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

First the numbers:

1. Total homeless in Wisconsin count in 2020: 4,515.  That is about 8 per 10,000 people
2. 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.
3. 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.
4. 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.

The reality:
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.[1]  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[2] or loafing
• Eating or sharing food
• Asking for money or panhandling
• Sleeping in cars and outside or camping[3]

 
Today, all too often society’s response to the conditions above is to deploy the criminal system to convict or make life hell for the homeless.  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.  People v. Gonzalez, 7 Cal.App.5th 370 (2017) (cannot revoke probation due to homelessness); Justin v. City of Los Angeles, No. CV-00-12352 LGB (AIJx) (C.D. Cal. Dec. 5, 2000).  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.
 
The Bible says to help those who are homeless, not prosecute them. In Leviticus 25:35 God commands His people to help support those who have no home and cannot support themselves: “If any of your fellow Israelites become poor and are unable to support themselves among you, help them as you would a foreigner and stranger, so they can continue to live among you” (see also Deuteronomy 15:7–11). The Lord rebuked those who kept the outward form of religion yet did not care for the poor: “Is not this the kind of fasting I have chosen: . . . to share your food with the hungry and to provide the poor wanderer with shelter—when you see the naked, to clothe them, and not to turn away from your own flesh and blood?” (Isaiah 58:6–7).


[1] 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

[2] Loitering statutes are constitutionally suspect.  City of Chicago v. Morales, 527 U.S. 41, 53-55 (1999) ([T]he freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.); 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).

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

Woman is the nigger of the world
Yes she is, think about it
Woman is the nigger of the world
Think about it, do something about it
….
Ah yeah, better scream about it
We make her bear and raise our children
And then we leave her flat for being a fat old mother hen
We tell her home is the only place she should be
Then we complain that she's too unworldly to be our friend
Woman is the nigger of the world, yes she is
Woman is nigger to the world, Some Time in New York City, John Lennon/Yoko Ono
 

In Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___ (2022), the U.S. Supreme Court held that the Constitution of the United States does not confer any right to abortion, and overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).  Clearly, the Supreme Court is demonstrating a trend of hostility to women’s rights as it has demonstrated hostility to racial rights.
 
The Dobbs hostility to women is not something new to the American scene.  Indeed, the Declaration Of Independence states, "All men are created equal." As to females, Thomas Jefferson said: "Were our state a pure democracy, there would still be excluded from our deliberations. . . women, who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men."  Quoted in M. GRUBERG, WOMEN IN AMERICAN POLITICS 4 (1968), https://www.amazon.com/Women-American-Politics-Assessment-Sourcebook/dp/091188002X
 
Hostility to woman’s rights by the Supreme Court was clear in the case of Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875), where the the United States Supreme Court held that, while women are no less citizens than men are, citizenship does not confer a right to vote, and therefore state laws barring women from voting are constitutionally valid. The Supreme Court upheld state court decisions in Missouri, which had refused to register a woman as a lawful voter because that state's laws allowed only men to vote.  The Minor court based its decision on an interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment. The Supreme Court readily accepted that Minor was a citizen of the United States, but it held that the constitutionally protected privileges of citizenship did not include the right to vote.  

It took the Nineteenth Amendment, which became a part of the Constitution in 1920, to effectively overrule Minor v. Happersett by prohibiting discrimination in voting rights based on sex.  Professors Calabresi and Rickert provide an interesting history of the Nineteenth Amendment:

The legislative history of the Nineteenth Amendment reveals important things about its original public meaning in 1920: supporters of the Nineteenth Amendment believed and said that it would make women equal to men under the law. The Nineteenth Amendment was seen by both those who supported it and by those who opposed it as being nothing less than the final step in a process begun by the Reconstruction Amendments. The opponents‘ objection to giving women the right to vote was that they were unfit for work outside of the home and that they were unable to serve in the military or on juries because of the damage this would cause to family life. This objection was soundly rejected.  Calabresi and Rickert, Originalism and Sex Discrimination, 90 Texas Law Review 1, 86 (2011).

In support of the Nineteenth Amendment, Congressman Edward C. Little of Kansas declared that ―”[i]f common sense is more potent than the sword . . . woman should now be accorded the same opportunity to take part in life that men have always had.” Id at 87.
 
