The US Constitution itself has not only survived the crises confronting us in the past, but in so doing, it has in itself become our nation's most powerful symbol of unity--a far preferable alternative to a monarch or a national religion, the institutions on which most nations around the world have relied. Moreover, our Constitution is a stronger, better document than it was when it initially emerged from the Philadelphia Convention. Through the amendment process (in particular, through the 13th, 14th, 15th and 19th Amendments), it has become the protector of the rights of all the people, not just some of the people.

Some aspects of the Founding Fathers nation-building program--their continuing toleration of slavery and genocidal policies toward American Indians--are fit objects of national shame, not honor. But statesmen of succeeding generations--Lincoln foremost among them--would continue the quest for a "more perfect union."  On the other hand, the challenges to national unity under our Constitution are, if anything, far greater than those confronting the infant nation in 1787.  We see that the expression of the "popular will" can create a cacophony of discordant voices, leaving many baffled about the true meaning of majority rule. In far too many places around the world today, the expression of the "popular will" is nothing more than the unleashing of primordial forces of tribal and religious identity which further confound the goal of building stable and consensual governments.

One area where the popular will is divided is the area of gun control.  The percentage of Americans who favor stricter gun laws is on the rise, though significant partisan divisions persist.[1] Approximately 2 in 3 Americans surveyed for a new poll said that they support greater restrictions on gun ownership after a spate of recent mass shootings that have highlighted debates on expanding background checks and other measures.[2]

The ulta-conservative Supreme Court is about to decide New York State Rifle & Pistol Association Inc. v. Bruen[3].  This is a new Second Amendment case following the court’s recent decisions in District of Columbia v. Heller[4] and McDonald v. City of Chicago[5].  In Heller, Justice Antonin Scalia told us that the Second Amendment’s use of the term “bear arms” means to “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.” Further, Scalia wrote, “self-defense … was the central component of the right itself.” However, “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” are presumptively valid, implying that arms may be carried in non-sensitive places.

Without directly saying so Justice Scalia was balancing two rights of self -defense: the right of an individual to defend oneself versus the right of our nation to defend itself.  In striking this balance, it is necessary to understand the current thinking of terrorist groups.  International jihadist groups today, for instance, rely largely on local, lone actors to commit violence. In May 2016, Islamic State spokesman Abu Muhammad al-Adnani implored followers in the West to attack in their home countries, rather than join the fight in Syria and Iraq. “The smallest action you do in their heartland is better and more enduring to us than what you would if you were with us,” he declared. “If one of you hoped to reach the Islamic State, we wish we were in your place to punish the Crusaders day and night.” His call to arms was answered by followers thousands of miles away, manifesting itself in deadly violence in the United States and several of its European allies. In the United States, the deadliest Islamic State-inspired attack, which occurred in Orlando, Florida, in June 2016, was perpetrated by a native New Yorker living in Florida, acting alone.[6]  It is clear “[g]lobal jihadist groups in parts of Africa and Asia in the last year have expanded their abilities to strike local US interests, stoke insurgencies, and foster like-minded networks in neighboring countries.”[7]

The Islamic State (Islamic State of Iraq and Syria), also known as ISIL (Islamic State of Iraq and the Levant), is a Sunni jihadist group with a particularly violent ideology that calls itself a caliphate and claims religious authority over all Muslims. It was inspired by al Qaida but later publicly expelled from it.[8] RAND terrorism experts have analyzed the group's financing, management, and organization; its savvy use of social media for recruitment and fundraising; and the instability that spawned the group as a regional problem in the Middle East.  The Islamic State has released a video where a person with a New York accent tells Muslims in the United States to “take advantage” of America’s gun laws to obtain weapons and carry out attacks:

Take advantage of the fact that you can easily obtain a rifle or pistol in America.  Spray the kuffar [infidels] with bullets so that their fear of the Muslims rises and they continue to reveal their hatred towards Islam.[9]

The Violence Policy Center (VPC) has obtained a copy of a document, How Can I Train Myself for Jihad. The six-page document—which has reportedly been found in terrorist safe houses in Kabul, Afghanistan—advises that "military training is an obligation in Islam upon every sane, male, mature Muslim, whether rich or poor, whether studying or working and whether living in a Muslim or non-Muslim country.”[10]  The document explains:

"One should try to join a shooting club if possible and make regular visits to the firing range. There are many firearms courses available to the public in USA, ranging from one day to two weeks or more.....Do not make public announcements when going on such a course. Find one, book your place, go there, learn, come back home and keep it [to] yourself. Whilst on the course, keep your opinions to yourself, do not argue or debate with anyone, do not preach about Islam....You are going there to train for Jihad, not call people to Islam....obtain an assault rifle legally, preferably AK-47 or variations, learn how to use it properly and go and practice in the areas allowed for such training."[11]

These are not theoretical statements of belief.  These are statements which are heard and used by believers in such hatred.  For instance, “[a]n American-born man who’d pledged allegiance to ISIS gunned down 49 people [ ] in Orlando, the deadliest mass shooting in the United States and the nation’s worst terror attack since 9/11, authorities said.”[12]  In a 9-1-1 call made shortly after the shooting began, the shooter swore allegiance to the leader of the Islamic State of Iraq and the Levant, Abu Bakr al-Baghdadi, and said the U.S. killing of Abu Waheeb in Iraq the previous month "triggered" the shooting.[13]

This is not to say all Muslims are violent.  Muslims have contributed much to America.  Muslims fought with George Washington’s army and the largely Muslim kingdom of Morocco was the first country to recognize the US.  The US wouldn’t look the way it does if it weren’t for a Muslim, Fazlur Rahman Khan, who revolutionized the building of skyscrapers.  Without Ayub Ommaya, a Pakistani-American neurosurgeon lots of other Americans would be dead or suffering appalling pain. In 1963, the Muslim neurosurgeon invented an intraventricular catheter system that can be used for the aspiration of cerebrospinal fluid or the delivery of drugs.[14]

That means not all terrorists are outside the U.S.   Some are inside the U.S.  Domestic terrorists also take advantage of America’s gun laws.  “Easy access to firearms — especially certain types of firearms — can make acts of domestic terrorism more feasible to undertake and more lethal once they happen,” Joshua Geltzer, the deputy homeland security adviser has said.[15]  Asked if gun reforms were imperative to stopping domestic terrorism, Geltzer replied: “I think tackling things that feed into the domestic terrorism challenge is an imperative, and there are a lot of things that feed into it. Easy access to certain types of firearms feeds into it. But so does, for example, polarization fueled by disinformation. That can make recruitment to domestic terrorism causes easier and more likely.”[16]
The common point is made by The Center of Strategic and International Studies (CSIS):
With a rise in domestic terrorism, it is increasingly important to analyze trends in terrorist tactics and targets. According to CSIS data, firearms were the most common weapon used in fatal attacks over the past five years by far-right, far-left, and Salafi-jihadist terrorists. In addition, the most common targets were individuals based on their ethnicity, race, or religion (such as African Americans, Latinos, Jews, and Muslims) for right-wing extremists; and government, military, and police targets for left-wing extremists and Salafi-jihadists.[17]
​
Like it or not, these are the facts about guns in America today.  These facts cannot be ignored in the debate about gun control in New York State Rifle & Pistol Association.  The question to the conservative Supreme Court is whether the court will adopt the conservative position to protect our nation from guns, both foreign and domestic.


[1] https://www.npr.org/2019/10/20/771278167/poll-number-of-americans-who-favor-stricter-gun-laws-continues-to-grow

[2] https://thehill.com/homenews/news/548127-2-in-3-support-stricter-gun-control-laws-poll

[3][3] https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-843.html

[4] https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

[5] https://scholar.google.com/scholar_case?case=10450488700560329027&hl=en&as_sdt=6&as_vis=1&oi=scholarr

[6] https://www.lawfareblog.com/challenges-effective-counterterrorism-intelligence-2020s

[7] https://www.dni.gov/files/ODNI/documents/2019-ATA-SFR---SSCI.pdf, p.11

[8] https://www.rand.org/topics/the-islamic-state-terrorist-organization.html

[9] https://perma.cc/WBJ6-X7Q4

[10] https://perma.cc/YCD8-FGVP

[11] Id.

[12] https://www.cnn.com/2016/06/12/us/orlando-nightclub-shooting/index.html.  It should be noted this was the deadliest mass shooting until the 2017 Las Vegas shooting killed 60 people.

[13] https://www.nbcnews.com/feature/nbc-out/what-really-happened-night-pulse-n882571

[14] https://www.theguardian.com/world/2015/dec/08/donald-trump-famous-muslims-us-history

[15] https://www.politico.com/newsletters/national-security-daily/2021/07/23/easy-access-to-guns-makes-domestic-terror-attacks-harder-to-stop-nsc-official-says-493714

[16] Id.

