Bald Eagle Watch and Release on Sunday

Posted on February 18, 2013 by Marty & Stephanie

webeagleSOAR – Saving Our Avian Resources is excited to announce that an eagle that had elevated lead levels is ready for release back to the wild!  Join us at 2:00 p.m. at Jester Park Lodge, near Granger, Iowa, for a program about eagles in Iowa as part of the Bald Eagle Watch around Saylorville Lake.  We’ll release this eagle at the end of the 2:00 program.

State Representative Anesa Kajtazovic of Waterloo will be given the honor of releasing the eagle in recognition for her continued support of protecting wildlife against lead poisoning.  She is the primary sponsor of House File 165, a bill that will authorize the Iowa Natural Resource Commission to limit the types of ammunition that may be used to take wildlife in the state, thereby possibly reducing the number of eagles diagnosed with lead poisoning.  Other co-sponsors of the bill include:  Dan Kelley of Newton; Sharon Steckman of Mason City; and Charles Isenhart of Dubuque.

This adult male eagle did have elevated blood lead levels and was hit by a car while dining on roadkill along Highway 141 near Bayard, Iowa.  The eagle was rescued on December 7 and taken to the SOAR raptor rehabilitation facilities nearby.  A few miles south of this rescue location, another adult eagle was not as lucky and was also seen eating roadkill and later killed after being struck by a semi-truck

When an eagle ingests lead from a deer carcass (or another animal shot with lead shot or lead bullet that was not found by the hunter), the lead is quickly absorbed into the eagle’s bloodstream because their digestive system is so efficient.  Lead poisoning affects the nervous and circulatory systems and weakens the bird so that flying and hunting become difficult, they become uncoordinated, may have vision issues, and have difficulty breathing, seizures often accompany these symptoms.  200 milligrams (about the size of #4 shot) is enough to kill an eagle.

Many of us in Iowa have been working very hard to educate hunters and consumers of game meat in hopes that hunters will voluntarily choose to switch to non-lead ammunition.  Thank you to the Black Hawk Wildlife Rehabilitation Project, MacBride Raptor Project, and Wildlife Care Clinic for also rescuing and treating lead-affected eagles!  Since 2004, Iowa wildlife rehabilitators have admitted 247 bald eagles for treatment.  Over half of these eagles (144) had ingested lead, resulting in elevated lead levels in their blood and body tissues.  These are only a sample, as not all sick and injured eagles are found and brought to rehabilitators. These lead poisoning deaths are completely preventable, please hunt lead-free!

The Saylorville Bald Eagle Watch is scheduled 12:00 – 4:00 p.m. at the Saylorville Lake Visitor Center, Jester Park Lodge, and various sites around the reservoir.

For more information about rehabilitating eagles and other raptors with lead poisoning symptoms, non-lead ammunition, and more, please visit www.soarraptors.org.

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Oral Arguments: Please Pardon the Pun

Posted on December 4, 2012 by Marty Ryan

Warning:  The following blog addresses a sexual issue and may be offensive to some readers.

Often, common sense has nothing to do with upholding the law.

Imagine that an inmate in a federal prison was forced to give a correctional officer (CO) oral sex.  The inmate sues the government, asking the courts to side with him because the federal facility failed to protect him from the sexual assault by the CO.  The federal prison, however, claims that it has immunity because the CO did not commit an assault “while carrying out a search, seizing evidence, or making an arrest,” the criteria for losing immunity.  Since the CO did none of those things, the prison maintains its immunity.

You can stop imagining.  It happened.

According to the complaint, Millbrook was subjected to sexual assault while housed in the Special Management Unit (SMU) at USP-Lewisburg on or about March 5, 2010. On that date, Millbrook alleged that he was taken to the basement of the SMU and forced to perform oral sex on Correctional Officer Pealer while Correctional Officer Edinger held his neck and Correctional Officer Gimberling stood watch by the door. . . . According to the defendant, Millbrook was involved in an altercation with his cell mate on the morning of March 4, 2010. As a result, both prisoners were placed in restraints and removed from their cell. They were then transferred to separate holding cells pending injury assessment and photographs. Millbrook claims that he was assaulted the next day by correctional staff. Following an internal investigation, which included a medical assessment, Millbrook’s claim was found to be unsubstantiated.

http://docs.justia.com/cases/federal/appellate-courts/ca3/12-1531/12-1531-2012-04-23.pdf

The United Supreme Court is scheduled to hear oral arguments in Millbrook v. United States (docket 11-10362) sometime in the near future.

