JON KATZ, P.C. - Criminal / Drunk Driving Lawyer for Maryland, Virginia, DC - Constitutional Law

"You're not wanted in these parts."

nospam@example.com (Jon Katz) — Tue, 16 Sep 2008 00:00:00 -0400

The late Supreme Court Justice Thurgood Marshall knew the ugliness of racism in Maryland right through his bones. In one televised interview, Justice Marshall recounted one day as a youth, when he was in a section of Baltimore where he could not find a bathroom other than those designated for white people only. Unable to find a bathroom where he would not get arrested for answering the call of nature, he decided to use the bathroom at home far away, but by that time, the urine was running down his leg. The ugliness of segregation did not stop there. As only a for instance, Justice Marshall wanted to enroll in the University of Maryland law school, but he knew the school did not admit African Americans, so he enrolled in Howard University law school. I understand that he declined an invitation to attend the opening ceremony decades later of the Thurgood Marshall library at the University of Maryland, thus helping to avoid whitewashing the school's shameful racist, segregationist past.

Even after Justice Marshall won the Brown v. Board of Education school desegregation case in the United States Supreme Court, blatant segregation continued in Maryland. In fact, Robert M. Bell -- the Chief Judge of Maryland's highest court -- was arrested in 1960 and convicted for trespass in a Baltimore restaurant desegregation sit-in. The United States Supreme Court left it up to the Maryland courts to decide whether the intervening change in Maryland's sit-in/trespassing laws would dictate a different result. Unfortunately, the Maryland Court of Appeals said no. Bell v. Maryland, 236 Md. 356 (1964).

This past Sunday, I saw a Montgomery County, Maryland, police officer take a man down face first onto the pavement when the large police officer apparently was not satisfied with the apparent stiffness of the much older and smaller man's body when the officer tried to complete his search of the man after arresting him for trespassing, for allegedly violating a written stay away order from the Seven Eleven store where he seemed to be unobtrusive enough outside the store when I entered before the cop arrived. I watched the whole ordeal for quite some time. The arrested man looked disoriented and seemed to be looking in my direction for help. What useful help could I have given other than to offer my services pro bono? I wondered whether the court commissioner would impose a bond oh him, and whether he had money to pay a bond. The sole consolation there as far as the court system is concerned is that at least this county's public defender's office provides legal representation at bond hearings, but the inmates appear only on closed circuit television, and the public defender lawyers ordinarily do not have an opportunity to meet with them before such initial bond hearings.

Today, cops are not permitted to enforce segregation. However, when a store hands a customer an order not to return, who knows whether the stay away notice is based on racial reasons? In this instance, I have no reason to believe that this arrested man was being banished from the Seven-Eleven or arrested for racial reasons. I have no reason to know either way whether the man was banished for good reasons, either (e.g., for trying to shoplift before) or bad ones. His arrest on the one hand seemed very removed from the shameful days when Thurgood Marshall could not find a bathroom open to him (though this man was born when segregation was very alive and well in Maryland), and when Robert Bell had his trespass/sit-in conviction upheld by Maryland's highest court. However, how rampant is unspoken segregation still with us today in the United States, from the many overwhelmingly lily-white country clubs, to the apartment leasing agents who tell an African American couple that no apartments are available but then rent to the white couple that arrives five minutes later, to the taxi driver who passes an African American woman clearly waving for the cab and then picks up two white women two blocks later (and who urges me to hush when I insist that he tell his passengers to vamoose and that he pickup the woman he snubbed)? The list goes on and on. What will you do to erase that list? Jon Katz

