Tag Archives: supreme

Appeals Court Says Filming The Police Is Protected By The First … – Techdirt

Posted: February 22, 2017 at 3:54 am

In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That’s where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.

Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for “failure to identify,” took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it’s surprising the words “contempt of cop” weren’t used on the official police report. From the opinion [PDF]:

Grinalds asked Turner, Hows it going, man? Got your ID with you? Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, I didnt say you committed a crime. Grinalds elaborated, We have the right and authority to know whos walking around our facilities.

Grinalds again asked for Turners identification, and Turner asked Grinalds, What happens if I dont ID myself? Grinalds replied, Well cross that bridge when we come to it. Grinalds continued to request Turners identification, which Turner refused to provide. Grinalds and Dyess then suddenly and without warning handcuffed Turner and took his video camera from him, and Grinalds said, This is what happens when you dont ID yourself.

Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn’t have to wait very long. A supervisor arrived and came to at least one correct conclusion:

Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, Youre right.

Texas police officers love to misread the state’s “failure to identify” statute. It doesn’t say what they think it does or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves — at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can’t be the impetus for an arrest.

After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.

First, the court asks whether the right to film police was “clearly established” at the time the incident took place (September 2015). It can’t find anything that says it is.

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has repeatedly instructed courts not to define clearly established law at a high level of generality: The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established. Thus, Turners reliance on decisions that clarified that [First Amendment] protections . . . extend[] to gathering information does not demonstrate whether the specific act at issue herevideo recording the police or a police stationwas clearly established.

The court doesn’t leave it there, although it could have. The court notes that there’s a circuit split on the issue, but just because the issue’s far from decided doesn’t mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there’s not enough clarity on the issue to remove the officers’ immunity.

We cannot say, however, that existing precedent . . . placed the . . .constitutional question beyond debate when Turner recorded the police station. Neither does it seem that the law so clearly and unambiguously prohibited [the officers] conduct that every reasonable official would understand that what he is doing violates [the law]. In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turners activities.

This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it’s time for it to set some precedent.

We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.


To be sure, [s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. Filming the police contributes to the publics ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizens recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

In the Fifth Circuit — joining the First and Eleventh Circuits — the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there’s currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn’t help Turner with his First Amendment claim, but it will help others going forward.

The court also reverses immunity on one of Turner’s Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the “failure to identify” law can’t be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.

Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation’s second-highest courts should stand idly by and wait for the Supreme Court to do the work.

The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. The majority derives this general right to film the police from First Amendment principles, controlling authority, and persuasive precedent. But the Supreme Court has repeatedly reversed attempts to define clearly established law at such a high level of generality. White, 137 S. Ct. at 552.

The judge narrowly defines Turner’s filming to ensure it would never fall under this supposedly “broad” definition of the right. She says the Appeals Court defines the protection as covering “filming police.” But Turner wasn’t doing that.

To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police carrying out their duties in public. E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.

Somehow, filming police officers as they enter and exit a public building is not “filming police carrying out their duties in public.” Remarkably, Judge Brown says there may be “reasonable” security concerns that could Constitutionally prevent Turner’s actions.

The majority does not determine that the officers here violated Turners First Amendment rightsperhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.

If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren’t that concerned about their “security.” If so, they would use an entrance/exit members of the public can’t see or don’t have access to. If the Fourth Amendment doesn’t protect the privacy of citizens in public areas, the same public areas can’t be given a heightened privacy protection that only covers public servants.

Unsurprisingly, Judge Brown thinks Turner’s involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:

Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turners detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisorespecially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.

Except that most people “waiting for a supervisor” don’t do so while:

a.) handcuffed

b.) sitting in the back of a locked squad car

The length of the detention doesn’t matter. And it was ultimately the supervisor’s arrival that sprung Turner. If not for the arrival of the supervisor — who immediately recognized Turner couldn’t be arrested for refusing to ID himself — Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.

The good news for Turner is that his sole remaining Fourth Amendment claims — the wrongful arrest — lives on. But the bigger win — the First Amendment protections confirmation — helps everyone else but him.