[17] https://www.csis.org/analysis/tactics-and-targets-domestic-terrorists

And the sign says "long hair freaky people need not apply"
So I put my hair under my hat and I went in to ask him why
He said you look like a fine outstanding young man I think you'll do
So I took off my hat I said "Imagine that Huh Me working for you"…
---Five Man Electrical Band

In Milwaukee County, male attorneys have been determined by judges to be better attorneys if they wear coats and ties.  If you think I am wrong, just ask former Milwaukee County District Attorney Warren D. Zier.  I knew Mr. Zier.  He was more experienced than me as he became an attorney in 1986.  He was good at his job and was not afraid to tell you he was good at his job.  But what I was really jealous of was Mr. Zier’s suits.  Really nice suits.  But rather than a tie, Mr. Zier wore an ascot to court.  By not wearing a tie, a judge stated Mr. Zier’s actions “bordered on contemptuous.”

I am not criticizing judges for doing something any other human being does[1]: judging someone based on their appearance.  Scientifically, that is called physiognomy.  Physiognomy was regarded by those who cultivated it both as a mode of discriminating character by the outward appearance and as a method of divination from form and feature.  Having been handed down to us by Aristotle, physiognomy in the 18th and 19th centuries was proposed as a means of detecting criminal tendencies, but each system was examined and discarded because the data on which it was based was not statistically accurate.  However, physiognomy is enjoying a scientific rejuvenation with the advent of facial recognition technology.[2]

Legally, physiognomy has another word: discrimination.  “Discriminatory dress and grooming policies also invite biased enforcement against members of other marginalized groups. Black women and girls, in particular, are often targeted because of intersecting race and sex stereotypes regarding proper feminine appearance and behavior. Additionally, gendered dress and grooming policies often harm non-binary, transgender, and gender-nonconforming students by reinforcing rigid and binary sex stereotypes, inviting unnecessary and excessive policing of their appearance, and ultimately sending the message that they don’t belong.”[3] 

In fact, it has been found that black hairstyles and textures are 3.4 times more likely to be perceived as unprofessional, and black women are 1.5 times more likely to be sent home due to their hair than other women. Even further, black women with chemically straightened hair are more likely to be hired than black women who opt for their natural hair texture.[4]  Therefore, while commonly seen in school dress codes[5], appearance discrimination is also practiced in society generally.[6] 

While constitutional means, such as Fifth and Fourteenth Amendment "liberty clauses" (equal pro-tection and substantive due process)[7] and First Amendment free speech[8], another legal basis of attack has been through fair employment or civil rights statutes such as Title VII. Title VII, unlike the Constitution which only reaches public employers, applies to private employers as well. However, Title VII only provides protection to a point but courts are very deferential to employers.[9]
​
Likewise, people use face impressions to predict a range of real-world outcomes, from political elections to criminal sentencing. Initial impressions of faces can bias how we interact and make critical decisions about people, and so understanding the mechanisms behind these impressions is important for developing techniques to reduce biases based on facial features that typically operate outside of awareness.[10]


[1] You Are Judged by Your Appearance (based on appearance tall, blonde, skinny people make more money on the job than other people) https://www.forbes.com/sites/tykiisel/2013/03/20/you-are-judged-by-your-appearance/?sh=9556c3d6d50c

[2] Facial Profiling: Can you tell if a man is dangerous by the shape of his mug? https://slate.com/technology/2009/10/can-you-tell-if-a-man-is-dangerous-just-by-looking-at-his-face.html

[3] Dress and grooming policies based on gender stereotypes, https://action.aclu.org/webform/dress-and-grooming-policies-based-gender-stereotypes

[4] JOY Collective. C.R.O.W.N. Research Study. Publication. 2019. https://static1.squarespace.com/static/5edc69fd622c36173f56651f/t/5edeaa2fe5ddef345e087361/1591650865168/Dove_research_brochure2020_FINAL3.pdf; Guy, Jack. 2020. "Black Women With Natural Hairstyles Are Less Likely To Get Job Interviews". CNN Business. https://www.cnn.com/2020/08/12/business/black-women-hairstyles-interview-scli-intl-scn/index.html.  Black women with natural hairstyles were perceived to be less professional, less competent, and less likely to be recommended for a job interview than Black women with straightened hairstyles and White women with either curly or straight hairstyles. The Natural Hair Bias in Job Recruitment https://journals.sagepub.com/doi/10.1177/1948550620937937

