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THINK BEFORE YOU FEAR

AP- February 25, 2012

Virginia Governor Changes Mind on Transvaginal Ultrasound Abortion Bill

WASHINGTON ó Virginia Gov. Bob McDonnell said Friday he backed away from a bill requiring women to undergo an invasive procedure before receiving an abortion because he believed it might not have withstood legal scrutiny.

McDonnell, chairman of the Republican Governors Association, addressed the matter at a panel hosted by Politico. It was his first extensive comments since asking lawmakers this week to drop a bill that would have required women seeking abortions to submit to a vaginal ultrasound procedure. The bill drew sharp opposition from Democrats and women's groups and was lampooned on national late night comedy shows.

"I got legal advice from various people, including my attorney general, that these kinds of mandatory invasive requirements might run afoul of Fourth Amendment law," McDonnell said. The Fourth Amendment to the Constitution guards against unreasonable search and seizure.

"I support the bill. I still support the bill. That never forfeits a governor's rights to make amendments," McDonnell said, adding he had not initiated the legislation and that it was pushed by legislators instead.

The bill would have required women seeking an abortion to undergo a procedure in which a wand is inserted in the vagina to yield an image of the fetus. McDonnell supported the bill as it was originally written but asked lawmakers Wednesday to amend it to require noninvasive ultrasound instead.

Seven states have laws mandating some form of pre-abortion ultrasound exam. None of the other states explicitly require the transvaginal procedure, according to the Guttmacher Institute that researches abortion-related issues.

 

Man Spends Two Years in Solitary Confinement After Getting Arrested For Driving Drunk

February 4, 2012 - Robert F. DiCello

A man who spent two years in solitary confinement after getting arrested for DWI was awarded $22 million for suffering inhumane treatment in New Mexico's Dona Ana County Jail.

According to a New Mexico TV station, Stephen Slevin was arrested in August of 2005 for driving while intoxicated. He said he never got a trial and spent the entire time languishing in solitary, even pulling his own tooth when he was denied dental care. "'[Prison officials were] walking by me every day, watching me deteriorate," he said.

"Day after day after day, they did nothing, nothing at all, to get me any help." Slevin said he made countless requests to see a doctor to get medication for his depression, but wasn't allowed to see one until only a few weeks before his release. He also never got to see a judge.

The Defendants in the suit, a mix of jail and county officials, said when Slevin was processed through booking at the DoŮa Ana County Detention Center (DACDC), he was processed for entry into the general population. Shortly thereafter, he was put in the medical unit for observation out of concern for self-harm.

According to their trial brief, the Defendants contended that when medical staff determined that the concern for self-harm no longer existed, they directed that plaintiff bereturned to general population. Plaintiff indicated that he did not wish to return to general population and was placed in administrative segregation, not solitary confinement. At no time during plaintiffís detention at DACDC, did plaintiff make known that he wanted to be moved back into general population.

Given the size of the verdict, it looks like the jury didnít buy that story.

And so the most fascinating part of this story is how the jury saw the case. Their observations were recorded on a jury questionnaire, where they were asked various questions and put in writing how they felt about the whole thing. The breakdown of the hefty $22 million settlement, one of the largest prisoner civil rights settlements in U.S. history, bears note. The jury awarded Slevin $500K a month for every month of incarceration multiplied by 23 months, for a total of $11.5M. They awarded $1M a year post incarceration, totaling $4M. Against Defendant Zemek, a member of the County Board of Commissioners, the awarded $3.5M in punitive damages. Against Defendant Barela, they awarded Slevin $3M in punitive damages. The Defendants have now appealed the verdict. Letís see where this story goes from here. Find out more.

What is the Fairest Way to Tax?

January 28, 2012 - Robert F. DiCello

Much has been said about the lack of fairness inherent in our tax system. On Real Law Radio, Bob DiCello, a Civil Rights trial lawyer, and Scott Roller, a Captain at a Northeast Ohio police department, discuss their thoughts.  

The discussion is framed by the recent disclosures of Republican presidential candidate Mitt Romney who recently disclosed his tax returns.  They showed he paid only 15% income tax on over 20 million dollars worth of income.  The reason? His income comes from capital gains, the money he earned through investments or other interests.  It’s not labor-based income.  And so the debate is engaged: is it fair for the most wealthy to pay the least tax percentage on their income?

Proponents of a reduced tax on capital gains argue that we need to keep taxes low on income that is derived from investments .  Why? Because lower taxes will support more investment, and the United States has a national interest in having a sufficient amount of investment money on hand to maintain a healthy economy.

