The Supreme Court must just hate law students. I figure they rule on cases just to complicate their lives. Well, I got news for them....they make law professors lives more complicated too. Sometimes U.S. Supreme court cases get headlines and sometimes they just slide by without much notice. Such was the case in May of this year in Montejo v Louisiana. Simply, the facts are this: Montejo was arrested for murder and, as required in that state, appeared before a judge within the first three days after his arrest. While he said nothing, the court appointed a free lawyer. The next day or so, the cops again approached him and asked him (after is Miranda warnings, including his waiver of an attorney being present) to show them where he threw the gun. The great guy he was, he said OK and did so.
Now for over twenty years as a result of the case of Jackson v Michigan, the rule was that once a "critical stage of the proceeding" has begun, like arraignment, and counsel appointed, the cops were done...finished...nada...CANT ASK THE BAD GUY ANYTHING ABOUT THIS CRIME...unless of course his lawyer says it is OK and is there (right, like that's gonna happen).
Now, in a 5 to 4 decision, the court overruled Jackson and allow the cops to contact the represented defendant and, if he waives his right to counsel, interview him about the case he has already gone to court on!. Now, the last thing anyone would ever call me was a liberal...But this decision causes me some concerns.
So, I guess every defense attorney better tell his criminal case client to not waive his right to a lawyer even well into defending him because it appears the cops can contact the represented defendant and ask him or her to forget about that lawyer and talk to them, and if they agree, the statement is admissible But here us where it gets interesting
The American Bar Association and the California Bar Association rules of ethics state that an attorney "shall not" have communication with a represented party. So, what if one of the detectives or investigators is also a lawyer?...... Don't laugh, there are more cops that are also attorneys than you might think. Now, the cop cannot do his job because to do so would violate the rules of ethics....How about this? The Sheriff or Chief of Police is a lawyer?...and his deputies or officers are his "agents"...Now the Chief or Sheriff is in trouble if his cops (as his agents) contact a represented party. Same dilemma exists for investigators who work for the DA.
So, aside from making life complicated for law students and law professors, the Supreme Court also made life for attorney cops and attorney law enforcement chief officers a bit more professionally dangerous
So, I am sure the cops are celebrating the decision in Montejo, but I see a bunch of litigation as a fall out of this decision and what were pretty clear rules, now less clear.
Wednesday, October 28, 2009
Thursday, October 1, 2009
The Right to Keep and Bear Arms
This session, the U.S. Supreme Court will consider a case which may be the next "shoe to drop" after the Heller decision. As many have said, Heller is significant for both what was affirmed in the ruling and what was not. What was not said was a statement regarding whether the second amendment is a fundamental right. Better said, whether the states can be limited in their legislation on firearm related restrictions.
Heller said the right to own a handgun is a personal right of every person, but allowed that states can make "reasonable restrictions" related to gun ownership, carry, and related issues. So, in reality, Heller said states cannot ban handguns or handgun ownership. That said, how far can states go in restricting the carry and use of handguns was largely left undecided. Many big cities and states have rather extensive restrictions related to guns, so much so, many would argue it is the same as a ban as applied.
Now, I am conflicted....I am a fan of states rights and generally believe the federal government should stay the hell out of our lives. So, under that premise, I should be supporting the rights of the states to legislate in this area. Well, I am...kinda. But, where a right is fundamental, as I believe the founders meant the second amendment to be, then the states scope of legislation cannot be used to undermine the general intent of the right. So is the case in other fundamental rights like speech, assembly, protection against unreasonable searches and seizures, and any act which infringes on the equal protection and the due process of law.
So cities and states which, in application, so restrict the personal right to possess a gun are or should be unconstitutional IF, and it is a really big "IF", the second amendment and its protections are deemed fundamental. You see, states my not infringe on a fundamental constitutional right unless they can show a compelling governmental reason. A very high burden. If the rights and protections of the second amendment are not classified as a fundamental right, then states (and cities) can legislate in this area by just showing a rational basis for the law. And here, the states may still be in trouble.
