Student Loans are a pain but this pleading is probably over the top (Language Warning!!)

Ass Clown Petition

Can A Cheerleader Refuse to Cheer on 1st Amendment Grounds?

The 5th circuit says no.  A Texas high school cheerleader who refused to cheer for a player she accused of sexually assaulting her (he later pled guilty to a misdemeanor) lost her suit against the school district and officials who dismissed her from the squad. The court recited as fact that the plaintiff as a cheerleader was "contractually required to cheer for the team," including her attacker.  Her complaint alleged that her determination not to cheer for her attacker was an exercise of symbolic expression of her disapproval of her attacker, protected by the First Amendment.  The court rejected the  argument:

In her capacity as cheerleader, H.S. served as a mouthpiece through which SISD could disseminate speech -- namely, support for its athletic teams. Insofar as the First Amendment does not require schools to promote particular student speech, SISD had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit. Moreover, this act constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.

Ninth Circuit sets high standard for police use of Taser

Finding that Tasers and similar stun-gun devices "constitute an intermediate, significant level of force,” the three-judge panel held that police officers may legally use a Taser to restrain a suspect only if doing so is justified by a “strong government interest.”

The Ninth Circuit has held that police use of a Taser must be justified by a “strong government interest [that] compels the employment of such force.” (Bryan v. McPherson, 2009 WL 5064477 (9th Cir. Dec. 28, 2009).)

"This is the first case to set some clear limits on the use of Tasers," said Eugene Iredale of San Diego. He represents Carl Bryan, who sued police officer Brian McPherson, alleging that by shooting him with a Taser stun gun, the officer used excessive force in violation of his Fourth Amendment rights. The Ninth Circuit agreed.

Judge Kim McLane Wardlaw wrote for the three-judge panel that Tasers and similar devices "constitute an intermediate, significant level of force” that may be used only under limited circumstances that meet the “strong government interest” standard.

McPherson had stopped Bryan for driving without wearing his seat belt. Bryan got out of the car agitated, yelling gibberish and hitting his thighs,

upset that this would be his second ticket of the day after a long journey. McPherson shot him with the Taser, and he fell face first, fracturing four teeth and suffering facial contusions. Because the Taser incapacitates the subject, Bryan could not catch himself as he fell.

The Ninth Circuit noted that it and other circuits have held that Tasers are considered nonlethal force but that the device "intrudes upon the victim's physiological functions and physical integrity in a way that other nonlethal uses of force do not."

To determine whether McPherson used excessive force, the court applied the Supreme Court's test in Graham v. Connor (490 U.S. 386 (1989)) and considered the severity of the crime, whether the suspect posed an immediate threat, and whether the suspect was actively resisting or attempting to flee.

There was an issue of fact as to whether Bryan moved toward McPherson, but the parties agreed that he remained about 20 feet away and complied with McPherson's commands except one asking him to stay in the car, which Bryan said he didn't hear. McPherson did not warn Bryan that he would shoot him with the Taser. The court noted that "despite his unusual behavior," Bryan did not pose a threat to anyone. The court concluded that "the totality of the circumstances here did not justify the deployment of the Taser X26."

McPherson relied on an Eleventh Circuit decision holding that the police use of a Taser did not constitute excessive force. (Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).) But the Ninth Circuit said Bryan was "clearly distinguishable" from Draper, in which the person being arrested heard the officer's commands, refused to comply, and argued with the officer.

Iredale said the decision will make it easier to show excessive force. He added that it might have implications for products liability as well, because Taser International, the manufacturer, "has resisted giving appropriate warnings regarding use" of its product, and now the Ninth Circuit has said that this use constitutes a significant use of force.

According to Amnesty International, more than 350 people have died in the United States after being shocked by police Tasers. Bryan "points to the need to reconsider how Tasers have been classified and deployed," said Vienna Colucci, Amnesty International USA's managing director and senior adviser for policy. She noted that police departments typically place Tasers "in the mid-range of the force scale (even below batons or impact weapons), rather than at, or just below, lethal force."

The decision should cause law enforcement agencies and individual officers "to think more carefully about when and how to use these weapons," Colucci said.

New medical marijuana policy issued by Obama administration

WASHINGTON (AP) -- The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.

Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state laws.

The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes.

Fourteen states allow some use of marijuana for medical purposes: Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.

California is unique among those for the widespread presence of dispensaries -- businesses that sell marijuana and even advertise their services. Colorado also has several dispensaries, and Rhode Island and New Mexico are in the process of licensing providers, according to the Marijuana Policy Project, a group that promotes the decriminalization of marijuana use.

Attorney General Eric Holder said in March that he wanted federal law enforcement officials to pursue those who violate both federal and state law, but it has not been clear how that goal would be put into practice.