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City Council to look at removing zoning restrictions on gambling entities – Watertown Public Opinion

Posted: February 20, 2017 at 7:49 pm

A section of a Watertown city zoning ordinance pertaining to gambling establishments could go by the wayside.

The Watertown City Council is set to conduct a first reading amending Title 21 of Ordinance 17-02 removing zoning restrictions on those entities on March 6. The potential revision would put the city in compliance with a 2011 South Dakota Supreme Court ruling that municipalities could not regulate gambling institutions, including casinos and video lottery establishments.

The proposed amended ordinance was put forth by City Attorney Justin Goetz, who has been busy in working with the Plan Commission and City Council in updating the ordinance book since assuming his position last summer.

Under the current ordinance, gambling establishments are confined to commercial zoning areas under a conditional use permit, similar to restaurants, motels, and other businesses.

However, in 2011, the Supreme Court sided with the South Dakota Department of Revenue over the City of Sioux Falls as the Department of Revenue argued that the City of Sioux Falls ordinance on gambling establishments was invalid because it infringed on the sovereign prerogative of the state.

While the proposed ordinance wouldnt be able to explicitly restrict gambling establishments in commercial districts, that doesnt mean that those establishments are going to be able to pop up anywhere in the city.

Goetz noted to the Plan Commission last week that in issuing the ruling, the Supreme Court said municipalities such as Watertown could effectively enact restrictions on the placement of gambling establishments.

There is still the ability of the city to determine locations of alcohol licensees. The gambling license is effectively attached to the alcohol license it is a certification attached to the alcohol license. That allows the city to be able to regulate placement, Goetz said.

According to Goetz, the proposed amended ordinance would allow Watertown to get out ahead of any potential legal challenge against the current ordinance brought forward by either the state or another party.

No lawsuits against the City of Watertown on the issue are pending or currently underway, which left Plan Commission member Dennis Arnold questioning the timing of the proposed ordinance.

(At any given time) there are a lot of court cases and things around the county where organizations are challenging something and it gets changed, Arnold said. I think the residents of Watertown have liked our (gambling locations) ordinance the way it is, or at least thats what I assume. Nobody has challenged it. Why do we have to change it if nobody has challenged it?

While Goetz said he empathized with Arnolds point of view, he also said that the proposed ordinance reflecting the court ruling is an extension of the state establishing its authority back in the 1980s when the original law cited by the court was written, thereby not leaving it up to different interpretations by municipalities.

In interpreting the courts ruling, Goetz said, If localities were allowed to determine where gambling establishments could be in South Dakota, there would be a lot of dry communities, if you will, for these kind of establishments These forebears at the state level saw that writing on the wall and saw that municipalities would have issues certain municipalities more than others. In order to ensure that this was provided statewide, municipalities couldnt butt in and occupy the field of state regulation that they had set for themselves.

After the first reading of the ordinance amendment occurs on March 6, a second reading, and possible approval, may occur at the following City Council meeting scheduled for March 20.

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Taxing Religious Freedom – Daily Caller

Posted: at 7:10 pm


Is a threat to eliminate the tax exemption of churches that endorse candidates or political parties posed by a 1954 law called the Johnson Amendment a constitutional infringement on the rights of church leaders to freely express themselves from the pulpit?

At ColoradoPolitics.com, Deb Walker, executive director of Citizens Project writes, Government may not subsidize political endorsements through tax exemption, and that The Johnson Amendment ensures that citizens of all faith traditions (or no faith tradition) are not inadvertently financially supporting church-based politicking. There are two failures in reasoning here.

First, the reasons for exempting churches from taxation are distinguishable from those that apply to other types of charitable organizations. Whereas the law may exempt secular charities because it deems that the charitable purposes provide public benefits that outweigh the need to tax such activities, the principle of not taxing churches originates in the constitutional, philosophical and political foundations of our nation.

The Supreme Court examined this principle in Everson v. Board of Education, a 1947 case affirming the authority of a state to provide funding for school busses to transport children to Catholic schools in New Jersey writing, The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. These practices of the old world began to thrive in the soil of the new AmericaCatholics found themselves hounded and proscribed because of their faithmen and women of varied faithswere persecuted. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches.

The people [of Virginia], as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax[in order to] interfere with the beliefs of any religious individual or group.