Opponents of a reduced tax on capital gains note the inequity between the wealthy an the poor.  They argue that the rich are not paying enough tax. They say that the rich can and should pay more, given their relatively lavish life-styles and our country’s current economic needs. 

Those in the middle, like me, scratch their heads and wonder if a flat tax might solve it.  Check out these links to get more info about the debate:

Tax Policy Center

American Tax Policy Insttitute

SOPA & PIPA: The On-line Community Speaks Against Overreaching Bills

January, 21, 2012 - Robert F. DiCello

H.R. 3261, The "Stop Online Piracy Act", or #SOPA would allow the government to "suspend operation of, and lock, the domain name" of websites "dedicated to infringing activity."

Huh? What does it mean to be ďdedicated to infringing activityĒ?What does that website look or act like? And who in the world should have the right to shut down your website without notice or some type of due process? Websites are the on-line homes of millions and millions of people and companies. Now, the government claims it would have the ability to shut the lights out in any one of those homes that it perceives to be breaking the law.

Oh brother! (Big Brother).

This reality hit the on-line community hard. And their voices in unison stopped this legislation in its tracks. In my view, itís a testament to the fact that in America we still have the power to shape and change our laws. This is our country. And nothing says that louder or prouder when people group together and defeat lobbyist-driven big business-funded legislation.

Although the votes on SOPA and PIPA have been postponed, let your elected officials know what you think. Donít let this important discussion end now. While it is important to protect the intellectual and electronic property of those who produce and own it, we need to ensure that the internet remains free of government over-regulation. Perhaps thatís wishful thinking. But then again, the outcry against SOPA and PIPA reminds us that we still have that power.

Get more information now about SOPA and PIPA - Speak Up!

State Government Bans Happy Meals: Going Too Far?

December 3, 2011 - Robert F. DiCello

(At Real Law Radio, the motto is: Think Before You Fear. This motto reflects the understanding that when we abandon reason in favor of how we feel, we end up doing things that don't often serve our highest purposes. This isn't to suggest that you or I don't think, it's to remind us that simple answers rarely solve complex legal problems.)

Once in a while, we at Real Law Radio pick a story that gets lots of attention. Check out this entry from The SanFran Weekly Blog. Thanks Joe Escenazi for the plug! And Listen to him live on Real Law Radio today at 1:30 EST. (Check out his piece from the SF Weekly Blog):

For those of you who can't get enough news about San Francisco's de facto Happy Meal Ban -- and McDonald's and other fast food joints sidestepping it with startling ease -- here's more fuel for your fire.

Your humble narrator is going to talk Happy Meal bans and San Francisco government on the radio. Radio in Cleveland, which is a long way from here both geographically and politically. And yet, the denouement of San Francisco's "Healthy Meal Incentive Ordinance" has turned heads far and wide. Hence: Hello Cleveland!

You can tune in to hear about all things Happy Meal at around 10:22 a.m. Saturday on WHK 1420 AM's "Real Law Radio." It's a show featuring a left-leaning civil liberties instructor and right-leaning cop and firearms instructor -- who swear they get along.

Since you're probably not within the station's broadcast radius, you can listen over the internet here. You can also call in and make your opinions heard by dialing these numbers.

East Coasters have plenty of preconceived notions about San Franciscans. One of them shouldn't be that we can't get up before 10:20 on a Saturday morning.

 

Protests Mean Only One Thing: We're Angry

October 9, 2011 - Robert F. DiCello

At Real Law Radio, the motto is: think before you fear. This motto reflects the understanding that when we abandon reason in favor of how we feel, we end up doing things that don't often serve our better purposes.

That motto also reflects the fact that fear is a precurser to anger. First one becomes fearful of a given condition or threat. Then one reacts with anger in response to that threat. Sometims that response makes apparent sense. Other times it does not.

In New York City today, the protests don't seem to make sense. The protesters say different things. Their focus is not on the same bad guy. But this noise can be harmonized. From the many voices that are gathering and talking, it seems all are there to express frustration over an economic system that has left them behind.

These kinds of angry protests are not new. In France in 2009, massive demonstrations protested the government's handling of their economic crisis. It caused plane and train cancellations, while also disrupting services at banks, schools, hospitals, courts, and post offices. And who could forget the protests earlier this year in Great Britain? The community was described as "a tinderbox waiting to explode because of joblessness and cuts in government services."

