The 9th Circuit Court of Appeals rejected Donald Trump's request for an emergency stay of a lower court order blocking implementation of his Executive Order denying visas to persons from seven countries for 90 days as unconstitutional: {W]e... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
Trump Loses in 9th Circuit: No Stay of Lower Court Immigration Order
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Issue a New Executive Order and Take This One to SCOTUS
The Ninth Circuit has declined to stay the temporary restraining order issued by Judge Robart in Washington State preventing enforcement of Executive Order 13769, the controversial travel restrictions on nationals of seven countries.The Ninth is, of course, correct that due process protections apply to legal permanent residents (i.e., "green card" holders). Yet even though the Administration has said it won't apply the limitations to permanent residents, it held that such application was not moot.The Government has argued that, even if lawful permanent residents have due process rights, the States' challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued "[a]uthoritative [g]uidance" stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however,…
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Denno on Concocting Criminal Intent
Deborah W. Denno (Fordham University School of Law) has posted Concocting Criminal Intent (Georgetown Law Journal, Vol. 105, pp. 323-78 (2017)) on SSRN. Here is the abstract: My empirical study, which examines neuroscience evidence in 800 criminal cases over the...
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SO- CALLED APPELLATE COURT AFFIRMS SO-CALLED JUDGE
This is why we celebrated the Trump win. The spectre of constitutional crises every day.Thursday evening the 9th Circuit court of appeals ("Dude...affirmed!") affirmed the order of the District Court Judge.The constitutional crisis in the Nixon administration started with the Saturday night massacre, and ended six months later when the Supreme Court upheld the district court judge's order requiring the white house to produce the tapes. Nixon resigned in August 1974 and Gerald Ford declared "our long national nightmare over." (Over/under on Pence saying that is November, 2018).In May, 1861, two months into office, President Lincoln suspended the great writ of habeas corpus and then defied the US Supreme Court. As Judge Hirsch has probably recounted dozens of times to dazed young PDs and ASAs, John Merryman, a State Legislator from Maryland was arrested for hindering the movement of Union Troops. Merryman was held at Fort McHenry. His…
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Ninth Circuit Refuses to Lift Stay of Republican Administration’s Travel Ban
Moments ago, the Ninth Circuit Court of Appeals ordered that the temporary restraining order imposed on the Republican presidential administration’s travel ban will remain in place. The Court has found that the states of Washington and Minnesota have standing to challenge the ban, that the Republican administration is unlikely to prevail on the merits in the lawsuit, and that the balance of hardship to the public interest also weighs in favor of the States over the ban. Background On January 27, 2017, the Republican administration issued an executive order suspending travel for 90 days from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The EO also suspended the United States Refugee Admission Program. And it suspended indefinitely the entry of all Syrian refugees. Shortly thereafter, the State of Washington brought suit challenging the program on various Constitutional grounds including Due Process and violation of the First Amendment.…
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New York Gambling Crimes: What Must I do to Advance from Gambling Activity in a Promoting Gambling Arrest
Black jack is fun. At least, I enjoy it…in Las Vegas. Some people like to play poker. Others simply put money – big and small dollars – on NFL, NHL, NBA and MLB games. Toss in college sports, there is no shortage of gambling opportunities. While some jurisdictions allow or permit gambling, others simply do not. In New York State there are many criminal statutes in the New York Penal Law that are both felonies and misdemeanors. Simply, New York State regulates, enforces and prosecutes illegal gambling. Vegas New, York City is not. One of the offenses prosecuted by local District Attorneys is Second Degree Promoting Gambling, New York Penal Law 225.05. This class “A” misdemeanor is punishable by as much as one year in jail. A person is guilty of PL 225.05 if he or she knowingly advances or profits from an unlawful gambling activity. What makes this crime a felony of First Degree Promoting Gambling, New York Penal Law 225.10, is that the…
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JACKSONVILLE SHERIFF’S CORRECTIONS OFFICER ARRESTED
Only on Job a Week, No Union Protection, Terminated According to a report, a nineteen year old Jacksonville Sheriff’s Corrections Officer was arrested and charged after leading his co-workers on a high speed chase on February 4, 2017. Joshua Vergara who had been a recruit for only one week with the Jacksonville Sheriff’s Office has been charged with Fleeing or Attempting to Elude a Law Enforcement Officer, Leaving the Scene of an Accident Without Providing Information and Reckless Driving. A review of the Jacksonville Sheriff’s Office Arrest Report gives details into the incident. A patrol officer first observed Vergara traveling at a high rate of speed on Old Baymeadows RD as well as ran a red light causing other drivers to “break abruptly.” The patrol officer initiated his lights to pull over the vehicle for reckless driving. At this time the patrol officer caught up to the vehicle and “got a very good look at…
