Tag: 5th amendment

A Trumpian Headache

President Donald Trump’s use of the U.S. military to kill persons on speed boats in international waters, or in territorial waters claimed by other sovereign nations – all 1,500 miles from the U.S. – has posed grave issues of due process. The Constitution’s guarantee of due process requires it for every person, not just Americans. The operative language of the Fifth Amendment is that “No person… shall be deprived of life, liberty, or property without due process of law.”

The Trump administration has claimed that it can kill whomever it designates as an unlawful enemy combatant – it prefers the political phrase “narco-terrorist” – and the due process it provides is the intelligence gathered by American spies and the White House analysis of that intelligence. This secret analysis, the government’s argument goes, satisfies the president that the folks he has ordered killed are engaging in serious and harmful criminal behavior, and somehow is a lawful and constitutional substitute for the jury trial and its attendant procedural protections that the Constitution commands.

To be fair, I am offering an educated guess as to the administration’s argument. The reason we don’t know the argument precisely is that the Department of Justice calls it classified. This is, of course, a non sequitur. How could a legal argument possibly be secret in light of well-settled First Amendment jurisprudence? It can’t. The Supreme Court has ruled consistently that there are no secret laws or secret rationales for employing the laws. Moreover, it has ruled that the First Amendment assures a public window on government behavior whenever it seeks to take life, liberty or property.

The last time we went through efforts to obtain the government’s legal argument for presidential targeted killing was during the Obama administration. When President Barack Obama ordered the CIA to kill Anwar al-Awlaki and his son – both natural born American citizens – it, too, claimed a secret legal rationale. Yet some brave soul who had access to that rationale leaked it to the press. The rationale likened killing al-Awlaki and his 16-year-old son to police shooting at fleeing bank robbers who are shooting at the police.

The Obama justification was absurd, as al-Awlaki was not engaged in any violent acts. He had been followed by 12 intelligence agents during his final 48 hours of life. Those agents couldn’t legally arrest him, because he hadn’t been charged with a crime, but in the Obama logic, they could legally kill him.

When those of us who monitor the government’s infidelity to the Constitution publicly pointed out the flaws in the Obama argument, it reverted to the argument that I suspect the current administration is secretly using. Namely, that its secret internal deliberations are a constitutionally adequate substitution for traditional due process.

It gets worse.

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Former Dem ‘super mayor’ pleads the Fifth after failing to produce public records in court

A Chicago suburb’s former Democratic “super mayor” is facing yet another legal hurdle after failing to produce public records from her time in office after being held in contempt of court earlier this month.  

In a hearing on Friday, Tiffany Henyard’s attorney Beau Bridley pleaded the Fifth on his client’s behalf after she was ordered to hand over public records from her time in office.

“The smear campaign against Tiffany Henyard, which began while she was in office, continues even now that she is out of office,” Bridley said in a statement to Fox News Digital.

Bridley conceded that the former mayor does not have the requested document, with an Illinois judge allowing Henyard’s legal team to submit an affidavit in its place. 

“The mayor has no document that the plaintiff seeks,” Bridley said. “This matter is going to be resolved with a simple affidavit. The whole hearing was much ado about nothing.”

The hearing stems from a lawsuit filed by the Edgar County Watchdogs Inc., after the organization sued Henyard and the Village of Dolton for failing to produce financial records after the documents were requested under the Freedom of Information Act. 

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A SWAT Team Destroyed an Innocent Woman’s House. The Supreme Court Won’t Hear Her Case.

The Supreme Court last month declined to hear a case from an elderly woman whose house was destroyed by a SWAT team, leaving open the question of whether or not innocent people are constitutionally entitled to compensation when law enforcement lays waste to their property in pursuit of public safety.

In July 2020, while chasing a fugitive, police arrived at Vicki Baker’s home in McKinney, Texas. They threw dozens of tear gas grenades inside, used explosives to break the front and garage doors, and drove a tank through her backyard fence, although Baker’s daughter, Deanna Cook, had supplied them with a key to the home, a garage door opener, and the back gate code.