And so, in America today mostly peaceful protests have expressed anger over what might be called the current state of life here. I say, good. Speak you mind. Share your concerns. Express your anger (peacefully). Then, when you've had enough of all that, take a serious look at yourself.

Are you angry because you want more, or because you have nothing? Are you angry because you can no longer indulge in the heady economic days when land was over-priced and banks were handing out money in buckets for you to spend? Or are you angry because you haven't done a damn thing to make your local community any better.

After indulging in self reflection,I recommend you take an active roll in your local political environment. If you are so inclined, get to the business of re-designing the way things are to the way things should be. Or if you are of the opposite inclination, get rid of all the waste that the have-nots want you to pay for.

Whatever your preference, get in there and do something to make our country proud.

But a cautionary note seems fitting here: at the risk of sounding synical, I've learned to never underestimate the greediness and laziness of most of us. In my view, it's gonna take a whole lot more than protests to make things better.

Illegal Immigrant With Legal Wife Saves Little Girl: Should He Be Deported?

August 20, 2011 - Robert F. DiCello

Finally we have a story that puts a human - if not noble - face on those who come to America to make their lives better. Antonio Diaz Chacon, 23, watched a little girl in his Albuquerque, New Mexico neighborhood go to a neighbor's house to pick up tostadas. He then saw a van pull up, someone grabbed the girl, and the van sped off with the girl.

After seeing the abduction, Diaz Chacon jumped into his truck and chased the van being driven by the kidnapper. According to police, he chased the van for miles before it crashed into a light pole, allowing him to catch up and save the girl. He was crowned a hero.

Diaz Chacon did everything right. He did everything noble. But, Diaz Chacon is an illegal immigrant.

Antonio Diaz Chacon, 23, is originally from Chihuahua, Mexico, and has been living illegally in the United States for four years. His wife, Martha, is a legal U.S. citizen. Diaz revealed his illegal immigration status after facing questions from the media after he rescued the little girl.

His story puts a human face on the subject of illegal immigration. It highlights the decent nature of many who come here looking for a better life. His story is reminiscent of the stories told of the immigrants who came through Ellis Island - except they actually got their papers.

Diaz Chacon and his wife have been married for two years. The couple has been living in Albuquerque for four years. Diaz Chacon said he's tried to get his citizenship in the past but stopped after the process became too time-consuming and expensive.

"We put it off because we knew it would be a lot of money," she said, adding that mortgage payments and medical bills took priority.

Immigrant rights groups are using Diaz Chacon's story to counter the calls for deporting all illegal immigrants. President Barack Obama announced a few days ago that his administration will only focus on deporting illegal immigrants who commit crimes. And interrestingly, Religious leaders in some states have criticized tough immigration laws that make it a crime to knowingly transport, rent property or harbor illegal immigrants, saying that it criminalizes parts of their Christian ministry. In fact yesterday, the Roman Catholic Bishops of New Mexico publicly endorsed the current driver’s license law allowing foreign nationals to obtain a driver’s license with New Mexico residency, and oppose Gov. Susana Martinez’ push to change the law.

Without his license, Diaz Chacon is no hero. And maybe a little girl is lost forever.

Javier Martinez, Associate Director of the Partnership for Community Action, said Obama's new deportation policy is the beginning of immigration reform, but he said the news isn't as promising in New Mexico. Gov. Susana Martinez continues to fight to repeal the law that issues driver's licenses to illegal immigrants.

"The governor is ignoring the complexity of immigration," said Javier Martinez. "Most immigrants in New Mexico who have a driver's license are here because they want to work, make a better life for themselves and their families. In some cases, save others lives as we saw in Mr. Diaz Chacon."

So now that Diaz Chacon has surfaced, should he be deported? Or is he the kind of person we want -- and need -- in our country? Doesn't his act of good will entitle him to special treatment by the United States Government?

Can't we see to it that Diaz stays and gets put to the front of the line, so to speak, of those waiting to become U.S. citizens?

We should.

 

Pharmacist Conviction Begs Question: When Is Self Defense Murder?

August 4, 2011 - Robert F. DiCello

Watching the video (that does not have sound by the way) one sees two robbers enter a pharmacy in Oklahoma. It is being run by pharmacist, 59-year-old Jerome Ersland. When one of them starts to put on a mask, Mr. Ersland finds cover and begins shooting. He hits one man in the head. He chases the other out of the store. When he returns from chasing the robber who fled, Mr. Ersland gets another gun, walks over to the robber who was unconsiously lying on the ground from the gunshot wound to the head, and proceeds to shoot that robber 5 more times in the abdomen.