[5] Under the 9th and 14th Amendments, students have "the right to wear one's hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution," and that to limit or curtail that right, the state bore a "substantial burden of justification." Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969).  Older cases were collected at Prohibition of long hair absent showing of actual disruption 84 Harv.L.Rev. 1702 (1971) https://www.jstor.org/stable/1339597?refreqid=excelsior%3A98c21f1748383a87fec873ef05d39a8e

[6] Bill O'Reilly criticized after mocking congresswoman's 'James Brown wig', https://www.theguardian.com/media/2017/mar/28/bill-oreilly-maxine-waters-james-brown-wig

[7] Kelley v. Johnson, 425 U.S. 238, 244 (1976) ("Whether the citizenry at large has some sort of 'liberty' interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any guidance. We can, nevertheless, assume an affirmative answer for purposes of deciding this case . . . ."); Pence v. Rosenquist, 573 F.2d 395 (7th Cir. 1978) (holding that requiring school bus driver to shave mustache violates due process if there is no justification for the requirement)

[8] Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (students' right to wear armbands to protest the war in Vietnam upheld)

[9] Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1398 (1992)

[10]Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes, https://www.researchgate.net/publication/277718912_Facial_Trustworthiness_Predicts_Extreme_Criminal-Sentencing_Outcomes; The conceptual structure of face impressions, https://www.pnas.org/content/115/37/9210

And Jesus said to him, “Foxes have holes, and birds of the air have nests, but the Son of Man has nowhere to lay his head.”  Luke 9:58

According to the National Alliance to End Homelessness[1]:

1. Between 2019 and 2020, nationwide homelessness increased by two percent. This change marks the fourth straight year of incremental population growth. Previously, homelessness had primarily been on the decline, decreasing in eight of the nine years before the current trend began.
2. Total homeless in Wisconsin count in 2020: 4,515.  That is about 8 per 10,000 people
3. In January 2020, there were 580,466 people experiencing homelessness in America. Most were individuals (70 percent). They lived in every state and territory, and they reflected the diversity of our country.
4. People in families with children make up 30 percent of the homeless population. Unaccompanied youth (under age 25) account for six percent of the larger group.
5. Males are far more likely to experience homelessness than their female counterparts. Out of every 10,000 males, 22 are homeless. For women and girls, that number is 13. Gender disparities are even more evident when the focus is solely on individual adults (the most significant subgroup within homelessness). The overwhelming majority (70 percent) are men.
6. Native Hawaiians and other Pacific Islanders have the highest rate of homelessness (109 out of every 10,000 people).1 Groups such as Native Americans (45 out of every 10,000) and Black or African Americans (52 out of every 10,000) also experience elevated rates. Importantly, these rates are much higher than the nation’s overall rate of homelessness (18 out of every 10,000).
7. While there are shelters available for the homeless, on any given night there are at least as many people sleeping on the street as there are sleeping in shelters.[2]  A survey of 50 of the largest cities in the United States found that not one had enough shelter spaces for the number of homeless people in that city on any given day.[3]

The causes of being homeless are varied. In recent years, some people who were affected by the economic downturn and foreclosure crisis have become homeless.[4]  Some communities make it a crime to be homeless.  Many communities have laws that criminalize activities homeless people need to do in public to survive including:

• Sitting or lying down
• Loitering[5] or loafing
• Eating or sharing food
• Asking for money or panhandling
• Sleeping in cars and outside or camping[6]

 
Nonetheless, “at least thirty-nine American cities have initiated or continued policies that criminalize activities associated with homelessness.”[7] These “quality of life” laws, defined as laws addressing behaviors that cannot be classified as serious crimes, “spread an exceedingly wide net.”[8]  The most egregious cases of efforts against homeless people leave no doubt as to the motivation behind such laws. For example, the City of Santa Ana, California developed what the California Supreme Court described as a “four-year effort … to expel homeless persons” and “to show ‘vagrants’ that they were not welcome.” Tobe v. City of Santa Ana, 892 P.2d 1145, 1151 (Cal. 1995). As a part of what the trial court described as Santa Ana’s “war on the homeless,” police conducted sweeps in which homeless persons “were handcuffed and taken to an athletic field where they were booked, chained to benches, marked with numbers, and held for up to six hours, after which they were released at a different location.” Id. Some of the conduct leading to the arrests “involved nothing more than dropping a match, leaf, or piece of paper, or jaywalking.” Id.
 
