Daily Archives: May 14, 2020

Would you (peace officers) follow an order to search someones home unlawfully in violation of the Fourth Amendment? You have no search warrant, court order, exigency, parole or probation exemptions, fresh pursuit, plain sight, no probable cause to even secure the residence for a warrant, etc. The answer should unambiguously be, NO!

What if your mayor or governor made the same demand via executive order? Hopefully, the answer would remain, forcefully, NO!

Yet what if there was a really good reason, like a public pandemic? Would you go house to house at the demands of a politician who justified that his or her order was meant to facilitate the greater good? Although the illustration is easy to answer for most police officers since the lines of delineation between right and wrong are clear, this appears to be the roller coaster ride we are currently on.

Things have gotten pretty murky with executive orders being issued in violation of several constitutional rights. Weve clearly seen demands that have violated the First, Second, and Fourth Amendments of the U.S. Constitution. Moreover, citizens caught failing to comply with these commands have been warned, cited, and arrested. This is becoming a field day for constitutional attorneys defending these cases, many of which have been immediately dismissed.

The problem for police officers is that many of the orders are not exactly defined as illegal until a court says so. In the meantime, politicians are expecting cops to be mindless robots following directives under the threat of discipline; or worse yet, termination.

We are beginning to see it happen, and it should scare the luster off our badge. Its tyranny, and its currently being practiced across America at this very moment.

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As the coronavirus takes on political manifestations demanding safety at all cost, the price being paid includes economic catastrophes, which lead to high rates of domestic violence, drug and alcohol abuse as well as suicide. Therefore, in reality, the safety protocols are producing extremely tragic, unintended consequences. Some argue the results will ultimately outweigh coronavirus concerns.

That is why the salon owner in Dallas and other business owners like her have said enough, and are willing to be jailed or cited in defiance. Long-term repression of liberty and freedom ARE NOT the American way.

Police leaders should consult with legal counsel as the stakes are increasing, particularly those working in organizations demanding that police officers enforce orders that discard the Bill of Rights.

Peace officers should also consult with their labor attorneys before they are fired for insubordination, as Ive heard many cops talking about the price theyd pay if they failed to comply with enforcement demands resulting from executive orders issued by mayors and governors.

However, there will also be a price to pay for blind allegiance to violating constitutional rights, assuming our republic doesnt crumble.

The following excerpt is from an earlier Law Officer article, Taking enforcement action on rules that violate the Bill of Rights is bad practice.

Almost all orders related to COVID-19 violate the Bill of Rights in one way or another. Therefore, any government agency taking an aggressive enforcement approach, including the physical use of force, should reconsider its actions. We (peace officers) swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.

Historically, the enemy has been far more recognizable. Yet now it is masked in the zeal of political leaders willing to discard the Constitution as they flex their power with the explicit desire to be powerful.This is more than the slippery slope we often use as an idiom, its a tidal wave crashing down on freedom and the blood that was shed to obtain and defend it.

Therefore, police officers need to reflect upon the substance of the oath they took when their badge was pinned in place.

So, am Im calling political leaders urging aggressive enforcement of rules as our enemy? If they continue to repress liberty, freedom, or the values that created American exceptionlism, they are not acting like a friend to our way of life. As a matter of fact, the more these individuals demand compliance with unreasonable demands, the more they sound like third-world dictators. Hence, an enemy!

So back to my original question: Would you intentionally search someones home unlawfully in violation of the Fourth Amendment? Of course not! Or would you?

Jim McNeff

Go here to see the original:
What if police were ordered to search homes in violation of the Fourth Amendment? - LawOfficer.com

Since the onset of the COVID-19 pandemic, which in these parts was in early March, I have found the data-gathering practices on actual cases, hospitalizations, and deaths unhelpful.

Everyone has.

In full disclosure, I had to take college algebra twice to get a passing grade.