He now faces life in prison for murder.

Real Law Radio has decided to revisit this story after the major networks finally stopped glossing the issues that really matter. And, to be honest, we needed time to digest this one.

Prosecutors argued that Ersland acted beyond the limits of self-defense. A detective also testified that Parker was not armed during the robbery and said that Ersland's statement that he had been fired on by the teens was not supported by the evidence in the case.

"This defendant was absolutely not defending himself or anyone else," Assistant District Attorney Jennifer Chance told the jury.

But according to the Huffington Post, since last week's verdict, supporters of Ersland have collected nearly 10,000 signatures on a petition calling for his release. Oklahoma State Sen. Ralph Shortey (R) also pledged his assistance.

"I'm gonna spend the rest of my career, however long it may be, trying to right this wrong," Shortey told ABC News.

The debate stems from the life sentence an Oklahoma City, Okla., jury handed down to pharmacist Jerome Ersland on May 26 for a first-degree murder conviction in the killing of 16 year-old Antwun Parker.

Ersland's attorneys told jurors throughout the murder trial that their client had acted in self-defense when he shot Parker six times during an attempted robbery at his Oklahoma City pharmacy. Prosecutors, meanwhile, argued Ersland went too far.

After 3.5 hours of deliberation, the jury — eight women and four men — recommended a life sentence.

To help in the discussion about what happened, RLR will have a special guest, Professor Randall Coyne to discuss this case. An experienced trial lawyer who represented Timothy McVeigh in the Oklahoma City Bombing case, Mr. Coyne teaches criminal law, criminal procedure, capital punishment, constitutional law, and legal aspects of terrorism at the University of Oklahoma College of Law. He has also represented detainees at Guantanamo Bay.

The central question that we will address will be: did the pharmacist commit a crime?

Watch the video yourself, and decide.

And listen this Saturday from 1-4 pm to Real Law Radio, the best legal talk show on the air!

Voters Do Not Understand Debt Ceilng

- July 20, 2011, Robert F. DiCello, & Eric McVicker

With all the news and attention that the debt ceiling has received, and with no agreement in place as of this writing, it struck us here at Real Law Radio that we needed to see if in fact the ordinary American voter knew what in the hell the debt ceiling was.

We found, they don't know. And they don't appear to care.

There are polls and statistics that already address the subject of the debt ceiling. But they don't often test whether the subject being polled actually understands what they are giving their opinion about. Ordinarily this might not be such a big deal. "Do you like choclate ice cream?" is a question that most don't need to research. But the debt ceiling is another issue altogether.

RLR's intern, Eric McVicker, and his team of volunteers decided to interview as many people as they could in Northeast Ohio, mostly the Cleveland the area. Almost all demographics in America are represented in Ohio, specifically, Northeast Ohio. They spent hours using audio recorders and notepads to record peopleís answers.

During the survey, RLR relied upon this  definition of "debt ceiling":  the legal limit above which the Treasury  Department can not borrow.  Any description by a respondent that was substantially equivalent to this definition qualified the respondent as one who knew what the debt ceiling was.

The respondents in this informal survey were found at shopping centers in the Cleveland metro area from July 13-15.  They comprised a roughly 50-50 split of men and women. All were required to demonstrated that they were at least of voting age.  No other inquiry was made of their background.  No inquiry was made of their political affiliation.  258 people participated. They were asked two questions: 1) what is the debt ceiling; and 2) should it be raised or lowered?

RLR found that 69% of respondents did not know what the debt ceiling was. Many confessed they did not have a clue about the subject. Others gave plainly wrong answers. But 31% of respondents knew or had a good working definition of the debt ceiling. And surprisingly, of those who did not know what the debt ceiling was, more than 2/3 of them offered the opinion that it should be lowered.

Of those 31% who knew what the debt ceiling was, 2/3 of them thought the it should be raised, 1/3 said it should be lowered.

This survey was unique in that it had all respondents verbalize their own knowledge about the debt ceiling, rather than fill out a form. During the interaction between the respondent and the RLR associate, no clues or prompting of any kind was offered. This ensured that each respondent had an unassisted opportunity to demonstrate their knowledge of the subject at hand.

Also, of the 69% who did not know what the debt ceiling was, only 27% said they "didnít know" when asked if it should be raised. In other words, a significant number of respondents who did not know what the debt ceiling was actually thought they did. The most common wrong answer RLR received was that the debt ceiling was the same as the national debt.

