Apr 202013
 

So holds a federal district court in northern Illinois, in Kole v. Village of Norridge (N.D. Ill. Apr. 19, 2013):

Although the Supreme Court [in Heller] explained that laws regulating the commercial sale of firearms are “presumptively lawful,” it did not purport to exempt those laws from constitutional scrutiny…. The Seventh Circuit’s analysis in United States v. Williams, 616 F.3d 685 (7th Cir. 2010), is particularly instructive. Williams involved 18 U.S.C. § 922(g)(1)’s ban on the possession of firearms by felons—one of the other “presumptively lawful” regulatory measures specifically identified in Heller. Nonetheless, the Seventh Circuit explained that “the government does not get a free pass”; “it still must prove that the ban is constitutional, a mandate that flows from Heller itself”; and “putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper.” The Seventh Circuit ultimately applied a form of intermediate scrutiny and upheld § 922(g)(1).

[Footnote: Similarly, before the Ninth Circuit agreed to rehear Nordyke v. King en banc, the panel opinion explained that:

We believe it most unlikely that, in a one-sentence footnote, the Supreme Court would undermine the rest of its analysis by declaring, inter alia, that all gun sales regulations, no matter how burdensome, should receive the rubber stamp of rational basis review. Instead, we read "presumptively lawful regulations" to mean "regulations which we presume will survive constitutional scrutiny," and to say nothing about what standard of review should be applied to them.]

[I]n any event, at least with respect to the Revised Ordinance, the Village is seemingly doing more than just “imposing conditions and qualifications on the commercial sale of arms” — it is trying to ban gun stores outright….

To resolve the Second Amendment issues present in this case, the Court will need to follow the two-part framework established in Ezell [the Seventh Circuit case that issued a preliminary injunction against Chicago's ban on shooting ranges]. “First, the threshold inquiry … will be a ‘scope’ question: Is the restricted activity protected by the Second Amendment in the first place?” As the Seventh Circuit explained, the answer to this question “requires a textual and historical inquiry into the Second Amendment’s original meaning.” Second, if the regulated activity is not outside the scope of the Second Amendment, “then there must be a[n] … inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights.” “[T]he rigor of this judicial review will depend on how close the law comes to the core Second Amendment right and the severity of the law’s burden on the right.” As the Seventh Circuit explained:

First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.

The threshold scope inquiry here involves two separate issues. The first is whether Plaintiffs have a Second Amendment right to sell firearms. The Second Amendment does not expressly address a right to sell firearms (“the right of the people to keep and bear Arms, shall not be infringed”); Heller and McDonald each only address a personal right to keep and bear arms; and, as Defendants note, some courts have suggested that there is no right sell firearms.

The Court does not need to resolve that issue now, however, because even if the Second Amendment does not protect the sale of firearms directly, Plaintiffs can still pursue a claim that the Agreement and Revised Ordinance infringe their customers’ personal right to keep and bear arms. Surprisingly, although the parties argue at length about whether Plaintiffs have standing on behalf of their customers, no one discusses Ezell, which addressed this very issue. …

Threshold issues aside, the Court will then need to analyze the strength of Defendants’ justifications for the Agreement and Revised Ordinance. Defendants ask the Court to uphold their actions based largely on a statement in the Revised Ordinance’s preamble that “the amendments set forth herein … improve the health, safety and welfare of the Village.” But this conclusory statement likely would not satisfy even rational basis review, let alone the heightened scrutiny required under the Second Amendment. At this stage, the Court does not need to decide how heavily the Agreement and Revised Ordinance burden the Second Amendment right to keep and bear arms — including what the Seventh Circuit has described as a “corresponding right to acquire” firearms — or how strong of a justification Defendants will need to establish in order to uphold their actions in this case. Under any standard, Defendants’ motion to dismiss falls short….

