Wednesday, June 26, 2013

McNeely, More Thoughts

In addition to presumed warrantlessness of blood draws [and other chemical evidence collections], the Supreme Court, in Schmerber, allowed that any blood draw had to be performed according to accepted medical practices, which they there noted was by a physician in a hospital.
The opinion made it clear that any lesser standard would trigger Fourth Amendment concerns; it was only on the facts of that case that the blood draw, and a warrantless draw, was deemed to be constitutional.
In McNeely, all of the justices, majority, concurring, and dissenting, evidenced a belief that such draws were being carried out as they ordered 47 years ago, by medical personnel in a medical facility or hospital.  Are they?  Uh..., NO.
The "accepted medical practices" standard has degenerated here into "medically approved manner."  And that is found to be satisfied if a police contractor phlebotomist comes to the jail, or a police car outside of the jail, and draws the blood.  It is clear that the Supreme Court would be appalled by such cavalier disregard of their express expectations.
I had one case where the cop, who had commanded a blood draw, was met by someone he didn't know and about whom he knew nothing, whose credentials were nowhere in evidence, whose name he did not even know, and the Court found that her "work" was constitutional.  Accepted medical practices?  Accepted by whom? What licensed physician would stake his medical license on the acceptability of that sort of chicanery?
Are DUIs so important to the state that we care not about the Constitution?  Judges and DAs should hang their heads in shame for increasingly defaulting away from liberty and in the direction of power. But they have no shame.

Conflict between DOMA case and Prop. 8 Case Could Cause Problems

Hollingsworth v. Perry and United States v. Windsor came out today to eager and anxious audiences.  Let us not celebrate too effusively about those two same-sex-marriage cases, because there is a problem here that will spark more costly and socially painful litigation. 

DOMA was declared unconstitutional because it invades states' rights about the definition of marriage, an inherently state prerogative: it is a celebration of federalism, implicating values of the full faith and credit clause and the 10th Amendment.

Due to justiciable standing issues, the Prop. 8 case was allowed to stand on the ruling below that proscriptions against "marriage," where the same social/contractual rights can be enjoyed by same sex couples without them being able to enjoy the use of the term "marriage," violates equal protection [on the lowest standard of all, rational basis]. It really is, on the substance, a word usage issue, not a substantive civil rights issue. 

So there's the problem - if the subject is one of equal protection, then the states cannot decide the policy and practice; if the states can decide the policy and practice, then equal protection is not involved!  So, which is it - does the issue sound in E/P or federalism?  It cannot be both - they are mutually contradictory.

There will be much litigation coming out of these constitutionally inconsistent cases, and one can imagine Scalia grinning in the background [much as Marshall must have been when he penned Marbury v. Madison] when these cases were being discussed, and when he read aloud his dissent in the DOMA case.

Sunday, June 16, 2013

McNeely Curiosity, or Why Are Judges Hypocrites?

An interesting judicial phenomenon is spreading across the Fruited Plain, and things will get worse before they get better.

47 years ago, the U.S. Supreme Court held that a warrantless blood draw from a person arrested for drunk driving was okay IF exigency existed, AND the evanescence of the alcohol in the system was not, by itself, sufficient to justify the search - there had to be more.

Some courts in the country respected that ruling [as all must, under Supremacy Clause holdings]; courts in this state [the supposed land of Liberty, except to those of us who practice law in it!], however, did not - for decades they thumbed their noses at the Supreme Court's clear rule, holding, in contrast, that the evanescence of the alcohol alone is sufficient exigency to warrantlessly stab a person and suck out his life's juices.  That is, our courts practiced anti-liberty judicial tyranny, just as the courts of the old Jim Crow South did.

The Supreme Court held, just about a month ago, again that evanescence is not enough - there must be more.  Now our courts are saying, in essence, "well, since the cops relied on our old rule for so long, evidence collected in reliance on that old rule, concededly now unconstitutionally seized, should not be suppressed, because that would be unfair to them."  Uh..., HELLO!  Unfair to the cops????  Is that what the Constitution guarantees, fairness to the constabulary, at the expense of liberty?

In our courts' twist, the cops can rely on "ignorance of the law" IS an excuse for their conduct, but us regular folk would be laughed out of court, or into jail, for pleading "ignorance of the law" in our matters, because it is no excuse.  Because our courts have thumbed their noses at the U.S. Supreme Court for almost 5 decades, our cops should be given a pass?  In our scheme of things, or the Framers' scheme of things, who is to be protected by the Constitution, individuals or government?  Was the Constitution written to protect government?

Our judges should be ashamed of themselves for concocting a doctrine of reasonable reliance on erroneous law; that is being woven from whole cloth.  It is bad enough that cops are able to get away with "ignorance of the law is an excuse" for bad warrants [if they would not have known] or for reversed direction of the Supreme Court, but to allow it when the Supreme Court merely reiterates a rule that others, in the pursuit of easy DUI convictions, have chosen to ignore calls into question the entire meaning of a rule of law, and of constitutional law.

Judges are charged with a duty to patrol the boundary lines of the Constitution and to protect individuals from overweening government; they are not supposed to become the overweeners themselves nor to protect their police chums.

All doubts should be resolved in the direction of the individual, because that is what constitutional law is all about.

There are so many other aspects of this new state judicial tyranny, but we want to give it in installments so the constituent parts can be fully absorbed.