When asked the same question of whether it should be raised, the people who KNEW what the definition of the debt ceiling was answered Yes 68% of the time, No 31% of the time.

After looking at the results, two central conclusions emerged. One is that people often think they understand something, but they don't - at least they don't know it well enough to put it into words. Another conclusion is that people donít care to learn about this subject. During the survey, many people said they didnít know and didnít care.

There is a genuine lack of informed opinion on the subject of the debt ceiling.   And that's pretty concerning, especially given the national  importance of this issue and the correspondingly high level of media coverage and debate that has occurred on the subject.  

 

"Dancing" Was a Stunt at Jefferson Memorial - Media Doesn't Care

- June 13, 2011

Attention all media outlets: stop the presses! Think before you fear - or publish. About two weeks ago, various news and media outlets published a story about five "dancers" (more on that later) who were arrested at the Jefferson Memorial after police repeatedly asked them to leave. They were allegedly protesting a recent ruling of the U.S. Court of Appeals for the District of Columbia which held that a person could be arrested for dancing at the Jefferson Memorial while listening to music with headphones on (PDF) . And many media outlets focused on the apparent injustice of the arrests. But the truth is, these "dancers" were actually pulling a calculated stunt to drive attention (and in some cases PR) to a cause that didn't need them. Why? Because they did not know enough about the the law to understand that there is no right for any person to demonstrate -- or "dance" -- inside the Jefferson Memorial. [Ed. note: Gasp! ... It is shocking to find agreement here with Andrew Breitbart and/or Rebel Pundit].

The Scene: Activists Medea Benjamin (Code Pink) and Adam Kokesh (IVAW) Pull Off Their Stunt

Cuts from the much publicized video that was promoted and carefully created by the activists show in four frames exactly how artificial and staged (and dangerous) the activists' stunt was. In the first frame, the arrests are underway and the Russia Today television host, Adam Kokesh, is simply standing watching the
police initiate the arrest of two of his friends. In the second frame, Kokesh is seen doing an exaggerated dance in close proximity to a police officer engaged in the use of force during the arrest of the two men who were previously standing -- a very dangerous, if not alarmingly stupid, thing for Kokesh to do. Although his purpose was obviously to focus pre-planned camera angles on himself, he put himself and the officers in danger. The third frame shows how wild Kokesh's gestures become. He gets closer to the officers and continues to flail his arms and legs as they handcuff two other protestors. One of his camera men (there were more than two) gets in position to capture the fake drama. Finally, in the last frame, Kokesh gives a knowing grin to his camera man. It's a look that says, "Mission accomplished."

The Back Story

Those who attended the stunt at the Memorial and were arrested make it their job to engage in acts of civil disobedience. They were from such organizations as Code Pink and Iraq Veterans Against the War (IVAW). And at least one of the arrested individuals bears special mention.

Adam Kokesh

Adam Kokesh had a direct personal interest in generating media coverage from this stunt. He is the host of his own television program, called "Adam v. The Man" that airs on a television outlet called Russia Today. This network covers news stories and produces programs from a Russian perspective. Kokesh uses his military service as a Marine, his opposition to the Iraq war via IVAW, his unsuccessful bid as a member for congress in New Mexico, his ties with Ron Paul, and his political party affiliation as a Republican to promote (dare I say validate?) his views. He is a self-proclaimed member of the Libertarian wing of the Republican party and the Tea Party movement. His views are heavy on blunt opinion and profanity but light on legal training and sound information. He wears his anger, like his USMC tattoo, for all to see.

Kokesh's anger comes from an obvious sense of deep betrayal that stems from his involvement in the Iraq war. In 2004, he went there as a Civil Affairs officer in the Marines. He brought with him the idealistic notion that he and his fellow Marines could be the "tip of the spear" in rebuilding Iraq and helping its people recover from the ravages of war. He had faith that 9 times out of 10 his government would not send him to a cause that was not in the Nation's best interest. But he left with the idea that the war was a senseless, unjust, and illegal act perpetuated against the Iraqi people in the name of American private interests and corporate greed. He would later say that the war was "an occupation of Iraq" or a "crime."

