearer is senior legal policy analyst with The Heritage Foundation, a center-right think tank in Washington, DC. She says there's nothing wrong with that mindset but the problem with these types of laws, she argues, is that they lend themselves to due process violations if they're not written well.

"So, here what you see is that there's very low burdens of proof," Swearer begins. "That means it's very, very easy to sort of take guns first and ask questions later, which is not something that we should be doing when we're talking about restricting fundamental rights like the right to keep and bear arms."

Swearer hopes the Virginia House of Delegates will make "good improvements" to the legislation, sending it back to the Senate.

"It seems right now that the bill that came out of the Senate, again, just has some problematic language that makes it very, very easy to take guns first without actually giving that person a hearing before taking those guns," she offers.

Virginia would not be the only state with a red flag law. Similar statutes can be found in other parts of the country. Swearer also sees problems in those laws.

"Even if you're not a gun owner and you don't necessarily care about the rights of gun owners, it's important that you pay attention to these situations. Because any time that we start making it acceptable for the government to ignore due process for any fundamental right whether it's the Second Amendment, the First Amendment, the Fourth Amendment it becomes that much easier for government to say, 'Well, you know, we sort of infringed on those rights in other places, and so we can do it here too,'" Sweater explains.

"So, it's important that we make sure that all of our fundamental constitutional rights are protected at an equal level so that we don't have to keep playing this game and having this battle every single time the government wants to infringe on one right or the other."

Go here to see the original:
Infringing on gun rights just the beginning, says analyst - OneNewsNow

What if the United States government took the DNA of vast numbers of Americans for use without their consent? The Trump administration has just brought us one step closer to that dystopia. On January 6, the federal government began collecting DNA from any person in immigration custody previously, it had required only fingerprints. With this move, the federal government took a decisive step toward collecting and tracking large numbers of its citizens genetic information too.

The federally administered CODIS, or Combined DNA Index System, has expanded dramatically in scope since its inception. Virginia established the first forensic DNA database in 1989, with the federal government following suit in 1994. Today, all 50 states, the District of Columbia and the federal government collect, store and share genetic information through CODIS. Initially, many states limited DNA collection to sex offenders. But today, nearly all states compel DNA from all convicted felons, while many states collect DNA from individuals convicted of mere misdemeanors. Most states also collect DNA from some individuals merely arrested on charges of, but not yet convicted of, a crime.

The Supreme Court blessed the expansion to arrests in Maryland v. King, a narrowly divided 2013 decision, over a furious dissenting opinion by Justice Antonin Scalia, three years before his death. Justice Scalias opinion railed against the civil rights implications of expanding CODIS in this way. The Trump administrations recent immigration policy is the latest development in a worrying trend of escalating DNA surveillance.

Despite these significant expansions in CODIS, one constant has remained: Until now, CODISs crime-solving components have contained genetic profiles only of individuals connected with criminal activity, whether accused or convicted. Now, for the first time, CODIS will warehouse the genetic data of people who have not been accused of any crime, for crime detection purposes. Noncitizens in immigration custody are not criminals as a rule. The vast majority of immigration infractions that land an immigrant in detention are civil in nature, akin to the I.R.S. asking a citizen to pay a penalty when she fails to withhold enough money from her paycheck. And in the case of refugees seeking asylum (a large and increasing proportion of the detained noncitizen population), international and domestic law expressly allow these individuals to enter the United States to claim the right to refuge. By severing the longstanding prerequisite of prior (alleged) criminal conduct for compelled DNA collection, the government puts us all at risk.

How we treat the people that cross our borders speaks to our identity as a nation. Immigrants are Americans of the future and the criteria we use to select or bar immigrants reflect our aspirations for the society we wish to become. The new DNA collection program may yet revive darker, eugenic impulses in immigration history. Modern, quota-based immigration law was born of a desire to improve the quality of Americas racial stock by drastically limiting immigration from peoples scientifically believed to be less intelligent than other groups. Italians and other southern European immigrants, for example, were granted fewer visas based on this false science.

It is a small leap from requiring immigrants to submit their DNA to verify familial relationships, or to mitigate future criminal risk (the pretexts the government has cited to justify its recent policy change) to requiring DNA screening of immigrants for health, disability, intelligence or disease. These screens for fitness likely based on questionable science could ultimately be used to deny entry into the United States or, if discovered later, as a basis for expulsion. Regardless of reliability we would not support genetic screening for fitness. Courts have usually failed to protect immigrants from such impulses, so it is up to citizens to learn from this history and decide that building a society this way is unacceptable.

More broadly, once you break the norm requiring criminal conduct for inclusion in CODIS, it is difficult to re-establish. That is why many civil rights groups have long objected to forced mass collection even in criminal contexts. In arguing that collecting DNA from arrestees should be unconstitutional, the ACLU, Electronic Freedom Foundation and others have worried about precisely this shift from forced criminal DNA collection to forced DNA collection from law-abiding individuals. With every expansion in CODISs reach, the government has shown that these concerns about eroding privacy were well placed.

