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ATTORNEY PAUL A. KSICINSKI
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FROM DRED SCOTT TO STATE V. MINNESOTA V. DEREK CHAUVIN: SUPPORTING THE LAW IS NOT BEING AGAINST THE POLICE

4/23/2021

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Roger Taney, Chief Justice of the United States, wrote in Dred Scott that Black Americans were considered “subjugated by the dominant race…as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so inferior, that they had no rights which the white man was bound to respect.”  Dred Scott v. Sanford, 19 How. 393, 404-07, 15 L.Ed. 691(1857).  The Scott Court initially considered the jurisdictional question.  That question, the Chief Justice says, is whether “a negro, whose ancestors were imported into this country, and sold as slaves” is “entitled to sue as a citizen in the courts of the United States.”  The Chief Justice, and the majority, setting forth highly legalistic arguments, held that the answer to this question is “no.” Even if Dred Scott is a free man, he is not a “citizen.”   The court, Taney concludes, must not “give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted . . . . It must be construed now as it was understood then.”  Id.  Justice Benjamin Curtis, in a powerful dissent, strongly disagreed.  Justice Curtis did not care to enter “into an examination of the existing opinions of that period respecting the African race.”  Id.  Justice Curtis argued that a “calm comparison” of the assertion in the Declaration of Independence that “all men are created equal” with the “individual opinions and acts” of its authors “would not leave these men under a reproach of inconsistency.”  It would show that they “were ready and anxious to make” the “great natural rights which the Declaration of Independence asserts . . . . effectual wherever a necessary regard to circumstances would allow.”

As in the case of Dred Scott, America today has a question before it: are “all men are created equal” so that we are ready and anxious to make” the “great natural rights which the Declaration of Independence asserts effectual wherever a necessary regard to circumstances would allow”?

The principle of equality asserted in the Declaration of Independence was made the supreme law of America in the 13th, 14th and 15th Amendments.  In the words of the U.S. Supreme Court, “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”  United States v. United Mine Workers, 330 U.S. 258, 312 (1947) (Mr. Justice Frankfurter, concurring in the judgment).  This allows “[e]very act of government may be challenged by an appeal to law.”  Id. at 308.

Justice Frankfurter was telling us that no one, from the president to the police, has a right to determine for himself or herself what is the law.  When one person is allowed to determine what the law is, we are on the road to chaos and tyranny. 

On a national scale, presidents, regardless of party, who were well-meaning but without understanding, have assaulted the rule of law. Franklin Roosevelt and the rounding-up of Japanese-Americans, Abraham Lincoln’s suspension of the writ of habeas corpus, Woodrow Wilson’s imprisonment of antiwar activists, and Richard Nixon’s many public crimes all immediately come to mind.  Most recently, in City and County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) the issue of whether “in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called "sanctuary" cities and counties.”  Id. at 1231.  The Court found that “under the principle of separation of powers and in consideration of the spending clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization.”  Id.  In other words, no one person, even a president, is entitled to say what the law is.  As Justice Sonia Sotomayor stated when she was nominated to the U.S. Supreme Court, “the rule of law [is] the foundation for all of our basic rights.”  Transcript of Obama-Sotomayor announcement.https://www.cnn.com/2009/POLITICS/05/26/obama.sotomayor.transcript/index.html

Today, when a Black American is told by the actions of one man that he is not entitled to all legal protections, that one man stands with Roger Taney, Chief Justice of the United States, and tells the Black American he is so inferior that he has no rights which are bound to be respected.  As Justice Frankfurter told us, this is the road to chaos and tyranny.

Some people who are well-meaning but without understanding attempt to attack the verdict in Derek Chauvin as being anti-police.  They forget that standing for the rule of law is the same whether the rule is sought to be imposed against a president or a policeman.

The Hennepin County jury found former Minneapolis Police officer Derek Chauvin guilty on all counts in the death of George Floyd. In his closing argument, prosecutor Steven Schleicher focused not only on what the case was about, but also on what it was not about:

To be very clear, this case is called the ‘State of Minnesota vs. Derek Chauvin…. this case is not called the ‘State of Minnesota vs. the police.  This is not an anti-police prosecution, it’s a pro-police prosecution.”