ADDENDUM: When the United States Supreme Court reviewed Robert Bell's above-discussed trespassing conviction, dissenting justice Hugo Black -- who belonged to the Ku Klux Klan when a lawyer in Alabama -- included the following footnoted excerpt (n.2) of the restaurant owner's testimony painting himself as a buck-passing anti-segregationist victim of economics: "'I set at the table with him and two other people and reasoned and talked to him why my policy was not yet one of integration and told him that I had two hundred employees and half of them were colored. I thought as much of them as I did the white employees. I invited them back in my kitchen if they'd like to go back and talk to them. I wanted to prove to them it wasn't my policy, my personal prejudice, we were not, that I had valuable colored employees and I thought just as much of them. I tried to reason with these leaders, told them that as long as my customers were deciding who they wanted to eat with, I'm at the mercy of my customers. I'm trying to do what they want. If they fail to come in, these people are not paying my expenses, and my bills. They didn't want to go back and talk to my colored employees because every one of them are in sympathy with me and that is we're in sympathy with what their objectives are, with what they are trying to abolish . . . '" Bell v. Maryland, 378 U.S. 226 n.2 (1964).

Seven years later.

nospam@example.com (Jon Katz) — Thu, 11 Sep 2008 00:00:00 -0400

The Silver Spring, Maryland, YMCA has become an eerie place of sorts. On September 11, 2001, I was working out there before starting the workday. On my way to the locker room to the office, I saw the television playing the horrifying footage of the World Trade Center attack and collapse, and learned that the Pentagon -- just about ten miles away -- also had been attacked.

A year later, on October 22, 2002, I hit extraordinarily heavy morning traffic on the way to the same YMCA. The radio said that another sniper shooting had just happened. I finally arrived at the YMCA, and later learned that, in all likelihood, now-convicted snipers John Allen Mohammed and Lee Malvo were at the YMCA while I worked out there that morning, and probably numerous times before that. If I ever saw them there, I was never able to match their photos in the media with anyone I saw at the YMCA.

In July 2005, I visited for the first and only time the site of the World Trade Center attack. Eerie does not begin to describe the feeling. For the year before law school, I worked just six blocks from the World Trade Center, sometimes used its subway and commuter train stop, and rode its elevators several times. Now those buildings were gone.

In airports and beyond, our civil liberties have been tremendously curtailed after September 11. After first dealing with the horror and sadness of the tragedies of that day, anger ran rampant with countless people, and I do not fault the feelings of anger. How best to channel and diffuse that anger? Do violent responses guarantee further violent counter-responses?

As I often do when pondering such questions, I ask "what would my teacher Jun Yasuda do?" Jun-san once said: "You know, several times I have had somebody hitting me during a prayer. I do not hit back. That would just make him more angry, more hateful. My way, if somebody is trying to hurt me, is to bow to him and to pray. I try to ask why he is angry, and to listen to him. I want to know why is he wounded inside." In that regard, I once asked Jun-san what she would do if she lived in the 1940's and bumped into Hitler, since I knew her response would not have mirrored my response of shooting him dead first and asking questions later. Whether or not I agreed, Jun-san explained that everyone has several personalities including good parts of their personalities; she mentioned Hitler's having been a painter. Jun-san would have asked Hitler why he was so angry. She said she might have started by offering him a massage, looking at it as soothing the soul of a savage beast, I suppose.

Before closing, I repeat and continue agreeing with the following article I wrote about September 11 soon after it happened, which was published in a special edition on the tragedy in the Trial Lawyers College's Warrior magazine, and I reprint it here:

Continue reading "Seven years later. "

ACLU seeks staff attorney in South Carolina

nospam@example.com (Jon Katz) — Tue, 09 Sep 2008 01:00:00 -0400

Bill of Rights (From public domain.)

Full Glass Consulting has asked me to spread the word about an open ACLU staff attorney position. In the early Nineties, I served on the board of the ACLU of the National Capital Area, and recommend applying for this position if you are looking for a new position and if your ability and interest meet the job description, which follows:

Position Availability / Staff Attorney of South Carolina National Office

Charleston, South Carolina

The American Civil Liberties Union welcomes applications for the position of Staff Attorney of the South Carolina National Office, available immediately.

The National ACLU

The national American Civil Liberties Union was founded in 1920 to preserve the fundamental liberties written in the Constitution and its Bill of Rights.