The suspect, Wesley Little, had previously worked for Baker as a handyman and barricaded himself inside her home while on the run from police. He had kidnapped a teenage girl, whom he released after the cops arrived. But Little himself refused to exit, prompting law enforcement to ravage the house. (He ultimately killed himself.)

Baker, who was in Montana when her house was destroyed, never contested that police acted in the best interest of the community when it sought to extract Little from her home. She took issue, however, with the subsequent response from the government, which refused to compensate her for the more than $50,000 in damages. Her homeowners insurance likewise declined to pay, as many policies explicitly do not cover damage caused by the government.

“I’ve lost everything,” she told me in 2021. “I’ve lost my chance to sell my house. I’ve lost my chance to retire without fear of how I’m going to make my regular bills.” Baker, who was undergoing treatment for stage 3 breast cancer when we spoke, had been preparing to retire with her husband in Montana. After the house was ruined, a buyer predictably withdrew. The government said she did not qualify as a “victim.”

She is not the only person with such a story. At the core of the case and those like hers is whether or not the Constitution legally obligates the government to repay people who are not suspected of criminal wrongdoing but whose property is nevertheless destroyed by police in an attempt to protect the community. The Takings Clause of the 5th Amendment promises that private property cannot be taken for public use “without just compensation,” though some lower courts have ruled that actions taken by police in stories like these operate under an exception to that rule.

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Albuquerque’s Police Chief Says Cops Have a 5th Amendment Right To Leave Their Body Cameras Off

Albuquerque, New Mexico, Police Chief Harold Medina operated his department-issued pickup truck “in an unsafe manner” on February 17, when he ran a red light and broadsided a car, severely injuring the driver. So concludes a recent report from internal investigators who looked into that shocking incident.

Duh, you might say if you have seen surveillance camera footage of the crash, which shows Medina crossing Central Avenue, a busy, four-lane street, against the light. He crosses the westbound lanes through a gap between two cars, forcing one of the drivers to brake abruptly, before barreling across the eastbound lanes, where he rams into the side of a gold 1966 Mustang driven by 55-year-old Todd Perchert.

Although Medina’s recklessness seems obvious, the Albuquerque Police Department’s Fleet Crash Review Board (CRB) earlier this year concluded that the crash was “non-preventable.” How so? Medina, who was on his way to a Saturday press conference with his wife when he took a detour to have a look at a homeless encampment, said he ran the light to escape an altercation between two homeless men that had escalated into gunfire at the intersection of Central and Alvarado Drive.

While “the initial decision to enter the intersection is not in question,” Lt. James Ortiz says in the Internal Affairs report, “the facts and circumstances do not relieve department personnel of driving safely to ensure no additional harm is done to personnel or to citizens.” Medina, Ortiz says, clearly failed to do that: “By definition, driving into a crosswalk, darting between two vehicles driving on a busy street, and crossing through an intersection with vehicles traveling eastbound were unsafe driving practices.” In this case, he notes, those unsafe practices “resulted in a vehicle collision with serious physical injuries to the victim, including a broken collarbone and shoulder blade, 8 broken ribs (reconstructed with titanium plates after surgery), collapsed lung, lacerations to left ear and head, multiple gashes to his face, a seven-hour surgery, and hospitalization requiring epidural painkiller and a chest tube for nearly a week.”

Ortiz not only disagrees with the CRB’s conclusion about Medina’s crash; he says the board never should have reviewed the incident to begin with, since its mission is limited to accidents “not resulting in a fatality or serious injury.” Ortiz says Commander Benito Martinez, who chairs the CRB, violated department policy when he decided the board should pass judgment on Medina’s accident.

Martinez acknowledged that department policy “prohibited the CRB from hearing serious injury crashes” and that “allowing such a case to be heard would be a policy violation.” Why did he allow it anyway? “He explained that his reasoning for permitting the Chief’s crash to be reviewed by the CRB was based on his belief that someone wanted the crash to be heard,” Ortiz writes. “Cmdr. Martinez clarified that he believed someone from Internal Affairs wanted the case to be heard by the CRB to ensure full transparency. However, he did not consult with anyone in Internal Affairs to verify the accuracy of this assumption.”