The establishment of religion clause of the First Amendment means at least thisno tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

This sounds as if the Court would hold that New Jersey has no authority to provide taxpayer-funded school busses for Catholic schoolchildren, but thats not case. What the Court pointed out in affirming that policy is that the amendment commands that New Jerseycannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. (Emphasis in original)

The second error is that a tax exemption is not a subsidy. An exemption from a tax is not giving the person or group exempted something they dont already have. Neither a taxpayer not affiliated with a religious organization nor the government has something taken from them that goes to a church merely because the church doesnt pay a tax. Therefore, a tax exemption does not mean that the public is financially supporting church-based politicking, nor does it mean that the government is entangled in underwriting partisan political activity.

Where the Johnson Amendment and Walker go wrong is in failing to understand that when it comes to religion the taxing power of Congress has a constitutional hurdle it must overcome that doesnt apply to conventional non-religious charitable organizations.

The historic truths cited by the Supreme Court stand for the proposition that the government cannot tax religious institutions in ways that inhibit the free exercise of religion just as much as it does the proposition that it cannot tax anyone for the purposes of advancing religion.

Thus, when it comes to religious institutions its questionable whether or not the 501(c)(3) rules apply at all because it is the First Amendment itself that arguably prohibits the taxation of churches because religion-suppressing taxation has always been as formidable an enemy of religious freedom throughout history as religion-supporting taxation has, as the Supreme Court points out and as the Founders went to great pains to avoid.

Religiously motivated speech is a constitutionally protected aspect of religious liberty that cannot be suppressed by the threat of anti-religious, anti-free-speech government taxation. This includes the freedom of both ministers and others to preach in favor of or against any political party or candidate or any other matter that they believe would either threaten or support their rights to religious freedom.

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SCOTUS Will Hear Cross-Border Shooting Case – Daily Caller

Posted: at 6:55 pm


The Supreme Court will hear oral arguments in a case implicating a U.S. Border Patrol agent in the cross-border shooting of a Mexican national in the border zone near El Paso, Texas, Tuesday.

The case asks the justices to determine how the Fourth Amendments prohibition on unjustified deadly force applies in the border zone and if the agent is protected by qualified immunity, which protects federal employees from civil suits when they are working in their official capacity.

Sergio Adrian Hernandez Guereca, a Mexican national, was shot and killed by Agent Jesus Mesa, Jr., July 7, 2010. Mesa was standing in the United States when he discharged his service weapon. Hernandez was shot and died on Mexican soil.

Lawyers for Hernandezs family allege he and several friends were playing a game in which they ran up the inclined border culvert separating the U.S. and Mexico, touched the border fence, and retreated back into Mexico.

The U.S. Department of Justice strongly disputes this framing of the incident.

After the shooting, the Department of Justice conducted a comprehensive and thorough investigation into the shooting, concluding that the shooting took place while alien smugglers, including Hernandez, unsuccessfully attempted an illegal border crossing, and began to hurl rocks from close range at Agent Mesa while he was attempting to detain a suspect, Mesas brief for the Court reads. Hernandez had been arrested twice before for alien smuggling. The Justice Department declined to recommend criminal charges against Mesa.

The justices are not asked to reach findings on these factual disputes.

On appeal, the 5th U.S. Circuit Court of Appeals dismissed the case, finding the Supreme Courts ruling in U.S. v. Verdugo-Urquidezmitigated against such claims. In that case, the justices found that the Fourth Amendments prohibition on unwarranted searches and seizures does not apply when federal agents search homes owned by foreign nationals in other countries. They also ruled that Mesa was entitled to qualified immunity.

Hernandezs family counters by arguing the Court established in Boumediene v. Bush,that, in particular contexts, foreign nationals may have constitutional protections. The Boumediene decisionallowed detainees at Guantanamo Bay, Cuba, to challenge the legality of their detention. Mesa rebuts by asserting that decision applies only to territories over which the U.S. has de facto control like Guantanamo Bay and not to territories over which the U.S. does not have exclusive control, like the border zone.