It must be understood that the Nineteenth Amendment “was understood to be a continuation of the constitutional reform that began with the Reconstruction Amendments.”  Id at 87-88.  Senator Robert L. Owen of Oklahoma specifically explained that the Nineteenth Amendment was justified and appropriate for the same reasons that the Fourteenth and Fifteenth Amendments were needed: like in the case of enfranchising the negro race, the same principle in amending the Constitution with regard to the white women of this country.  Id. at 88, citing 56 CONG. REC. 8343, 8349 (1918).  Congressman Little tied the struggle for women‘s rights to the struggle against race discrimination:
 
The long and short of the whole matter is that for centuries you have treated woman as a slave, dragged her over the pages of history by the hair, and then you pretend to think she is an angel, too good to interfere in the affairs of men. Give her now a fixed, reasonable status, as becomes a rational human being like yourself.  Id., at 89.

In response, Congressman Clark sought to play the racial AND sex fear card to block the enactment of the Nineteenth Amendment by saying:

Make this amendment a part of the Federal Constitution and the negro women of the Southern States, under the tutelage of the fast growing socialistic element of our common country, will become fanatical on the subject of voting and will reawaken in the negro men an intense and not easily quenched desire to again become a political factor.  Id. at 90

Senator Brandegee expressed the same sentiment when he quoted approvingly from a letter written to him by Charles S. Fairchild, president of the American Constitutional League: ―”[U]pon ratification, [the Nineteenth Amendment] would immediately renew the ‗reconstruction‘ and racial problems in the South, as well as double the Socialist and Bolshevist menace in  the North.”  Along the same lines, Senator John S. Williams of Mississippi  asked in horror, ―”Are you going to arm all the Chinese and Japanese and  negro women who come to the United States with the suffrage?”  Id.

The connection between the Nineteenth Amendment and the Reconstruction Amendments was recognized in Adkins v. Children‘s Hospital, 261 U.S. 525, 539 (1923), overruled W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 386–87 400 (1937). 
 
As a Professor, Justice Ruth Bader Ginsburg recognized the problem this hostility towards women presents to the law:

The High Court has not yet perceived the full dimension of current controversy surrounding gender-based discrimination. . . . Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation’s social, political, and economic life? This is a constitutional issue, Professor Karst underscored, surely one of the most important in this final quarter of the twentieth century.  Ruth Bader Ginsburg, Sex Equality and the Constitution: The State of the Art, 4 Women’s Rts. L. Rep. 143, 143–44 (1978)

Professor Ginsburg was concerned about the Court’s failure to recognize that there was textual authority for the movement’s constitutional claims—the Court’s failure to base its decisions about contraception and abortion on the Equal Protection Clause. But she was also concerned about the Court’s grasp of the social concerns at stake in the regulation of contraception and abortion, the Court’s inability to appreciate that laws criminalizing contraception and abortion define “the roles women are to play in society.”  Id.  Further, Professor Ginsburg explained this inability of the Supreme Court to understand all these issues in the proper context of sexual equality:
 
Precedent to date generally places explicit gender based differentials, illegitimacy, pregnancy, and abortion in separate cubbyholes. Roe v. Wade and Doe v. Bolton, the 1973 abortion decisions, for example, barely mention women’s rights. They are not tied to equal protection or equal rights theory. Rather, the Supreme Court anchored stringent review to concepts of personal privacy or autonomy derived from the due process guarantee. Prof. Laurence Tribe pointed out that nothing in the Supreme Court analysis in Roe v. Wade and Doe v. Bolton turned on the sex specific impact of abortion restrictions. A broader frame for these decisions might have made it more difficult for the Court to rule, as it did stunningly in June 1977, that neither the Constitution nor federal statute requires medicaid reimbursement for elective abortions. Id.  See also, Ruth Bader Ginsburg, Sex Equality and the Constitution, 52 Tul. L. Rev. 451, 462 (1978) (abortion, pregnancy, out-of-wedlock birth, and explicit gender-based differentials are part and parcel of a single, large, sex equality issue).

The issue could not have been clearer than at Professor Ginsburg’s confirmation hearing when she said when questioned by Senator Hank Brown on whether the equality reasoning extended to abortion:

[Y]ou asked me about my thinking about equal protection versus individual autonomy, and my answer to you is it’s both. This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when Government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.  THE SUPREME COURT; Excerpts from Senate Hearing on the Ginsburg Nomination, N.Y. Times, July 22, 1993, at A20

In 1986, Justice Blackmun concluded Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986), overruled by Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992) by rejecting legislation seeking to narrow the abortion right, writing:

Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision—with the guidance of her physician and within the limits specified in Roe—whether to end her pregnancy. A woman’s right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.