In other words, the correct focus is that one man, who happened to be a police officer, did not follow the America’s supreme rule of law: “all men are created equal.”  The police have power when they follow the law.  The police do not have power when they do not follow the law.  If you fail to support that principle, America is on the way to chaos and tyranny.


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THERE IS A DIFFERENCE BETWEEN TRAFFIC STOPS AND VIOLENT FELONY TRAFFIC STOPS

4/21/2021

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Like many things related to law enforcement, myths become the foundation for action. 

Law enforcement officers are taught that routine traffic stops pose extreme danger to their own lives.  Chelsea Whitaker, The Routine Traffic Stop, LAWOFFICER (Nov. 21, 2016) (“There isn’t a more dangerous aspect of policing than traffic stops.”), https://www.lawofficer.com/the-routine-traffic-stop/; Amaury Murgado, How to Approach Traffic Stops, POLICE MAG. (Nov. 26, 2012), https://www.policemag.com/340864/how-to-approach-traffic-stops (“A traffic stop generally has two threat levels [for a police officer]; you are either at risk or at high risk.”)  A major problem with such training is that the myth is self-perpetuating:  cops are taught traffic stops are more dangerous, so traffic stops do become more dangerous. 

But in 2020, there were 120 killings of members of the public in traffic stops by police.  Mapping police violence (April 18, 2021), https://mappingpoliceviolence.org/  So the question becomes: who are traffic stops dangerous to?

After review of a comprehensive dataset of thousands of traffic stops that resulted in violence against officers across more than 200 law enforcement agencies in Florida over a 10-year period, it was found that violence against officers was rare and that incidents that do involve violence are typically low risk and do not involve weapons.  Under a conservative estimate, the rate for a felonious killing of an officer during a routine traffic stop was only 1 in every 6 .5 million stops, the rate for an assault resulting in serious injury to an officer was only 1 in every 361,111 stops, and the rate for an assault against officers (whether it results in injury or not) was only 1 in every 6,959 stops.  Jordan Blair Woods, Policing, Danger Narratives, and Routine Traffic Stops (Michigan Law Review 2019), https://michiganlawreview.org/wp-content/uploads/2019/03/117MichLRev635_Woods.pdf

Despite this type of data, courts justify cutting back the constitutional rights of the public when in a vehicle.  Courts will justify the evisceration of constitutional rights based on data from Law Enforcement Officers Killed and Assaulted (LEOKA) program from the FBI which indicates traffic stops by police are dangerous to the police.  See, Maryland v. Wilson, 519 U.S. 408, 413 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (per curiam); United States v. Robinson, 414 U.S. 218, 234 n.5 (1973) (expressly rejecting the argument that traffic violations necessarily involve less danger to officers than other types of confrontations); United States v. Rochin, 662 F.3d 1272, 1273 (10th Cir. 2011) (Gorsuch, J.) (citing 2010 LEOKA statistics); United States v. Holmes, 385 F.3d 786, 791 (D.C. Cir. 2004) (Roberts, J.) (citing 2002 LEOKA statistics); Hiibel v. Sixth Judicial Dist. Ct. ex rel . County of Humboldt, 59 P.3d 1201, 1205 n.20 (Nev. 2002) (citing 2000 LEOKA statistics), aff’d, 542 U.S. 177 (2004); State v. Sloane, 939 A.2d 796, 802 (N.J. 2008) (citing 2005 LEOKA statistics). 

Courts refuse to recognize that a conclusion is only as good as the data cited to support the conclusion.  Citing LEOKA statistics to support the idea that traffic stops by police are dangerous to the police have failed to closely examine the LEOKA statistics.  As explained by Professor Woods, the LEOKA statistics are wildly overinclusive including routine traffic stops, criminal enforcement stops, and felony vehicle stops for non-traffic-based offenses. This overinclusive classification makes it impossible to tell how many cases involve vehicle stops related to traffic enforcement, criminal enforcement, or both.  Jordan Blair Woods at 647. 
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This over inclusiveness equates a police chase of an armed bank robber leading to the traffic stop the same as a police officer’s stop of a black man with an air freshner in his car.  Both of these cases are lumped together under the “traffic pursuits and stops” category, even though a traffic violation was only central in the second case. 
It is more accurate to say that “[t]he felony stop is one of the most-common high-risk situations patrol officers find themselves in”.  See, Duane Wolfe, 5 Felony Traffic Stop Tactical Tips for Police Officers, POLICEONE.COM: THE WARRIOR’S PATH (Apr. 20, 2015), https://www.police1.com/police-products/vehicles/articles/5-felony-traffic-stop-tactical-tips-for-police-officers-TzW9vQ2b8xi8Ywqi/
 
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DO POLICE HAVE TO TELL YOU WHY YOU ARE BEING ARRESTED?