Both the CRB’s decision to review the crash and its implicit exoneration of Medina are hard to fathom. But Medina’s explanations for the third policy violation identified by Ortiz—the chief’s failure to activate his body camera after the crash—are even weirder.

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Appeals Court Upholds Police Right to Compel Biometric Device Unlocking

The US Court of Appeals for the Ninth Circuit has issued an opinion in a case involving the police forcing a suspect to unlock their phone via a biometric feature on the device.

The court said this practice, at least in the case it considered, is not unconstitutional.

The appeal was lodged by Jeremy Payne, a defendant in a drug distribution case, who was forced (“compelled”) by the police to unlock his phone with his thumbprint.

We obtained a copy of the opinion for you here.

Payne was hoping to have his motion to suppress evidence accepted – after this was previously denied by a district court – but the Court of Appeals found that obtaining evidence in this way does not mean that the police violated his Fifth Amendment protection against self-incrimination.

And while the appellate court said that other circuits and the Supreme Court are yet to rule if the forced use of a biometric to unlock a device is “testimonial” – in this case, the forcible use of the suspect’s thumb “required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking.”

The three-judge panel was satisfied that the police could have accomplished the same task “even if Payne had been unconscious” – so they saw no evidence of the suspect and later defendant being driven to engage in self-incrimination.

Namely, the physical action of forcibly pressing the thumb onto the device “did not intrude on the contents of Payne’s mind.”

Another reason the judges sided with the police is that Payne was not made to “acknowledge the existence of any incriminating information” – he was “merely” forced to provide access “to a source of potential information.”

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Dismantling the Constitution: Police No Longer Have to Honor the Right to Remain Silent

We are witnessing the gradual dismantling of every constitutional principle that serves as a bulwark against government tyranny, overreach and abuse.

As usual, the latest assault comes from the U.S. Supreme Court.

In a 6-3 ruling in Vega v. Tekoh, the Supreme Court took aim at the Miranda warnings, which require that police inform suspects that they have a right against self-incrimination when in police custody: namely, that they have a right to remain silent, to have an attorney present, and that anything they say and do can and will be used against them in a court of law.

Although the Supreme Court stopped short of overturning its 1966 ruling in Miranda v. Arizona, the conservative majority declared that individuals cannot hold police accountable for violating their Fifth Amendment right to remain silent.

By shielding police from lawsuits arising from their failure to Mirandize suspects, the Supreme Court has sent a message to police that they no longer have to respect a suspect’s right to remain silent.

In other words, concludes legal analyst Nick Sibilla, “the Supreme Court has effectively created a new legal immunity for cops accused of infringing on the Fifth Amendment’s protection against self-incrimination.”

Why is this important?

In totality, the rights enshrined in the Fifth Amendment speak to the Founders’ determination to protect the rights of the individual against a government with a natural inclination towards corruption, tyranny and thuggery.

The Founders were especially concerned with balancing the scales of justice in such a way that the innocent and the accused were not railroaded and browbeaten by government agents into coerced confessions, false convictions, or sham trials.

Indeed, so determined were the Founders to safeguard the rights of the innocent, even if it meant allowing a guilty person to go free, that Benjamin Franklin insisted, “It is better a hundred guilty persons should escape than one innocent person should suffer.”

Two hundred-plus years later, the Supreme Court (aided and abetted by the police state, Congress and Corporate America) has flipped that longstanding presumption of innocence on its head.

In our present suspect society, “we the people” are all presumed guilty until proven innocent.

With the Vega ruling, we have even fewer defenses for warding off government chicanery, abuse, threats and entrapment.

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Supreme Court Issues Ruling, Gutting Miranda Rights And Threatening The Fifth Amendment

On Thursday, the Supreme Court issued a ruling in Vega V Tekoh, a case involving the administration of Miranda rights, with the court ruling that a suspect’s words or statements can be used in court regardless of their Miranda rights. 