The outcome of the Fourth Amendment decision reflects a divergence in approach to such questions within the Court. While some of the justices favor maintaining bright-line rules about the extent of the Constitutions application abroad, others prefer an approach which considers the details unique to each situation, and will extend certain constitutional protections on a case-by-case basis.

The question of qualified immunity will turn on whether a reasonable officer would have known his conduct was unconstitutional.

In addition to the Fourth Amendment and qualified immunity questions, the justices asked the parties to answer whether or not the Hernandezs could bring a suit under Bivens v. Six Unknown Agents, which allows courts to award damages for egregious constitutional violations by federal officials.

The case could have a significant effect on U.S. law enforcement or national security abroad. Writing at Lawfare, professor Andrew Kent of Fordham University School of Law explains:

If these amendments are held to apply outside U.S. borders to protect noncitizens, a huge array of intelligence, military, immigration, customs, and law enforcement activity could be impacted. To take two examples that are salient for Lawfare readers: extraterritorial foreign intelligence surveillance and drone strikes, both of which have proceeded to date under the executive branchs assumption that noncitizens outside the United States have no relevant constitutional rights in those contexts.

The case has attracted a great deal of attention from other parties. Amnesty International and the ACLU have each filed amicus, i.e. friend-of-the-court briefs, in support of the Hernandez family, while the Criminal Justice Legal Foundation filed a brief backing Mesa.

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Gorsuch Could Save the Second Amendment | LifeZette – LifeZette

Posted: at 6:55 pm

When Justice Antonin Scalia passed away suddenly last year, the Supreme Court lost its premier conservative voice and defender of the Second Amendment.

Justice Scalia was a champion of individual freedoms, and adhered to a strong originalistphilosophy of interpreting the Constitution. With little room for the personal politics that many judges try to inject into court rulings, Scalia relied on the text of the document to decide cases.

After eight years of anti-gun policies from the Obama Administration an open seat on the Court is a welcome opportunity to return to the principles of the Constitution.

That is also why its good news President Trump chose Neil Gorsuch, a current federal appellate judge on the United States Court of Appeals for the Tenth Circuit, as his nominee for the U.S. Supreme Court. Gorsuch is someone who can fill this critical void left by Justice Scalia.

Gorsuch has also followed an originalist interpretation of the Constitution during his legal career, having been appointed to the 10th Circuit Court of Appeals by President George W. Bush, and before that, serving in the Department of Justice.

A firm belief in adhering to the freedoms spelled out in the Constitution by our Founding Fathers has given Judge Gorsuch a steady hand, and made him a popular and approachable member of the 10th Circuit. Though he has only ruled on a few Second Amendment related cases, Gorsuch has proved himself to be a defender of gun rights.

He made his stance very clear when he wrote in one legal opinion that “the Second Amendment protects an individuals right to own firearms and may not be infringed lightly.”

With the current Court almost deadlocked on gun issues, any potential cases that come before the Supreme Court this year could have a make-or-break impact on Second Amendment rights in this country. If the Court decides to hear any gun related cases this year, it is critical that there be a majority of justices on the bench who believe in the Constitutional right to bear arms.

One potential case that could come before the Supreme Court this year challenges an individuals right to carry a gun for self-defense, and requiring them to prove to the government that they have a legitimate reason for doing so.

In 2014, Peruta v. California was decided by three judges on the 9th Circuit, who ruled that San Diego Countys policy of a gun owner needing a documented “good cause” in order to obtain a concealed carry permit was in violation of the Second Amendment.

However, the victory for the Constitution was short-lived, and the ruling was appealed. All 11 judges on the 9th Circuit were called in to rehear the case, and the ruling was overturned in 2016. The California Rifle and Pistol Association has petitioned the Supreme Court to review this case, and if their request is granted, Gorsuch will be a crucial vote. No citizen should need a government approved “reason” to carry a firearm it is already expressly stated in the Constitution.

An appeal has also been filed to ask the Supreme Court to hear a challenge to District of Columbia v. Heller, which in 2008 affirmed that it is a constitutional right to keep a gun in the home for self-defense. Justice Scalia wrote the opinion for that case, which was decided in a close 5-4 decision.

If the case is accepted by the Court, the justices will be asked to rule on a persons right to carry a gun outside their home for self-defense. With the decision in Heller being so close, it is critical that the Second Amendment have another advocate on the Court.