The lawsuit was filed under the Federal Tort Claims Act, which allows the government to be sued under certain circumstances, often when an employee of the federal government commits an illegal act while on the time clock.  “The Third Circuit Court ruled against Millbrook, concluding that the Lewisburg guards’ immunity to an assault remained intact because they were not engaging in one of those law enforcement activities at the time they allegedly forced him to perform oral sex.”

In an unusual move, the Solicitor General, Donald B. Verrilli, Jr., told the Supreme Court that he was not going to argue the case for the federal government because he believes the Third Circuit got it wrong.  The federal government will write a brief asking the Big Court to overturn the Third Circuit’s decision.

A neutral lawyer will be appointed, or chosen, to carry out the argument holding up the Third Circuit’s decision.  Just when you want to believe that government doesn’t do anything right, along comes a decent decision like Verrilli’s.

Now, will the Big Court uphold the law as written, like the Third Circuit did?  Or, will it find flaws, decency and inspiration that the Solicitor General should write in his amicus brief?

 

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Death Penalty Discussion on the Fallon Forum

Posted on November 8, 2012 by Marty & Stephanie

http://www.youtube.com/watch?v=J8SFF-JbOWw&feature=em-share_video_user

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The Right to a Free Public Education in Iowa & Alabama

Posted on October 30, 2012 by Marty Ryan

Quite some time ago, when I was employed by the Iowa Civil Liberties Union, I noticed that the Iowa Constitution did not provide a right to a free public education to the children of Iowa.  I decided to conduct some research and see how many other states lacked such a constitutional provision.

I spent a lot of my free time at the Drake Law Library and the Iowa State Capitol Law Library going through various state code books and delving into all 50 states’ constitutions.  This was before Westlaw and Google law.  I recorded the constitutional provisions of all 49 other states that had some reference to free public education in their respective constitutions.  Forty-eight of those states provided a constitutional guarantee.  Alabama and Iowa did not.  Alabama did have language about education.  Article XIV, Section 256, of the Alabama Constitution reads as follows:

Duty of legislature to establish and maintain public school system; apportionment of public school fund; separate schools for white and colored children.

The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years. The public school fund shall be apportioned to the several counties in proportion to the number of school children of school age therein, and shall be so apportioned to the schools in the districts or townships in the counties as to provide, as nearly as practicable, school terms of equal duration in such school districts or townships. Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.

As you can see, Alabama had language about education in its constitution, but I considered the lack of any language in Iowa’s as a step above Alabama’s.  I have had many people tell me that Iowa does indeed have educational language in its constitution.  However, I have won all arguments after pointing out that Article IX of Iowa’s Constitution, “Education and School Lands”, was primarily repealed in 1864.  Our federal constitution does not provide a guaranteed right to a free public education, but in the United States Supreme Court case of Plyler v. Doe, 457 U.S. 202 (1982), a majority on the Court held that “the Constitution guarantees all children, regardless of immigration status, equal access to a basic public education.”

My spare time research was transformed to a white paper on the lack of a provision in the Iowa Constitution that provided for a tuition-free public education for Iowa children.  The result of my research led to the introduction of Senate Joint Resolution 2003, a joint resolution proposing an amendment to the Constitution of the State of Iowa relating to the right of children to free public education through the secondary level, in 1998.  The co-sponsors were Senators Mike Gronstal (D-Council Bluffs), Mary Neuhauser (D-Iowa City), and Tom Vilsack (D-Mount Pleasant).

