Phil and Bill on the Supreme Court, Part II Cooley Law professors review U.S. high court rulings

By Roberta M. Gubbins Legal News Phil Prygoski took up the second part of the update of the 2009-2010 Term of the United States Supreme Court on November 10th at the State Bar of Michigan, saying "I will start with the interesting case of McDonald v Chicago, (__U.S.____(2010), a follow-up to the District of Columbia v Heller," where the Court held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense in the home. In McDonald, Chicago and Oak Park, a suburb of Chicago, passed laws banning handguns. The Court in a 5-4 decision ruled that the Second Amendment right is a fundamental right that is to be incorporated through the Fourteenth Amendment to apply against the states. "The real interesting thing about the case is how the justices applied the right to the states." Justice Alito, writing for himself and three Justices, ruled that the Due Process Clause of the 14th Amendment is the vehicle through which the Second Amendment is applied to the states. "Justice Thomas, the fifth vote for incorporation, held that the right to keep and bear arms is a privilege of the American Citizenship, and should be incorporated through the 14th Amendment's Privilege and Immunities Clause. He stated that the Due Process Clause, which speaks only to "process," cannot impose any substantive restraints on state legislation. "The case is important because Justice Thomas argued that the due process clause of the 14th Amendment only protects procedural concerns. This is big because substantive due process is the doctrine under which the Court recognized the right to marry, the right to have kids, or the right to have an abortion." Holder v Humanitarian Law Project, _U.S._(2010), a First Amendment case challenging a federal law, "which made it a crime to knowingly provide material support or resources to a foreign terrorist organization. Individuals and groups wanted to support the nonviolent activities of Turkish and Sri Lankan separatist groups that had been designated "foreign terrorist organizations" by the Secretary of State. The Court upheld the law, saying that the statute was clear in its application to the plaintiff's proposed conduct and that acting in concert with the terrorist organization is prohibited." The Law Project argued that they could split out the legal goals of the group and that the law was a prior restraint on pure political speech. The Court said, "the foreign terrorist organizations are so tainted by their criminal conduct that any contribution to the organization facilitates that conduct. You can't split it out." In the United States v Comstock, __U.S.__(2010), the Court ruled that federal law allows a district court to order civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date of his release from federal prison. "This is the only case in our several decades of speaking" Prygoski noted, "that I am doing a case on the 'necessary and proper' clause of the Constitution. Article one section eight has 17 powers of Congress--commerce, taxing, spending, war, post office, etc. Section 18 says that Congress has the power to pass any laws that are 'necessary and proper' to carryout the first 17 powers. The kicker is 'and all other powers vested by the Constitution in any officer or department thereof.' It is an enabling clause." For example, Congress can pass criminal laws because they are 'necessary and proper' to effectuate commerce. "This case is a little different. This is a civil commitment, which is usually handled by the states. Here, the Justice's say, Congress may lock people up because it is necessary and proper to effectuate the commerce power and while the person is locked up if somebody makes the determination that the person is mentally ill and sexually dangerous, Congress then has the power to civilly commit that person. "Justice Thomas (joined by Justice Scalia) dissented, arguing that the Necessary and Proper Clause must be directly related to the effectuation of an enumerated power, and that any connection to a constitutional power is simply too attenuated in this case," Pyrgoski concluded. Professor Bill Weiner began his discussion reminding the audience that searches without warrants are presumed to be unreasonable, but there are judicial exceptions. In Michigan v Fisher, the court uses the 'emergency aide exception' to permit the evidence from an unwarranted search to be admitted. The facts are that the police arrived to a scene in chaos. They see blood in the car and on a door to the house. They see a man inside screaming and yelling. When they ask to come in, they are told to go get a warrant. One of the officers pushes the door open a little sees a man with a rifle and he leaves. When they return they charge Fisher with assault with a dangerous weapon. Fisher moves to suppress the evidence based on an illegal search." "The Michigan Courts suppress the evidence. The case is eventually heard by the U.S. Supreme Court, which decides the case without oral argument overruling the Michigan Courts. The Court holds that the emergency aide exception to the warrant applies and the officer's actions were reasonable under the circumstances." Florida v Powell, involves the adequacy of the warnings given under Miranda. This deals with the warning telling the defendant that he has a right to an attorney. The Supreme Court held the warning adequate even though the police did not state specifically that the defendant could have an attorney with him during interrogation. Stevens and Brier dissent holding that the police warning wasn't adequate." "Maryland v Shatzer involves re-interrogation after a break in custody. Past cases have created a presumption that if a suspect asks for counsel in response to the warnings, he can't subsequently waive that right voluntarily unless counsel is present or the suspect initiates further communication with the police." "The first time the police talk to Shatzer, he asks for a lawyer; two and a half years later, he's still in jail and another detective is re-opening the case. Shatzer signs the form waiving his Miranda rights, which would be okay except for the presumption. Eventually, he makes damaging omissions. He moves to suppress his admissions. "The unanimous Court holds that the statements can come in. Justice Scalia writes the main opinion. No fan of Miranda, he argues that Miranda is not based on the Constitution and is a pile of prophylactic rules. They base their opinion on the fact that this is not Miranda custody but jail custody and is back to his 'normal' life hence he needs to reassert his Miranda rights." "Berghuis, Warden v Thompkins, a 5 to 4 decision. The facts are that Thompkins fled after a shooting outside a Southfield, Michigan mall eventually being apprehended in Ohio. The warnings were read, given to him on a form, however, he never says he didn't want to talk to the police. He spoke very little. After two hours, officer asks whether he believes in god, and then asks if he prays asking for forgiveness for killing a little boy, to which he answered 'yes.' He is then accused of the crimes and eventually moves to suppress the confession." "The Court said that the right to silence must be asserted unambiguously by telling the police either that you want to remain silent or that you don't want to talk to them. Here the waiver is backwards, says the court. In order to remain silent, the suspect must speak. Justice Sotomayor, in her dissent, said this (decision) turns Miranda upside down." Published: Tue, Nov 23, 2010

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