This is no slight on Mrs. Haines or GSHS, but you may want to take with a grain of salt anything I might write related even obliquely to math (unless, of course, it has to do with the Electoral College, where numerical reason always gets offended and leaves the room in a snit).

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Youd think that in the 21st Century, U.S. data gathering and reporting would be spit-polished by ubiquitous technologies like iPhones and wireless networks, but alas, the garbage-in-garbage-out proposition still applies, perhaps now more than ever.

Despite my questionable math background, early on in the pandemic I dumped TV news in favor of Bings COVID-19 Tracker to get a clearer picture about where and how quickly the virus was spreading.

However, I soon gave up on Bing for some of the same reasons I soured on TV news.

Unlike the news, Bings COVID-19 Tracker allocates a spot for recoveries. Like the news, they dont put a number to it usually.

Even as I write, the map lists no recoveries in Colorado and most other states.

I thought maybe recovery data gets protected by HIPPA or the Fourth Amendment, and perhaps some of it does, but some states do cite recoveries.

Wyoming, for example, showed 596 cases earlier this week, 391 of which had recovered. Colorado, on the other hand, shows no recoveries but dutifully updates the total number of cases daily, which on Wednesday exceeded 17,000.

In fairness, KDVR did cite Colorado recovery statistics from CDPHE for about three days. KDVR still leads every broadcast with a fuss over cumulative cases, hospitalizations and fatalities, but apart from an occasional human interest piece on a patients hospital departure, theres little mention of recoveries.

Its not just the absence of recovery data that makes data on COVID-19 unhelpful.

Last month I watched as a news anchor unashamedly reported on live TV that a spike in COVID fatalities was partially due to previously unreported deaths attributed to the virus. The gist of the story was something like, CDPHE found numerous COVID-19 fatalities from previous weeks, so they have been added to todays number.

Its like they had no idea what to do, so they plugged them into the nearest slot.

The tendency of fatality reporting to gin up foreboding has been well-understood since the days of Walter Cronkite, but this kind of sloppy data gathering turns a new leaf. Yet, Colorado and communities like Glenwood Springs base decisions on whether to end mask-wearing ordinances and lift restaurant restrictions on this data.

Modeling based on solid data testing, active cases, hospitalizations, recoveries and mortality strikes me as a valid basis for making decisions about precautionary measures, but that validity unravels if you ignore recoveries, dismiss the temporal integrity of deaths, and focus mainly on cumulative active cases, hospitalizations and fatalities.

That focus yields one grim picture.

Holy moly, Myrtle, you end up saying as you smack your forehead with the palm of your hand, Theres over 17,000 COVID cases in Colorado!

View that number through the prism of recoveries and a different picture emerges.

Of course, we dont see that picture because somewhere along the way someone decided recoveries dont matter as much as active cases and fatalities, or something like that.

Last month Gov. Jared Polis referenced the use of cellphone metadata to analyze human movement and determine the efficacy of stay-at-home orders. He could certainly get his hands on recovery data if he wanted it Fourth Amendment rights or not.

So, listen carefully, friends, whenever someone trots out COVID-19 statistics. The vision of what a hopeful future looks like is often in what the voices of public trust dont say.

Mitch Mulhall is a husband, father and longtime Roaring Fork Valley resident. His column appears monthly in the Post Independent and at postindependent.com.

See more here:
Mulhall column: Reading the COVID-19 tea leaves - Glenwood Springs Post Independent

(Photo by Spencer Platt/Getty Images)

Mike Jellison, owner of PA Fitness in Arlington, Wash., has decided to reopen his gym despite Washingtons ongoing stay-at-home order.

Initially, Jellison did close his business. He took time off, went to Arizona where his family has a home to think about the future, and told the Jason Rantz Show that he even considered retiring.

I understand. I get it. Everybodys got their own job, but now Ive got my job and Ive got to reassess, understand what I need to do, Jellison said. And then I started digging into a proper procedure, a proper way of actually running our situation.

