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An Illinois man jailed for about two months after police claimed he had Ecstasy, despite lab work that the pills tested negative for the illegal drug, can pursue his federal civil rights claim, the U.S. Supreme Court ruled Tuesday.

The opinion (PDF) sends Elijah Manuel's unlawful detention claim back to the 7th U.S. Circuit Court of Appeals at Chicago, which previously dismissed the lawsuit, the Associated Press reports. He was stopped by Joliet, Illinois, police in 2011 and detained after a vitamin bottle with pills was found on his person.

Manuel, who is black, says he was arrested by officers after they pulled over the car his brother was driving. Manuel says an officer yanked him from the car, screamed a racial slur, pulled a bottle of vitamins from his pocket, and said their field tests indicated it was Ecstasy. Officers lied about the test, Manuel alleges, and lied when they said they smelled marijuana in the car.

A field test for controlled substances came back negative, according to the opinion, but police took Manuel to the police station. There, an evidence technician tested the pills and also got a negative result, with the exception of one pill that tested "positive for the probable presence of Ecstasy."

Also, an officer who arrested Manuel stated that based on his "training and experience," he "knew the pills to be Ecstasy." Manuel was charged with unlawful possession of a controlled substance.

Based on "allegedly fabricated evidence"-according to Justice Elena Kagan, who wrote for the majority-a Will County Circuit Court judge found probable cause to detain Manuel pending trial.

The Illinois police laboratory found that the pill seized from Manuel contained no controlled substance. However, he remained in pretrial detention for 48 days, according to the opinion. The indictment was dismissed after prosecutors saw a police lab report that said the pills in question were vitamins.

Manuel filed a federal civil rights complaint more than two years after his arrest but less than two years from the time that charges against him were dismissed. The district court dismissed the claim, finding that a two-year statute of limitations barred his unlawful arrest claim, and pretrial detention following the judge's probable cause determination can't give rise to a Fourth Amendment claim. The 7th Circuit affirmed the ruling.

The Fourth Amendment prohibition of the government holding someone without probable cause can happen when the legal process goes wrong, Kagan wrote for the majority. Chief Justice John G. Roberts Jr. as well as Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined the opinion.

"No evidence of Manuel's criminality had come to light in between the roadside arrest and the county court proceeding initiating legal process; to the contrary, yet another test of Manuel's pills had come back negative in that period," according to the opinion. "All that the judge had before him were police fabrications about the pills' content. The judge's order holding Manuel for trial therefore lacked any proper basis. And that means Manuel's ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights."

Justice Samuel A. Alito Jr. wrote a dissent, which was joined by Justice Clarence Thomas, arguing that Manuel's malicious prosecution claim should not be brought under the Fourth Amendment.

"A well-known medical maxim-'first, do no harm'-is a good rule of thumb for courts as well. The court's decision today violates that rule by avoiding the question presented in order to reach an unnecessary and tricky issue," Alito wrote. "The resulting opinion will, I fear, inject much confusion into Fourth Amendment law. And it has the potential to do much harm-by dramatically expanding Fourth Amendment liability under Section 1983 in a way that does violence to the text of the Fourth Amendment."

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Civil rights lawsuit of Illinois man detained over bottle of vitamins can go forward, SCOTUS rules

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An Illinois man jailed for about two months after police claimed he had Ecstasy, despite lab work that the pills tested negative for the illegal drug, can pursue his federal civil rights claim, the U.S. Supreme Court ruled Tuesday. The opinion (PDF) sends Elijah Manuel's unlawful detention claim back to the 7th U.S.

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4th amendment

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https://www.justice.gov/enrd/tull-v-us

https://Pixton.com/ic:ie6zimoi

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In 2008, Mark Jensen of Wisconsin was convicted of first-degree intentional homicide in the killing of his wife, Julie Jensen. In the course of his trial, the prosecution introduced evidence of a letter that the victim had written prior to her death, to be delivered to the police in the event of her death. In the letter, Julie said that she worried that her husband might be plotting to kill her and that if she turned up dead, it was not because she committed suicide, which she would not do.

