No Slam Dunk

Posted on April 9, 2012 by Marty Ryan

Last September I wrote that the United States Supreme Court was about to hear oral arguments in a case called Florence v. Board of Chosen Freeholders.  As you’ll recall, this is what I had to say about it:

Albert Florence was a passenger in a car traveling on a New Jersey road when the driver was pulled over by a New Jersey State Trooper.  Florence was taken in to custody on a non-indictable civil matter unrelated to the traffic stop.  Even though he claimed the unpaid matter had been taken care of, the trooper brought him to the jail to be booked.  In the booking process, Florence was told to strip, hold his hands out, lift his genitals, and raise his tongue with his mouth open.  All of this took place with a jailer standing within an arm’s length.

If that wasn’t bad enough, Florence was transported from the Burlington County Jail to the Essex County Correctional Facility after 6 days.  At Essex, he went through a similar naked routine as he did upon entering the Burlington County Jail. This time “he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough.”  After a day spent in the Essex County facility, the charges against Florence were dropped and he was released.

I also wrote that this case was not a “slam dunk” in favor of what many of us consider being a violation of the Fourth Amendment.  It wasn’t.  The SCOTUS handed down its decision last week.  In justification for saying that it’s okay for correctional and jail officials to conduct intrusive searches, Justice Kennedy said that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.”  He likened Florence to Timothy McVeigh and the serial killer Joel Rifken.  (I had no idea who Rifken was and had to Google® him – he is a serial killer who may have killed up to 17 prostitutes in the New York/Long Island area.)  Justice Kennedy got it wrong.  Instead of expecting Timothy McVeigh, jails and detention centers should be expecting the people more like Florence.  Not only are most people entering these facilities more like Florence, but even Justice Kennedy couldn’t show that McVeigh or Rifken were security risks when detained.  Contrarily, both appeared to be closer to gentlemen than hoarders of contraband, and in the case of Rifken, very cooperative.

The Court of Appeals for the Third Circuit held that “the strip search procedures described by the District Court at BCJ and ECCF are reasonable.” The Appeals court reversed the “District Court’s grant of summary judgment” and remanded the case “for further proceedings consistent with [its] opinion.”  In coming to this conclusion, two of the three circuit judges based their reasoning on balancing “the Jails’ security interests at the time of intake before arrestees enter the general population against the privacy interests of the inmates.”  They gave more weight to the security interests than they did to the constitutional rights of the accused.  Justice Kennedy did the same.  He barely mentioned constitutional rights, but he went on with page after page about the security of jails.  It’s as if the Jailers Association of America wrote the decision.

We’re coming to a point where the needs of government are becoming greater than the rights our forefathers envisioned.  Yes, there needs to be control over what comes into our correction and detainment facilities.  But comparing Florence to McVeigh or Rifken is insulting to anyone who is going to be asked to “come down to the station to get this little matter of a traffic ticket settled”.

 

Posted in Criminal Justice, Issues, Privacy | Tagged , , , , , , , | Leave a comment

Knock, Knock; Who’s There?

Posted on March 11, 2012 by Marty Ryan

Imagine renting a home and answering the door to a couple of men in suits.  “We understand you have a few people living here that are unrelated to you.”  How would you respond to that question by someone showing an official badge of the city in which you live?  It may not happen to most of us, but all of us should care about government sticking its obtrusive nose into our households.

Senate File 2300 is a bill that prohibits the regulation of rental property by a city based upon familial relationships.  Instead, the occupancy limitations would be based upon square footage.  The purpose of this bill is to give rental property owners and their customers – people who can’t afford to purchase a home of their own – a right to be left alone from government busybodies.

A 2007 Iowa Supreme Court decision, ARPA v. Ames, supposedly settles the matter in favor of the City of Ames and other municipalities.  An Ames ordinance limited occupancy to certain homes in certain neighborhoods to “no more than three unrelated persons”.  However, the decision was not unanimous.  The legal question in this case was whether the Ames ordinance violated the Equal Protection clauses of the United States and Iowa Constitutions.  All justices agreed that the ordinance did not violate the federal constitution, but Justice Wiggins, with whom Justices Appel and Hecht joined, filed a dissenting opinion in which he believes the ordinance violated the state constitutional provision of Equal Protection.  Article I, section 6 of Iowa’s Constitution states:  “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

The majority opinion properly identified the question of “whether the ordinance . . . is rationally related to a legitimate governmental interest.”  But that’s all it got right.  The majority sided with Ames’ argument that the ordinance promoted “a sense of community, sanctity of the family, quiet and peaceful neighborhoods, low population, limited congestion of motor vehicles and controlled transiency.”  Those may be governmental interests, but are they ‘legitimate’?  Or, is it just convenient to a particular section of the community?