The ACLU is composed of two separately incorporated nonprofit organizations: The ACLU and the ACLU Foundation. The ACLU Foundation conducts litigation and public education programs in support of civil liberties. The Foundation is a 501(c)3 tax-deductible charitable organization, and contributions to it are deductible to the extent allowed by law. The ACLU conducts membership outreach and organizing, legislative advocacy and lobbying. It is supported primarily by membership dues. It is a 501(c)4 organization, which is tax-exempt, but donations to it are not tax-deductible. The majority of support for the ACLU and ACLU Foundation comes from individuals, who believe in the guarantees of freedom, justice, equality, and fair treatment under the law. The ACLU and its affiliates receive no government funding and never charge clients for legal representation.

Every ACLU office builds a menu of programs and services to meet the unique characteristics of the communities that are served. Through communications, lobbying and litigation, the ACLU endeavors to preserve and enhance liberties grounded in the United States and state constitutions and civil rights laws. Among these liberties are separation of church and state, freedom of speech, freedom of religion, freedom of association, the right to privacy, reproductive rights, due process of law, and the right to equal treatment under the law. To learn more about the work of the national ACLU, please visit www.aclu.org.

The ACLU South Carolina National Office

Continue reading "ACLU seeks staff attorney in South Carolina"

Plame and Wilson lose on appeal against Libby and company.

nospam@example.com (Jon Katz) — Tue, 19 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

For awhile, the Valerie Plame/JoeWilson/Scooter Libby story went on the backburner. Then, in late July 2008, Robert Novak -- whose column blowing Plame's CIA cover led to the prosecution and conviction of Libby -- hit a pedestrian and kept driving, followed by an announcement shortly thereafter of his malignant brain cancer and retirement.

Not long thereafter, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit voted 2-1 (Judges Sentelle and Henderson affirming and Judge Rodgers concurring in part and dissenting in part) to uphold the dismissal of Plame's and Wilson's lawsuit against Libby and company over damages allegedly caused by the revelation of Plame's covert CIA status. Wilson, et al., v. Libby, et al., __ F.3d _ (D.C. Cir., Aug. 12, 2008).

Plame and Wilson's suit seeks damages for Constitutional violations under Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which is a case governing private party lawsuits against federal officials for Constitutional violations. In affirming the dismissal of Plame's and Wilson's lawsuit, the Court of Appeals stated: "We have discretion in some circumstances to create a remedy against federal officials for constitutional violations, but we must decline to exercise that discretion where 'special factors counsel[] hesitation' in doing so. See Bivens, 403 U.S. at 396; Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir. 1988) (en banc). In Bivens, the Court implied a remedy where there were no '"‘special factors counselling hesitation in the absence of affirmative action by Congress’"' that required 'the judiciary [to] decline to exercise its discretion in favor of creating damages remedies against federal officials." Spagnola, 859 F.2d at 226 (quoting Bivens, 403 U.S. at 396)." Here, the Court of Appeals found that the Privacy Act provided a remedial scheme for Plame and Wilson that precluded a Bivens action.

The D.C. Circuit further declared: "Litigation of the Wilsons’ allegations would inevitably require an inquiry into 'classified information that may undermine ongoing covert operations.' See Tenet, 544 U.S. at 11. The amended complaint alleges that the disclosure of Valerie Plame Wilson’s identity 'impaired . . . her ability to carry out her duties at the CIA,' Am. Compl. ¶ 43, increased therisk of violence to her and her family, id. at ¶ 42, and subjected her to treatment different from that given other similarly situated agents, id. at ¶¶ 51–52. We certainly must hesitate before we allow a judicial inquiry into these allegations that implicate the job risks and responsibilities of covert CIA agents. In cases involving covert espionage agreements, '[t]he state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection [the Court] found necessary in enunciating the Totten rule.' Tenet, 544 U.S. at 11. Here, although Totten does not bar the suit, the concerns justifying the Totten doctrine provide further support for our decision that a Bivens cause of action is not warranted."