WA salon owner believes they could safely reopen now, if allowed

Jellison said he listened to the federal briefings with President Trump and understood that health and fitness is essential for a persons mental and physical well-being. Knowing that, it seemed reasonable to expect a gym or fitness center to be included in the early reopening phases.

I mean, thats what he had stated, and thats what I thought the situation would end up being, Jellison said. So coming back up here after that situation, with all my ducks in a row and all the plans and procedures and understandings to make us CDC qualified, and everything in order, come to find out it wasnt to be.

Then, Jellison said, he was infuriated.

I started looking into our constitutional rights and checking out my Fourth Amendment, for business purposes, understanding that we have certain rights, he said. Were all Americans. Everybody has a say in whats going to happen, and whats going to go on, and what were doing. Its called the Constitution. It was put in place for us.

The last straw for Jellison was that any county would have to go three weeks, at least during this phase, without a positive case or a death. Spokane County was denied the ability to move to Phase 2 because of this rule.

I listened to that, and I was outraged, he said. I was totally outraged because of the idea that this cant be true.

So then he opened, with proper rules and restrictions in place.

In my facility, what we did is we put everything at six feet apart, he said. We got rid of half of our stuff. Were doing cleanings through a cleaning company, through us, bleaching. Were doing everything we need to do once an hour. Were taking temperatures at the front door to make sure that nobody is compromised.

The person at the front door checking temperatures wears a mask and gloves. Once the temperature is approved, each person signs a waiver from the insurance company.

We hand them a disinfectant bottle, which is a hospital disinfectant and a towel. They have the personal stuff, and then they go on about their business and do their workout constructively, Jellison said. We have a couple of rovers that are on the floor, and what they do is they make sure that the customers are doing their job.

Jellison said his gym wants to set a good example for the community.

We want to make sure that the community understands that were trying to be as responsible as possible, he said. But physical and mental health is important, and its been pushed to the side for a long time. Its just not right.

Jellison said PA Fitness was contacted yesterday by the state. They had received one complaint, Jellison said. While Jellison said he respects others opinions and right to complain, he also has heard from many more people who recognize that he is trying to do the right thing and being responsible.

Why one customer defied the rules to get a haircut at Snohomish barbershop

He said hes not worried about his business license because he understands his rights as a business owner and has thought about the recourse to his action.

I understand what, legally, what can and cant happen to me. I get it, he said. Like I told my other partners, Ill be the shield, you be the sword.

His message to Gov. Inslee is to put the people as the first priority.

Dont use us as second, third, or fourth priority of what you have going on, he said. I mean, we cant be a sub line, the people, to your agenda. Put the people first because we deserve it.

PA Fitness in Arlington will remain open, Jellison said.

Read the original here:
Arlington gym owner reopens, trying to be as responsible as possible - MyNorthwest.com

Last year, I blogged about State v. Elliswhere a passing motorist gave a Highway Patrol trooper the middle-finger salute and was arrested for his trouble. A divided Court of Appeals allowed the defendants conviction to stand. The case made it to the Supreme Court, which recently issued an opinionreversing the conviction.

A quick recap of our story. A trooper was assisting motorists when he noticed that the passenger in a car driving by had extended his hand out the window and was waving. After the vehicle passed, the trooper kept watching and saw that the waving stopped but the passengers middle finger remained extended. The trooper pursued and stopped the car. The passenger would not identify himself until cuffed and placed in the patrol car. Having determined that no one was in distress, the trooper issued a citation to the passenger for resisting, delaying, and obstructing an officer.

At trial, the defendant moved to suppress evidence of his refusal to identify himself, arguing that the facts did not establish reasonable suspicion to justify the stop. After hearing evidence from the trooper, the trial court orally denied the motion without making written findings of fact or conclusions of law, stating instead that [b]ased on a review of the evidence, the Court does find reasonable suspicion for the stop. In addition, based upon the totality of the evidence the Court does find probable cause for the arrest. The defendant then pled guilty, but reserved his right to appeal the denial of his suppression motion.