Being an activist suits Kokesh. He enjoys a challenge. He is intense. And he is also rife with contradictions, fitting for a rebel. For example, he has previously explained that he was against the war in Iraq while he was a reservist and before he left to serve there. He has political aspirations, but he seems hell bent on avoiding an election-worthy resume - he brought home a pistol from Iraq in 2004 in violation of military rules, which prevented his return for a second Iraq tour. Although he was initially discharged honorably from the military, he got into more trouble when a Marine major sent him an e-mail to tell him he was being investigated for misconduct by appearing at a political event in uniform. Kokesh responded, telling the major "what he thought" and used an expletive in his reply, resulting in an additional misconduct charge. The charges were brought under the Uniform Code of Military Justice, which applies only to service members. He eventually received a "general discharge under honorable conditions," a discharge status below "honorable," and above "other than honorable." Kokesh is also well known for disrupting John McCain's acceptance speech in 2008, during the Republican National Convention.

And so, bold enough to fight, the "activist" moniker suits Kokesh. But not trained in law, he is short on a sophisticated understanding of the legal doctrines that he rallies behind. You see, the real issue here is not that so-called "protesters" were arrested for "dancing." The real issue is that Kokesh and his comrades do not understand the law or the way in which courts analyze legal problems involving the First Amendment. It's dense, tricky stuff that is not susceptible to easy quotes or sound bites.

First Amendment Law, First Step: What is the Forum?

Kokesh and his associates allegedly believe that various regulations restricting protests around the Jefferson Memorial are unconstitutional. But to get to that conclusion, as a matter of law, one cannot rest on mere opinion. The First Amendment to the United States Constitution guarantees the rights of Freedom of Speech and Freedom of Association. But these rights are not absolute, meaning we can be properly and lawfully limited in how, what, when, and where we speak. We simply can’t say whatever we want, wherever we want, and whenever we want.  (Just remember you can't yell "Fire" in a movie theater and scare everyone into a stampede).

And so, it is a long standing principal of American law that protests and public speech can be regulated by content-neutral time place and manner restrictions.  To determine whether a restriction on expressive activity on public property is constitutional, the Court must first identify the nature of the public property at issue. There are three types of public property for purposes of First Amendment analysis: traditional public forums, designated public forums, and nonpublic forums. A traditional public forum is a site that "by long tradition or by government fiat has been devoted to assembly and debate." A designated public forum is "public property which the State has opened for use by the public as a place for expressive activity." A nonpublic forum is "public property which is not by tradition or designation a forum for public communication." 

Jefferson Memorial
In the case of the Jefferson Memorial, the D.C. Circuit Court found “the physical characteristics of the Memorial's interior indicate that it is a nonpublic forum.” And most interestingly, the Court noted that the National Park Service has closed the interior of the Jefferson Memorial to a wide range of expressive conduct, thereby indicating that it is "public property which is not by tradition or designation a forum for public communication."  The Court also found that The Park Service prohibits all demonstrations in the interior of the Jefferson Memorial, in order to maintain an "an atmosphere of calm, tranquility, and reverence," and thereby fulfill this purpose. Being a former Marine, Kokesh might appreciate the Park Services’ interest in maintaining a tranquil mood at the Vietnam Veterans' Memorial which has been previously deemed a legitimate goal of speech regulation. And so, the D.C. Circuit Court thus concluded that the characteristics of the Jefferson Memorial and its regulatory history indicate that the Memorial's interior is a nonpublic forum.

Imagine that.  According to law, the Jefferson Memorial is a nonpublic forum dedicated to quiet contemplation. The Park Service decided it's a place where tranquility is to be preserved. So, is that limit on expression (i.e., preventing self expression to maintain tranquility) in nonpublic forums constitutionally permissible?

First Amendment Law, Second Step: Is the Limit on Speech in the Nonpublic Forum "Reasonable"?

A prohibition on expressive activities in a nonpublic forum does not violate the First Amendment if it is viewpoint neutral and is "reasonable in light of the use to which the forum is dedicated." Everyone agrees that the regulations governing the Jefferson Memorial are viewpoint neutral. In other words, the rules don't apply to only certain kinds of demonstration. The act of demonstration (via dancing or otherwise) is prohibited. Period. So, ask yourself, is it reasonable to limit dancing (a form of expression or speech) at the Jefferson Memorial to maintain a calm, tranquil atmosphere?  And ask yourself, is it reasonable to think that dancing, even with headophones on, undermines the maintenance of tranquility?

The D.C. Circuit Court thought so, when it said, “the ban on demonstrations at the Jefferson Memorial satisfies these requirements (of being content neutral and reaonsable in light of the use to which the forum is dedicated).” 