It is unconstitutional to make the status of homelessness into a crime.  The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” Ingraham v. Wright, 430 U.S. 651, 667-68 (1977). Pursuant to that clause, the Supreme Court has held that laws that criminalize an individual’s status, rather than specific conduct, are unconstitutional. Robinson v. California, 370 U.S. 660 (1962). In Robinson, the Court considered a state statute criminalizing not only the possession or use of narcotics, but also addiction. Noting that the statute made an addicted person “continuously guilty of this offense, whether or not he had ever used or possessed any narcotics within the State”—and further that addiction is a status “which may be contracted innocently or involuntarily,” given that “a person may even be a narcotics addict from the moment of his birth”—the Court found that the statute impermissibly criminalized the status of addiction and constituted cruel and unusual punishment. Id. at 666-67 & n.9.
 
Six years after Robinson, the Court addressed whether certain acts also may not be subject to punishment under the Eighth Amendment if they are unavoidable consequences of one’s status. In Powell v. Texas, 392 U.S. 514 (1968), the Court considered the constitutionality of a statute that criminalized public intoxication. A four-member plurality interpreted Robinson to prohibit only the criminalization of status and noted that the statute under consideration in Powell criminalized conduct—being intoxicated in public—rather than the status of alcohol addiction. The plurality declined to extend Robinson, citing concerns about federalism and a reluctance to create a “constitutional doctrine of criminal responsibility.” Id. at 534 (plurality opinion). Moreover, the plurality found that there was insufficient evidence to definitively say Mr. Powell was incapable of avoiding public intoxication. Id. at 521-25. The dissenting justices, on the other hand, found that the Eighth Amendment protects against criminalization of conduct that individuals are powerless to avoid, and that due to his alcoholism, Mr. Powell was powerless to avoid public drunkenness. Id. at 567 (dissenting opinion). The dissenters, therefore, would have reversed Mr. Powell’s conviction. Id. at 569-70.
 
Justice White provided the decisive fifth vote to uphold Mr. Powell’s conviction. Instead of joining the plurality opinion, in a separate concurrence he set forth a different interpretation of Robinson. Justice White did not rest his decision on the status-versus-conduct distinction raised by the plurality. Instead, Justice White considered the voluntariness, or volitional nature, of the conduct in question. See Powell, 392 U.S. at 548-51 (White, J., concurring in the judgment). Under this analysis, if sufficient evidence is presented showing that the prohibited conduct was involuntary due to one’s condition, criminalization of that conduct would be impermissible under the Eighth Amendment. Id. at 551.
 
Therefore, if one is involuntarily made homeless, and the state seeks to prosecute you, you may have a defense.  If a defendant presents evidence that defendant slept in a public place because his alternatives were inadequate and economic forces were primarily to blame for his predicament, he may present a defense of necessity.  In re Eichorn, 81 Cal. Rptr. 2d 535, 540 (Ct. App. 1998) (permitting a homeless man, arrested for sleeping in a public location, to raise the necessity defense); Johnson v. Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994), rev'd on other grounds, 61 F.3d 442 (5th Cir. 1995) (ordinance violated the Eighth Amendment in that at any given time there are persons in Dallas who have no place to go, who could not find shelter even if they wanted to - and many of them do want to - and who would be turned away from shelter for a variety of reasons.).  See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law 5.4(a) (1986) (explaining that "one who, under the pressure of circumstances, commits what would otherwise be a crime may be justified by "necessity' in doing as he did and so not be guilty of the crime in question"); Michael M. Burns, Fearing the Mirror: Responding to Beggars in a "Kinder and Gentler" America, 19 Hastings Const. L.Q. 783, 809 (1992) (discussing the application of five common law elements of the necessity defense to the crime of begging); Robert C. McConkey III, "Camping Ordinances" and the Homeless: Constitutional and Moral Issues Raised by Ordinances Prohibiting Sleeping in Public Areas, 26 Cumb. L. Rev. 633, 658-59 (1995-1996) (discussing potential factors that courts could utilize in determining the application of the necessity defense); Donald E. Baker, Comment, "Anti-Homeless" Legislation: Unconstitutional Efforts to Punish the Homeless, 45 U. Miami L. Rev. 417, 452-53 (1991) (applying a hypothetical example of a homeless woman arrested for sleeping on the street to the four traditional elements of the necessity defense. But see David M. Smith, Note, A Theoretical and Legal Challenge to Homeless Criminalization as Public Policy, 12 Yale L. & Pol'y Rev. 487, 508 (1994) (advocating for the application of the defense of duress to anti-homeless ordinances over the defense of necessity).  See also Davidson v. Tucson, 924 F. Supp. 989, 993 (D. Ariz. 1996) (discussing the plaintiffs' claim that the anti-camping ordinance violated their right to travel, a fundamental constitutional right); Pottinger v. City of Miami, 810 F. Supp. 1551, 1554 (S.D. Fla. 1992) (noting that members of the class of plaintiffs could not raise the defenses of necessity or duress to contest an ordinance that criminalized sleeping and eating in public places because authorities released the arrested plaintiffs from custody without being charged)
 