After eight years of anti-gun policies from the Obama administration, which sought to chip away at the right to bear arms, an open seat on the Court is a welcome opportunity to return to the principles of the Constitution. Instead of special interests and judges who attempt to shape public policy through court cases, Gorsuchs originalist and textualist viewpoint provides clear guidance uninfluenced by politics.

In the statement he gave following the announcement of his nomination, Gorsuch said, “Standing here, in a house of history, and acutely aware of my own imperfections, I pledge that if I am confirmed, I will do all my powers permit to be a faithful servant to the Constitution and laws of this great country.”

With all of the potential challenges to the Constitution in the coming years, Gorsuch provides a foothold on what could be a rocky path.

Tim Schmidt is the president and founder of the U.S. Concealed Carry Association,and may be contacted at Press@USCCA.com.

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Liberal voters warn Democratic officials: resist Trump or be replaced – The Guardian

Posted: February 19, 2017 at 11:46 am

Activists have already circled a number of Senate Democrats who have failed to meet their standards, including vulnerable and increasingly rare red-state Democrats. Photograph: Lucas Jackson/Reuters

On the evening Donald Trump announced his supreme court nominee, thousands of protesters gathered outside of Senate minority leader Chuck Schumers Brooklyn apartment. They chanted Just vote no and Obstruct while carrying signs Get a spine, Chuck and a prop skeleton to illustrate their point.

The protesters are part of a sudden swell of liberal activism that has drawn millions to city streets and airport concourses across the US, in a startling show of resistance to Trumps presidency. Emboldened by this groundswell, some progressives have started using the word primary as a verb and as a threat.

For Democrats in Washington, many of whom are still surprised by the scale and furiousness of backlash, the challenge is how to convert this energy into electoral success.

Schumer has significantly slowed the pace of Trumps cabinet confirmations and excoriated many of the presidents nominees. But the activists outside Schumers home on that January night were unimpressed by his votes in favor of Trumps nominees to represent the US in the UN and to lead the Pentagon, CIA and Department of Homeland Security.

Our message to Democrats is simple: fight Trump or well find someone who will, said Waleed Shahid, a co-founder of the progressive group All of Us and a former organizer with the Bernie Sanders campaign. This week, the group launched the political action committee We Will Replace You, the latest in a series of projects to warn Democrats that failures to oppose Trumps agenda will have consequences.

Our message to Democrats is simple: fight Trump or well find someone who will

The group argues that Democrats need exercise the little political power they still have. The activists have a long list of demands: votes against all Trump appointees, opposing his supreme court nominee, using congressional procedures to bring all business to a crawl to block Trumps agenda and demand Steve Bannon be fired. Elected officials, they say, should publicly support impeachment if Trump is found to have broken the law or violated the constitution.

The activists have already circled a number of Senate Democrats who have failed to meet their standards, including vulnerable and increasingly rare red-state Democrats, such as Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota. Both Democrats are up for re-election in 2018.

The Democratic party establishment wants the support of the Tea Party of the left but they dont want to earn it, Shahid said, alluding to the 2010 movement that mobilized rightwing activists, confronted moderate Republicans and helped the party take control of the House in a wave.

They say they love the grassroots activism, but they dont want to take the next step and challenge the Democratic leadership.

Their demands puts leaders such as Schumer in a bind. Shut out of power in Washington, public shows of support are arguably his partys most powerful weapon, but he must also worry about the lawmakers in his caucus facing elections in states where Trump won.

Democrats must defend 23 Senate seats in the 2018 election cycle, 10 from states that Trump won in November. Already, outside groups have targeted these vulnerable red-state Democrats to try to soften their opposition to Trumps nominees for the cabinet and supreme court.

Activists threatening to primary Democrats live in a bubble. They have no idea how to win places that arent sky blue

The activists threatening to primary Democratic candidates live in a bubble, said Jim Kessler, a former Schumer aide and co-founder of a centrist thinktank, Third Way. They have no idea how to win in places that arent sky blue already.

Kessler believes the path back to power will require the Big Tent party to grow geographically, and not just move sharply to the left with its demands. In his view, red-state Democrats are an endangered species worth protecting not threatening.