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Apr 202013
 

Law enforcement has successfully captured Dzhokar Tsarnaev, and DOJ has announced that Tsarnaev is being interrogated without first being read his Miranda rights because the DOJ thinks that the public safety exception to Miranda applies. Back in 2010, I blogged a lot about Miranda in this setting. Here are a few reminders about the law here:

1) A lot of people assume that the police are required to read a suspect his Miranda rights upon arrest. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law Order, but that’s not what the law actually requires. The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement can be excluded. See United States v. Patane, 542 U.S. 630 (2004). So, contrary to what a lot of people think, it is legal for the government to even intentionally violate Miranda so long as they don’t try to seek admission of the suspect’s statements in court.

2) Even if we assume that the police later seek to admit a statement from Tsarnaev from post-arrest custodial interrogation outside Miranda, a court would allow an initial pre-Miranda interrogation to be admissible under the public safety exception of New York v. Quarles, 467 U.S. 649 (1984). It’s not clear how long the public safety exception will continue to apply: At some point in time, it becomes harder to say that the agents needed to dispense with Miranda in light of the threat to public safety. We don’t have good cases on when that line might be crossed, in part because (fortunately) there aren’t many similar cases. So the longer investigators interrogate Tsarnaev outside Miranda, the more they run the risk that some statements they obtain from him may be inadmissible. But recall that under (1), the government is still free to question Tsarnaev outside Miranda as long as the government accepts the uncertainty of whether those statements would be admissible in a criminal case against him. Assuming that the evidence against Tsarnaev’s many different crimes over the last week is likely to be overwhelming, agents may not need any statements from him for a criminal case. They may simply want whatever intelligence he can provide for use in broader antiterrorism efforts, and Miranda is no impediment in that case. The agents are free to question Tsarnaev outside Miranda to gather intellligence as long as they don’t cross the line into coercing statements from him. See, e.g., Townsend v. Sain, 372 U.S. 293 (1963).

3) It is true that, under existing law, interviewing Tsarnaev for an extended period without reading him his Miranda rights and obtaining a waiver creates a risk that any incriminating statements made after an extended period may not be admissible in court in a criminal prosecution against Tsarnaev. However, if Tsarnaev does end up making incriminating statements that fall outside the public safety exception, and the government wants to use those statements in court against him, the government has a possible remedy to get the substance of even those statements admitted. At the end of the interrogation, agents can give him his Miranda warnings, see if he will waive his rights waiver, and, if he does, try to get Tsarnaev to repeat his pre-waiver incriminating statements. Because the two-stage interview likely would not be deemed an intentional two-step interrogation technique designed to circumvent Miranda, a court would very likely allow the post-Miranda, post-waiver statement under Justice Kennedy’s controlling opinion in Missouri v. Seibert, 542 U.S. 600 (2004).

UPDATE: I have fiddled with the post a bit to make it clearer.

ANOTHER UPDATE: If Tsarnaev is going to be charged in federal court, the more pressing limit on his interrogation may be the limits imposed by Rule 5 of the Federal Rules of Criminal Procedure. See generally Corley v. United States (2009).

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Apr 202013
 

The German government decided not to prosecute the speaker based on this speech, but the U.N. Committee on the Elimination of Racial Discrimination has recently stated the contrary, TBB v. Germany (Feb. 26, 2013). Here’s the speech that, according to the Committee, must lead to a criminal prosecution in countries that have ratified the International Convention on the Elimination of All Forms of Racial Discrimination. (I am pleased to say that the U.S. has not recognized the competence of the Committee to enforce the Convention, though most European countries have; the U.S. has also ratified subject to a specific reservation in favor of the freedom of speech.)