The prosecution also introduced oral statements by the victim to police in which she voiced similar fear that her husband was plotting to kill her. Though the trial court initially refused to admit this evidence, it eventually came in due to an interlocutory ruling by the Wisconsin Supreme Court. The Wisconsin high court ruled that the evidence would be admissible under the "forfeiture by wrongdoing" doctrine, over a Sixth Amendment Confrontation Clause objection, if the trial court found, by a preponderance of the evidence, that the defendant had killed the victim and thereby rendered Julie Jensen unavailable to testify. The trial court so found, after following the Wisconsin Supreme Court's directions, so the evidence was admitted, and the defendant was convicted.

After Mark Jensen's trial and conviction, the U.S. Supreme Court issued a ruling in Giles v. California, holding that the "forfeiture by wrongdoing" exception to confrontation is quite narrow and applies only if the defendant's purpose (or one of his purposes) in wrongfully making the victim unavailable was to prevent her from testifying. On Jensen's appeal, the Wisconsin Court of Appeals still affirmed the homicide conviction on harmless error grounds, concluding that if there was a Confrontation Clause error, there was so much other evidence of the defendant's guilt offered as trial that the erroneously admitted evidence would not have affected the outcome.

The defendant subsequently brought a successful petition for habeas corpus in the federal district court for the Eastern District of Wisconsin. In Jensen v. Schwochert, the federal district court held that admission of the victim's letter and statements to police officers at trial violated the Confrontation Clause and would necessarily have had such a powerful impact on jurors that it could not reasonably be characterized as harmless error, particularly given various weaknesses in the prosecution's case. In granting the defendant's habeas petition, the district court found that the state appellate court had misapplied the federal law governing harmless error analysis.

In this column, I will examine the logic of the "forfeiture by wrongdoing" exception to the Confrontation Clause and whether the distinction between its proper application and its application in Jensen's case holds up to critical analysis.
Hearsay and Confrontation
The first thing to consider is the meaning of hearsay, because there is an important link between the rule against hearsay (common to federal and state courts) and the Confrontation Clause. As most people who have attended law school know, hearsay is an out of court statement offered for the truth of the matter asserted in the statement. In other words, a statement offered into evidence constitutes hearsay if the declarant (the maker of the statement) made it outside of the proceeding at which the statement is offered in evidence, and the statement's relevance to the case rests on the jury's (or other fact-finder's) believing that the declarant was speaking accurately and truthfully in making the statement. For example, a plaintiff in a negligence suit offers into evidence John Doe's written statement, "the plaintiff slipped and fell because the defendant used an extremely slippery floor wax that no one uses anymore." If offered to prove that this is in fact why the plaintiff slipped and fell, then the written statement constitutes hearsay.

In daily life, we regularly rely on hearsay and even on multiple hearsay in making decisions. At a trial, though, the hearsay rule generally excludes such evidence on the theory that the jury is not in a good position to evaluate the accuracy and truth of statements when the statements were made outside of its presence. With the jury considered a human lie detector, it cannot do its work assessing the truthfulness of statements made elsewhere. In addition, the out of court declarant is typically speaking without the solemnizing benefit of an oath, and the opponent is also not in a position to cross-examine the declarant, as he or she would have been able to do if the statement were uttered in court. There exist numerous hearsay exceptions for circumstances in which there might be independent reason to trust the sort of statement in question.

The Sixth Amendment Confrontation Clause overlaps substantially with the rule against hearsay. The Sixth Amendment provides that a criminal defendant has the right to be confronted with the witnesses against him or her. The Court has understood this as a right, among other things, to cross-examine prosecution witnesses. When the prosecution offers a hearsay statement against a criminal defendant, it generally follows that the defendant has no opportunity to cross-examine the declarant about the statement. Yet the proponent of the hearsay statement is, by hypothesis, asking the jury to take the out of court declarant to be telling the truth.

As understood, however, the Confrontation Clause is narrower in some ways than the rule against hearsay. For one thing, the Confrontation Clause applies to hearsay only when the hearsay is offered by the prosecution at a criminal trial. For another, under existing precedents, only those out-of-court statements that qualify as "testimonial," a term the meaning of which is somewhat vague at present but includes attention to the purpose of the statement as a means of creating evidence for trial, trigger application of the Confrontation Clause. Thus much that is hearsay-out of court statements made to friends in an off-the-cuff fashion, for example-will not violate the Confrontation Clause (though it may still be excluded from evidence under the state or federal rule against hearsay).
Mark Jensen's Case
In Jensen's case, it seems clear that in memorializing her suspicions in a letter addressed to the police and in separately giving statements to the police, the victim's goal was to help build a case against her husband for her own murder. Hers was not an off-the-cuff comment to a friend articulating her fear of her husband. Therefore, the statements do appear to qualify as testimonial, thus triggering application of the Sixth Amendment Confrontation Clause.