Responding to the majority, Judge Rogers wrapped it up as follows: "In conclusion, the court’s decision is not the product of the application of the Bivens doctrine to appellants’ claims as Wilkie directs, 127 S. Ct. at 2598. It is rather the result of the refusal to acknowledge precedent that Bivens is a remedial doctrine and absent special factors applies where Congress created statutory protection for some persons in some circumstances but did not address the type of constitutional claims alleged by Mr. Wilson and in part by Ms. Wilson. The disclosure concerns identified by the court as counselling hesitation are either unfounded or premature because there has been no discovery or presentation by the Wilsons to the district court of how they will attempt to prove their claims. Contrary to separation of powers, then, the court effectively cedes to Congress the judiciary’s defined role to decide issues arising under the Constitution, despite the fact that the Privacy Act neither is nor purports to be a universal bar to all constitutional relief related to the release of agency records. Accordingly, I concur in Parts II and III.B of the court’s opinion, and in the judgment regarding Ms. Wilson’s equal protection and due process property claims, but I respectfully dissent from the affirmance of the dismissal of Mr. Wilson’s First and Fifth Amendment claims against each appellee and Ms. Wilson’s due process state-endangerment claims (except against appellee Armitage), and would leave to the district court to address in the first instance appellees’ defenses of immunity, see, e.g., Saucier v. Katz, 533 U.S. 194, 201 (2001); Davis, 442 U.S. at 249; Butera, 235 F.3d at 646."

Judge Rogers' partial dissent/partial concurrence provides very strong arguments to increase the chances of en banc review by the entire District of Columbia Circuit over the very critical issue of when to permit and not permit a Bivens action to proceed forward. Jon Katz.

Mukasey and racial profiling.

nospam@example.com (Jon Katz) — Wed, 23 Jul 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

The websites at such kindred organizations as the American Civil Liberties Union and the Alliance for Justice decry the United States Justice Department's purportedly proposed inclusion of racial considerations in investigating terrorism. However, other than news articles briefly addressing the matter, I have not found any details from Justice Department sources, including the department's website.

An article in the July 9, 2008, USA Today reports the following:

"[Attorney General] Mukasey said he is considering changes so FBI agents have 'clear and consistent rules for conducting investigations while maintaining vital civil liberties protections.' The proposed policy, first reported last week by the Associated Press, would let FBI agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious. Factors that could make a U.S. citizen or resident the subject of an investigation include travel to regions of the world known for terrorist activity, access to weapons or military training and someone's race or ethnicity.

"When questioned about whether or not someone's ethnicity is enough to put them under investigation, Mukasey gave an emphatic 'no.' However, when asked whether a U.S. citizen from Pakistan, whom [sic] makes frequent trips to Pakistan, would be subject to investigation, Mukasey said he was not prepared to discuss hypothetical questions. He added that 'this is part of an ongoing process.' Mukasey's tone often remained careful and sometimes ambivalent during his exchanges.

"When pressed by Sen. Russ Feingold, D-Wis., on whether people might be investigated based on their ethnicity, travel habits and whether they own a gun, Mukasey declined to answer directly. He said, 'the nature of evidence gathered and the way that it's gathered will be subject to review.'"

The following excerpt comes from a July 2, 2008, Associated Press article on the matter:

"The Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups. Law enforcement officials say the proposed policy would help them do exactly what Congress demanded after the Sept. 11, 2001, attacks: root out terrorists before they strike. Although President Bush has disavowed targeting suspects based on their race or ethnicity, the new rules would allow the FBI to consider those factors among a number of traits that could trigger a national security investigation.

"Currently, FBI agents need specific reasons — like evidence or allegations that a law probably has been violated — to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told The Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious. Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person's race or ethnicity."

Fox News's July 2 article claims to add additional information to the foregoing Associated Press article.