 

​Once stopped can police order passengers out of the car and pat them down?
Yes.   An officer making a traffic stop may order passengers out of car pending completion of the routine traffic stop.  Maryland v. Wilson, 519 U.S. 408, 413-15(1997).  Once ordered out, driver and passengers can be patted down (and under certain circumstances, cops can draw weapons, handcuff and order them to lie on the ground without stop becoming an arrest!) Pennsylvania v. Mimms, 434 U.S. 106, 111-12(1977); Houston v. Clark County Sheriff Deputy John Does, 174 F.3d 809, 814-15 (6th Cir. 199); Rohde v. City of Roseburg, 137 F.3d 1142, 1144(9th Cir. 1998); U.S. v. Tilmon, 19 F.3d 1221, 1227-28(7th Cir.1994).  Under certain circumstances, a passenger can be questioned.  State v. Donavan W. Malone, 2004 WI 108.  Compare, United States v. Gregory, 302 F.3d 805, 809 (8th Cir. 2002) ("The Fourth Amendment grants an officer conducting a routine traffic stop latitude to check the driver's identification and vehicle registration, ask the driver to step out of his vehicle and over to the patrol car, inquire into the driver's destination and purpose for the trip, and `undertake similar questioning of the vehicle's occupants to verify the information provided by the driver'")
 
Can police ask a passenger in a car to do a breath test?
Yes, but the passenger should refuse the request.  Police will often ask passengers to take a breath test even though they know none of the passengers were driving.  DUI/OWI laws only apply to the person who is driving, and if you were not in control of the vehicle then police should not even ask you for a breath test. If they do, and you have not been arrested for DUI, you have the right to refuse.
 
Requesting a breath test of a passenger allows police to look for other infractions and misdemeanors to charge a passenger. If you take the test and it reveals you were drinking, police could charge you with:
·1.    Underage drinking (if under 21).  If you are under 21. Anyone under the legal drinking age is required to submit to a breath test if suspected of any alcohol-related offense, which includes underage drinking as well as DUI.
·2,    Public intoxication in some cases.  If you are really drunk, the officer could arrest you for being drunk in public.  While no crime exists for public intoxication, the police can pick you up and take you into custody for the things you do while you’re drunk in public using the disorderly conduct statute. Or the police can hold on to you until they can transfer you to a treatment facility (either for medical treatment or rehabilitation). The state an also commit you to emergency treatment if you’ve threatened harm to yourself or others, or if you’re too incapacitated to enter voluntary treatment.  Some municipalities have ordinances that relate to public intoxication.
3.  DUI, if they claim that you had control of the vehicle  

Passengers are requested to do a breath test in one of three circumstances:

• Police aren’t sure who was really driving
• Your friend was driving, but you are the owner of the vehicle
• Police have some reason to suspect that you were driving and “switched seats” with the other person.

 
In the context of a DUI arrest, you could be considered a “driver” even if you simply had your hand on the wheel. If you briefly steadied the wheel for the driver or took control of the vehicle in any way, and you are intoxicated, you could be arrested for DUI.

Under Wisconsin’s implied consent law, Wis. Stat. section 343.305(2), anyone who operates a motor vehicle on Wisconsin’s roads “is deemed to have given consent to his or her breath, blood, or urine” to determine the presence of drugs or alcohol.  So long as a passenger is not or was not touching the steering wheel the passenger is not operating the vehicle to give implied consent.  Under Wisconsin law, “operate” "means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”
Also, in State v. Prado, 2021 WI 64 (June 18, 2021), the Wisconsin Supreme Court majority ruled that Wisconsin’s implied consent law, as applied to incapacitated drivers, is “unconstitutional beyond a reasonable doubt”.


Is it illegal to ride with a drunk driver?
No. There is nothing in Wisconsin’s statutes that makes it illegal to be a passenger in a vehicle with a drunk driver, although it is unsafe. But that doesn’t mean officers will look kindly on you if caught in this situation. If you are also intoxicated, they may seek some other grounds on which to issue you a citation. If you are sober, they may ask why you didn’t volunteer to drive, given that your friend is intoxicated. In many cases these questions are designed to trick you into incriminating the driver. Remember that you can politely decline to answer questions.

How often have you been driving on a Wisconsin road and seen the sign on the back of dump truck which states, “NOT RESPONSIBLE IF YOU ARE CLOSER THAN 500 FEET”?   Ever wonder if that sign is legal and enforceable?

About as enforceable as the a sign posted on Lake Michigan that no waves allowed on shore.
Wisconsin Statute 348.10 (2) states:
No person shall operate a vehicle on a highway unless such vehicle is so constructed and loaded as to prevent its contents from dropping, sifting, leaking or otherwise escaping therefrom.
Additionally in (5) of that statute, it states that loads shall be “distributed in a manner that will prevent side sway under all conditions of operation.” 