First Amendment Law, Third Step: If you don't like the law, seek to have it repealed.

Like them or not, the Park Service Regulations are here to stay - unless they are repealed. And so this is the crux of the position that the media hounding activits take: people should be able to dance inside the Jefferson Memorial, because it is ridiculous to think that Jefferson would not want us to freely express ourselves. They invoke the idea that Jefferson was a First Amendment "absolutist," meaning he would permit no restriction on Freedom of Speech and would suffer no bars on our collective ability to express ourselves freely.

This is wrong, both as a matter of historical record and legal principle. Regarding history, Jefferson believed in a right - that preceded and existed apart from the application or inception of any law - to freely think for oneself and to express those thoughts in a society that did not strangle or filter one's ability to communicate on a federal (you might say, national) level. He viewed this right to communicate as original to the nature of a human being. But, to Jefferson, freedom of the press did not mean freedom to do or say what one wanted anywhere one thought it was okay to do or say it. It meant the freedom to enjoy and share ideas. Writing to Madison in 1788, he said: ''A declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed." In fact, he favored the concept that the several states could impose limits on speech that was seditious or false. And he was often critical of the activities and intentions of the press.

Remember, above all, Jefferson was not an advocate for unlimited freedom, he was an advocate for placing restrictions on the federal government. And these views are not equivalent. For, while he believed strongly in limited federal regulation of speech, he favored the notion that States should and could regulate the press, thereby restricting the publication of seditious or false speech.

Jefferson's beliefs, whatever they were, spoke to a time that did not envision the existence of the ** National Park Service (NPS). In 1789, Congress created three Executive Departments: Foreign Affairs (later in the same year renamed State), Treasury, and War. It also provided for an Attorney General and a Postmaster General. And don't forget, that at that time, all domestic matters were apportioned by Congress among these departments. It wasn't until March 3, 1849, on the last day of the 30th Congress, that a bill was passed to create the Department of the Interior to take charge of the Nation's internal affairs. The NPS became a division of the DOI in an Act signed by President Woodrow Wilson on August 25, 1916.

**(For perspective: George Washington's salary was 2% of the budget in 1789 and he was paid $25,000 per year. This means that the whole budget was $1.25 million in 1789 dollars. The challenges of managing a nation with the scale and complexity of our Nation today was not -- nor could it ever have been -- envisioned by Jefferson.)

Preventing dancing at the Jefferson Memorial is not tantamount to stifling the kind of expression that Jefferson sought to protect in the wake of British rule over our colonial forefathers. Nor is it antithetical to Jefferson's views to promote a tranquil place to think. It is not anti-Jeffersonian to promote quiet reflection. He above all embodied the image of the quiet thinker, the articulate statesman.

The Government's decision to restrict access to a nonpublic forum, like the Jefferson Memorial, need only be reasonable; it need not be the most reasonable or the only reasonable limitation. And so, while one might find it silly that one can't dance at the Jefferson Memorial (or any other place in Washington D.C.), that's not material to a legal analysis of the constitutionality of the rules affecting this matter. Remember: the rules exclude all demonstrative activities that reasonably could interfere with the "atmosphere of calm, tranquility, and reverence" at the Memorial.

So for those who, like Adam Kokesh, profess a fervent appreciation for Thomas Jefferson and the First Amendment, they can -- and should – celebrate with their friends.  Alone.  They can dance until they fall down if they want to.  But wherever they choose to dance, they should do it in a place where the law allows dancing. 

Contact Robert F. DiCello, Esq.

 

Unlawful Entry: In Ohio, Can You Lawfully Resist a Police Officer Who Enters Your Home Illegally?

- May 30, 2011

What do you do when a police officer illegally enters your own home?  Can you resist the officer’s efforts to enter?  Well, this issue reached national attention when the Indiana Supreme Court, that state’s highest court, decided that a citizen has no lawful right to resist unlawful police entry into their own home. 

The Indiana case decision (PDF), involved a man who yelled at police and blocked them from entering his apartment to investigate a domestic disturbance. The man shoved an officer who went past him, was shocked with a stun gun and arrested. “We believe . . . a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” Justice Steven David wrote for the majority. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

By declining to recognize a right to resist unlawful police entry into a home, the Supreme Court of Indiana received a very unpopular reaction from those who lived in Indiana. But what does this mean to the residents of Ohio?

