Saturday, July 31, 2010

Ninth Circuit denies Arizona's request for expedite immigration law appeal

The news is that the US Court of Appeals for the Ninth Circuit denied Arizona's request for an expedited appeal. This isn't a rejection of the appeal itself. The court has scheduled an opening brief for August 26 and a hearing sometime in the first week of November.

 Be prepared for continued heated debate on the immigration issue.

Friday, July 30, 2010

Lawsuit filed in Hawaii for recognition of same-sex civil unions

This is an interesting story. Lambda Legal and the American Civil Liberties Union filed a lawsuit yesterday to for Hawaii to recognize same sex civil unions. If successful, the lawsuit would grant the same rights as marriage to same sex civil unions.

The lawsuit bases its claims on violations of equal protection, due process and privacy of same sex couples.

Same sex civil unions are already recognized in Washington, New Jersey, Oregon and Nevada. Same sex Marriage is recognized in DC, Vermone, New Hampshire, Iowa, Connecticut and Massachusetts.

What happened to the Fourth Amendment?

Several rulings came out of the Wisconsin Supreme court dealing a blow to the Fourth Amendment.  As we go over these decisions keep in mind the importance of knowing your rights as we face the erosion of our right against unreasonable searches and seizures.

There were a total of six cases, we'll discuss the two with arguably the largest impact for the citizens of Wisconsin.

In State v. Pinkard, No. 2008AP1204-CR, Police Officers received an anonymous tip regarding two persons sleeping in their home with cocaine, scales, and cash inside.  When officers arrived at the home they knocked and announced their presence.  When there was no answer, the Officers decided to enter the home without a warrant.  Sound like an illegal entry?  The court ruled that the officers could have been "concerned" about the occupants overdosing on drugs and found the search to be legal.

The second case we'll discuss also deals with a search of a house.  When you read these two cases together, you'll notice an interesting dynamic as pointed out in the dissenting opinion.  State v. Robinson, No. 2008AP266-CR, deals with a case where officers knock and announce their presence at a home.  When they heard running footsteps they decided to break into the house without a warrant.  Most would think this to be an unlawful entry.  The court ruled that the warrantless entry was justified under exigent circumstances to prevent the destruction of evidence.

In the dissenting opinion, Justice Bradley points out a fundamental problem with these rulings:  "If the suspect opens the door, that suspect may be found have voluntarily consented to the search [Artic]. If the suspect refuses to open the door and officers hear movement inside, there may be exigent circumstances due to the possibility of the destruction of evidence [Robinson]. If no one answers the door, concern for the well-being of the occupants of what sounds like a drug house may justify entry under the community caretaker exception [Pinkard] (emphases in original)."

Basically, Officers in Wisconsin can enter your home without a warrant virtually anytime.  Sorry Wisconsonians, What happened to the Fourth Amendment?

Thursday, July 29, 2010

Where is Immigration Reform Headed?

Now that portions of the Arizona law was blocked, where is the law headed next?  

The blocking of the law doesn't appear to be dampening the spirits of local law enforcement in Arizona at all.  Of course, before yesterdays ruling, the Sheriff of Maricopa County was encouraging demonstrators to follow the law and work within the spirit of the law to make changes if they disagree with the legislation.

Today, despite a Judge's ruling striking key provisions of the law, the Sheriff is still planning a sweep of immigrant neighborhoods.  It begs the question of what they are looking for is presumably they shouldn't be asking immigrants for their papers?  I suppose only the protesters are encouraged to follow the law, local law enforcement doesn't need any such reminders to do so.

In light of the ferocious debate on both sides of the issue, it's interesting to consider the path that Arizona is headed:

So, let's just require a sector of our population to carry papers because we have some suspicion that certain ethnic groups enter the country illegally.

Of course, we must require that local law enforcement have some reasonable suspicion other than race to detain people and request to see their papers. This is a quandary that is not easily solved. How does one suspect that a person is an undocumented immigrant without taking into account their race?

The answer is obvious. We should have all persons of a particular ethnic group wear some kind of symbol which is easily visible on their outer clothing to indicate that they are lawful immigrants. Of course, it would be a serious felony for an undocumented immigrant to forge such a symbol. It would also be a crime for a legal immigrant to give assistance to an undocumented immigrant.