The Dept of Transportation advises this means that a load in a vehicle or trailer must be:
Tie it down with rope, netting, or straps
Tie large objects directly to your vehicle or trailer
Cover the entire load with a sturdy tarp or netting
Don't overload the vehicle or trailer
Always double-check your load to make sure it's secure. 
​Secure your load, https://wisconsindot.gov/Pages/safety/education/SecureYourLoad.aspx
 
At least under that statute you could get up to a $200.00 forfeiture.  It can be argued by law enforcement that failure to follow this statute resulting in great property damage, bodily harm or death is criminally reckless or negligent conduct and seek to impose incarceration and a fine.

Nearly 40% of police agencies in the U.S. did not successfully submit any data in 2021 to the FBI’s revised crime statistics collection program. It’s a large jump from past years. Police departments in New York City and Los Angeles did not submit data. Most law enforcement agencies in five of the six largest states didn’t, either. “The data gap will make it harder to analyze crime trends and fact-check claims politicians make about crime.”  What Can FBI Data Say About Crime in 2021? It’s Too Unreliable to Tell, https://www.themarshallproject.org/2022/06/14/what-did-fbi-data-say-about-crime-in-2021-it-s-too-unreliable-to-tell?utm_medium=email&utm_campaign=newsletter&utm_source=opening-statement&utm_term=newsletter-20220614-2872 

​That means those in power can say whatever they want about crime because there is no independent verification of their statements.  See, Crime and Its Consequences, Chap. 2, https://slideplayer.com/slide/12781637/; Times Investigation: LAPD misclassified nearly 1,200 violent crimes as minor offenses, https://www.latimes.com/local/la-me-crimestats-lapd-20140810-story.html#page=1  Crime rates reported by police are dependent on what crimes the police even know about. Those are going to disproportionately be crimes against older, richer, whiter citizens who are more likely to call the police.  Times Investigation: LAPD misclassified nearly 1,200 violent crimes as minor offenses, id.
 
In 2022, the FBI Quarterly Uniform Crime Report for the nation is based on data received from 10,578 of 18,769 law enforcement agencies in the country that year.  FBI Crime Data Explorer, https://crime-data-explorer.fr.cloud.gov/pages/explorer/crime/quarterly
 
The FBI, is working to improve the way the nation collects, analyzes, and uses crime statistics about law enforcement’s use of force. The collection and reporting of use-of-force data will include any use of force that results in the death or serious bodily injury of a person, as well as when a law enforcement officer discharges a firearm at or in the direction of a person.  Uniform Crime Reporting Program, https://www.fbi.gov/services/cjis/ucr/
 
With the National Use-of-Force Data Collection, data users can view use-of-force incidents involving law enforcement from a nationwide perspective. The goal of the resulting statistics is not to offer insight into single use-of-force incidents but to provide an aggregate view of the incidents reported and the circumstances, subjects, and officers involved.  Id.

​John Przybyla, 73, of Friendship, Wisconsin, was stopped for a broken tail light and erratic driving on Oct. 12 by a deputy who then smelled alcohol on his breath and saw that is eyes were blood shot.  The deputy asked Przybyla how much he had had to drink. Przybyla replied that he had not been drinking and instead had eaten beer-battered fish at a fish fry, according to police reports.  Przybyla was arrested after he failed a field sobriety test and a breath test showed he had been drinking.  He was charged with drunk driving 10th.  He eventually was convicted and sent to prison.  Man who blamed fish fry for DUI sent to prison https://www.tmj4.com/news/local-news/man-who-blamed-beer-battered-fish-fry-for-dui-sent-to-prison
.
 
Does Mr. Przybyla’s claim to law enforcement have any merit?  Incredible as it may seem, possibly.  He would need to be tested for gut fermentation syndrome or auto-brewery syndrome.  The underlying mechanism is thought to be an overgrowth of yeast in the gut whereby the yeast ferments carbohydrates into ethanol.  According to gastroenterologist Dr. Justin McCarthy a person can experience a set of circumstances that allows alcohol to be fermented within his/her own stomach and intestines.  Scott, Medical Oddities Part 2: You can brew beer in your digestive tract, Today I Found Out, http://www.todayifoundout.com/index.php/2013/10/can-brew-beer-stomach/   In all of the known cases, some type of yeast (Saccharomyces cerecisiae, or brewer’s yeast) ferments the sugars coming from carbohydrates or any sugary foods into ethanol (ethyl alcohol). Should enough ethanol be produced, you get drunk.  Id.
 