Justice Wiggins acknowledges that cities have a “legitimate purpose in promoting the quality and character of its neighborhoods,” but we share his perception that it’s sort of a stretch to believe that “distinguishing between related and unrelated persons in a zoning law is rationally related to the promotion of a sense of community, sanctity of the family, quiet and peaceful neighborhoods, low population, limited congestion of motor vehicles, and controlled transiency.”

Justice Wiggins said that “this ordinance disadvantages those most likely to live with roommates—the poor and the elderly. . . . The ordinance distinguishes between acceptable and prohibited uses of property by reference to the type of relationship a person has with those they live with, not by the conduct of those that live in the residence.”  He even had a suggestion.  “If Ames wants to regulate population it can do so by reference to floor space and facilities. Noise and conduct can be controlled with nuisance and criminal laws. Traffic and parking can be controlled by limiting the number of vehicles to all households or with off-street parking regulations.”  This suggestion is the point of SF 2300.

“Families today, especially ones with teenagers, are just as likely as a group of unrelated persons to have numerous vehicles parked outside their home. In fact, in a college community like Ames, students, the unrelated persons most targeted by the ordinance, are more likely to rely on alternative means of transportation—public transportation, foot, or bicycle—than a vehicle.”

The rationally-written dissent offers more common sense arguments:  “As another court has articulated under a similar ordinance, “twenty male cousins could live together, motorcycles, noise, and all, while three unrelated clerics could not.”  That raises a funny question.  Would a convent be excluded from the ordinance because all the residents are sisters?

“[I]t is irrational to suppose this ordinance promotes a quiet and peaceful neighborhood. This ordinance does not distinguish between a raucous family that plays loud music at their home, has large parties at their home, and houses more vehicles than persons living in their home, and a house of four single, quiet, homebodies whose only knowledge of wild parties and loud music comes from watching television. As another court summarizes, housing ordinances of this sort create an irrational discrepancy in treatment because a tenant-occupied house whose “residents happen to be the quiet, neat type who use bicycles as their means of transportation” are subject to the ordinance; “whereas the owner-occupied house is not subject to the ordinance, even though its residents happen to be of a loud, litter-prone, car-collecting sort.”

The dissent comes to the bottom line:  “Ames claims it is promoting a sense of community with this ordinance: But whose community is Ames promoting? Is Ames only interested in promoting traditional families or those who can afford to live in a home without roommates—the wealthy and the upper-middle class? It is irrational for a city to attempt to promote a sense of community by intruding into its citizens’ homes and differentiating, classifying, and eventually barring its citizens from the community solely based on the type of relationship a person has to the other persons residing in their home.”

This last thought provokes one of our own.  How do you prove that you are related or not related to another?  Will DNA samples have to be procured?  We’re okay with the government knowing approximately ‘how many’ live in a particular building; we are not okay with the government knowing “who” lives in a particular building.

Mason Proffit sang that “we’re all brothers, and we have to learn how to live.”  Communities should allow all of us to live as brothers and sisters, and not takes names as we move from rental property to rental property in an attempt to escape the clipboard-toting, badge-wielding, eyes and ears of city officials who want to know who is living with you.

Contact your state senator and urge passage of SF 2300.

Posted in Fairness, Issues | Tagged , , , , , , | 2 Comments

Same Results; Different Reasoning

Posted on February 6, 2012 by Marty Ryan

Last November, I wrote a blog about how the Fourth Amendment is losing its meaning.   One of the examples I had used was the case of United States v. Jones.  The facts of the case are as follows:   Antoine Jones and Lawrence Maynard were business partners.  In 2004, both were suspected of being involved in drug trafficking, so the FBI attached a Global Positioning System (GPS) to the Jeep that Jones drove – his wife’s.  A federal judge had issued a warrant to attach the GPS to Jones’ vehicle, but the judge limited the warrant to the District of Columbia and for a specific ten-day period.  FBI agents didn’t get around to installing the GPS device until the 11th day, and then they attached it to the Jeep while it was parked in a public parking lot in Maryland.

This case involves the question of 1) whether the warrantless use of a tracking device (GPS) on a vehicle to monitor its movements on public streets violates the Fourth Amendment, and 2) whether the government violated Jones’ Fourth Amendment rights by attaching the GPS tracking device to his vehicle without seeking a valid warrant and without his consent.  At the time of the posting, the United States Supreme Court was hearing oral arguments.