This would make it simplicity itself to spot the undocumented immigrants easily and move them into the local immigration detention facilities. It would also discourage any lawful immigrants from giving help to their undocumented friends or relatives.

In addition, the lawful immigrants who assist their undocumented brethren could similarly be detained and sent to prison or perhaps housed in a detention facility for aiding and abetting.

In order to enforce these laws, we could make it a crime for all the lawful immigrants to go into public without wearing their immigration symbol boldly where law enforcement can easily view. If it is obscured in any manner, the local law enforcement can detain the person for attempting to hide their immigration status.

And so on...

Of course, this is a hypothetical situation that wouldn't ever really happen, could it?  Any history buffs in the audience?

Immigration Protesters Arrested in Arizona

Judges ruling doesn't prevent the Maricopa County Sheriff from conducting a sweep of immigrant neighborhoods in Arizona.
Meanwhile demonstrators are arrested in Arizona. The reality for immigrants living in Arizona is that they still face the prospects of strict racial profiling. While a judge may say that portions of the law cannot go into effect, the fear of racism still lives in the streets.
Back in the courtroom, Arizona has already appealed the judge's decision, asking the appellate court to lift the ban.

Wednesday, July 28, 2010

What to do if You are Stopped by the Police

This is probably a good time to review some of your rights if you are stopped by the police.  Keep in mind that these are general discussions and never a substitute for advice from an attorney.  The best advices is to always consult with an attorney if you have legal problems.

The first thing to remember, is that as a general rule, you can not be detained without a warrant or reasonable articulable suspicion of a crime.  If you are stopped on the street without a warrant, keep in mind that you are never required to give consent for a search of your person.  An officer cannot generally search you without probable cause.  You should make it clear that you are not consenting to any search.  Without consent, your attorneys may be able to argue for any evidence against you to be thrown out.  

If you are in your home and police 
come to your door, keep in mind that they can not enter your home without your consent or a warrant.  Again, make clear that you are not giving consent for them to enter their home, even if they present a warrant, make it clear that the search is based solely on the warrant and you are still not giving consent.  There are occasional rare instances where officers can enter if there is a clear emergency situation (someone screaming bloody murder, etc.)   More than likely in those situations they will not be stopping to ask for consent.

Finally, if you are arrested, be aware of your right to a lawyer and your right to remain silent.  In my previous posts, I discussed the erosion of Miranda Rights.  Basically, the latest rulings by the Supreme Court virtually does aware with Miranda Rights unless someone clearly invokes the rights.  If you simply remain silent, or say something to the effect of "I think I want a lawyer..."  The police may be able to continue questioning you for hours until you break down.  You must say unequivocably, "I invoke my right to speak to my lawyer before any questioning."  Do not give any explanations, excuses, or stories.  Give your name and address and ask to see a lawyer immediately.  For further insurance also tell them you are immediately invoking your right to remain silent.

Arizona Immigration Law Ruling: What Happens Now?

The news today is greeted with mixed results. While the opponents of the law are celebrating, it is tampered by the realization that Arizona is filing an expedited appeal. Expect that the legal battle will continue for some time to come.
But in reality, a great portion of the law will still go into effect. Expect that there will be no sanctuary cities in Arizona. Also, the law will provide stricter restrictions against hiring day laborers as well as illegal immigrants. The portions of the law that make it economically difficult for immigrants to survive in Arizona are mainly intact.
Don't forget also, that although the most heavy handed provisions of the law are blocked, it has not changed the local sentiments against immigrants. Immigrants will still face the same struggles. The question remains does one Judge's ruling prevent Hispanics from being targeted and harassed by local law enforcement?

Court blocks portions of Arizona Immigration Law

In a controversial ruling marking victory for the Immigration law's opponents.  A judge blocks some of the most significant portions of the law.

"There is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new (law)," Bolton ruled. "By enforcing this statute, Arizona would impose a 'distinct, unusual and extraordinary' burden on legal resident aliens that only the federal government has the authority to impose."

Police making preparations to enforce Ariz. immigration law

Tomorrow, the new immigration law in Arizona goes into effect.  In the most populous county in Arizona, the Maricopa County Sheriff says he's "not going to put up with any civil disobedience." As he states it's "a crime to be here illegally and everyone should enforce" the new law.  He's already indicating his intent to enforce the law to it's fullest by preparing a large outdoor jail for the immigrants he intends to round up.