One exception to the ordinary exclusion of testimonial hearsay offered against the defendant (when there is and was no opportunity for cross-examination) is in the case of "forfeiture by wrongdoing." When a declarant is unavailable to testify against the opponent of the out-of-court statement because the opponent wrongfully and deliberately made the declarant unavailable to prevent her from testifying, the statement qualifies for admission over a Confrontation Clause objection under the "forfeiture by wrongdoing" doctrine.
Forfeiture By Wrongdoing
What does the whole concept of "forfeiture by wrongdoing" mean? It is a kind of estoppel argument. If you specifically and intentionally brought about the unfortunate circumstances in which you now find yourself, you cannot be heard to complain about the consequences of those circumstances and request special accommodation for them. To do so, to use the Hebrew word, is to manifest "chutzpah."

The classic example of this flavor of audacious argument is the man who is found guilty of murdering his parents and then begs for the court's mercy, on the grounds that he is an orphan. He is entitled to no mercy, of course, because he is the one who intentionally made himself an orphan.

In the "forfeiture by wrongdoing" doctrine, one party attempts to introduce into evidence a statement made by an absent and unavailable witness. The opponent objects to the introduction of the evidence on the grounds that the declarant is not subject to cross-examination, as required by the Confrontation Clause. It turns out, however, that the opponent of the evidence wrongfully and intentionally acted to bring about the declarant's unavailability as a witness, and it is because of the opponent's action that the opponent now cannot conduct cross-examination.

Like the orphan in the above-referenced classic case, the opponent who raises a hearsay objection is complaining about a situation which he intentionally created-he deliberately acted to make the witness unavailable to testify, a state of affairs in which cross-examination and the opportunity for the jury to observe the witness's demeanor on the stand become impossible. Thus he cannot now be heard to complain about a situation that he himself wrongfully procured.

At a gut level, this doctrine seems to make some sense. There is something deeply unjust about a party's being able to eliminate a witness and thereby silence her and then complain that the only remaining words of the witness are no longer subject to cross-examination and therefore must be excluded. If one acts to eliminate a witness, then the "forfeiture by wrongdoing" rule helps to prevent the wrongdoer's goal from completely coming to fruition, if there happen to be out of court statements available for introduction, and this may appear to be a victory for justice over chutzpah.

In interpreting the "forfeiture by wrongdoing" rule, however, as mentioned above, the Supreme Court has held that an opponent's wrongdoing making the declarant unavailable qualifies for this exception only if the wrongdoer had the specific goal (or at least one goal) of making the declarant unavailable as a witness. If a party, by contrast, murders a victim because he hates the victim or refuses to accept that she is leaving him, that murder does not qualify the victim's prior statements as falling within the "forfeiture by wrongdoing" exception to application of the Confrontation Clause, because the murderer did not commit his murder in whole or in part to prevent the declarant from serving as a witness. Indeed, if not for the murder, there would seemingly have been no proceeding at which the declarant would have had occasion to serve as a witness.

It is the latter situation that confronted the Wisconsin courts in Jensen's case. Though the defendant allegedly murdered the victim, there was no evidence adduced for the trial judge that Jensen's goal had had anything to do with trying to render his wife unable to serve as a witness. That is why the Wisconsin Supreme Court erred in its broad interpretation of the "forfeiture by wrongdoing" exception in this case. But two important questions about forfeiture by wrongdoing nonetheless remain.
Who Cares Why He Made Her Unavailable?
One problem with the "purpose" requirement of the "forfeiture by wrongdoing" doctrine is that having the purpose of rendering a witness unavailable would seem unnecessary to the injustice and audacity of first eliminating a witness and then objecting to the admission into evidence of the only remaining words of that witness, an out of court statement. That is, it seems outrageous for a murderer to complain about his not being able to cross-examine his victim, whether he murdered her with the (or with an) objective of keeping her off the stand or whether he murdered her for some independent reason. Either way, admitting the victim's out of court statement serves to prevent the murderer from invoking at his criminal trial and profiting from a state of affairs that he brought about with his own wrongdoing.
And Isn't the Trial All About Determining Whether He Committed the Wrongdoing?
Moving in the opposite direction, in favor of eliminating rather than extending the "forfeiture by wrongdoing" doctrine, there appears to be something peculiar about admitting evidence over the defendant's objection at a murder trial as a kind of punishment for the defendant's having committed the murder. If the entire point of the trial is to allow the jury to figure out whether or not the defendant in fact murdered the declarant, who is also the victim, then it seems perhaps premature for the judge to rule that the defendant has forfeited his right to cross-examine a key prosecution witness on the grounds that the defendant committed the very murder that he is presumed innocent of committing, pending the jury's deliberations. It might seem quite unfair to subject the defendant on trial for murder to uncross-examinable evidence whose very admissibility is premised on the conclusion that he is actually guilty. Furthermore, if the jury were familiar with the law of evidence, it could readily determine that the judge had already (and officially, for purposes of ruling on evidence objections) judged the defendant guilty, and that could affect its deliberations.
Compromise
Ultimately, I think it is fair to conclude that both the narrowness and breadth of the "forfeiture by wrongdoing" doctrine is very much a product of historical and present compromise and thus not readily amenable to an analytically pure defense.