For background, these are the facts of the case in question:

Terence Tekoh worked as a patient transporter in a hospital in Los Angeles. After a patient accused him of sexual assault, hospital staff reported the allegation to the Los Angeles Sheriff’s Department. Deputy Carlos Vega went to the hospital to ask Tekoh questions and take Tekoh’s statement. Although the parties described vastly different accounts of the nature of the interaction between Tekoh and Vega, it is undisputed that Vega did not advise Tekoh of his Miranda rights before questioning him or taking his statement.

Tekoh was arrested and charged in California state court, but a jury returned a verdict of not guilty. Following the acquittal on the criminal charge, Tekoh sued Vega, alleging that Vega violated Tekoh’s Fifth Amendment right against self-incrimination by taking his statement without first advising him of his Miranda rights.

Justice Samuel Alito issued his ruling, a count of 6-3, deciding that using such statements outside of Miranda rights is not a violation of a defendant’s rights and does not give them the right to sue the court for such use. 

Miranda prescribed a specific and protective set of warnings to ensure that criminally accused suspects were made aware of the Fifth Amendment’s decree that no person “shall be compelled in any criminal case to be a witness against himself.”  

Miranda is also one of the court’s most culturally famous decisions. Americans know Miranda. More accurately: Americans know their Miranda warnings. Even if they cannot recite the lyrics to the national anthem or the Pledge of Allegiance, they likely can recite Miranda’s warnings: 

  • You have the right to remain silent;
  • Anything you say can and will be used against you in a court of law;
  • You have the right to a lawyer;
  • If you cannot afford a lawyer, one will be appointed for you.

Generally, if the police obtain a suspect’s statement violating Miranda, the government cannot use that statement against the defendant in court. 

But can the defendant later sue the police for violating the defendant’s constitutional rights? 

The Supreme Court now says, No. 

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Jan 6 Chairman Bennie Thompson says using the 5th Amendment implies guilt

Representative Bennie Thompson, who is the chairman of the January 6 committee in the US House of Representatives, said on Thursday that when a defendant uses their right to remain silent under the 5th Amendment, “in some instances, that says you are part and parcel guilty to what occurred.”

Thompson made the remarks to Rachel Maddow, who said it was “a fascinating pivot point in this investigation.” Thompson’s belief that a defendant’s use of their 5th Amendment rights infers guilt upon that person is not upheld by the Supreme Court.

In Griffin v. California in 1965, the Supreme Court upheld that if a defendant uses their 5th Amendment right to not incriminate themselves, neither the state, nor judge, may use the use of that right to tell the jury that silence is evidence of guilt.

Thompson, from his position as chairman of the House Speaker Nancy Pelosi’s special committee on the events of January 6th, has no basis to make this claim and this claim could indicate that the committee is already biased against those they have subpoenaed in their case. Pelosi alone appointed all members of the committee without input from the minority leader Kevin McCarthy.

Thompson made the remarks as the committee has issued subpoenas to more and more people who the committee believes is responsible for what they have termed an “insurrection” on January 6, when some Trump supporters left a rally at the ellipse in Washington, DC, and went to the Capitol.

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This Forfeiture Victim Waited 2 Years Without a Hearing. Is That Due Process?

Civil asset forfeiture laws, which allow the government to seize property allegedly tainted by crime without ever charging the owner, are fundamentally rigged in favor of the law enforcement agencies that get a cut of the proceeds. Even when an owner manages to challenge a forfeiture by arguing that he was not involved in any criminal activity, he has the burden of proving his innocence, and the process often costs more than the property is worth. Adding insult to injury, the government can drag out the process for so long that even innocent owners feel compelled to surrender. The Institute for Justice (I.J.) challenges that aspect of civil forfeiture in an appeal it filed this week, asking the Supreme Court to rule that due process requires a prompt post-seizure hearing.

Early civil forfeiture laws in the United States recognized the importance of that safeguard. The Collections Act of 1789, I.J. notes, required a hearing within 14 days after the government filed its forfeiture complaint, which was supposed to happen shortly after the seizure. A decade later, Congress amended the law to emphasize that forfeiture suits must be commenced “without delay.” Nowadays, by contrast, property owners routinely wait months or years before they get a chance to challenge a seizure before a neutral adjudicator.

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