Tuesday, July 27, 2010

Bell City Salary Scandal

Bell is a small town in Los Angeles county.  If you haven't heard, there LA Times recently broke a story on the salaries that city officials have been receiving.  As an example the Bell City Manager was receiving a salary of $784,637 annually.  This news has sparked outrage and may lead to criminal charges.  But let's put into perspective what this really means.  These salaries are paid by the taxpayers.  Aside from just the money, what did the diversion of those funds cost the city?  Let's just say the City Manager paid himself a reasonable salary in the range of $100,000.  That would have left $648,000 for the city that could have been used for other purposes.

For example, most people are aware that there is a lack of funding for more teachers.  At an average salary of $30,000 for a new teacher, that money could been used to hire 21 new school teachers.  What about things for our children?  A new school desk can be found online for about $68.00.  That works out to about 9,529 brand new school desks for the children.  New textbooks?  A geometry book on Amazon lists for $84.72.  At that price, we could have supplied high school students with over 7,600 new geometry books.  

Arizona Law to go into Effect Thursday

Barring a preliminary injunction, Arizona's SB 1070 will go into effect on Thursday.  Under the new law, it will be a state crime for undocumented immigrants to be in Arizona, the only state with such a law in its books.  Opponents predict that the far-reaching legislation will lead to racial profiling a violations of equal protection.  Under the new law, local police will have the power to ask about immigration status solely on reasonable suspicion that the person is undocumented.  It is yet unclear how reasonable suspicion will be determined.  
In reaction, many immigrants are considering fleeing the state.  Others live in constant fear of leaving their own homes.  Opponents of the law have filed legal challenges based on civil rights violations and infringement on Federal powers.  It remains to be seen whether the law will survive.

The Arizona Immigration Law Debate

The new Arizona law goes into effect this week. The new law will require police officers to question people if there is reason to believe they are in the country illegally.

Currently, Civil rights groups are challenging the new law in court, arguing that it allows police to use racial profiling to go after suspected illegal immigrants. At the same time, others groups support the law as an effort to reduce the impact of illegal immigration in America. The passions on both sides are running high.

Supporters of the law point out that the federal government has been ineffective in stemming the tide of immigrants entering the country. There are an estimated 460,000 undocumented aliens residing in Arizona. The fear is that these undocumented aliens have a negative affect on American jobs and wages.

At the same time, while acknowledging that illegal immigration is an issue, civil rights groups are concerned that the tough new law is not the proper way to solve the problem. The great fear is that police officers will target hispanics solely on their race. Many worry that citizens of hispanic decent will get caught up in the wide net of racial profiling.

Supporters of the law point out that the law only codifies current practices of the Arizona police force: As a general rule, if a person is arrested for a crime, their immigration status is checked by immigration authorities and they are flagged for deportation if they are undocumented.

However, many wonder why there would be a need for the passage of a new law if it has no affect on current practices. There is also the fear that the law will act for a shield for bad cops to engage in racist practices.

In the back of the minds of many, the question remains, with the passage of this law are we one step removed from requiring Hispanics to wear a patch on their clothing to indicate whether they are lawfully in the country?

The Demise of Miranda

Earlier this year, the Supreme Court released their 5-4 decision in the case of Berghuis, Warden v. Thompkins. In this case, the defendant Thompkins remained silent for two hours and forty five minutes of interrogation. Finally, he was asked, "Do you believe in God?" and "Do you pray to God to forgive you for shooting that boy down?" He answered, "yes." Thompkins was convicted at trial and sentenced to life without the possibility of parole.
On appeal, Thompkins argues that his right to remain silent was invoked by his very act of refusing to respond to the questioning Initially, the US Court of Appeals agreed with his arguments that three hours of silence throughout constant questioning constituted an invocation of Thompkins' right to remain silent. However, the Supreme court reversed that decision in a 5-4 vote.
In the majority opinion, the Supreme Court alters the original Miranda rights. While suspects are still entitled to be read their rights, they must make a clear and unambiguous statement that they do not want to talk to the police. Simply remaining silent will not invoke their right. If a suspect answers any question, their right is considered waived.
The ultimate impact of this ruling is that it is now possible for the police to continue interrogating a subject for any length of time until they obtain a confession. Unless a suspect expressly announces that they are invoking their right to remain silent, they may unintentionally waive their rights.
The dissenting opinion warns that such a ruling presumes that a suspects rights have been waived even if their is no clear expression of their intent to do so. As Justice Sotamayor states, the opinion is "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation..."
The conclusion of this ruling is basically that a suspect is presumed to have waived their rights unless they have expressly invoked them.
Attorneys should begin to teach their clients to say "I am hereby expressly invoking my right to remain silent and my right to have my attorney present during any questioning." (At least until the Supreme Court rules that expressly invoking the right is not enough)