A three-page memo spelling out the policy is expected to be sent Monday to federal prosecutors in the 14 states, and also to top officials at the FBI and the Drug Enforcement Administration.

The memo, the officials said, emphasizes that prosecutors have wide discretion in choosing which cases to pursue, and says it is not a good use of federal manpower to prosecute those who are without a doubt in compliance with state law.

The officials spoke on condition of anonymity because they were not authorized to discuss the legal guidance before it is issued.

"This is a major step forward," said Bruce Mirken, communications director for the Marijuana Policy Project. "This change in policy moves the federal government dramatically toward respecting scientific and practical reality."

At the same time, the officials said, the government will still prosecute those who use medical marijuana as a cover for other illegal activity. The memo particularly warns that some suspects may hide old-fashioned drug dealing or other crimes behind a medical marijuana business.

In particular, the memo urges prosecutors to pursue marijuana cases which involve violence, the illegal use of firearms, selling pot to minors, money laundering or other crimes.

And while the policy memo describes a change in priorities away from prosecuting medical marijuana cases, it does not rule out the possibility that the federal government could still prosecute someone whose activities are allowed under state law.

The memo, officials said, is designed to give a sense of prosecutorial priorities to U.S. Attorneys in the states that allow medical marijuana. It notes that pot sales in the United States are the largest source of money for violent Mexican drug cartels, but adds that federal law enforcement agencies have limited resources.

Medical marijuana advocates have been anxious to see exactly how the administration would implement candidate Barack Obama's repeated promises to change the policy in situations in which state laws allow the use of medical marijuana.

Shortly after Obama took office, DEA agents raided four dispensaries in Los Angeles, prompting confusion about the government's plans.

Drug Enforcement Administration: http://www.usdoj.gov/dea/

Justice Scalia says it is ok to execute an innocent person

Per Justice Scalia there is nothing unconstitutional about executing an innocence person.

"The Georgia Supreme Court rejected petitioner’s “actual-innocence” claim on the merits, denying his extraor-dinary motion for a new trial. Davis can obtain relief only if that determination was contrary to, or an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court of the United States.” It most assuredly was not. This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable."

NPR talks about Michigan Court Appointed Criminal Defense System and Shows What a Mess the System IS!!

"Groups of lawyers and advocates have filed lawsuits in states from New York to Florida to Arizona charging that low-income people can't get a fair trial. Public defenders in Kansas and Minnesota are refusing cases outright.

In Michigan, the system has been broken for decades. Detroit public defenders face abysmal pay, unmanageable caseloads and flimsy oversight."

Listen to this story from All Things Considered on National Public Radio. It really illustrates how high caseloads affect lawyers who have good hearts, but no time or resources to do the job. The lawyer featured in the story doesn't get paid for telephone calls or letters to his clients and is only paid for one jail visit. So he has practically no communication with his in-custody clients. To see how this guy deals with and talks about his clients is shocking but then you wonder how anyone can keep their humanity in that system.

It was a good reminder to me that I work for my clients, not a system, and I owe my clients time and respect and sincere concern.

http://www.npr.org/templates/story/story.php?storyId=111811319

Lansing asks for HIV status to be released

Postede from the Michigan ACLU Blog

Posted by aclumich on Aug 20, 2009

Jay Kaplan, ACLU of Michigan LGBT Project Staff Attorney

You may have heard that Lansing Mayor Virgil Bernero has formally asked for an attorney general investigation into the release of the HIV status of man arrested in a sex-sting operation. You may have also heard that the Michigan Department of Community Health sounded the trumpet for an investigation as well. Why all the fuss?

Well, Michigan law clearly protects the confidentiality of a person’s HIV status. Although there are a number of exceptions to this law, releasing the information as part of a police report does not appear to be one of them. In fact, even if it was relevant to the police investigation, the information should never have been revealed publically.

But this is not the only disturbing issue associated with the incident. Lansing’s decision to deploy undercover police officers pretending to be gay in an effort to encourage men to engage in illegal behavior in the park should raise some eyebrows as well. The fact is that indecent exposure and sex in public are illegal. However, there are more effective ways for police to deal with this problem if, in fact, it does exist. Police departments can deploy uniformed officers to patrol the parks and post signs indicating that parks are being patrolled to deter individuals from engaging in these activities.

After all, a statement by the Lansing police chief says it all – when asked why deploy undercover officers in the park; he stated that when uniformed officers patrolled the park, they observed no illegal activity.

Isn’t that point?

What is Wrong With Priop 8 and Similar issues

Many people are unhappy with Proposal 8 in California and many people are also apparently happy that Porp 8 passed.  Personally I would have voted against Prop 8 if I lived in California but that is not the problem with the proposal.