This November, citizens of Alabama are going to the polls to vote on Amendment 4, a constitutional amendment to remove the discriminatory language of its constitution allowing segregation of schools.  A similar effort failed in 2004.  If Alabamans can move into the 21st Century, perhaps it’s time for Iowans to do that same and proceed to provide a free public education to all Iowa children.

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Invasion of the Judicial and Legislative Branches

Posted on July 26, 2012 by Marty Ryan

On Monday, July 16, Governor Terry Branstad issued a commutation to 38 of Iowa’s lifers.  That group of lifers consists of those felons who are serving a sentence of life without the possibility of parole for crimes they committed as juveniles.

In a sweeping motion, the governor commuted the life sentences of all 38 individuals to a minimum term of sixty years, with no possibility of parole during that initial 60-year sentence.  Immediately, the decision raised questions that keep coming.

Can he do that?  That will be up to the courts to determine, and the governor’s decision will be challenged.  The Iowa Constitution gives the governor the power to commute a life sentence to a number of years, and it is backed up by statutory law.  However, that’s about where agreement on the governor’s limitations ends and the questions begin.

A Des Moines Register editorial said that the governor took the power “to be judge, jury and sentencing court all in a single act.”  He did more than that.  He created a new punishment – minimum sixty-year sentence without the possibility of parole.  He created a sentencing scheme that disallows a former juvenile to serve anything but a life sentence.

To begin with, nowhere in the Iowa Code is there a sentence of sixty years. In creating the 60-year term Governor Branstad usurped the power of the Legislature.  This determinate sentencing scheme is a power left solely to the Legislature.  Where did the governor come up with 60 years?  This is a discussion that must be left to the general assembly.

Next, the governor has the power to commute life sentences to a term of years, but there is no provision that allows him to place a caveat on that sentence, such as a limitation on how much time must be served before the Parole Board may consider releasing the individual.  In this regard, he has usurped the power of the Legislature, the courts, and tied the hands of his own Parole Board.

“The power of the governor under the Constitution of the State of Iowa to grant a . . .  commutation of sentence . . .  shall not be impaired.”  Yet, the Legislature has placed limitations on that power.  It has required that a person may “no more frequently than once every ten years, make an application to the governor requesting that the person’s sentence be commuted to a term of years.”  And, the Legislature has defined a process for commutation.  The governor ignored the process in delivering his commutations.  “The director of the Iowa department of corrections may make a request to the governor.”  “[T]he governor shall send a copy of the request to the Iowa board of parole for investigation and recommendations as to whether the person should be considered for commutation.”  And Parole Board must “conduct an interview of the class “A” felon and shall make a report of its findings and recommendations to the governor.”

That entire process was deliberately ignored as the governor conducted a political sidestep in which his only basis for commuting the sentences was for the safety of Iowans and to ease the pain of victims.  Neither of these reasons is included in the statutory process under Iowa Code Chapters 81, 331, 902, 904A, and 914.

In Miller v. Alabama, the United States Supreme Court held:  “By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard­less of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual pun­ishment.”  Governor Branstad looked only at the first part of the holding – lifetime incarceration.  He failed to take into account that the decision also requires a process.  Iowa has that process.

“Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”  The governor, playing the role of judge or jury, has failed to consider individualized mitigating circumstances before he made his sweeping motion of commutation before any of the offenders had a real opportunity for commutation as it is designed in the Iowa Code.  He broke the spirit of the law, and the spirit of many lifetime offenders who had a ray of hope.  Not all of these offenders are “dangerous”, as Branstad proclaimed.  Some are; others have made a real effort at rehabilitation.  There should be a distinction made on the merits of each case as presented to the Board of Parole.

Serving a minimum of sixty years means that one of these targeted offenders must have to be in their mid to late 70s to even begin the process of parole.  In Iowa, the typical lifer who leaves the Iowa prison system (by death or other means including appeal) leaves after 16 years (median) of incarceration.  The average lifer who dies in prison, dies at a median age of 56.  So a sixty-year sentence is really nothing more than a life sentence.

Governor Branstad did nothing to comply with the United States Supreme Court.  He did everything to promote his prospect for reelection.