As an initial matter, we need to understand that the Indiana decision holds no sway in Ohio courts.  Yet, in the event it might influence the Ohio Supreme Court in a future case, a review of this issue seems necessary. 

To quote the Ohio court of appeals from Cuyahgoa County, “the extent of the privilege to resist unlawful entry into the home has yet to be dealt with in Ohio.” That means we are left only to analyze existing and well known legal  principles in order to ascertain whether Ohio recognizes a citizen’s right to resist unlawful entry into their home.    

The Fourth Amendment makes unlawful all “unreasonable” searches and seizures. The United States Supreme Court has repeatedly held that searches and seizures inside a home without a warrant are presumptively unreasonable. The Fourth Amendment gives a person a constitutional right to refuse to consent to entry and search. In addition, it’s worth noting that the assertion of that right cannot be considered a crime.

It is a cardinal rule that searches one without a warrant are per se unreasonable under the Fourth Amendment, subject to only a few specially established and well-delineated exceptions. For example, a warrant is generally required to search a person's home unless “the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. The point is: Ohio and Federal law requires a warrant, unless there’s a really darn good reason for an officer not to have one.

In 1996 an Ohio court asserted, it is “clear that an individual can lawfully refuse to consent to a warrantless search.”  The court added, “Further, we recognize . . . that there exists at least some limited right to resist entrance, such as locking or closing the door or physically placing one's self in the officer's way.”

But, according to a federal Sixth Circuit court opinion in 2005 (analyzing and applying Ohio law in the context of an assault on a police officer): "Under Ohio law, [a person is] barred from raising the illegality of the [officer’s] entry into his home or the unreasonableness of the officers’ initial seizure of his person as defenses to assault."

The Sixth Circuit said, “The traditional common law rule allowing individuals to resist illegal arrests has been explicitly disregarded by the Ohio Supreme Court.”  And here, note the word, “arrest” as opposed to “entry.” We are not talking here about the right to resist an unlawful arrest.  We are asking whether a common law right to resist unlawful entry exists in Ohio.

The difference between a common law right and a statutory right is the stuff of law school.  And so, let it be sufficient for our purposes here to say, Ohio has laws on the books that make it a crime to resist a “lawful” arrest (the implication being, if the arrest is not lawful than one can resist). But there is no law on the books that confers upon any citizen a right to resist an unlawful entry into their home.  And yet, a lawful entry into a home is often a predicate to a lawful arrest in that home.  See how this can get confusing?

It appears from the research done on this subject that Ohio law tends to tacitly support the existence of a common law right to resist unlawful entry of a police officer into an Ohio resident's home. But ultimately, the Ohio Supreme Court needs to address the issue head-on.  Until that day, we are guessing as to what the law holds in Ohio on this subject. 

Contact Robert F. DiCello, Esq.

 

What is Law: Our Ideas Written Into Words That We Decide to Enforce

- May 23, 2011

When I was  a kid, there was a Saturday morning cartoon series that played between commercials.  It was called “School House Rock.” 

Among my favorite songs, was the one about the little bill that was trying to become a law.  “I’m just a bill, yeah I’m only a bill” is the refrain.  But this is the part of the song that I think about more now that I am an attorney: “When I started I wasn’t even a bill, I was just an idea. Some folks back home decided they wanted a law, so they called their local congressman . . . .”

Have we forgotten that before any law is a bill, it is first and foremost an idea? It is supposed to be our idea, not a political maneuver by an elected official to win votes.  Right?  Have we also forgotten that the expression of our ideas as law was made possible by the our historical acknowledgement and Declaration that citizens, not statesmen, have all the power?   

I think we have forgotten our power. In order to “establish justice and insure domestic tranquility” we the people “ordained and established” our constitution.  We gave it life.  Not for the rich.  But for all of us.  Remember?

We decided that we would have a government made of laws.  We decided that our laws would come from our ideas about how to live well and free. Contained in the opening of our Constitution was a desire that we would do this “to ensure the blessings of our liberty, to ourselves, and our posterity.”  Remember?

Our power is found in our many different voices coming together for a common goal.  It energizes and gives life to our legal and political systems. It’s found in a meeting at the local VFW or city hall. It’s found in every jury room.  It’s the power of “We the People.”

The next time someone tells you that your country is headed down the wrong path by a horde of evil-doers, play the video on today’s Home Page.  The next time someone tells you that “the system is corrupt,” play the video.  And the next time you want to blame someone else for the failings of your government, play it. 

In fact play it right now.

And if it's not on the home page, find it here.

And then play it again.