In its first opinion, filed on 6 August 2019, the Court of Appeals majority found no error. In the absence of written findings of fact and conclusions of law, the Court of Appeals inferred findings based upon the trial courts oral ruling and assessed de novo whether those findings supported the trial courts legal conclusion.

The Court of Appeals noted that the issue was not whether shooting the bird was a crime and that the defendant was not charged on the basis of that behavior. Instead, the issue was whether the trooper, when initiating the stop, had reasonable suspicion that criminal activity was afoot. The majority concluded that the defendants actions reasonably could alert an objective officer to a pending breach of the peace. In dissent, Judge Arrowood argued that no reasonable suspicion existed for the stop.

Heres where it gets interesting. The majority noted that the States brief did not argue that the stop was predicated on reasonable suspicion. Instead, the State had contended that the community caretaker exception, whose application does not require reasonable suspicion, justified the stop. The majority disagreed, finding the community caretaker exception inapplicable. However, the court went on to observe that, because the State was the appellee, the majority could still affirm the trial courts decision on an alternative reasonable suspicion theory. In so doing, the Court of Appeals stated that it is our duty to affirm the trial courts ruling if there is any legal means to justify that trial courts ruling, even if that reason was not argued by the appellee. Indeed, it is our duty to consider all possible legal bases to affirm the trial court even if the State, as appellee, had not filed a brief at all.

This language caused a bit of a stir in the appellate practitioner world. Questions arose as to whether the issue of reasonable suspicion had been fully argued and preserved below or whether the issue merely had been noted in the trial courts ruling, abandoned by the State in its appellees brief, and then invoked by the Court of Appeals majority sua sponte. Also, the language about the Court of Appeals duty to affirm was generating debate. Just as I completed a blog post discussing the original opinion, the Court of Appeals withdrew it and filed a new opinionon 20 August 2019.

In its reissued opinion, the majority again affirmed the trial court, but with two significant modifications. First, the reissued opinion specifically stated that the question of reasonable suspicion had been raised and argued before the trial court, thereby quelling any question whether the issue had been preserved under Appellate Rule 10, even if it was not argued on appeal as contemplated by Appellate Rule 28. Second, discussion of the States brief was relegated to footnote 5, where the opinion stated that the State argues, as an alternative legal basis justifying the stop, that the troopers traffic stop was justified under the judicially-recognized community caretaking exception, then noted that exception was inapplicable. The footnote could be read to suggest that the State had argued both reasonable suspicion and community caretaker, though as we will see below, the States sole contention to that court was the latter. Judge Arrowood maintained his dissent, modified in light of the revised majority opinion.

Taken together, these two Court of Appeals opinions suggest some limit on a reviewing courts ability to strike out on its own when resolving a case. As indicated in the first Court of Appeals opinion, an appellee can prevail on appeal without filing a brief. The burden is on the appellant to convince the reviewing court that the trial court committed reversible error; a bold (or broke) appellee can just sit by and watch. So the reviewing courts opinion in favor of such a silent appellee will be based on a premise that was not briefed, at least not by the prevailing party. May the reviewing court reverse based upon a theory no one ever argued? The original opinion emphatically said yes. The revised opinion suggests a more limited approach, that a reviewing court may rely on an issue that was preserved, even if not presented on appeal.

The defendant appealed to the Supreme Court on the basis of the dissent. The States brief to the Supremes makes unusual reading, to say the least. The State advised the Supreme Court that while the Court of Appeals found that the trooper had reasonable suspicion that justified the stop, [t]he State did not assert this argument in its appellate brief or raise it during oral argument. Rather, it solely contended that the community caretaking exception to the Fourth Amendment applied. The State added that it does not believe that the specific articulable facts included in this record established reasonable suspicion of the crime of disorderly conduct. Lest there be any doubt, the State closed its brief by stating that the decision of the majority of the Court of Appeals should be reversed.

