Author Archives: Allen Thompson, Esq.

About Allen Thompson, Esq.

Allen focuses on Constitutional Law topics, such as religious freedom, the right to keep and bear arms, eminent domain, and due process. He has a deep respect for the structure of the constitutional republic the founding generation established. As such, he has a profound appreciation for the individual rights implicitly protected by that structure and explicitly protected by the Bill of Rights. Therefore, you can find him blogging about not only the current events in the law, but the philosophical underpinnings that the Constitution is founded on. Without an understanding of the past and the reasons for the Constitution, it is far too easy to allow it to be underminded for fleeting political advantage.

New Jersey Supreme Court: Warrant Requirement a Burden on Citizens

There has been a lot of commentary on the recent New Jersey Supreme Court case, State v. William L. Witt, (A-9-14)(074468), which essentially did away with a warrant requirement for the search of a vehicle in many circumstances.  What the Court ultimately ruled was that, like Pennsylvania a little over a year ago, New Jersey was going to follow the federal warrant requirements, which are quite a bit more relaxed than New Jersey’s.  In determining to exempt automobiles from the exigency requirements, the Court rested heavily on the presumption that the warrant requirement is unduly burdensome on both police and the suspect, as cars are typically impounded while the long wait for a warrant occurs.  See Slip op. at 15.

The case started when William Witt was pulled over by Carney’s Point Township Police Officer Joseph Racite for failing to dim his high beams.  When Officer Racite approached the car and began speaking with Witt, he noticed the smell of alcohol and put Witt through a series of field sobriety tests.  Witt failed them all.  Subsequently, Witt was arrested for DWI and placed into the back of Officer Racite’s police car.  Up to this point, Officer Racite had acted by the book.  (As a side note, the initial stop was likely inappropriate.  The statute – N.J.S.A. 39:3-60 – requires drivers to dim their high beams “whenever the driver of a vehicle approaches an oncoming vehicle within five hundred feet.”  But Officer Racite was stopped; thus, he was not an oncoming vehicle.  The Court declined to entertain this argument, though, because Witt had not brought this defense at trial.  At trial, he had not even contested the validity of the stop.)

After Witt was cuffed and placed in the police car, Officer Racite then began searching for intoxicating substances.  Under the federal automobile exception, this is allowed.  Once an officer has probable cause that a crime has occurred, he has constitutional authority (under the current case law, at least) to search the car for evidence of the crime that he had probable cause to believe occurred.  From there, the plain sight doctrine applies, meaning that if in the search for one object, the officer discovers another, that evidence may be used as the basis for an entirely different crime.  This is what happened here.  Officer Racite found the firearm in the car and then charged Witt with firearms offenses.

Under New Jersey state law at the time, however, Officer Racite was required to have exigent circumstances.  In short, he needed to be able to articulate reasons why either his life was in danger or the evidence would be destroyed in the time it would take to get a warrant.  Because he could not articulate a reason for either (Witt was handcuffed in the back of the police car), both the trial and appellate courts found that the evidence must be suppressed.

For the reasons below, the New Jersey Supreme Court overturned its prior decisions requiring exigent circumstances for warrantless automobile searches and adopted the federal automobile exception.  Fortunately for Mr. Witt, the decision was prospective.  Because the law at the time of his arrest required exigent circumstances, the evidence in his case remained suppressed and he was not convicted of the firearms offense.  Going forward, however, police do not need a warrant to search your automobile, provided they have probable cause to arrest you.

While federal courts have allowed officers to search vehicles and seize evidence from an automobile without a warrant, New Jersey (and until last year, Pennsylvania) required more.  New Jersey had, until last week, required the existence of exigent circumstances.  In other words, there had to be a reason, such as officer safety or the imminent destruction of evidence, to search an automobile without a warrant or consent.

The New Jersey Supreme Court relied on several factors in dispensing with the exigency requirement.  First, the Court found that “the multi-factor exigency formula is too complex and difficult for a reasonable police officer to apply to fast-moving and evolving events that require prompt action.”  Slip op. at 3.  While there is a good argument that a stop in which the suspect is handcuffed and sitting under arrest in the police car can conceivably constitute “fast-paced” or “requir[ing] prompt action,” the Court did rely solely on the “fast-paced” argument.  The Court primarily relied on the same reasoning that Pennsylvania’s adopted in 2014: “The Pennsylvania high court ultimately concluded that it was ‘difficult, if not impossible, for police officers in the field to determine how [it] would rule in motor vehicle search and seizure cases, the circumstances of which are almost endlessly variable.’’  Slip op. at 20-21.