Do any of you know where I can find primary sources on such "changes" being considered by Attorney General Mukasey? I have not found such information through searching the Federal Register. Nor have I found such information through a general Google search, nor through a search of the Justice Department's website, nor through reviewing some of the webpages discussing the issue. Jon Katz.

Of FCCENSORSHIP, Bono, and Janet Jackson's bared right breast.

nospam@example.com (Jon Katz) — Tue, 22 Jul 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

Welcome to the land of bland: A land where television is dumbed down to a child's level, where broadcasters furiously self-censor, and where most Americans keep returning for more and more and more. It is the land of broadcast television, where so-called oral and visual "indecency" is forbidden from 6:00 a.m. to 10:00 p.m.

When courts first permitted indecency bans on broadcast (versus cable and Internet) television and radio, the theory behind it apparently included reliance on the limited number of available space for broadcasters, who are required by law to include service to the so-called "public interest." That basis by now is archaic, when cable stations and satellite radio abound.

Americans ultimately have themselves to thank for this state of affairs, not only because the anti-censors have not spoken out enough and effectively enough (do too many of them fear television content that they do not like if they speak up against broadcast censorship?), but also because tens of millions of viewers daily return for more of such broadcast pablum.

Enter Janet Jackson and Justin Timberlake at the 2004 Super Bowl, challenging the land of bland during the halftime show, with Timberlake singing "gonna have you naked by the end of this song,” while, unscripted, ripping off part of Jackson's costume to reveal her right breast for nine-sixteenths of a second until CBS cut the image. Were this Europe, the reaction would have been no different than to the thousands of barebreasted women sunning themselves on beaches in France and Italy, exercising their right not to cover up any more than men are required.

This not being Europe, though, countless Americans fear bared breasts. Fortunately, women have won the right to breastfeed in public in most places, and in some locales publicly bared breasts are permitted, whether by legislative intention or oversight. For whatever reason, bared breasts are more eroticized overall in American society than the many places where it is commonplace for women to be barebreasted all the time in public, causing little more notice than if they were covered up.

No sooner does Janet Jackson get removed from the halftime stage than the complaints of her bared breast come flooding into the Federal Communications Commission. Ultimately, finding Ms. Jackson's and Mr. Timberlake's bared breastcapade "indecent" -- how on earth can a bared breast be indecent? -- the FCC hit CBS with a $550,000 fine, which I decried in an interview with the USA Today McNewspaper. Mind you, a $550,000 fine in and of itself is a drop in the bucket for CBS, which likely paid its lawyers more than that amount to litigate against the fine through the appellate level, but repeated indecency fines can add up and can lead to more self censorship.

CBS's investment in legal counsel paid off yesterday with the Third Circuit's reversal of the entire half million dollar fine. CBS v. FCC, __ F.3d _ (3rd Cir. July 21, 2008). Kudos to fellow First Amendment Lawyers Association member Robert Corn-Revere for successfully arguing the case. Shame on the FCC for having levied any fine, and shame even more for having imposed such a huge fine as to chill smaller broadcasters with much shallower financial pockets.

The Third Circuit -- in a 2-1 opinion, with the concurring-dissenting judge as spiritedly in agreement with the result and with most of the reasoning therefor -- reversed the FCC's fine on CBS on two grounds. First, the court found that the FCC's fine amounted to an arbitrary and capricious retroactive application of a new policy banning fleeting indecent images (the change was spurred by Golden Globe award-accepting Bono's exclamation that “this is really, really f--king brilliant”, where if I were the awardee, I might have opted for the pithier "F--king 'A'") where previously the FCC had at least allowed indecent fleeting words. Second, the Third Circuit found that CBS -- which the FCC conceded had no foreknowledge of the then-impending bared breast -- was not liable (with willfulness being the liability standard) for the breast-baring actions of independent contractors Jackson and Timberlake no matter how one slices it, whether, for instance, on a theory of employer liability or vicarious liability, or on a theory of a responsibility to have time-delay technology for presenting visual images, which technology CBS only had implemented for sound transmissions.