Citations to the Iowa law mentioned above are available by sending an email to:  insight@iowappa and placing “Citations please” in the subject line.

© Copyright 2012.  Fawkes-Lee & Ryan.  All rights reserved.

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Jumping Off Perfectly Good Bridges

Posted on July 11, 2012 by Marty Ryan

Chucky Lewis jumped off the Boyer River Bridge when I was a kid.  Perhaps more of us kids in town would have jumped as well, but the Boyer River running alongside the town of Vail is only about a foot deep most of the year and the jump is at least thirty feet from the bridge railing to the water’s surface.  Chucky didn’t do it just because he was nuts; a few kids in town told him everyone did it.  So, being the gullible bully he was, he tried it.  Thankfully, he didn’t get hurt.

Unfortunately, on Tuesday, July 3, a boy in Linn County, Iowa wasn’t as lucky.  He broke his leg jumping off the Paris Road Bridge near Central City into the Wapsipinicon River.  This sport, if it’s all right to call it a sport, is dangerous.  An official with the Linn County Sheriff’s Office made a point when he said that bridge jumping could lead to a spinal injury, and the jumper would never be able to swim back to shore.  That’s possible.  But is that a reason to prohibit the activity?  Driving a car can be dangerous, but we don’t prohibit driving because someone may get killed or seriously injured.  Jogging can lead to injury, but we don’t regulate the sport.

A year ago, the Linn County sheriff wanted a county ordinance to make bridge jumping illegal.  He based his intentions on the potential hazards and several complaints from citizens. Some jurisdictions throughout the United States and the world have ordinances or statutes prohibiting bridge jumping, so his desire for the prohibition was nothing new. The Linn County Board of Supervisors considered the ordinance, but voted it down.

The proposed ordinance would have fined a juvenile $100, while an adult’s penalty would cost $650 and a possible 30-day jail term.  John Harris, a supervisor from Palo, questioned the practicality of the ordinance by noting that it’s “going to be very difficult to enforce.  By the time the sheriff’s deputy arrives, they’ll be picnicking on the sandbar, and there will be no activity to cite.”  He’s correct.  Another supervisor, Brent Oleson from Marion, stated that he didn’t see a concern, “as long as they’re not hurting others.”

The supervisors took a sensible approach.  There is not much that can be accomplished by banning fads, especially when a thrill is involved.  I was a kid, and I was thrill seeker.  I know that to get around this you set up a couple of others to watch for law enforcement.  If a sheriff’s deputy comes along you give a signal, and everyone goes to the sandbar for a picnic.  Creating a law prohibiting such activity makes the activity more enticing.  The activity becomes the forbidden fruit.  It’s not just a thrill to jump off the bridge, but because it’s prohibited, the thrill is enhanced.  And thrill seeking is what bridge jumping is all about.  As if jumping from a bridge into the water below isn’t enough of a thrill, it can be recorded and broadcast all over the Internet via YouTube.  The excitement of having others across the world view the feat of what has been accomplished is an additional pleasure.  Make it illegal and it adds a few drops of adrenaline to the blood stream.

People have probably been jumping off bridges since the first one was built.  If an ordinance had been adopted last year in Linn County, would kids who were with the boy who broke his leg run from the scene to avoid a $100 fine?  Very likely, remember, they’re kids, not adults.  Reactive laws can lead to greater tragedies.

Kids used to break legs and arms all the time.  It was like wearing a plaque, a medal, or a trophy.  The alternative is to prohibit any activity that may be hazardous to kids and watch them get fat sitting at home watching the “tube”, or today, “YouTube”.

Fawkes-Lee & Ryan is committed to preventing reactive statutes from becoming law.  But it’s a difficult job trying to prevent law enforcement from protecting everyone from themselves.  That’s our challenge.

Many people who have written about bridge jumping have included the old cliché:  “If everyone else was jumping off the bridge, would you?”  I guess that many mothers have questioned their children in this way.  Mine didn’t.  Maybe she knew about Chucky Lewis.

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