The German cultural journal Lettre International (2009 fall edition, number 86)3 published an interview with Mr. Thilo Sarrazin, the former Finance Senator of the Berlin Senate (from 2002 to April 2009, Social Democratic Party) and member of the Board of Directors of the German Central Bank (from May 2009), entitled “Class instead of Mass: from the Capital City of Social Services to the Metropolis of the Elite”. In this interview, Mr. Sarrazin expressed himself in a derogatory and discriminatory way about social “lower classes”, which are “not productive” and would have to “ disappear over time” in order to create a city of the “elite”. In this context, he stated, inter alia:

[...] The city has a productive circulation of people, who work and who are needed, be they part of the administration or of the ministries. Beside them, there is a number of people, about 20% of the population, who are economically not needed. They live off social welfare (Hartz IV) and transfer income; on a federal level this segment is only 8-10%. This part of the population needs to disappear over time. A large number of Arabs and Turks in this city, whose numbers have grown through erroneous policies, have no productive function, except for the fruit and vegetable trade, and other perspectives will probably not develop either [...].

[...] One must stop talking about “the” migrant. We must look at the different migrant groups. [...]

With the core group of people from Yugoslavia, however, one sees a more “Turkish” problem, the Turkish group and the Arabs slope dramatically [in terms of success]. Even in the third generation, a lot of them lack any reasonable knowledge of German. Many of them don’t even finish school and an even smaller part makes it to the college entrance exam [...].

[...] There is another problem: the lower the class, the higher the birth rate. The birth rates of the Arabs and Turks are two to three times higher than what corresponds to their overall part in the population. Large segments are neither willing nor able to integrate. The solution to this problem can only be to stop letting people in and whoever wants to get married, should do it abroad. Brides are constantly being supplied: the Turkish girl here is married to someone from Anatolia; the young Turkish man gets a bride from an Anatolian village. It’s even worse with the Arabs. My idea would be to generally prohibit influx, except for highly qualified individuals and not provide social welfare for immigrants anymore.

[...] It is a scandal when Turkish boys don’t listen to female teachers because of their culture. Integration is an accomplishment of those who integrate. I don’t have to accept anyone who doesn’t do anything. I don’t have to accept anyone who lives off the state and rejects this very state, who doesn’t make an effort to reasonably educate their children and constantly produces new little headscarf girls. That is true for 70% of the Turkish and for 90% of the Arab population in Berlin. Many of them don’t want any integration, they want to live according to their own rules. Furthermore, they encourage a collective mentality that is aggressive and ancestral [...].

[...] The Turks are conquering Germany just like the Kosovars conquered Kosovo: through a higher birth rate. I wouldn’t mind if they were East European Jews with about a 15% higher IQ than the one of Germans.

[...] If the Turks would integrate themselves so that they would have comparable success in the school system like other groups, the topic would become moot. [...] However, it does not happen like that. Berliners always say that they have a particularly high number of foreigners. This is wrong. The percentage of foreigners in Munich, Stuttgart, Cologne or Hamburg is much higher, but the foreigners there have a smaller percentage of Turks and Arabs and they are of more diverse origin.

[...] We have to completely restructure family policies: away with payments, above all to the lower class. I remember a report in the newspaper “Die Zeit” that stated that every Monday morning, the city cleaning services clean 20 tons of left over lamb from Turkish grill parties in the Tiergarten — this is not a satire. The Neukölln Mayor Buschkowsky spoke about an Arab woman who was having her sixth child to be able to get a bigger apartment through the social welfare law (Hartz IV). We have to say farewell to these structures. One has to assume that human ability is to some extent socially contingent and to some extent hereditary. The road we are following leads to a continuous decrease of the number of intelligent high performers due to demographic reasons. One can’t build a sustainable society that way…

[...] If 1.3 million Chinese are just as intelligent as Germans, but more industrious and in the foreseeable future better educated while we Germans take on ever more of a Turkish mentality, we’ll have a bigger problem [...]

Remind me: How are German citizens to make democratic decisions about immigration policy (either German policy or European Union policy) if people can’t argue that certain immigrant groups are bad for the country? How can they make democratic decisions about whether to support any proposed EU admission of Turkey? After all, admitting Turkey might well substantially increase Turkish immigration into Germany, so citizens who want to think about the admission question might reasonably want to consider the consequences of such increased immigration.