On January 23, the Court handed down its decision.  Yes, “the Government physically occupied private proper­ty for the purpose of obtaining information. [The Court has] no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.”  Justice Scalia, the self-appointed historian of the Bench, went on to justify the decision by using case law on trespass as old as the country.  But Justice Stotomayor explained it best in her concurrence:  “[T]he Gov­ernment installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones’ Jeep without a valid warrant and without Jones’ consent, then used that device to monitor the Jeep’s movements over the course of four weeks. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection.”

Stotomayor used a different reasoning than Scalia to come to the same conclusion.  Citing People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009), she noted that the GPS will go far beyond providing the government with information that will use as evidence; it will also include “(‘trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meet­ing, the mosque, synagogue or church, the gay bar and on and on’)”.  Justice Stotomayor pointed out that she “would also consider the appropriateness of entrusting to the Executive, in the absence of any over­sight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance.”  We can agree with that!

Both the majority and Stotomayor criticized Justice Alito’s concurrence.  Alito’s opinion was well-thought out and brought technology into the frame of the argument.  However, he lost me also when he began to compare this situation with tort law and then suggested that this matter be taken up by Congress and the states.  “A legislative body is well situ­ated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a com­prehensive way.”  That statement makes me think that Justice Alito doesn’t see the magnitude of the Fourth Amendment violation.  I’ve seen legislative bodies attempt to comply with constitutional questions.  It isn’t pretty.

In any case (no pun intended), the Court came to correct conclusion.  We can sigh a bit, smile, and know that some fragment of the Fourth Amendment remains – for now.

Posted in Criminal Justice, Issues | Tagged , , , , , , , , | 2 Comments

What Happened to Our Fourth Amendment?

Posted on January 29, 2012 by Marty Ryan

This is a short read, and there’s not a lot of legalese in the opinion.

http://www.supremecourt.gov/opinions/11pdf/11-208.pdf

The Fourth Amendment to our Constitution has been watered down considerably over the decades.  It’s difficult to imagine that a thought process went from patrol officer to U.S. Supreme Court Justice in the time it takes for lightning to flash.  Can you find the quote that should have overturned the district court’s ruling?

Hint:  “I’m going to get my husband.”

Posted in Fairness, Issues | Tagged , , | 5 Comments

“Lead Is Poison Coalition: Ammunition Myth vs. Reality”

Posted on January 20, 2012 by Marty Ryan

Myth:  The DNR overstepped its bounds in attempting to prohibit the use of lead shot.

Reality:  It was not the Department that filed the Notice of Intended Action, but the Natural Resources Commission.  “Except as otherwise provided by law, the commission shall: a. Establish policy and adopt rules, pursuant to chapter 17A. . . [and the] commission may adopt rules for the taking and possession of migratory birds which are subject to the federal “Migratory Bird Treaty Act” and “Migratory Bird Stamp Hunting Act” during the time and in the manner permitted under those federal Acts.”

The NRC has introduced similar rules in the past without objection.  See IAC r. 571—Chapter 92, particularly subrule 92.3, which requires nontoxic shot for migratory game birds.

Myth:  Steel shot costs twice as much as lead shot.

Reality:  In April, 2011, Winchester 12 gauge #7 steel shot cost $5.97 a box at a Carroll, Iowa Wal-Mart.  In the same aisle was a Winchester 12 gauge #7 ½ lead shot for the same price – $5.97 per box.  Both boxes contained shells that were 2 ¾ inches, 1180 to 1200 FPS.  The lead shot was 2 ¾ dram while the steel shot was 3 dram.  The price and availability of alternative shot is becoming more in tune to demand.

Myth:  This rule was adopted at the last minute and the Commission tried to sneak it through.

Reality:  The Natural Resource Commission was discussing this issue at every meeting (monthly) going back to late 2010.  Unlike the Iowa Legislature that used a sneaky maneuver within a 24-hour period to instantly change a bill about raccoon hunting into “mourning dove” hunting.  The Administrative Rules Review Committee was displeased with the prohibition on lead shot, but did nothing to nullify the portion of the rule incorporating the “Eurasian collared-dove”, which was added to the intended action at the same time and in the same manner as the lead shot prohibition.  There is nothing sneaky about it.  The Commission responded to public comments, which is exactly what it is supposed to do.

Myth:  Non-toxic shot is not as accurate.

Reality:  This is an opinion.  There is no scientific study that proves this.

Myth:  Steel shot is harder on the guns than lead shot.