In a unanimous opinion filed on 1 May 2020, the Supreme Court reversed and remanded the Court of Appeals opinion. The matter was determined on the record and briefs without oral argument. The Supreme Courts straightforward opinion reviewed the inferred facts and concluded that no reasonable suspicion existed to justify the initial stop.

Think about what happened here. Recall that the State, to its credit, candidly acknowledged the limited basis of its appeal and conceded that it had never argued the theory on which the Court of Appeals relied. Even so, the Supreme Court, without discussion, followed and analyzed the reasonable suspicion argument that the State did not argue but the Court of Appeals embraced. The original blog post in this chain discussed cases where the reviewing court found that the trial court reached the right result while using the wrong rationale. Here, in a bit of a twist on that earlier post, the Supreme Court found that the Court of Appeals reached the wrong result but had based that result upon a misapplication of the right rationale.

Various permutations of this process are not hard to find. Another prime example where a reviewing court decided issues neither briefed nor argued is Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). In that case, the Supreme Court abolished the distinction between invitees and licensees in premises liability case. This result came as a surprise to the litigants, none of whom had advocated for such a significant jurisprudential shift.

Similar events can be found in the Big Leagues. Ever-vigilant Beth has pointed me to United States v. Evelyn Sineneng-Smith, U.S. Supreme Court case number 19-67, issued this month, reversing a Ninth Circuit opinion. Writing for a unanimous Court, Justice Ginsburg remanded the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. Ouch. RBG noted the issue addressed in this post when she added A court is not hidebound by the precise arguments of counsel, but the Ninth Circuits radical transformation of this case goes well beyond the pale. Ouch again.

Often, these appellate gyrations may be a practical necessity. Trial courts and litigators need to know the bases for the reviewing courts decisions. Thats why we have written opinions. The reviewing courts obligation to oversee the states jurisprudence and reach sound conclusions will sometimes lead it to a rationale that those below did not see coming. It only makes sense for the ultimate reviewing court to be explicit in those rationales. As Beth and Matts treatise notes, the ultimate responsibility for jurisdictional oversight lies with the jurisdictions court of last resort, though intermediate reviewing courts also have a role. Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure, 2.05[4].

Unanswered is the question how far a reviewing court may (or must) go to reach a correct result. Ellis illuminates the risks inherent in a courts decision to reach what it sees to be the right outcome. The Court of Appeals majority found for the State on a legal basis that the State deliberately had not argued on appeal and later explicitly rejected when in the Supreme Court. In other words, the Court of Appeals majority reached beyond the issues briefed for a result it thought correct, but no one else did, including the beneficiary of the courts reaching.

Litigants and trial judges would surely like to know the limitations, if any, on the reviewing courts ability to look beyond the issues the parties have chosen to present. The process illustrated here in Ellis can be frustrating for those involved in a case who were giving it their best effort but were unexpectedly second-guessed by the reviewing court.

Should the parties be notified and given the opportunity to be heard when the reviewing court is considering a theory that no one argued? While that sounds sensible, implementing it would be a jolt to the cultures of both of North Carolinas appellate courts, at least as existed when I was there. The judges and justices rarely discussed cases before they were calendared, so the panels did not know the outcome and rationale of a case until the judges or justices discussed it in conference and voted on the resolution. Only then could supplemental briefing be ordered if the court was considering going in a direction unanticipated by the parties.

What are the lessons from this case? For one, if you are of a mind to tell a trooper or officer that they are Number 1, use your index finger.

Has something like this ever happened to you? Can you recall any opinions where the appellate courts admitted that they were deciding the appeal based on a theory not argued in any of the appellate briefs? Or where the reviewing court went off on a frolic of its own sub silentio?

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See the original post:
Appellate Rulings Not Argued By Any Party; Or Too Many Fingers In The Pie - JD Supra