The court did not analyze why Eichorn was denied public assistance, why he was not working at the time he was cited, or why he did not contact relatives or travel to another location, each of which may have been used to determine whether he was involuntarily homeless.  The court made clear that once Eichorn proved the basic elements of the necessity defense, he could evoke such defense without inquiry into the causes of his homelessness. Thus, if a defendant shows that: (1) the shelter was full, (2) there were more homeless people in the area than shelter space, and (3) he or she did not have funds to afford housing or a motel room, then any alternative to sleeping in public, such as staying awake and moving around, will be inadequate to rebut application of the defense.


[1] https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness-2021/

[2] See James D. Wright & Joel A. Devine, Housing Dynamics of the Homeless: Implications for a Count, 65 Am. J. of Orthopsychiatry 320, 323 (1995).

[3] Nat’l Coalition for the Homeless, Illegal to be Homeless: The Criminalization of Homelessness in the United States at 13 (Aug. 2003) (“Illegal to be Homeless”)

[4] U.S. Dep’t of Hous. and Urban Dev., 2014 Annual Homeless Assessment Report (“2014 AHAR”) 1 (October 2014), available at https://www.hudexchange.info/resources/documents/2014-AHAR-Part1.pdf. The 2014 AHAR found that as of January 2014, 578,424 individuals in the United States were homeless on any given night

[5] Loitering statutes are constitutionally suspect.  City of Chicago v. Morales, 527 U.S. 41 (1999) (loitering ordinance void for vagueness); United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1171-74 (2d Cir. 1974), aff’d on other grounds sub nom. Lefkowitz v. Newsome, 420 U.S. 283 (1975).

[6] https://invisiblepeople.tv/category/learn-more/criminalization-of-homelessness/

[7] Juliette Smith, Arresting the Homeless for Sleeping in Public: A Paradigm for Expanding the Robinson Doctrine, 29 Colum. J.L. & Soc. Probs. 293, 293 (1996).

[8] Mary I. Coombs, The Constricted Meaning of “Community” in Community Policing, 72 St. John’s L. Rev. 1367, 1369 (1998)
​

Embezzlement is the act of using a position of trust to wrongfully take possession of another's property. Wisconsin does not explicitly name embezzlement as a crime in the statutes, but the crime is covered under theft.  Although Wisconsin does not call it “embezzlement,” the act of taking money or property by an employee is delineated under Wisconsin statute 943.20. Although prosecution and restitution may be handled as a civil matter between the business or entity that has experienced loss and the alleged person responsible for the loss, embezzlement cases are often charged criminally.

Straight theft, as defined in § 943.20(1)(a) of the Criminal Code of Wisconsin, is committed by one who intentionally (takes and carries away) (uses) (transfers) (conceals) (retains possession of) movable property of another without consent and with intent to deprive the owner permanently of possession of the property.

Employee theft, as defined in § 943.20(1)(b) of the Criminal Code of Wisconsin, is committed by one who, by virtue of his or her employment, has possession of money belonging to another and intentionally uses  the money without the owner’s consent, contrary to his or her authority, and with intent to convert it to [his or her own use] [the use of another].  Under section 943.20(1)(b), an intent to pay back the money or restore the property at a later time is not a defense even though such intent existed contemporaneously with the act of conversion.  Boyd v. State, 217 Wis. 149, 258 N.W. 330 (1935); McGeever v. State, 239 Wis. 87, 93-94, 300 N.W. 486 (1941).