The activists campaign says its goal is not necessarily to primary the candidates and that the threat becomes a tool that successfully pushes Democrats to fight Trump harder.

Blanket obstructionism has proven to be a tall order even for progressive politicians from safely Democratic states. Senator Elizabeth Warren, a progressive favorite from Massachusetts, has already been forced to defend her vote for Ben Carson for secretary of housing and urban development.

A number of activists who support using this tactic agreed that the real test will be the supreme court battle. Senate Democrats have the ability to filibuster Trumps nominee, Neil Gorsuch, meaning that Republicans need to earn support from at least eight Democrats to confirm Gorsuch unless the controlling party changes the rules.

This nominee cannot be allowed to ever take the oath of office. It just cannot be allowed to happen, said Anthony Rogers-Wright, a Seattle-based climate and environmental activist who was a surrogate for the Sanders campaign.

If any Democrat does not take part in a mass filibuster theyre disqualified.

Already, a handful of senators have flatly refused to support Gorsuch, arguing that Republicans stole the seat from Barack Obama when they refused, for a record 293 days, to hold a hearing for his nominee, Merrick Garland. But more have said Gorsuch deserves a fair hearing, and that they will wait to hear more about his views and background before making a decision.

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It will be business as usual for offshore casinos in Goa – The Indian Express

Posted: at 11:41 am

By: PTI | Panaji | Published:February 19, 2017 7:29 pm (Source: File/Representational image)

It will be business as usual for the offshore casino vessels in Goa as they are situated beyond the 500 meters criteria decided by the Supreme Court while banning sale of liquor along the national and state highways. The Goa Excise Department, which is currently mapping the liquor outlets along the highways, said that casinos in river Mandovi are 800 metres away from the bridge on the national highway.

The Supreme Court in its recent order has banned sale of liquor within 500 meters of the state and national highway. If any casino vessel is within 500 metres of the bridge we will not renew their licence. But as per Google Map, they are 800 metres away from the bridge on national highway, State Excise Commissioner Menino DSouza told PTI.

The excise department has started the process to implement the order stating that all those covered by the Apex Court directives will not have their licences renewed after March 31, 2017. River Mandovi is home for four off-shore casino vessels which are approachable from the road crossing through Panaji city.

While it is a relief for casino vessels, the cruise boats ferrying tourists will be impacted by the SC order. The boat cruises are located within 500 meters of the national highway no 17. Right now we have to go as per the law and licenses will not be renewed after March 31, the official said.

There are four boat cruises operating in Mandovi and the sunset cruises are permitted to serve liquor on board by the Excise department.

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Major First Amendment victory in Docs v. Glocks case – Pacific Legal Foundation (PLF) (press release) (blog)

Posted: February 18, 2017 at 3:55 am

Yesterday, the 11th Circuit issued its en banc opinions in Wollschlaeger v. Gov. of the State of Florida, AKAthe Docs v. Glocks case. As previously discussed here, here, and here, the case concerns whether Florida can prohibit doctors from asking their patients about their gun ownership or possession unless the question is directly relevant to a patients care. The issue is controversial because many doctors, especially pediatricians, often routinely ask patients (or their parents) questions about potential hazards in the home, be it swimming pools, poisons, or guns.

The primary legal issue before the 11th Circuit was whether the Florida law restricted speech based on its content and the speaker, and if so, what level of scrutiny should be applied to determine if the restriction is unconstitutional. Last year, PLF filed an amicus brief in the case arguing that all content-based speech restrictions should receive strict scrutiny, regardless of whether the speech is made in a professional setting. The second issue in the case (which PLF does not take a position on) concerned the anti-discrimination provision of the law. The Court upheld that provision narrowly: a move that even the doctors were amenable to,as indicated during oral argument.

In the first of its majority opinions*, the Court easily determined that the challenged law restricted speech based on its content and speaker. Next, the Court declined to apply deferential review under the professional speech doctrine. As discussed at length in PLFs brief, the professional speech doctrine is unprincipled and unsupported by a majority of the Supreme Court, so the 11th Circuits rejection of that standard in this case is most welcome. Finally, applying the U.S. Supreme Courts 2011 decision inSorrell v. IMS Health,the Court held that the law could not survive heightened scrutiny, so it declined to decide whether strict scrutiny was warranted. In short, the Court thoroughly dismantled the States justifications for the speech-restricting provisions, generally holding that the State offered insufficient actual evidence to justify restricting the speech of doctors.