The proposal and many like it miss the whole point of the Bill of Rights and why it exists and what it was meant for.  The Bill of Rights was designed to protect rights that were not popular.  Jefferson and the others involved didn't enshrine the rights to the press, assembly, and the criminal rights because they were a codification of what would be popular and accepted.  The Bill of Rights was enacted to protect rights that might not stand up to the democratic process.  By adding the rights to the Constitution they were assuring that they would be a part of our democracy even if they could not pass a popular vote.  The rights are protected even if they are unpopular.  The classic example is the right to free speech.  For many the right to speech could be popularly protected.  But for many (the Nazis come to mind) the right would not survive the democratic process.

The process to establish rights under the Constitution is exactly the same.  Brown v The Board of Ed. was not popular but in that case the Supreme Court held that separate but equal was not legitimate under the Constitution.  Equal rights for blacks had not survived the democratic process in much of the country.  But the Constitution protected the right to be treated equally even if it was not popular.  That is what the Constitution and the Bill of Rights stand for, in fact that is what our country stands for.

The ballot initiative process when it deals with civil rights is an inappropriate use of democratic government.  (There are many other reasons I think the ballot initiative process not a good idea but I won't go into those today.)  Can anyone imagine holding a ballot initiative to determine if Nazis can have free speech?  Make no misstate, I am not a fan of Nazi's but I am a big fan of the Bill of Rights.

The Courts in California have held (rightly I think) that denying marriage to gay men and lesbians is a violation of the equal protection clause of the US and California constitutions.  Just like Brown v. The Broad of Ed. it was not popular.  The referendum process should not be used to overturn something that is protected by the Constitution.  

Exonerees, Texas Officials Call for Innocence Commission, Moratorium

Twenty four exonerated men gathered in front of the Texas State Capitol building last Friday in support of a statewide capital punishment moratorium. As members of Witness to Innocence, a Philadelphia-based organization, the group of former death row inmates also called for a state commission to investigate wrongful convictions. 

The men came from across the country (including Ray Krone of Arizona, Juan Melendez of Florida and Clarence Brandley of Texas) and were joined by former Bexar County District Attorney Sam Millsap and Texas State Representative Elliott Naishtat. 

Milsap, who took personal responsibility for the 1993 execution of San Antonio man Ruben Cantu that was based on one (later recanting) eyewitness and no physical evidence, said that he was "no longer convinced that our courts will in fact guarantee the protection of the innocent."

"It's a national problem, but a problem that has a distinct Texas face," state Rep. Elliott Naishtat, D-Austin, told the members of Witness to Innocence. Naishtat said he will introduce a bill next session to give the governor the power to declare a temporary moratorium on executions. He also promised to work on behalf of a bill by state Sen. Rodney Ellis, D-Houston, to create a Texas innocence commission. 

However, any bill to halt executions stands no chance of passing the Texas Legislature, Naishtat said. Capital punishment has substantial support in Texas. The 2007 Texas Crime Poll by Sam Houston State University found 74 percent of Texans support the death penalty. And 66 percent said they were confident that innocent people are protected from execution. 

U.S. Supreme Court Will Hear Case on Access to DNA Testing

The U.S. Supreme Court said today that it will review an Alaska case on whether defendants have the right to DNA testing that can prove innocence. 

The Innocence Project represents William Osborne, who was convicted of rape and related charges in 1994. The state has fought motions for DNA testing that could prove Osborne’s innocence. Earlier this year, a federal appeals court ruled that Osborne has a constitutional right to DNA testing, but the state appealed that ruling to the Supreme Court.

If the new testing shows that Mr. Osborne was indeed guilty, prosecutors should be pleased, the Ninth Circuit said. And if the testing points to his innocence, prosecutors should still be pleased, because the state’s paramount interests are in “seeking justice, not obtaining convictions at all costs,” and the tests will yield better evidence to catch and convict “the real perpetrator.” 

Innocence Project Co-Director Barry Scheck said today that the state has no justification to deny DNA testing when it can prove guilt or innocence. In a statement issued today, Scheck said:

“The State of Alaska concedes that DNA testing could prove William Osborne’s innocence, while fighting his right to testing. Why would anyone be afraid to learn the truth in this case? There is no rational reason to deny DNA testing that could prove innocence or confirm guilt.

“We believe that people clearly have a constitutional right to post-conviction DNA testing when it can prove innocence. Many courts have recognized this right, and we’re optimistic that the Supreme Court will affirm it if they reach that question in this case.”