Indeed, how can German and European citizens even criticize restrictions on these arguments — such as the restriction that the U.N. Committee says the law must impose — if they can’t explain why they think that the arguments being restricted are correct? Or is the point that these decisions are forever supposed to be out of the hands of the citizens, with political debate left to the supervision of U.N. Committees?

Marko Milanovic (EJIL: Talk!) has more; thanks to Prof. Marty Lederman for the pointer. See also the dissenting opinion of Committee Member (and Georgetown law professor) Carlos Vazquez.

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Apr 202013
 

Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way. Fortunately there aren’t a lot of cases on anything like we’re seeing in Boston, at least as far as I could find. The closest cases I know of involve roadblocks instead of home searches, which is in the ballpark of dragnet searches and seizures but not particularly close on the facts. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (noting in dicta that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.”); United States v. Paetsch, — F.Supp.2d —-, 2012 WL 5213011 (D.Colo. 2012) (dragnet roadblock at intersection to catch bank robber held reasonable under the Fourth Amendment).

Note that caselaw on these sorts of facts are particularly unlikely for reasons beyond the fortunate rarity of their occurrence. The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. See Rakas v. Illinois, 439 U.S. 128 (1978). As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.

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Boston News Conference: 6:00 PM ET: Indoor Stay Lifted

Sounds like the suspect is no longer in Watertown or even in the vicinity. The indoor stay in Watertown has been lifted. Col. Alben: They have not not apprehended suspect yet, but they will. They followed leads in Eastern Mass, none were fruitful. They will draw back the tactical teams in Watertown. FBI is leading the investigation. Shorter version seems to be either he got away or he’s dead. Since patrols are continuing, are they looking for other suspects or [Read More]

Boston: It’s Over, Suspect Alive and In Custody

On MSNBC, Rachel Maddow asks if the federal court in MA is up to trying the case because terror cases are usually tried in the Southern District of New York. What? Shoebomber Richard Reid was tried and convicted in MA. He’s doing life at Supermax. Timothy McVeigh was tried in Denver. Moussaoui was tried in Virginia. Terrorism cases are tried all over, the Southern District has no monopoly on them. Of course MA is up to the task. Since there [Read More]

Obama Press Conference on Boston Bombing Suspect

President Obama is speaking now. There are unanswered questions. Why did these men resort to violence? How did they plan it? Did they receive help? Public safety is at risk and we will investigate. We won’t rush to judgment about their motivations. It’s important that we do this right. He talks about the victims and then the people in West Texas. Buzz word: “Public safety.” He won’t be given Miranda rights. They will invoke the public safety exception to Miranda. [Read More]

The American Athens Becomes a Prison City

Two Chechen Islamist terrorists have succeeded in turning Boston, America’s cradle of liberty, into a prison. Just when we had gotten used to obscene lines and searches at airports as the price we pay for safety, the lockdown of Boston illustrates the extent to which civil liberties are at stake in the war on terror. Since 9/11, there has been an ongoing debate about the protection of the rights of suspected terrorists. But today’s events show that its is not [Read More]

Interesting New Decision About the Neutrality Act of 1794 and the Mavi Marmara Gaza Blockade Runner

Whoever, within the United States, furnishes, fits out, arms, or attempts to furnish, fit out or arm, any vessel, with intent that such vessel shall be employed in the service of any foreign prince, or state, or of any colony, district, or people, to cruise, or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace; or Whoever issues or delivers [Read More]

Post-Kiobel Litigation

My Mayer Brown LLP colleagues Andy Pincus and Kevin Ranlett have a very good post on the Class Defense blog about Kiobel (the Alien Tort Statute Case) and how broadly it ought to be read. Much worth checking out, if you’re at all interested in the ATS. Article source: http://feedproxy.google.com/~r/volokh/mainfeed/~3/m02ULOge9y0/

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