There are also some additional things worth mentioning from the two concurring opinions. The first concurrence, written by Judge Wilson, would have applied strict scrutiny to strike down the speech-restricting portions of the law. This is particularly noteworthy because Judge Wilson was on the original panel that wrote three separate opinions before the case was taken en banc. Judge Wilson penned dissents to all three of those opinions, but with his concurrence yesterday he announced for the first time his conclusion that strict scrutiny is appropriate in light of the Supreme Courts 2015 decision in Reed v. Town of Gilbert.Second, the concurrence written by Judge William Pryor and joined by Judge Hull, reiterates that this case does not create a clash between the First and Second Amendments. While Docs v. Glocks is certainly catchy, it never accurately described the legal and constitutional issues presented in the case.

Even though the 11th Circuit did not go on to apply strict scrutiny to content- and speaker-based speech restrictions in a professional context, this case is certainly a strong win for the vindication of the right to free speech protected under the First Amendment. Doctors and speech advocates should certainly celebrate that.

*With an unusual move, the Court issued two majority opinions. I consider the opinion of Judge Jordan to be the primary opinion, though, and in any event Judge Jordans opinion is the one that announces the bulk of the Courts opinion on the First Amendment questions of interest to PLF.

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Major First Amendment victory in Docs v. Glocks case – Pacific Legal Foundation (PLF) (press release) (blog)

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Major liberal group opposes Gorsuch confirmation – USA TODAY

Posted: February 17, 2017 at 1:45 am

Supreme Court nominee Neil Gorsuch (R) meets with Democratic Sen. Robert Casey on Thursday.(Photo: Win McNamee, Getty Images)

WASHINGTON The first of many liberal public interest groups to delve deeply into Supreme Court nominee Neil Gorsuch’s record on Thursday called him a “dangerous” choice who consistently favors corporations over workers, women, minorities andpeople with disabilities.

As the Senate Judiciary Committee was announcing a March schedule for Gorsuch’s confirmation hearings, the Alliance for Justice issued a 56-page report on the federal appeals court judge that says aconservative ideology pervades his 10 years of opinions and dissents.

The group said the Senate should give “heightened scrutiny” to Gorsuch’s nomination because of President Trump’s recent attacks on the federal judiciary. Those attacks followeddecisions across the country that blocked Trump’seffort to impose a temporary travel ban on refugees and citizens from seven majority-Muslim countries.

“Judge Gorsuchs view of the Constitution is one that would indeed take our nation backwardto an earlier era, where women, people of color, persons with disabilities, workers, LGBTQ Americans, and those interacting with the criminal justice system have fewer rights and legal protections,” the report said.

The analysis likely to be followed by as many as dozens more from conservative as well as liberal public interest groups paints a portrait of a conservative ideologue whose views were formed in college and law school, long before his 2006 confirmation to the U.S. Court of Appeals for the 10th Circuit.

Read more:

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But it devotes most of its attention to his rulings on the bench, highlighting those it considers to be outside the judicial “mainstream.” Prominent among the cases cited are those in which Gorsuch favored the religious rights of corporations and non-profits over women seeking insurance coverage for contraceptives under the Affordable Care Act.

“He has placed the rights of corporations over those of other Americans, weakened critical acts of Congress, and advocated for overturning long established legal doctrines that ensure the federal government can properly enforce protections for the American people,” the report said.

That’s areference to Gorsuch’s disdain for aSupreme Courtprecedent granting considerable deference to federal agencies when they interpret vaguely written laws or regulations. It’s one area where Gorsuch disagrees with the late Antonin Scalia, the justice he would succeed on the court if confirmed by the Senate.

It is hard to overstate how dangerous Neil Gorsuch would be on the Supreme Court, Daniel Goldberg, legal director at the Alliance for Justice, said.Neil Gorsuchis a judge whos ideologically driven.