The jury is under no obligation to accept direct evidence of intent furnished by the defendant, and it may infer intent from such of the defendant’s acts as objectively evidence his state of mind.  State v. Kuenzli, 208 Wis. 340, 346, 242 N.W. 147 (1932).  In Boyd v. State, supra, the supreme court said “. . . acts intentionally committed under circumstances such as to constitute a crime are not justified by the claim of innocent intent.”  Boyd, 217 Wis. at 163

A straight theft involves trespassing into a restricted area and taking valuables from another. An employee who embezzles, on the other hand, uses their legitimate access to achieve the same goal without an invasion.  The defendant accused of this offense has by definition been given consent to hold or use the property for some purpose.  It is the use beyond the scope of this consent that is the essence of this crime.  Consent to the use of property may be expressed or implied and may result from words or from conduct involving a course of dealings between the parties.  See Boyd v. State, 217 Wis. 149, 258 N.W. 330 (1935).

Embezzlement is distinct from fraud despite its similarity to fraud due to the use of a position of trust to do harm. If the prosecution can demonstrate that there was an intent to gain the position of trust in order to commit the embezzlement, then the accused may also face fraud charges. However, the embezzlement itself is not considered an act of fraud.  Attempts to mask an embezzlement can lead to further charges, especially when legally binding reports with the accused's signature on them are altered or filled with incorrect information.

Section 971.36 sets forth a number of rules relating to the pleading and prosecution of theft cases.  Subsection (3) allows the prosecution of more than one theft as a single crime under certain circumstances:
(3)     In any case of theft involving more than one theft, all thefts may be prosecuted as a single crime if:
(a)     The property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme;
(b)     The property belonged to the same owner and was stolen by a person in possession of it; or
(c)      The property belonged to more than one owner and was stolen from the same place pursuant to a single intent and design.
The material in the instruction addresses the situation defined in subsec. (3)(a):  more than one theft from the same owner, pursuant to a single intent and design.  There is no Wisconsin case law interpreting this aspect of § 971.36.  But the Committee’s conclusion that it may be dealt with most effectively as part of the value question is supported by the case law on related issues, as described below

One felony or multiple misdemeanors?
State v. Spraggin, 71 Wis.2d 604, 239 N.W.2d 297 (1976), dealt with the receipt of several articles of stolen property.  Spraggin was charged with a felony offense, based on the receipt of multiple stolen articles (valued at more than $500) at one time.  The applicable statute, § 943.34, did not have a provision like § 971.36, so the court held that lumping multiple articles together was proper only if they were received at one time.  If there were separate receipts, separate misdemeanor charges would have been required, and a felony charge could not be supported.  The case was presented to the jury as a felony, but the jury found the value of the goods received as $180.  The court entered judgment on the basis of the felony conviction, apparently relying on the prosecutor’s contention that a 25-inch color TV was worth more than $500.  The supreme court reversed, holding that, at most, two misdemeanors were committed.
The Spraggin court held that presenting the case to the jury solely as a felony “was in effect a decision on the grade of the offense, which is clearly an issue only for the jury.”  (81 Wis.2d 604, 615, citing State v. Heyroth, the case holding that finding value in a theft case is for the jury.)  The court went on to point out that there are optional ways of proceeding in a case like this:

Since variances between the allegations and the proof may be beyond the control of the state, see:  People v. Smith (1945), 26 Cal.2d 854, 161 Pac.2d 941; State v. Niehuser (Or. App. 1975), 533 Pac.2d 834; People v. Roberts (1960), 182 Cal.App.2d 431, 6 Cal. Rptr. 161, one option is to charge in the alternative.  Likewise, the defense could request, or the state on its own, could submit the alternative charges of a single or multiple receptions, when, as in cases of lesser included charges, see:  Devroy v. State (1942), 239 Wis. 466, 1 N.W.2d 875; State v. Melvin (1970), 49 Wis.2d 246, 181 N.W.2d 490, a reasonable view of the evidence reveals that there is a reasonable basis for conviction on either.  With the alternatives phrased in terms of separate or joint receptions of multiple stolen items, the jury may decide on the evidence and thereafter grade the offense through the establishment of value.  71 Wis.2d 604, 616-17.
​
Submitting the issue to the jury seems to be required by the Spraggin case because it goes to “the grade of the offense.”  This is consistent with the position the JI Committee has taken in similar situations in the past:  if a fact determines whether a different range of penalties applies (e.g., changes a crime from a misdemeanor to a felony or from one class of felony to another), it is for the jury; if a fact only influences the length of possible sentence within a statutory range, it is for the judge.