The Chancellor of the Diocese of Fort Worth misleads members of the Diocese

The Stand Firm blog has this posting about advice from the Chancellor of the Diocese of Fort Worth.  The Chancellor who is unnamed in the post concludes that there is no violation of a fiduciary duty to any entity by voting to take a church or diocese out of the Episcopal Church.  I have written often over the last few years that this is in fact not true.  The Chancellor uses some neat statements of the law and some assumptions that most do not agree with and comes to the conclusion his Bishop wants.  There are many problems with this conclusion.

First, it makes the assumption, without support, that "The Episcopal Diocese of Fort Worth are not trustees of a valid trust in favor of TEC."  This may be true but cases all over the country are finding exactly the opposite.  To treat this as a given when it is still up in the air in many places including, I believe, Texas is a big leap.  The validity of the Dennis Canon is not the subject of this response and the existence of a fiduciary relationship does not determined exclusively by the validity of the Dennis Canon.

The true problem is the the Chancellor from the Diocese of Fort Worth ignores Texas law and the Canons of the Diocese of Fort Worth. 

The Chancellor from the Diocese of Fort Worth puts large stock in this section of Texas law:

E. A director is not deemed to have the duties of a trustee of 

a trust with respect to the corporation or with respect to any 

property held or administered by the corporation, including 

property that may be subject to restrictions imposed by the donor or 

transferor of the property.

The Chancellor from the Diocese of Fort Worth claims this means there is no trust.  All this section means is that the non-profit corporation act does not create a trust.  It does nothing to negate trusts that may be created in other ways.

Under Texas law the directors of a non-profit corporation and church corporations are covered by the act have a duty to the corporation.  Specifically:

Art. 1396-2.28. GENERAL STANDARDS FOR DIRECTORS.  A. A

director shall discharge the director's duties, including the 

director's duties as a member of a committee, in good faith, with 

ordinary care, and in a manner the director reasonably believes to 

be in the best interest of the corporation.

So what does that mean?  For our purposes it clearly means that the directors have a fiduciary relationship and duty to the corporation. Which begs the next question, what is the corporation?  The corporation or any corporation is defined by its articles of incorporation.  [small caveat - some parishes in Fort Worth may not be incorporated however there is some reason to believe the analysis would apply to them too.]  The parishes that are incorporated under Texas law are bound by this section of Texas law.  

The Canons of the diocese of Fort Worth allow incorporation. Specifically:

CANON 31
 CORPORATIONS
  
 
  
The articles of incorporation must expressly provide that such corporation is subject to, and its powers and rights shall be exercised in accordance with, the Constitution and Canons of the Episcopal Church in the United States   of America and the Constitution and Canons of this Diocese.
  
 You will notice that the Canon requires that the articles of incorporation make the corporation (read parish) subject to the Constitution and Canons of the National Church.  The Canons further require that new parishes will abide by the Constitution and Canons of the National Church.
CANON 22
FORMATION OF NEW PARISHES
 
We, the undersigned, do associate ourselves together for the purpose of maintaining the worship of God and the preaching of the Gospel, according to the doctrine, discipline and worship of the Episcopal Church in the United States of America, in the town of _________________________, in the State of Texas, and do promise to abide by and conform to the Constitution and Canons of the General Convention and of the Diocese of Fort Worth.
You see the problem with the analysis of the Chancellor of the diocese of Fort Worth is that he does not account for the fiduciary duty of the vestry members in the first act moving away from TEC.
The parishes (corporations) as they existed before "the troubles" were formed under articles of incorporation and canons that had the parish a part of TEC and they agreed to abide by the Constitution and Canons of TEC.  Any act that a vestry member contemplates that removes this or violates this, violates their fiduciary duty to the corporation/parish as formed.  They may feel they have a valid reason for violating the duty, but this is a completely different question.  The Chancellor of the Diocese of Fort Worth would suggest that there is no duty and this is simply incorrect.  
I don't know if the articles of incorporation of the parish/corporations in Fort Worth have been amended but that doesn't matter.  Amending the articles of incorporation in this way would violate the duty owed to the original corporation.  
Whether this was an oversight or something worst on the part of the Chancellor of the Diocese of Texas it is misleading and not helpful. If vestry members in Fort Worth were truly looking for some guidance as they make some difficult decisions, they didn't get it.

Lawyer's worst nightmare

Bath Township Backs Down

This is Robert Park and his Obama sign.  Mr. Park put up this sign after his regular 2 foot by 3 foot signs were stolen more than once.  Shortly after he put it up, Bath Township told him the sign violated a local ordinance and he had to take it down.  He called the ACLU and I represented him.  The attorney wrote the township telling them that the ordinance is unconstitutional and thus unenforceable.  Mr. Park gets to keep his sign.  The Constitution wins again.