Leaders of the Senate Judiciary Committee announced Thursday that hearings on Gorsuch’s nomination willbe held the week of March 20, with the judge appearing on March 21. The hearings are likely to last three or four days, followed by committee and full Senate votes, most likely in April.

That timetable would give Gorsuch an outside chance of being confirmed in time to hear oral arguments later in April the last arguments of the court’s 2016 term. Otherwise, he would not sit in on cases until the 2017 term begins in October.

Trump urged Democrats to vote for Gorsuch during hispress conference Thursday but acknowledged that “you may not see that.” Without at least eight votes from Democrats, Republicans who control the Senate would have to change the rules to eliminate the current 60-vote hurdle.

“But hell get there one way or the other,” Trump said.

Read more:

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Ron Paul: Repeal Obamacare’s Abortion Mandates | FITSNews – FITSNews

Posted: February 14, 2017 at 10:45 am


Last month marked 44 years since the Supreme Courts Roe v. Wade decision declaring a constitutional right to abortion. Roe remains one of the Supreme Courts most controversial decisions. Even some progressive legal theorists who favor legalized abortion have criticized Roe for judicial overreach and faulty reasoning.

Throughout my medical and political careers, I have opposed abortion. I believe abortion is the killing of an innocent human life and, thus, violates the non-aggression principle that is the basis of libertarianism. Unfortunately many libertarians, including some of my close allies, support legalized abortion. These pro-abortion libertarians make a serious philosophical error that undermines the libertarian cause. If the least accountable branch of government can unilaterally deny protection of the right to life to an entire class of persons, then none of our rights are safe.

While I oppose abortion, I also oppose federal laws imposing a nationwide ban on abortion. The federal government has no authority to legalize, outlaw, regulate, or fund abortion. Instead of further nationalizing abortion, pro-life Americas should advocate legislation ending federal involvement in abortion by restoring authority over abortion to the states.

Congress should also end all taxpayer funding of abortion and repeal Obamacares abortion mandates, along with the rest of Obamacare. Forcing pro-life Americans to subsidize what they believe to be murder is, to paraphrase Thomas Jefferson, sinful and tyrannical. That is why I was glad that one of the first actions of the new House of Representatives was to pass legislation ending all taxpayer support for abortion. Hopefully the bill will soon pass in the Senate and be signed into law by President Donald Trump. Congress should follow this action by passing legislation allowing antiwar taxpayers to opt out of funding the military-industrial complex as well.

The House-passed bill also repeals Obamacares mandates forcing private businesses to cover abortion and birth control under their health insurance plans. Of course I oppose these mandates. But, unlike many other opponents of the mandates, I oppose them because they violate the rights of property and contract, not because they violate religious liberty.

Opposing the mandates because they violate the religious liberty of a few, instead of the property rights of all, means implicitly accepting the legitimacy of government mandates as long as special exemptions are granted for certain groups of people from certain groups of mandates.

President Trump has already protected pro-life taxpayers (and unborn children) by reinstating President Reagans Mexico City policy. The Mexico City policy forbids US taxpayer money from being used to support any international organization that performs abortions or promotes abortions. Using taxpayer money to perform and promote abortions overseas is not only unconstitutional and immoral, it also increases resentment of the U.S. government. Unfortunately, as shown by the recent Yemen drone strikes, President Trump is unlikely to substantially change our militaristic foreign policy, which is responsible for the deaths of many innocent men, women, and children.

Ending taxpayer support for abortion is an important step toward restoring limited, constitutional government that respects the rights of all. However, those who oppose abortion must recognize that the pro-life causes path to victory will not come through politics. Instead, pro-lifers must focus on building a culture of life through continued education and, among other things, support for crisis pregnancy centers. These centers, along with scientific advances like ultrasound, are doing more to end abortion than any politician. Anti-abortion activists must also embrace a consistent ethic of life by opposing foreign policy militarism and the death penalty.

Ron Paulis a former U.S. Congressman from Texas and the leader of the pro-liberty, pro-free market movement in the United States. His weekly column reprinted with permission can be foundhere.

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Ron Paul: Repeal Obamacare’s Abortion Mandates | FITSNews – FITSNews

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