Thus, as the ACLU pointed out in its amicus brief, the New Jersey Supreme Court decided that rather than making the point simple: “Get a warrant before you search, unless 1) you’re in danger or 2) the evidence is at risk,” the Court erred on the side of making police work easier.  While there’s nothing inherently wrong with making police officers’ jobs easier, in this case the Court placed simplicity over the Constitution.

The Court’s greatest concern, however, was that getting a warrant – even a telephonic warrant – prolongs the detention and is dangerous to both police and the suspect.  This is because the Court found that the longer any individual remains on the shoulder of the road, the higher the likelihood of an accident.  This is probably true, and the Court does cite a fair number of anecdotes to support its contention, but as the dissent points out admirably, this misses the point.  The prolonged wait was not an inherent part of telephonic warrants, but was rather an inefficiency caused by the state, itself.

The Court rested its decision on the fact that telephonic warrants take a long time to get.  A six-month pilot program conducted three years ago in Burlington County found that the goal of the police should be to obtain a telephonic warrant within a half hour, with 45 minutes being the longest amount of time one should have to wait.  The Burlington program showed that warrants were approximately 59 minutes in the making, while the New Jersey State Police [NJSP] found that they had to wait nearly two hours for a warrant.

Because of the long time in obtaining warrants, it appeared that more New Jersey officers were seeking consent searches, which the Court noted could be a big problem.  After all, NJSP had been through a major racial profiling scandal in the late 1990’s and early 2000’s, and the Court was correctly suspicious of whether consent searches were truly consensual.  So-called consent searches placed the driver in an “inherently coercive predicament . . . [because the driver] is stopped on the highway” and facing the choice of full cooperation with a potentially unconstitutional request to search, or increased police scrutiny and possible citation.  “[I]t is not a stretch of the imagination to assume that the individual feels compelled to consent.”  Slip op. at 45.

The Court seemed to be acknowledging that a delay of an hour prompted police to use a more intrusive and constitutionally suspect maneuver.  Indeed, NJSP acknowledged that the “current patrol policy and practice is to exhaust the consent search option prior to making a determination to seek a warrant, telephonic or in-person.”  Slip op. at 35.  It would seem as though the Court’s concern about the inherent voluntariness of a “consent” search was justified.  After all, “exhaust[ing] the consent search option” certainly suggests that NJSP troopers are repeatedly asking for consent, which itself suggests that a fair amount of pressure is being placed on motorists to allow searches.  The 95% consent rate further supports this.

The Court’s solution, however, was not to scrutinize the consent where given, but to eliminate the need for consent or exigency altogether.  Rather, it moved to the next part of the analysis, and attempted to couch the abdication to the State in terms of constitutional protection.

The Court reasoned that a two-hour wait, followed by impoundment of the car (to facilitate a search), was infinitely more intrusive than an on-site search.  While this is true, it entirely misses the point.

First, as any elementary school student should be able to recite, the federal, democratic republican system of government we ostensibly enjoy (and which, notably, is guaranteed to the states in the body of the Constitution), provides that the three branches of government are divided and serve to check one another’s power.  Thus, the legislature passes and funds laws; the executive executes them; and the judiciary keeps watch to ensure everything is being done fairly (John Marshall’s judicial review notwithstanding).  The New Jersey Supreme Court, however, just condensed that, at least regarding automobile searches.  Its decision here gives police officers (part of the executive branch) the judicial authority to determine whether probable cause exists.  Thus, the officer does not actually have to have probable cause.  Rather, he just needs to reasonably believe he does.  That the federal government or other states allow this is no argument (indeed, the U.S. Supreme Court’s own reasoning in Obergefell – the gay marriage case – belies this, as many states and the federal government had failed to recognize same-sex marriages as of only a few years ago.  The U.S. Supreme Court was unconcerned with the number of states that chose not recognize these marriages).

Second, the Court assumes that impounding a car while waiting to procure a warrant survives constitutional muster, in and of itself.  If there is no warrant, and no exigency, then impounding the car is unconstitutional in the first place.  If it is unconstitutional to search the car, then it is surely unconstitutional to seize the whole thing while waiting for permission to search it.