Brewer’s yeast is found in many different types of foods like breads, wine, and beer.  Brewer’s yeast is also sold as a nutritional supplement due its high levels of selenium, protein, and B-complex vitamins.  Unlike other types of baking yeasts, it’s high in chromium, an essential mineral that helps with maintaining our blood sugar levels.  Excessive brewer’s yeast in your intestine can occur due to surgery as well.  Sometimes after surgery, patients are given antibiotics to control their infection.  Unfortunately, as a consequence of these antibiotics, some of the bacteria in the patient’s digestive tract are killed off. The resulting loss allows a growth of brewer’s yeast to take hold in the patient’s gut.  See, Cordell and McCarthy, A Case Study of Gut Fermentation Syndrome (Auto-Brewery) with Saccharomyces cerevisiae as the Causative Organism, International Journal of Clinical Medicine, 309, 310 (2013), http://www.scirp.org/journal/PaperInformation.aspx?PaperID=33912#.VPBc5vnF_ZN.  Have a few sandwiches and you can get drunk!
 
It should be noted, however, that gut fermentation syndrome is mainly attributed to Asian and American Indian peoples.  It's all about enzymes. When the liver processes ethanol, the enzyme alcohol dehydrogenase first converts it to acetaldehyde. In most people a second enzyme, aldehyde dehydrogenase (ALDH), quickly converts the acetaldehyde to harmless acetate. But roughly 50 percent of Japanese and other East Asians and some American Indians (but practically no Europeans or Africans) have a mutated gene that impairs ALDH activity. Due to the fact they have no ALDH, when they consume alcohol, or their bodies produce natural ethanol, it leaves them with a build up of acetaldehyde in their system. That excess causes numerous unwanted symptoms and can also produce more ethanol, thereby giving them a higher BAC than would normally be.
 
There is a proposed clinical test for gut fermentation syndrome.  A patient is given a fasting glucose challenge of 5 Gm glucose orally. One gram of glucose is given in a hardened gelatin capsule to ensure passage into the duodenum. Blood glucose levels and blood ethanol levels were measured at 1 hour. Fasting blood alcohol levels were zero in nearly all subjects but 61% of the 510 subjects showed an increase in blood alcohol levels on the average of 2.5 mg/dl (range 1.0 - 7.0 mg/dl). This compared to near zero blood alcohol levels in the control group given the same challenge. The phenomenon of gut fermentation was summarized with the above proposed diagnostic method.  K. Eaton, “Gut Fermentation: A Reappraisal of an Old Clinical Condition with Diagnostic Tests and Management: Discussion Paper,” Journal of the Royal Society of Medicine, Vol. 84, No. 11, 1991, pp. 669-671.
 
In the prosecution of OWI/DUI cases, the concentration of ethanol in blood, breath or urine because of drinking alcohol constitutes important evidence for prosecuting drunk drivers.  But what if the reliability of the results of forensic alcohol analysis are often challenged by body brewing its own alcohol?. One such argument for acquittal concerns the notion that alcohol could be produced not by drinking alcohol but because the person had eaten food and was suffering from auto-brewery syndrome.
 
CONTACT ATTORNEY PAUL KSICINSKI AT 414-530-5214 ON A POSSIBLE DEFENSE TO YOUR OWI/DUI CASE

So what type of government is it that seeks to minimize, or worse, have citizens waive rights the government knows the citizen has a right to?  Russia?  China?  Maybe.  But also include America in that list.

An individual who desires fifth amendment protection must say or assert the right to remain silent.  Silence is not an invocation of the right to be silent.  Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174, 2179 (2013); Berghuis v. Thompkins, 560 U.S. 370 (2010); United States v. Monia, 317 U.S. 424, 427 (1943) (if a witness "desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment").  When an individual does not object, and instead makes damaging disclosures in response to questioning, the privilege is forfeited and there is no later right to object to the use of the statements in a subsequent criminal trial. Rogers v. United States, 340 U.S. 367, 370-71 (1951) (an individual who testifies before a grand jury without claiming the privilege may not later object to the use of incriminating statements against her).  The only exception to this rule is if a person is "compelled" to give incriminating testimony.  Uniformed Sanitation Men v. Commissioner of Sanitation, 392 U.S. 280, 284-85 (1968) (dismissal of government employees because they had asserted the privilege and refused to testify violates fifth amendment).
For example, a person may claim the privilege by stating, "I refuse to answer on the ground of the fifth and sixth amendment privilege against self-incrimination." Or  “I am invoking my right to remain silent and won’t be answering any more questions without a lawyer.”  But no precise formula is required:

[i]t is agreed by all that a claim of privilege does not require any special combination of words. . . .
[T]he fact that a witness expresses his intention in vague form is immaterial so long as the claim is sufficiently definite to apprise the [court] of his intention.  As everyone agrees, no ritualistic formula is necessary.  Quinn v. United States, 349 U.S. 155, 162 (1955), cited in State v. Worgull, 128 Wis.2d 1, 13, 381 N.W.2d 547 (1986).