Embezzlement Penalties
A new category – value exceeding $100,000 – was added by 2017 Wisconsin Act 287 [effective date:  April 18. 2018].  The penalties provided in subs. (3) (a) through (cm) are as follows:
 
- if the value of the property does not exceed $2,500, the offense is a Class A misdemeanor;
- if the value of the property exceeds $2,500 but not $5,000, the offense is a Class I felony;
- if the value of the property exceeds $5,000 but not $10,000, the offense is a Class H felony;
- if the value of the property exceeds $10,000, the offense is a Class G felony; and,
- if the value of the property exceeds $100,000, the offense is a Class F felony.
 
Value is determined by the market value of the property at the time of the theft or the replacement cost, whichever is less.  See WI JI Criminal 1441.
Before you may answer "yes," you must be satisfied beyond a reasonable doubt that the value of the property was more than the amount stated in the question.]
ADD THE FOLLOWING FOR FELONY CASES INVOLVING MORE THAN ONE THEFT FROM THE SAME OWNER "PURSUANT TO A SINGLE INTENT AND DESIGN," AS PROVIDED IN § 971.36(3)(a).
[In determining the value of the property stolen, you may consider all thefts that you are satisfied beyond a reasonable doubt were from the same owner and committed by the defendant pursuant to a single intent and design.].
[In determining the value of the property stolen, you may consider all thefts that you are satisfied beyond a reasonable doubt were from the same owner and committed by the defendant pursuant to a single intent and design.].
If the victim of the embezzlement is in a health care facility, then the penalty automatically begins as a Class H felony.

Courts have characterized private parties as state actors where a state allows or is involved with conduct that would be unconstitutional should the state itself engage in that conduct.  See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621–22 (1991) (“Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.”) (internal citations omitted); Reitman v. Mulkey, 387 U.S. 369, 380–81 (1967) (finding state action where law “authorize[d] . . . racial discrimination in the housing market”); Smith v. Allwright, 321 U.S. 649, 663–64 (1944) (holding that a state’s establishment of primary system made party that set up an all-white primary “an agency of the state”); Nixon v. Condon, 286 U.S. 73 (1932) (state’s conferral of authority to party committee to determine who may vote in primary created state action); Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S. 602, 615–16 (1989) (finding state action where the government removed “all legal barriers” to private conduct at issue and “made plain . . . its strong preference” that private parties engaged in the conduct).

For instance, in Shelley v. Kraemer, a white couple (Kraemers), sued a black couple (Shelleys), to stop the Shelleys from moving into the house they had just purchased in a St. Louis neighborhood.  Shelley v. Kraemer, 334 U.S. 1, 4-6 (1948) (private agreements to exclude persons of designated race or color from the use or occupancy of real estate for residential purposes do not violate the Fourteenth Amendment; but it is violative of the equal protection clause of the Fourteenth Amendment for state courts to enforce them).

The Kraemers sought to enforce the terms of a restrictive covenant that specifically excluded Blacks from occupying the property. Id. Before the Supreme Court, the Shelleys, who were unaware of the restrictive covenant when they purchased their home, argued that they had been denied equal protection of the laws. Id. at 8. Confident that racial restrictive covenants violate the Fourteenth Amendment when they involve “action by state legislature or city councils,” the Court considered whether “agreements among private individuals” to discriminate removed the state action necessary to invoke the Fourteenth Amendment. Id. at 12–13. Noting that a restrictive covenant standing alone would not violate the Constitution, the Supreme Court concluded that “here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.” Id. at 13–14.

The Supreme Court imputed the unconstitutional acts of the private individuals to the state because the state “grant[ed] judicial enforcement” of the unconstitutional act. Id. at 20. Clearly, a State cannot grant judicial enforcement of private causes that violate the Constitution.  Edmonson, 500 U.S. at 622 (“Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, our cases have found state action when private parties make extensive use of state procedures with ‘the overt, significant assistance of state officials.’”) (internal citations omitted).

Therefore, enforcement of a private agreement begins with a private individual does not immunize the State. See Shelley, 334 U.S. at 20 (“Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement.”).  Moreover, “because a sovereign state cannot commit an unconstitutional act, a state official enforcing an unconstitutional act is not acting for the sovereign state and therefore is not protected by the Eleventh Amendment.” Okpalobi v. Foster, 244 F.3d 405, 411 (5th Cir. 2001).