It is true that anyone who commits wrongdoing that results in a witness's unavailability, whatever the goal of that wrongdoing was, has, from an equitable standpoint, arguably forfeited an objection to not being able to cross-examine that unavailable witness. Yet a Confrontation Clause exception applying to all cases in which the defendant's wrongdoing made the declarant unavailable would arguably eliminate the important right of confrontation in too many cases. Particularly in murder cases, a defendant might be forced to endure admission of any out of court statements made by the victim, on the grounds that the defendant caused the victim's unavailability by murdering her and therefore cannot be heard to complain.

If the defendant happens in some cases to be innocent, moreover, it will be especially difficult for him to discredit whatever accusatory statements the victim might have made, since he will not know what would have motivated either a lie or a misstatement. Limiting forfeiture by wrongdoing to cases in which the wrongdoer's purpose was to make the declarant unavailable narrows the scope of the exception and also singles out what might be regarded as an especially egregious act, from the standpoint of the justice system-specifically aiming to eliminate a source of truth for the jury.

Coming from the other direction, it is also true that in a murder case, even one in which the alleged purpose of the murder was to prevent the victim from serving as a witness, a judge must make what might seem like a premature fact-finding. The judge must determine that the defendant is guilty on the way to admitting evidence that the jury must then consider in figuring out whether the defendant was guilty or not.

There is a response to this seeming paradox. It is that an important part of the judge's role in a jury trial is drawing factual conclusions-sometimes from inadmissible evidence-as an essential component of making admissibility determinations. When the judge determines that the defendant killed the victim (to silence her words), on this approach, the reason for the determination is evidentiary-it allows for the admission (or exclusion) of the victim's out of court statement. The same thing happens when the judge rules on other evidentiary objections and must make fact-findings (that may coincide with jury fact-findings) to determine whether to sustain or overrule those objections.

Furthermore, the judge makes this determination by a preponderance of the evidence-a standard of fact-finding that is far more lenient than the "beyond a reasonable doubt" standard by which the jury must determine guilt. It is thus logically consistent for the judge to find the defendant guilty, by a preponderance of the evidence, for purposes of admitting the evidence, and then for the jury eventually to acquit the defendant in the absence of proof beyond a reasonable doubt of his guilt.

Notwithstanding these responses to the objections I identified above, to the overly broad and overly narrow scope of the "forfeiture by wrongdoing" exception, one might well feel unsatisfied with the narrowness of the exception or with its application to criminal defendants in the face of the right to be confronted by prosecution witnesses. To quote Justice Jackson in describing the law of evidence in Michelson v. United States, "much of this law is archaic, paradoxical, and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter-privilege to the other. But somehow it has proved a workable, even if clumsy, system.... To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice." The "forfeiture by wrongdoing" exception in its present form seems well captured by that sentiment.

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A Murder Case Highlights an Odd Exception to the Sixth Amendment

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Justia columnist and Cornell law professor Sherry Colb comments on the logic of the "forfeiture by wrongdoing" exception to the Confrontation Clause and considers whether the distinction between its proper application and its application in the case on which Colb focuses holds up to critical analysis.