It is largely uncontested that in every major city or jurisdiction where there has been a functional ban on handgun ownership, violent crime and specifically gun related violent crime has increased dramatically. Australia banned gun ownership and saw an incredible increase in gun related violent crime. The simple fact is, gun control does not work. It makes certain people feel better, but it has no affect but to prevent law abiding people from defending themselves. So, it may well be that government cannot even show a rational basis for restricting guns.
So, will the Supreme Court adopt the second amendment as a fundamental right, and in doing so, cause most state and local gun laws to be deemed unconstitutional? Who knows. It could be said if the Supreme Court was going to go that far, they had every opportunity to do so in Heller. Did the court simply want to see how the lower courts and the states handled the ruling before deciding the big question? Maybe, since the court does not like to go farther than needed on issues. The bottom line is gun ownership is not going to end irrespective of what the court decided. Gun confiscation is not going to work. There are not enough troops to accomplish this in any amount of time. It would take the first airborne division a year just to get through Berry Creek where every approach to a house would result in a fire fight. And, frankly, the local police and the military are not inclined to cooperate in such a plan anyway.
As crime creeps up and the people feel less secure in their lives and their futures, the wind of change may very well spell it is time for a pronouncement on this issue from the court. The second amendment is not about hunting or sport shooting. It is about tyranny . It is about protecting us against those who would take away our constitutional rights, and never before has it been as important as it is right now. It will be an interesting year in constitutional law.
Heller said the right to own a handgun is a personal right of every person, but allowed that states can make "reasonable restrictions" related to gun ownership, carry, and related issues. So, in reality, Heller said states cannot ban handguns or handgun ownership. That said, how far can states go in restricting the carry and use of handguns was largely left undecided. Many big cities and states have rather extensive restrictions related to guns, so much so, many would argue it is the same as a ban as applied.
Now, I am conflicted....I am a fan of states rights and generally believe the federal government should stay the hell out of our lives. So, under that premise, I should be supporting the rights of the states to legislate in this area. Well, I am...kinda. But, where a right is fundamental, as I believe the founders meant the second amendment to be, then the states scope of legislation cannot be used to undermine the general intent of the right. So is the case in other fundamental rights like speech, assembly, protection against unreasonable searches and seizures, and any act which infringes on the equal protection and the due process of law.
So cities and states which, in application, so restrict the personal right to possess a gun are or should be unconstitutional IF, and it is a really big "IF", the second amendment and its protections are deemed fundamental. You see, states my not infringe on a fundamental constitutional right unless they can show a compelling governmental reason. A very high burden. If the rights and protections of the second amendment are not classified as a fundamental right, then states (and cities) can legislate in this area by just showing a rational basis for the law. And here, the states may still be in trouble.
It is largely uncontested that in every major city or jurisdiction where there has been a functional ban on handgun ownership, violent crime and specifically gun related violent crime has increased dramatically. Australia banned gun ownership and saw an incredible increase in gun related violent crime. The simple fact is, gun control does not work. It makes certain people feel better, but it has no affect but to prevent law abiding people from defending themselves. So, it may well be that government cannot even show a rational basis for restricting guns.
So, will the Supreme Court adopt the second amendment as a fundamental right, and in doing so, cause most state and local gun laws to be deemed unconstitutional? Who knows. It could be said if the Supreme Court was going to go that far, they had every opportunity to do so in Heller. Did the court simply want to see how the lower courts and the states handled the ruling before deciding the big question? Maybe, since the court does not like to go farther than needed on issues. The bottom line is gun ownership is not going to end irrespective of what the court decided. Gun confiscation is not going to work. There are not enough troops to accomplish this in any amount of time. It would take the first airborne division a year just to get through Berry Creek where every approach to a house would result in a fire fight. And, frankly, the local police and the military are not inclined to cooperate in such a plan anyway.
As crime creeps up and the people feel less secure in their lives and their futures, the wind of change may very well spell it is time for a pronouncement on this issue from the court. The second amendment is not about hunting or sport shooting. It is about tyranny . It is about protecting us against those who would take away our constitutional rights, and never before has it been as important as it is right now. It will be an interesting year in constitutional law.
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