4/20/2021

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Recently a prospective client rather forcibly insisted that I needed to file a motion to get her case dismissed because when she was arrested the police never told her why she was being arrested.

She did not really appreciate my answer since after I answered she hung up on me.

I explained to her that legally (not morally or ethically which is separate from legality) the fact that the cops never told her why she was being arrested did not matter.  “While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, [the Supreme Court] have never held that to be constitutionally required.”  Devenpeck v. Alford, 543 U.S. 146, 155 (2004).

In Devenpeck, the Court rejected a requirement that probable cause for an arrest must be measured by reference to the offense that the officer named at the time of arrest. Such a rule was improper because it hinged on the subjective belief of the officer, and because it would have “perverse” consequences:

the predictable consequence of a rule limiting the probable-cause inquiry to offenses closely related to (and supported by the same facts as) those identified by the arresting officer is not, as respondent contends, that officers will cease making sham arrests on the hope that such arrests will later be validated, but rather that officers will cease providing reasons for arrest. And even if this option were to be foreclosed by adoption of a statutory or constitutional requirement, officers would simply give every reason for which probable cause could conceivably exist.  Id.

In theory, the police do not decide if there was probable cause for charges to be issued.  That determination is made by the prosecutor.  Notice to a defendant of those charges is given at a probable cause hearing, ordinarily within 48 hours of their arrest. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991); Gerstein v. Pugh, 420 U.S. 103, 105(1975).  However, the Wisconsin court has left the 48 hour rule largely a toothless tiger.  State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152(1993) (shifting the burden to the arrested individual to prove that probable cause determination was delayed unreasonably).

Also it might be helpful to point out a similarly widespread but mistaken belief that officers must read arrestees their Miranda rights. There is no right to be read Miranda rights on arrest. Miranda merely impacts what statements are admissible in response to police questioning of a person in custody after arrest or its functional equivalent. If the police do not want to question the person, they are free not to read the suspect Miranda rights. See generally Chavez v. Martinez, 538 U.S. 760 (2003).

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IGNORANCE OF THE LAW IS NO EXCUSE EXCEPT IF YOU ARE A COP.  THAN IGNORANCE OF LAW IS BLISS OR REASONABLE SUSPICION

4/14/2021

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Ignorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content.  In other words, ignorance of law excuses no one.  The presumption is that the public knows all the laws, both state and federal, and a defense of ignorance is not allowed.  See, Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604 (1991) Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240 (1957)

For instance, say you have terrible allergies which cause nasty itchy eyes and throat to where it feels you cannot take a breath. The legislature on April 1, 2021 bans anyone with a meth-related conviction from possessing pseudoephedrine, a common decongestant medicine (and meth ingredient). One month after the effective date, you were charged with violating the law after purchasing allergy medicine containing the substance. You file a motion to dismiss on grounds that the statute was unconstitutional. Trial court denies your motion and you was convicted at trial.  That decision was upheld by the North Carolina Supreme Court.  See, State v. Miller, 800 S.E.2d 400 (N.C. 2017).  The Miller court specifically rejected Miller’s argument that the legislature had criminalized the otherwise innocent act of possessing a pseudoephedrine product for a subset of felons to which defendant belonged despite the fact that the purchase of such substances by individuals like defendant had been entirely lawful little more than a month earlier and that the State's failure to provide adequate notice of this change in law constituted a federal due process violation.  Citing to prior decisions, the North Carolina Supreme Court held that “The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes.”

Sounds pretty clear, right?  A rule that is deeply rooted in the American legal system should apply to everybody , right?  Nope.  Courts find cops are above deeply rooted rules in the American legal system.  In Heien v. North Carolina, 574 U.S. 54 (2014), (on appeal from a decision in North Carolina)and State v. Houghton, 2015 WI 79 (police officer believed any object dangling from a rear-view mirror automatically violated the state’s law on obstructing a driver’s view), courts have found that a police officer's reasonable mistake of law can provide the individualized suspicion required by the Fourth Amendment to the United States Constitution to justify a traffic stop. 