The Supreme Court has noted that all that is necessary to invoke the privilege is an objection stated in language that can be understood as an attempt to assert the privilege.  Quinn v. United States, 349 U.S. 155, 165, 163-65 (1955) (references to "the first and fifth amendment" and "the first amendment to the Constitution, supplemented by the fifth amendment" in refusing to answer questions held sufficient to invoke the privilege's protection). See also Emspak v. United States, 349 U.S. 190, 194 (1955) (statement that refusal to answer   was based "primarily [on] the first amendment, supplemented by the fifth" held sufficient to invoke the privilege against self-incrimination).

After saying you are invoking your right to remain silent, SHUT UP!  Remain silent.  Do not ask any questions of the police or that can be viewed as a waiver of your invoking your right to remain silent.  If you are lawfully detained, you can tell the officer your name, address, and date of birth without waiving your rights.  The only way to prevent the government from introducing evidence of a suspect's silence at trial is to explicitly invoke (assert) the right to say nothing.

People sometimes ask: “Won’t invoking my right to remain silent make me look guilty.” Maybe, but if your case goes to trial, the jury will never be told that you invoked your rights. In other words, the fact that you remained silent cannot be used against you at trial.
 

In SHINN, DIR ECTOR, ARIZONA DEPARTMENT OFCORRECTIONS, REHABILITATION AND REENTRY v. MARTINEZ RAMIREZ decided May 22, 2022, The US Supreme Court has begun its march to destroy the Sixth Amendment.   https://www.supremecourt.gov/opinions/21pdf/20-1009_19m2.pdf

Justice Sonia Sotomayor wrote the dissent. “The Sixth Amendment guarantees criminal defendants
the right to the effective assistance of counsel at trial. This Court [in Martinez] has recognized that right as ‘a bedrock principle’ that constitutes the very ‘foundation for our adversary system’ of criminal justice,” she wrote. “Today, however, the Court hamstrings the federal courts’ authority to safeguard that right. The Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.”

“In reaching its decision, the Court all but overrules two recent precedents that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court,” she continued.

This decision is perverse. It is illogical: It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings, as Martinez and Trevino did, but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim. In so doing, the Court guts Martinez’s and Trevino’s core reasoning. The Court also arrogates power from Congress: The Court’s analysis improperly reconfigures the balance Congress struck in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) between state interests and individual constitutional rights.
 
By the Court’s telling, its holding (however implausible) is compelled by statute. Make no mistake. Neither AEDPA nor this Court’s precedents require this result. I respectfully dissent.

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We tell our kids to not hang around with liars.  Why?  You cannot trust a liar to not hurt you. What if the liar is a really important person?  Is there a different standard for lying by important people?

In his tentative draft, https://www.politico.com/news/2022/05/02/read-Justice-Alito-initial-abortion-opinion-to overturn-roe-v-wade-pdf-00029504 overruling Roe v. Wade Justice Alito flatly declares the following:

Roe was always wrong from the start.”  Roe is a failure logic, text and history.

However, at his nomination hearing Alito said:

“Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time," he said. "It is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels."  What conservative justices said — and didn't say — about Roe at their confirmations (NPR 5.3.22) https://www.npr.org/2022/05/03/1096108319/roe-v-wade-alito-conservative-justices-confirmation-hearings.  Emphasis added.

Notably absent from this comment any statement about how Roe was wrong from the start.

On September 11, 1991, Clarence Thomas said:
Do I have a personal opinion to overturn Roe v. Wade?  The answer is I do not.  Lying Under Oath? See Supreme Court Nominees On ‘Roe’ Precedent Amid Explosive Leaked Draft Ruling( MSNBC 5.4.22) https://www.youtube.com/watch?v=MPZGJinuKWY
 
On March 21, 2001 Neil Gorsuch took the uncontroversial line that Roe is a precedent. Precedent is the "anchor of law," he said. "It is the starting place for a judge."