Reality:  It is possible that barrel damage may occur if the hunter is using an older gun or using a really tight choke.  Use a more open choke for steel.  One suggestion is to “change to an improved cylinder or skeet choke.”  “Non-toxic shot is now also available for safe use in vintage and older shotguns (Cabela’s 2008)” Citing Tranel, M.A., AND R. O. Kimmel.  2009.  Minnesota Department of Natural Resources Study, Impacts of Lead Ammunition on Wildlife, the Environment and Human Health – A Literature Review and Implications for Minnesota.” P. 9.

Myth:  These anti-lead people are trying to outlaw hunting.

Reality:  Lead Is Poison Coalition is an unincorporated nonprofit organization that includes many hunters.  LIP-C is concerned about our future, our environment, public health, and our wildlife and humans.

Myth:  I’ve never seen so many eagles.  Lead is not a threat to raptors and scavengers.

Reality:  Lead is toxic; lead kills eagles, vultures, hawks, and other raptors.  It’s easily preventable by using alternative shot.  http://www.startribune.com/local/137358413.html

Myth:  There are no scientific studies that lead is a problem to the environment, humans, or wildlife.  If they do exist, the studies are 15 to 20 years old.

Reality:  All the scientific studies you can imagine are included in a Minnesota Department of Natural Resources Study, “Impacts of Lead Ammunition on Wildlife, the Environment and Human Health – A Literature Review and Implications for Minnesota”, published recently (2009).  http://www.leadispoison.com/uploads/307Tranel.pdf  “The literature review includes more than 500 citations on lead and non-toxic ammunition-related issues worldwide.”  Another recent and excellent source of scientific data comes from the Oklahoma cooperative Extension Service, a Division of Agricultural Sciences and Natural Resources at Oklahoma State University.   http://pods.dasnr.okstate.edu/docushare/dsweb/Get/Document-7144/NREM-9015web.pdf

Myth:  Steel shot will only maim birds and make them suffer.

Reality:  A study by J. H. Schulz, et al., [2006b.  “Will Mourning Dove crippling rates increase with nontoxic-shot regulations?”  Wildlife Society Bulletin 34(3), 861-864] “evaluated crippling rates in waterfowl prior to and following implementation of non-toxic shot regulations in the US.  They found that, “after a five-year phase-in-period, crippling rates for ducks and geese were lower after non-toxic shot restrictions were implemented.”  Tranel, et. al., P. 9.

 

Posted in Fairness, Issues | Tagged , , , , , , | Leave a comment

A Bloody Mess

Posted on January 5, 2012 by Marty Ryan

“Something is rotten in the state of Denmark.”  And possibly, in Iowa.

The Shakespearean quote was a reference to the political hierarchy in Denmark.  Not all was well there, as Marcellus notes in Hamlet.  There is something strange going on with the political hierarchy in Iowa, as well.

Why is it that a simple issue of protecting the health, safety, and welfare of the state’s citizens has taken a back seat to a group of special interests who claim to want nothing more than to save a couple of dollars?

Lead shot has been banned as a means of take for waterfowl by the federal government since 1991.  Iowa had the foresight to make that ban in 1987.

As we’ve stated before, lead is poison!  It has been banned in gasoline, pipes for plumbing, paint, wheel weights, and several other items.  Yet, a small vocal group of hunters claim that alternative shot will be costly and hard to find.  That isn’t the case.  But they seem to be controlling the discussion, and that isn’t right.

Once again, Iowa’s NRC took a courageous step to implement a sensible measure before it is enacted by the federal government.  After the Iowa General Assembly passed a bill (Senate File 464) that added the species “mourning doves” to a law setting the season dates, bag and possession limits, shooting hours, and areas open to hunting of certain game birds, the NRC did its job as directed.  The NRC was expected to pass regulations pertaining to the management of that season.  This is where things get messy.

Part of Senate File 464 (SF 464) directs the Commission to establish certain criteria to comply with the law through the rulemaking process.  The NRC proceeded to set the bag and possession limits, shooting hours, and areas open to hunting doves.  It also added the Eurasian collared-dove to the list of species that can be taken and added a requirement that nontoxic shot must be used.  The NRC performed this task according to “its authority in Iowa Code section 481A.38 (1) to regulate the method and means of hunting and in response to public comment.”

The minutes of the July 14, 2011 meeting in which the NRC unanimously approved the addition of prohibiting lead shot has mysteriously disappeared from its website.  Clicking on the link for the minutes will give you a “404 – Missing Page” error.  If you would like to have a copy you may contact us and we’ll email a copy to you.

Section 1 of Article III of Iowa’s Constitution states:  “The powers of the government of Iowa shall be divided into three separate departments – the legislative, the executive, and the judicial:  and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.”

Section 40 of that same Article states:  “The general assembly may nullify an adopted administrative rule of a state agency by the passage of a resolution by a majority of all of the members of each house of the general assembly.”