Translation? 

When it comes time for cops to enforce the law, courts have determined that if the cops ignorance of the law is reasonable, the cops actions will be upheld on judicial review.  See, Police mistakes of law, 61 Emory L.J. 69 (2011), (even when you are acting legally, cops can stop you) https://scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1276&context=elj  It takes little reflection to see “the fundamental unfairness” of holding citizens to strict compliance with the law “while allowing those entrusted to enforce the law” to interpret and apply the law more flexibly. United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (internal quotation marks omitted). 

Courts have now approved a citizen’s oppression not by lawlessness but by the law.
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Jesus and the new call for increased criminal prosecutions due to increased crime rate during pandemic

4/2/2021

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Politics are at the center of the story of Jesus. His historical life ended with a political execution. Crucifixion was used by Rome for those who systematically rejected imperial authority.  This rejection of authority chronically usually came from defiant slaves and subversives who were increasingly challenging the rule of the Roman Empire.  Rome typically chose indigenous collaborators from the wealthy class who saw it in their personal interest to support power when it advantaged them.  In first-century Roman Palestine the wealthy oligarchy (meaning ‘the ruling few’) was represented by the Sadducees, sometimes referred to in the gospels as “the leaders of the people,” or “the chief priests and the elders.”

Today the Sadducees are found in various conservative groups like the Manhattan Institute.  The Manhattan Institute for Policy Research is a conservative 501 non-profit American think tank focused on domestic policy and urban affairs.  In its March 18, 2021 blog, Josh Hammer, a Newsweek opinion editor and a research fellow at the Edmund Burke Foundation, writes “Homicides in the United States increased in 2020 by over 30 percent, on a year-over-year basis. Gun assaults and aggravated assaults also spiked, leading the National Commission on COVID-19 and Criminal Justice to deem the crime surge of 2020 a ‘large and troubling increase’ with ‘no modern precedent. … Citizens of all political stripes, especially conservatives, must recover and publicly advocate anew the time-tested and common-sense notion that a free and just society is impossible without a robust commitment to a strictly enforced rule of law.’”

This is the Nixonian scare tactic calling for “law and order” to whip up public fear about rising crime rates to justify attacks on civil liberties and our constitutional rights.  Both the concept and the exact phrase "Law and order" became a powerful political theme in the United States during the late 1960s. The leading proponents were two Republicans, the governor of California Ronald Reagan and presidential candidate Richard Nixon. Nixon targeted, among others, working class White ethnics in northern cities to turn against the Democratic Party, blaming it for being soft on crime and rioters.  In reality, the Nixonian cry for law and order was a racial attack on African Americans.  “Nixon Adviser Admits War on Drugs Was Designed to Criminalize Black People,” Equal Justice Initiative (2016), https://eji.org/news/nixon-war-on-drugs-designed-to-criminalize-black-people/

Like Nixon, Hammer cites to a lop-sided view of the criminal system.  I previously wrote how the “lock them up and throw away the key” mentality does not work.  “CRIME IS NOT REDUCED BY PUTTING A MASSIVE AMOUNT OF PEOPLE IN PRISON,” http://www.paulksicinskilaw.com/blog/-crime-is-not-reduced-by-putting-a-massive-amount-of-people-in-prison  In his article, Hammer gives no evidence for idea that there is a causal link between crime rates and incarceration rate.  That’s because the evidence is to the contrary.  “ ‘Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States. In particular, they should reexamine policies regarding mandatory prison sentences and long sentences. Policy makers should also take steps to improve the experience of incarcerated men and women and reduce unnecessary harm to their families and their communities.’”  Id.

Finally, as reported by the Pew Center “[b]oth the FBI and [Bureau of Justice Statistics] data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation.”  Pew Research Center, “What the data says (and doesn’t say) about crime in the United States” (2020). https://www.pewresearch.org/fact-tank/2020/11/20/facts-about-crime-in-the-u-s/

Before conservatives “publicly advocate anew the time-tested and common-sense notion” of prison as a solution to the problem of crime, they should tell the public everything, not just what scares the public,
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    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

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