The Supreme Court justices who dissented in Maryland v. King saw this threat clearly as well. Justice Scalias dissenting opinion foresaw the construction of a genetic panopticon, a DNA watchtower that the government could use to monitor all of its people. This new immigration policy moves us toward completion of that dystopian tool: a genetic database that will ultimately encompass anyone within United States borders, including ordinary Americans neither convicted nor even suspected of criminal conduct.

History has repeatedly shown that freedom from the governments prying eyes is essential for liberty. Resistance to government overreach has relied on the governments less-than-perfect ability to identify and discipline its subjects. The Constitution takes this as a bedrock principle, with the Fourth Amendment forbidding the government from engaging in unreasonable searches and seizures.

Anonymity can be of real social value. Being able to stay unknown enables people to do important things, like protest the government. If the government has the genetic profiles of all Americans, it may be able to trace us wherever we go. That raises significant constitutional and other concerns even if accurately deployed. Among other possible misuses, such a comprehensive DNA database would empower the White House to crack down on civil protest or monitor political critics and opponents.

And what if the government gets things wrong? A comprehensive DNA database may lead law enforcement to lean even more heavily on genetic technology. But forensic genetics can point to the wrong suspect. A contaminated specimen of crime scene DNA might well result in a false match. Counterintuitively, as DNA analysis becomes more sensitive, forensic genetic analysis may be more likely to falsely implicate a person in a crime. We constantly shed our DNA, and it can travel from place to place on the objects we touch. In the future, simply sneezing somewhere that becomes a crime scene could be enough to make you a suspect. As with many other forms of data collection, the more complete the information database, the more suffocating, dehumanizing and potentially totalitarian the society.

We as Americans should take heed of how these quiet expansions in genetic surveillance may threaten our democratic way of life. The courts and Congress have been largely complicit in amplifying these threats to individual and collective liberty. It will be up to citizens themselves to make clear to those who wield power in their names that they do not wish to live under the gaze of a genetic panopticon.

Daniel I. Morales is an immigration law theorist and a professor at the University of Houston Law Center. Natalie Ram is a genetic privacy scholar and an associate professor of law at the University of Maryland Francis King Carey School of Law. Jessica L. Roberts is a bioethicist and law professor who specializes in peoples legal rights in their genetic data. She is the director of the Health Law & Policy Institute at the University of Houston Law Center.

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Read more:
DNA Collection at the Border Threatens the Privacy of All Americans - The New York Times

A federal appellate court has overturned a lower court decision to dismiss a Virginia womans lawsuit against the police officer who shot and killed her German Shepherd,Jax, while the dog was leashed on its owners property.

The incident occurred on Sept 24, 2017 at Tina Rays home. There, officer Michael Roane shot Jax when it was in Rays yard, tethered, and incapable of reaching or harming Roane, said the U.S. Court of Appeals for the Fourth Circuit.

What happened that day:

On September 24, 2017, Roane drove to Rays property to assist with an arrest warrant that was being served on Ray for domestic abuse. When Roane arrived on Rays property, four other officers were already present and parked in the driveway. Rays doga 150-pound German Shepard named Jaxwas secured by a zip-lead attached to two trees that allowed the animal limited movement within a play area of the yard. Rather than park in the driveway like the other officers, Roane parked his truck within the dogs play area, prompting the other officers on scene to shout and gesture toward Roane, indicating that he should [w]ait and [l]et [Ray] get her dog. Roane exited his vehicle and started walking toward the house.

As Roane emerged from his vehicle, Jax began barking at and approaching Roane. Roane responded by backing away from the dog and drawing his firearm, while Ray ran to the zip-lead and began shouting Jaxs name. In a short moment, Jax reached the end of the zip-lead and could not get any closer to Roane. Roane observed that the dog could not reach him, and further observed that Ray was now holding onto Jaxs fully-extended lead and continuing to call Jaxs name. Roane therefore stopped backing up. Roane then took a step forward, positioning himself over Jax, and fired his weapon into the dogs head. The dog died from the wound.

Images of the scene were posted online at the time.

Bound by those facts at this stage of the proceeding, we hold that the complaint plausibly states a claim for an unconstitutional seizure of Rays property for which Roane is not entitled to qualified immunity, the court ruled. Roane claimed that he shot the dog in self-defense and out of fear for his own life.

As Law&Crime noted before, qualified immunity is a legal doctrine that shields government officials from civil liability for actions performed within their official capacity unless those actions violate clearly established constitutional rights.

The appellate court agreed with Ray that the district court erred in analyzing both prongs of the qualified immunity analysis.

First, she asserts the district court erred dismissing the action and concluding the allegations in the complaint were insufficient to allege Roane unreasonably seized Jax in violation of the Fourth Amendment, the court said. Ray then contends, assuming the seizure was unconstitutional, the district court also erroneously concluded Roane was entitled to qualified immunity. We agree with Ray.

Viewing all facts in the complaint and inferences arising therefrom in Rays favor, it is clear that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others, the court continued. Accepting these facts, we hold that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Rays property under the Fourth Amendment.

The dismissal of Rays case was overturned and the case was kicked back down to the lower court.

You can read the rest of the decision below:

Ray v. Roane by Law&Crime on Scribd

[Image via Augusta County Sheriffs Office/screengrab]

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Officer Who Shot Leashed Dog in the Head on Womans Property Not Entitled to Immunity: Court - Law & Crime