Somewhere in between those two constitutional provisions there is a minor little detail that appears to be unnoticed or ignored.  An executive branch agency cannot make a rule that goes beyond the authority it was granted in an enabling statute.  There are several references in the Iowa Code that grant the NRC the authority to determine the means of take, which would comply with the enabling act.  But there is no authority to add a new species to the list of game birds because the Legislature specifically passed a law allowing for the hunting of “mourning doves.”  Which of these measures do you suppose the Legislature wants to attack?

In September of 2011, the Legislative Administrative Rules Review Committee [ARRC] moved to strike the final sentence in a Natural Resources Commission intended action (administrative rule), which stated that “No person shall take a mourning dove or Eurasian collared-dove on any land or water of the state of Iowa while having in one’s possession any shot other than nontoxic approved by the United States Fish and Wildlife Service.”  The reason for this action was “based on procedural/process grounds.”  Senator Merlin Bartz, a member of the ARRC, “expressed concern that the change from the notice of intended action [adding the prohibition on the use of lead shot] may be outside the scope of the original rule making and may therefore be a violation of Iowa Code chapter 17A.”  But there was little attention to the fact that the Eurasian collared-dove was also a change from the original intended action.  Rep. Dawn Pettengill, the ARRC vice-chair, shared Sen. Bartz’s concern about going beyond the scope of the Commission’s authority, but also brought attention to the problem of including the Eurasian collared-dove as a bird that was not a part of the legislative bill.  Her concerns were not considered in the eventual motion and vote of the ARRC.

In order to get the dove hunting bill enacted, the legislative process had to be circumvented (that story is archived here)  Now, here comes a committee of the Legislature scolding an agency for circumventing the rules process, when the agency was doing what it believed was the responsibility and authority of the agency.  During the recent January ARRC meeting, Senator Jack Kibbie made the point that the original bill shunned the system, and now the resolution will not go through the subcommittee or the committee process; it goes directly to the floor of each chamber.  He also iterated that the Committee should stop introducing resolutions to nullify actions of agencies.  But he voted to approve the resolution.

The Iowa Supreme Court has said that the “rules would be beyond the scope of the delegation if they are at variance with the enabling act or if they amend or nullify legislative intent. Hiserote Homes, Inc., 277 N.W.2d at 913; Schmitt v. Iowa Department of Social Services, 263 N.W.2d 739, 745 (Iowa 1978); Iowa Department of Revenue v. Iowa Merit Employment Commission, 243 N.W.2d 610, 616 (Iowa 1976) .”  Sommers v. Iowa Civil Rights Com’n, 337 NW 2d 470 – Iowa: Supreme Court 1983[1].  Allowing the continuation of Eurasian collared-doves to be included in the agency’s rule is a direct contradiction to the rule of law.  Removing the sentence that prohibits the use of lead shot is within the agency’s delegation of powers.

The Legislative Administrative Rules Review Committee is a standing committee of the Iowa Legislature that reviews executive branch rules.  It has limited power.  The committee is created by statute, but has a constitutional ability to nullify rules of an agency.  At least two unanswered question remain:  1) May the ARRC remove one portion of a rule that was adopted by an agency under the exact circumstances as another portion of the same rule, without objecting to or removing the remaining portion?  2)  Article IV, section 40 of the Iowa Constitution states: “The general assembly may nullify an adopted administrative rule of a state agency by the passage of a resolution by a majority of all of the members of each house of the general assembly.”  Does this authority require the entire rule to be nullified, or may the Legislature pick and choose the parts of a rule that it deems objectionable?

The political philosopher John Locke, who had influenced the framers of our Constitution, said that the “legislative cannot transfer delegated power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.”  In allowing the rule to go forward with the addition of the Eurasian collared-dove, but not the prohibition of lead shot, the Iowa Legislature will have transferred its power to an executive branch agency.  In the process, it will have neglected to protect the health, safety and welfare of its citizens for the sake of saving a small vocal group of hunters a possible dollar or two.  This resolution needs to be defeated.


[1] These cases make reference to Iowa Code Section 17A.19 (8) (b).  This provision has since been moved to Iowa Code Section 17A.19(10)(b), which reads:

10.  The court may affirm the agency action or remand to the agency for further proceedings.  The court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:

a. Unconstitutional on its face or as applied or is based upon a provision of law that is unconstitutional on its face or as applied.

b. Beyond the authority delegated to the agency by any provision of law or in violation of any provision of law.

Posted in Fairness, Issues | Tagged , , , , , , , , , , , | 3 Comments