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http://constitution.laws.com/american-history/constitution/constitutional-amendments/5th-amendment

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2nd Amendment

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4th amendment: https://www.nraila.org/articles/20170317/house-passes-nra-backed-bill-to-protect-second-amendment-rights-of-america-s-veterans
2nd amendment comic:
https://Pixton.com/ic:apufkk0x

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The State of Tennessee filed a lawsuit on March 13, becoming the first state in the nation to sue the federal government over refugee resettlement on the grounds of the U.S. Constitution's 10th Amendment, The Tennessean reported.

Tennessee argues that the federal government has forced the states to pay for the refugee resettlement program, thereby violating the 10 th Amendment, which says the federal government possesses only the powers granted to it by the U.S. Constitution and that all other powers are reserved for the states. While other states have sued the federal government over refugee resettlement, this lawsuit is the first on these legal grounds.

Filed on behalf of several state lawmakers, the lawsuit names the U.S. Department of State, Secretary of State Rex Tillerson, the Bureau of Population, Refugees and Migration, the U.S. Department of Health and Human Services, and the Office of Refugee Resettlement as defendants.
Syrian refugees protesting at a refugee camp. (AP)
The state requests the court to forbid the federal government from resettling refugees in Tennessee until the federal government covers all costs associated with the settlement.

"Plaintiffs respectfully request," the lawsuit reads, "that this Court declare that the federal government has impermissibly intruded on Tennessee's state sovereignty and order the federal government to abide by the restraints imposed by the United States Constitution."

"This suit is not intended to inflict harm on immigrants or refugees," the lawsuit continues. "Rather, this is a suit that seeks to preserve the constitutional relationship between the federal government and the states as mandated by our nation's founders."

Some groups have criticized the lawsuit. Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee decried the case as "not only very troubling, but unjust and wrong."

Stephanie Teatro, executive director of the Tennessee Immigrant and Refugee Rights Coalition, referred to the lawsuit as "extreme," claiming that "its very filing assures Tennessee's place in a very dark chapter of our country's history."

State Senator John Stevens (R-Huntingdon), defended the lawsuit in a news release. "The Constitution does not allow the Federal Government to force me as the elected representative of the 24 th Senate District to implement federal programs while they sit in Washington insulated from the consequences," he said.

The federal government resettled over 2,000 refugees in Tennessee during the 2016 fiscal year, according to Catholic Charities of Tennessee, a group contracted by the federal government to handle refugee resettlement in the state.

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Tennessee Sues Feds Over Refugee Resettlement, Cites 10th Amendment

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The State of Tennessee filed a lawsuit on March 13, becoming the first state in the nation to sue the federal government over refugee resettlement on the grounds of the U.S. Constitution's 10th Amendment, The Tennessean reported.

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http://www.msnbc.com/msnbc/cruel-and-unusual-punishment

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9th Amendment
https://joeyclark.liberty.me/rand-paul-speaks-up-for-the-9th-amendment/

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http://www.cnsnews.com/blog/andrew-eicher/tennessee-sues-federal-govt-over-refugee-resettlement-cites-10th-amendment

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https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/23/federal-court-rejects-third-amendment-claim-against-police-officers/?utm_term=.1f61a3960f7e

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Comic: 6th Amendment
https://Pixton.com/ic:x92rr12d
News article: http://www.nbc26.com/newsy/supreme-court-overturns-death-sentence-over-racially-biased-testimony

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http://www.mlive.com/news/grand-rapids/index.ssf/2017/02/over_a_hundred_protest_at_the.html

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https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/24/fifth-amendment-protects-passcode-on-smartphones-court-holds/?utm_term=.71e7f5870076

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Eighth amendment
https://www.ncronline.org/news/politics/supreme-court-execution-drug-does-not-violate-eighth-amendment

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https://verdict.justia.com/2014/02/05/murder-case-highlights-odd-exception-sixth-amendment

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The world's most popular and easy to use comic and storyboard creator.

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3rd Amendment
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/23/federal-court-rejects-third-amendment-claim-against-police-officers/?utm_term=.f841f60e7

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Fourth amendment https://www.onenewsnow.com/legal-courts/2015/04/27/drug-charges-dropped-cop-violated-mans-4th-amendment-rights
Second Amendment
http://wate.com/2015/02/09/man-claims-morristown-mall-violated-his-2nd-amendment-rights/

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http://fortune.com/2017/02/22/trump-lgbt-transgender-bathroom-guidelines/