As the Third Circuit recounts, in the FCC's upholding the half million dollar fine on CBS, "the FCC relied on a contextual analysis to find the broadcast of Jackson’s exposed breast was: (1) graphic and explicit, (2) shocking and pandering, and (3) fleeting... It further concluded that the brevity of the image was outweighed by the other two factors... The standard applied by the Commission is derived from its 2001 policy statement setting forth a two-part test for indecency: (1) 'the material must describe or depict sexual or excretory organs or activities,' and (2) it must be 'patently offensive as measured by contemporary community standards for the broadcast medium.'” CBS v. FCC, __ F.3d _.

CBS v. FCC, explains that, unlike obscenity, indecency still gets First Amendment protection on the airwaves, which led the FCC to "confine[] enforcement of indecency restrictions to the hours 'between 6:00 a.m. and 10:00 p.m.' See 47 C.F.R. § 73.3999," which are the hours when youngsters are more likely to be watching and listening to broadcasts. CBS v. FCC, __ F.3d _.

Will the FCC seek review of this case in the Supreme Court? The agency probably has at least four good friends if cert. is granted: certainly Justices Thomas and Scalia, and likely Chief Justice Roberts and Justice Alito. From considering his concurrence in Los Angeles v. Alameda Books, 535 U.S. 425 (2002) -- which left open the door to challenging the multitude of tired and disingenuous negative secondary effects "studies" that are repeatedly recycled by municipalities to try to zone out adult video stores and strip clubs --
Justice Kennedy might be a wild card if the FCC is permitted a Supreme Court appeal. Considering their joining the dissenting camp in Alameda Books and their overall records, it seems a good bet that CBS will find a friend in Justices Stevens, Souter, Ginsburg and Breyer.

In the meantime, congratulations CBS, Janet Jackson, and Justin Timberlake, and thanks to the Third Circuit for keeping life breathed into the First Amendment. Jon Katz.

ADDENDUM: See my First Amendment defense brother Marc Randazza's views on this CBS v. FCC case.

Circuits are split on sex offense as crime of violence.

nospam@example.com (Jon Katz) — Fri, 18 Jul 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

Following is a brief overview of a federal circuit split that likely will find its way to the Supreme Court to resolve this split that likely affects a large number of criminal defendants. Although I have tried to keep the language as non-graphic as possible, you have been so advised.

Numerous circuits are split on "whether a sex offense perpetrated in the absence of consent — and which does not have as an element the use, attempted use, or threatened use of physical force — constitutes a 'crime of violence' under the Guidelines," because the federal sentencing guidelines do not sufficiently define "forcible sex offense," which is a crime of violence that increases a defendant's sentencing guidelines. U.S. v. Chacon, __ F.3d _ (4th Cir. July 14, 2008). This is a critical question, as Mr. Chacon -- whose instant case involved a conviction for unlawfully re-entering the United States -- full well knows, from having received an increase in his Sentencing Guidelines base offense level by sixteen levels due to his previous Maryland second degree rape conviction. Notably, Chacon does not say whether the second-degree rape for which he was convicted in Maryland was based on an allegation of non-consensual sex with an adult or so-called consensual sex with an underage person, which the law treats as non-consensual based on the age of the victim.

What is a "sex offense" as to the above issue? Rape was Mr. Chacon's prior conviction, and the Fourth Circuit had no problem classifying rape as a sex offense, just as courts likely will have no problem classifying non-consensual oral sex and anal sex as sex offenses. However, my initial review of Chacon does not seem to define sex offense, thus leaving open the question of the extent to which the following commonly prosecuted crimes will receive sex offense classification by the federal courts for sentencing guidelines purposes: non-consensual feeling of the clothed or unclothed body parts of another for purposes of arousal; and non-consensual penetration by finger or other object of one's genitals or anus.

How does it feel to defend sex crime cases, at least where it seems clear that the person committed the alleged crime? I answer that here in discussing my defense of a man accused of raping his grandmother. Jon Katz.