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FEAR OF FLYING, FEAR OF DUE DILIGENCE
A wonderful piece in the Wall Street Journal here called “The Logic of Our Fear of Flying” does a great job explaining our irrational fear of flying using concepts from math. We all know that our chances of dying in a plane crash are much lower than dying in a car accident, and yet many of us get highly stressed when our plane takes off but think nothing of getting into the car and driving at 60 miles an hour on a crowded freeway. Why? Mathematician Eugenia Cheng explains this irrationality in three ways. Conditional probability. Our chances of being in a plane crash are low, but our chances of dying IF we are in a plane crash are high. If our car has an accident it could be a fender bender from which we emerge unharmed thanks to seatbelts and airbags. Expected values. If you may win a $300 million lottery but there are 300 million tickets sold, your expected value is $1. If you attribute the value of your life as infinity or close to it, loss of that life (despite…
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YOU DON’T HAVE TO BE DRIVING A CAR TO BE ARRESTED FOR DUI
So, you are out with your buddies at the golf course on a beautiful Southern California day–putting along in your golf cart, knocking in a few balls and beers – ah, this is the life. Maybe you are having too much fun because you and your buddies are getting a little rowdy—enough to trigger a complaint. Suddenly the good life goes bad as you see one of Orange County’s finest approaching you and your buddies. “Step out of the golf cart please.” Next thing you know, the officer is conducting field sobriety tests on you. Does this sound far-fetched? Well, an arrest for driving a golf cart under the influence can and has happened in this state. Under California law, it is unlawful to drive a vehicle while under the influence of alcohol, which as everyone knows is defined as more than 0.08% BAC. You are certainly driving as defined by California’s vehicle code and a golf cart is a vehicle. As defined in Vehicle Code section 670, a vehicle is…
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Prop 47 and California’s Realignment for Non-Violent Offenders
CRIME RATES REMAIN STABLE THROUGH CALIFORNIA’S POLICY REFORM ERA In 2011 the Public Safety Realignment Bill became law in California. This legislation was designed to stem the “revolving door” of non-violent criminals in the state prisons. Realignment, as it is commonly called, was in response to the severe overcrowding in California’s prisons and mandated by requirements set by the federal court. It resulted in major changes in the state’s criminal justice system is administered. Essentially, realignment provided for offenders convicted of certain non-violent, non-serious crimes would serve their sentence in county facilities rather than the state prison system. It sounds as though the bill just off-loaded low-level felons from the state to the counties and in many respects, that is true. But Realignment is also focused on a reduction in recidivism and has provisions that allow house arrest and other alternative sentencing schemes. Continue…
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Westchester County Justice Courts collect over 28 million in fees and fines
When you pay a speeding ticket or other moving violation, the local justice court and town or village that hears your case profits greatly from the fines you pay. The latest statistics paint a grim picture of the cash grab out of the local courts. In 2015 alone 11 local Westchester County town and village traffic courts collected $16,694,725.00 in fines. The rest of the Westchester County town and village traffic courts, 25 more, collected $11,600,765 in fines. That’s a total of $28,295,490.00 in speeding ticket fine collections in just the County of Westchester. Plus, these statistics do not include the City Courts of White Plains, Yonkers, Mount Vernon, Rye, and Peekskill. The list of fines collected by court in the County of Westchester is as follows: TOWN OF HARRISON $2,820,117.50 VILLAGE OF PORT CHESTER …
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Westchester County Justice Courts collect over 28 million in fees and fines
When you pay a speeding ticket or other moving violation, the local justice court and town or village that hears your case profits greatly from the fines you pay. The latest statistics paint a grim picture of the cash grab out of the local courts. In 2015 alone 11 local Westchester County town and village traffic courts collected $16,694,725.00 in fines. The rest of the Westchester County town and village traffic courts, 25 more, collected $11,600,765 in fines. That’s a total of $28,295,490.00 in speeding ticket fine collections in just the County of Westchester. Plus, these statistics do not include the City Courts of White Plains, Yonkers, Mount Vernon, Rye, and Peekskill. The list of fines collected by court in the County of Westchester is as follows: TOWN OF HARRISON $2,820,117.50 VILLAGE OF PORT CHESTER …
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Denno on Andrea Yates and Insanity
Deborah W. Denno (Fordham University School of Law) has posted Andrea Yates: A Continuing Story About Insanity (The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies 367- 416 (Mark D. White, ed. 2017) (Cal.: Praeger)) on SSRN. Here...