Monday, July 26, 2010

You may already be an American Citizen

With the advent of stricter immigration laws, such as the one in Arizona, requiring residents to carry proof of citizenship, there may be an entire sector of the population whose rights are being affected without their knowledge.
While, most Americans are citizens either by birth or through naturalization, there are many others who are citizens through other parts of immigration law and don't even know it. These people often will have no documentation or even believe themselves to be "illegal" aliens, however if one is a citizen by law, the lack of documentation will never change that fact. A citizen by law does not need to take any citizenship or naturalization test to become citizens, they just need to obtain the proof of their citizenship.
This article is not a discussion regarding amnesty. Specifically, the article focuses on the possibility of one's citizenship status by virtue of their parent's or grandparent's citizenship status, or their place of birth.
There are certain laws that dictate how one can become a citizen. It is common knowledge that if one is born within the United States, they are citizens. However, there are also instances of citizenship for those born outside the United States.
While the laws have changed over time, so one should always consult with an immigration attorney, there are some typical instances where one may already be a citizen even if born outside of the United States.
For instance, under certain circumstances, a child born to American citizens outside of the United States may also be American citizens. Factors to consider may be the length of time the American parent resided in the United States, or whether the parents were married at the time of the birth.
One can also become a citizen by law even if they are not citizens at birth. It is possible to acquire American citizenship through your parent. This typically can occur if one's parent becomes a naturalized citizen while they are a minor. An example of this would be if one had a green card as a minor, but during that time their parent becomes a naturalized citizen. In such a case, the minor would not need to take a citizenship test, as they may be a citizen by law and not even aware of it. It likely is not uncommon for some of those minors to believe that they have become undocumented aliens when their green card expires.
It is in those cases, that one should absolutely consult with an immigration attorney to obtain a professional opinion on their case. As an undocumented citizen, one could face potential detention by immigration authorities even though they are a United States citizen, simply for a lack of proof. With proper advice and planning, one could establish their legitimate claim to citizenship and avoid an unnecessary deportation proceeding by obtaining their certificate of citizenship or U.S. passport.

Arizona law rallies planned

The protesters include immigrant students, religious leaders, day laborers and members of several unions including the United Food and Commercial Workers Union, the Teamsters and the Utility Workers of America Union.
As a defiant act against Arizona's new immigration law illegal immigrants demonstrators plan a march on Phoenix just days before the legislation becomes law....
Their claims of racial profiling illegal state law that's unconstitutional .
Immigrant groups and A.F.L C.I.O plans to be in the demonstration , protest ..
Read more…

Sunday, July 25, 2010

Federal judge won't block all of Arizona's immigration law

The fate of Arizona's tough new immigration law now sits in the hands of U.S. District Judge Susan Bolton.  Bolton held hearings Thursday on two of the highest-profile legal challenges to Senate Bill 1070, making attorneys on both sides of the aisle sweat as she challenged their legal arguments and forced them to focus on specific portions of the law.
She didn't issue a ruling, and it is unknown when she will. But the clock is ticking toward next Thursday, when the law goes into effect.  Bolton did make one thing clear: She has no intention of invalidating the entire law but is considering halting the enactment of a handful of its 14 sections.  The hearings brought out high-profile politicians, media from across the country, high-powered attorneys and hundreds of the law's supporters and opponents...

Economist say immigration, legal or illegal, doesn't hurt American Workers

Do immigrants take American jobs? It's been a common theme among many that immigrants have been a drain on the economy and costing tax payers hard earned dollars.  Additionally, there's also been the claim that immigrants take jobs that would otherwise go to American workers.

But most economists and other experts say there's little to support these claims. Study after study has shown that immigrants grow the economy, expanding demand for goods and services that the foreign-born workers and their families consume, and thereby creating jobs. There is even broad agreement among economists that while immigrants may push down wages for some, the overall effect is to increase average wages for American-born workers.