"I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed," he said. "A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other."
Sen. Dick Durbin, D-Ill., asked about a book Gorsuch wrote in 2006 advocating against legalizing assisted suicide.
In the exchange, Gorsuch acknowledged that the Supreme Court had held that a fetus is not a person for the purposes of the 14th Amendment's due process clause, a legal underpinning of Roe v. Wade.
"Do you accept that?" asked Durbin.
"That is the law of the land. I accept the law of the land, senator, yes," Gorsuch replied.  What conservative justices said, supra and Lying Under Oath?, supra.

On Sept. 5, 2018, Brett Kavanaugh said

"Judges do not make decisions to reach a preferred result. Judges make decisions because the law and the Constitution as we see them compel the results," he said in his opening remarks.
In a private meeting between Kavanaugh and Sen. Susan Collins, R-Maine, who said the nominee had told her he considered Roe to be "settled law" and reaffirmed over the past 45 years.  Id.

Finally on Amy Coney Barrett on Oct 13, 2020 said
In answer to questions by Sen. Amy Klobuchar, D-Minn., who asked if Barrett considered Roe to be a "super-precedent."
Barrett answered by defining super-precedent as "cases that are so well settled that no political actors and no people seriously push for their overruling."
"And I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category," she said.
"Roe is not a super-precedent because calls for its overruling have never ceased. But that doesn't mean that Roe should be overruled. It just means that it doesn't fall in the small handful of cases like Marbury v. Madison and Brown v. Board that no one questions anymore," she added.

The issue here is not what you think of Roe.   The issue is what you think of government officials who lie to further their own agenda.  As stated in the Wisconsin Code of Judicial Conduct, SCR 60:
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Our legal system is based on the principle that an independent, fair  and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all provisions of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.
That is the damage to the legal system: a loss in the confidence in the legal system.  “The judiciary cannot exist without the trust and confidence of the people. Judges must, therefore, be accountable to legal and ethical standards.”  David J. Sachar, Judicial Misconduct and Public Confidence in the Rule of Law (UNODC Aug. 2019) https://www.unodc.org/dohadeclaration/en/news/2019/08/judicial-misconduct-and-public-confidence-in-the-rule-of-law.html.  “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities, Code of Conduct for United States Judges, https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges

Law is not mathematical equation.  That’s because justice is an abstract ideal, much like infinity, that can be talked about, but never fully understood.  As the great Bertrand Russell said in Chap.7 of Unpopular Essays entitled, "An Outline of Intellectual Rubbish" (1950), https://www.academia.edu/38060105/Bertrand_Russell_Unpopular_essays:

“The most savage controversies are those about matters as to which there is no good evidence either way.”

Russell uses this short piece to go on a rant about how stupid people can be especially when they get together in groups and tempers run high.

Currently, there is a savage controversy raging that the use of mathematical equations can be used to attain justice in cases.  From how much time someone should receive after a criminal conviction to whether a child should remain with the child’s parents, people are trying make decisions based on secret mathematical equations or algorithms.

To paraphase Mark Twain, there are three types of lies: there are lies, damn lies and algorithms.

COMPAS: sentencing by magic square
In State v. Loomis, 881 N.W.2d 749, 767 (2016) the Supreme Court of Wisconsin held that the use of a proprietary risk assessment tool—called COMPAS, the algorithm was originally developed to help parole boards assess recidivism risk—at sentencing, did not violate the defendant’s due process rights to be sentenced (a) individually and (b) using accurate information.  COMPAS’s author, Northpointe, Inc., refused to disclose its methodology to the defendant or even the court.  Northpointe, Inc. indicated that the algorithm is proprietary and to disclose it would leave the company vulnerable to competitors.

COMPAS’s output—a risk assessment score—was referenced by both the State and the trial court during sentencing in Loomis. Because the algorithm deemed the defendant to be at high risk of recidivism, the sentencing court denied him the possibility of parole and handed down a six year sentence.

Despite upholding COMPAS’s constitutionality, the Court placed numerous restrictions on its use. COMPAS cannot be used to determine whether an offender should be incarcerated, or to calculate the length of his or her sentence.  Its use had to be accompanied with an independent rationale for the sentence, and any Presentence Investigation Reports containing the score had to contain an elaborate, five-part warning about the algorithm’s limited utility.  The defendant appealed to the Supreme Court, which declined to hear the case.