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THE FEDERAL CRIME OF MAKING THREATS AGAINST THE PRESIDENT COULD GET YOU ARRESTED & CONVICTED
One of the surest and quickest ways to meet a friendly FBI agent is to threaten the President of the United States. Whatever one may think of the president, his policies or his administration, the office of the president is protected by federal criminal law. Threaten Roosevelt again & you're out of here!Nighthawks, Edward Hopper, 1942Any threats made against a sitting president will be taken seriously by federal law enforcement officers, investigated fully and may result in an arrest or a presentation to a federal grand jury for an indictment. The law is laid out at 18 U.S.C. Section 871(a) and basicly establishes that to prove an allegation of threats against the president the government must show the following:1. The defendant intentionally threatened to kill, injure, kidnap or harm the President of the United States or harm another officer next in order of succession to the presidency.2. The defendant meant the words to be a real threat.3. The threat…
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Certiorari and Strategy on the Travel Restriction Order
Yesterday I said the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court. That was based on a legal assessment that the Ninth Circuit decision is wrong. (See also Rivkin & Casey in today's WSJ.)In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd. Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population. If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.However, sometimes there are strategic reasons for not taking a position. Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it. Affirmance by an equally divided court is a…
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Orange County Sex Offender Gets Caught with His Pants Down
According to investigators, 37 year old Stephen Garcia flashed Orange County female bus riders. Garcia, who has a lengthy record dating back a decade of indecent exposure cases, pled guilty on Tuesday to two felony counts of indecent exposure with prior convictions. He was immediately sentenced to three years in prison. An anonymous tip about a man flashing women on the northern Orange County bus lines prompted an investigation. Investigators viewed surveillance video and after a three week investigation they arrested Garcia, according to the sheriff’s department. Investigators said Garcia exposed himself at least four times on the buses. He would “flash” women while he sat in the back of the bus. Continue reading →
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The Grand Jury, the Email and the Work Product Privilege
This post examines a recent opinion from the U.S. Court of Appeals for the Third Circuit: In re Grand Jury Matter #3, 2017 WL 383361 (2017) (per curiam). The court begins by explaining that[t]his appeal presents an unusual question of appellate jurisdiction: May we continue to exercise jurisdiction over an appeal of an evidentiary ruling in a grand jury proceeding even after the grand jury has returned both an indictment and a superseding indictment? We conclude that, so long as the grand jury investigation continues, we retain jurisdiction and thus can resolve the controversy.With jurisdiction, we turn to an important question involving the limits of the exception to the confidentiality normally afforded to attorney work product. It loses protection from disclosure when it is used to further a fraud (hence the carve-out is called the crime-fraud exception). The District Court stripped an attorney's work product of confidentiality based on evidence suggesting only…
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Common Infections in Nursing Homes
Seniors are at an increased risk for a wide variety of infections because of lowered immune systems and other factors. When they live in a nursing home or other long-term care facility, this risk increases even further. Infections in nursing homes can lead to hospitalization, further loss of mobility or independence, a decline in quality of life and even death.And, despite other health concerns and the exposure to the germs of other residents, many of these infections are preventable with the right precautions.What are the most common infections seen in nursing homes?There have been few recent widespread studies about the prevalence of nursing home infections. This makes it difficult to determine estimates on how common they are. However, a review of common infections in long-term care facilities can give us an idea about what type of infectious diseases are most common. This list, published in Aging Health, includes:PneumoniaPneumonia is common in nursing homes in Bucks…
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FHA Rent-to-Own Scheme Garners Sentence
Darlene Henderson, 60, Leesville, South Carolina, pled guilty and was sentenced in federal court in South Carolina, for Wire Fraud in connection with a mortgage fraud scheme. United States District Judge Joseph F. Anderson, Jr., of Columbia sentenced Henderson to eight months of home confinement, to be followed by five years of probation. Henderson also was ordered […]
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INCARCERATION ISN’T CUSTODY, DON’T FORGET VOLUNTARINESS.
INCARCERATION ISN’T CUSTODY, DON’T FORGET VOLUNTARINESS. Posted by Edmund R. Folsom, Esq. February 10, 2017 Just because a person is in jail does not necessarily mean the person is in “custody” for Miranda purposes. The Supreme Court declared this to be true several years ago, in Howes v. Fields, 565 U.S. 499 (2012). At this point, at least some Maine police officers have caught on. Now, in light of State v. Ames, 2017 ME 27 (decided February 7, 2017), we should expect more Maine police to catch on, and we should expect them to attempt more un-Mirandaed interrogations of people in jail. As background, the Miranda ruling holds that when a person is subjected to custodial interrogation his responses may not be used against him in the State’s case in chief, unless the police first read Miranda warnings and the person waives Miranda rights. Whenever a person attempts to keep statements out of evidence based on a claimed Miranda…
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