COMPAS is biased against black defendants.
An algorithm that accurately reflects our world also necessarily reflects our biases.  In other words, an algorithm is only as good as the data upon which it is based:

Simply put, decision-making algorithms work by taking the characteristics of an individual, like the age, income and zip code of a loan applicant, and reporting back a prediction of that person’s outcome—for example, the likelihood they will default on the loan—according to a set of rules. That prediction is then used to make a decision—in this case, to approve or deny the loan.

Algorithms often learn the rules for making predictions by first analyzing what’s known as “training data” to discover useful patterns and relationships between variables. The patterns or algorithmic insights gleaned from the training data become the basis for rules governing future decisions and predictions.

However, if the training data is biased then the algorithm can pick up on that pattern of discrimination and replicate it in future decisions. For example, a bank’s historical lending data may show that it routinely and unfairly gave higher interest rates to residents in a majority Black ZIP code. A banking algorithm trained on that biased data could pick up on that pattern of discrimination and learn to charge residents in that ZIP code more for their loans, even if they don’t know the race of the applicant.  ALGORITHMIC BIAS EXPLAINED: HOW AUTOMATED DECISION-MAKING BECOMES AUTOMATED DISCRIMINATION (The Greenlining Institute FEBRUARY 18, 2021), https://greenlining.org/wp-content/uploads/2021/04/Greenlining-Institute-Algorithmic-Bias-Explained-Report-Feb-2021.pdf

COMPAS has been found to have an algorithmic bias.  Bias is defined as outcomes which are systematically less favorable to individuals within a particular group and where there is no relevant difference between groups that justifies such harms.  Nicol Turner Lee, Paul Resnick, and Genie Barton, Algorithmic bias detection and mitigation: Best practices and policies to reduce consumer harms, (Brookings Institution May 22, 2019) https://www.brookings.edu/research/algorithmic-bias-detection-and-mitigation-best-practices-and-policies-to-reduce-consumer-harms/

COMPAS is skewed towards labeling black defendants as high risk and white defendants as low risk in violation of the equal protection clause.  Julia Angwin et al., Machine Bias: There’s Software Used across the Country to Predict Future Criminals. And It’s Biased against Blacks, PROPUBLICA (May 23, 2016), https://www.propublica.org/article/machine-biasrisk-assessments-in-criminal-sentencing  This is a flaw which cannot go unnoticed by this Court.  See, Farhan Rahman, COMPAS Case Study: Fairness of a Machine Learning Model COMPAS Case Study (Towards Data Science Sept. 7, 2020), https://towardsdatascience.com/compas-case-study-fairness-of-a-machine-learning-model-f0f804108751
 
Specifically, the COMPAS recidivism algorithm was biased in that:

• Black defendants were often predicted to be at a higher risk of recidivism than they actually were. Our analysis found that black defendants who did not recidivate over a two-year period were nearly twice as likely to be misclassified as higher risk compared to their white counterparts (45 percent vs. 23 percent).
• White defendants were often predicted to be less risky than they were. Our analysis found that white defendants who re-offended within the next two years were mistakenly labeled low risk almost twice as often as black re-offenders (48 percent vs. 28 percent).
• The analysis also showed that even when controlling for prior crimes, future recidivism, age, and gender, black defendants were 45 percent more likely to be assigned higher risk scores than white defendants.
• Black defendants were also twice as likely as white defendants to be misclassified as being a higher risk of violent recidivism. And white violent recidivists were 63 percent more likely to have been misclassified as a low risk of violent recidivism, compared with black violent recidivists.
• The violent recidivism analysis also showed that even when controlling for prior crimes, future recidivism, age, and gender, black defendants were 77 percent more likely to be assigned higher risk scores than white defendants.  Jeff Larson, Surya Mattu, Lauren Kirchner and Julia Angwin,  How We Analyzed the COMPAS Recidivism Algorithm (Propublica May 23, 2016), https://www.propublica.org/article/how-we-analyzed-the-compas-recidivism-algorithm

Likewise, there is now a push to have child neglect investigations to be based on algorithms.  These algorithm in its first years of operation showed a pattern of flagging a disproportionate number of Black children for a “mandatory” neglect investigation, when compared with white children. SALLY HO and GARANCE BURKE, An algorithm that screens for child neglect raises concerns (AP News April 29, 2022), https://apnews.com/article/child-welfare-algorithm-investigation-9497ee937e0053ad4144a86c68241ef1. Independent researchers, who received data from the county, also found that social workers disagreed with the risk scores the algorithm produced about one-third of the time.  The algorithm is powered by data mostly collected about poor people an outsized role in deciding families’ fates.  Like COMPAS, the child neglect algorithm reinforces existing racial disparities in the child welfare system.