Should no warrant be forthcoming, then what cause was there to seize the car in the first place?  The Court seemingly authorizes the unreasonable seizure of the car while police wait for the judiciary to determine whether a mere search is constitutional.

), is the fact that the entire constitutional analysis occurred within the framework of a one-county pilot program three years ago.  The purpose of any pilot program is to test ideas and then determine how to fix the mistakes.  New Jersey has a telephonic warrant program that seems to work well for obtaining Temporary Restraining Orders (TRO).  And the dissent notes that there was only a 14 minute gap between the target time and the actual time in local police obtaining warrants.  Could not, then, the state give it one more try?

Rather, the state spent the last several years appealing the exigency requirement whenever it had the chance.  You might say they “exhausted” the appellate option prior to Witt.

In short, the Court found that because there were likely abuses occurring by the police and because New Jersey was having a difficult time efficiently following the constitutional dictates of the Fourth Amendment and its own laws, it was better to merely adopt the federal exemption.  While acknowledging that the federal courts are perfectly fine with the automobile exception, and acknowledging the dangers that police officers face, exempting the government from the constraints of the constitution is not the answer.  Would that New Jersey (and Pennsylvania, for that matter) had considered other options before throwing in the towel.


Filed under Constitutional Law, Criminal Law, Firearms Law, News & Events

A Brief Overview of Constitutional Litigation

By Allen Thompson, Esq.

I talk to a lot of people about the U.S. Constitution, the rights guaranteed by it, and whether a governmental entity or agent has violated those rights.  The courts, over the last two centuries or so, have built up doctrines and analyses to determine whether the government has violated an individual’s rights.  While much of the analysis has evolved to protect the governmental entities and those working for them from liability, this means that there is a lot more to a civil rights case than alleging “my rights were violated” and pointing to the Bill of Rights.  Generally, courts have justified this limitation in order to promote an “active” and “efficient” government that can act without stopping to think about liability at each step.  Regardless of one’s feelings about the justification, that analysis is what the courts will use, and will ultimately determine whether your civil rights claim is viable.

Below is a brief outline of some of the more important issues that will arise during a civil rights case.  The outline is meant as just that: an outline.  It is not an all-encompassing guide to litigation under 42 U.S.C. Section 1983 (which provides the mechanism by which a constitutional claim is brought before the court).  This is meant only to familiarize the reader with the terms and general analysis that the courts will use and hopefully answer some basic questions you may have.  As always, if you believe your rights have been violated, I encourage you to call for an appointment, so that an attorney can analyze the specific facts of your case.

  1. State action

A successful 1983 claim is going to require state action (other civil rights claims, like discrimination, are generally brought under Title VII, which statutorily authorizes suit).  This means that the entity violating your rights is going to be a city, county, township, etc., or an employee of one of the above entities.  Sometimes, a nominally private entity can be considered a state entity.  For example, a private medical care company operating the medical facilities at a prison can be considered a government entity, as it is performing a government function.  On the other hand, a truly private entity, such a movie theater, retail store, or restaurant, can limit your actions, even actions covered by the Constitution.  Thus, a movie theater can lawfully prohibit the carrying of firearms, even if you have an LTCF, and a retail store can prevent you from speaking out about an issue on its property, despite the First Amendment.  Federal statutes cover some issues such as religion and speech restrictions by employers, but generally speaking, they aren’t 1983 actions.

  1. Immunities

The biggest hurdle in Section 1983 litigation usually involves government immunities.  There are several types of immunities that governments have: Sovereign, qualified, absolute, and what is called Monell liability.

Sovereign immunity applies to the state and state agencies, and prevents the state from being sued for monetary damages.  Individual state employees, however, can be sued in their individual capacity, but the claim must meet a certain threshold, generally finding that the individual acted far outside the scope of their normal employment.

Qualified immunity applies to individuals who are employed by the government.  Here, there are two basic issues that the court must resolve.

One issue involves whether the individual had notice that the action would violate a constitutional right.  For example, searching a house without a search warrant and no consent would generally be considered a violation of the Fourth Amendment (although, as with everything, there are some exceptions).  However, searches of cell phones have recently been before the courts, to determine whether the search of a cell phone during an otherwise legal stop is constitutional.  On newer issues, such as these, the courts can find that the actions violated your rights, but that the law wasn’t clearly defined such that the officer would have known he or she was violating your rights.  In that instance, the individual agents are likely to be dismissed on grounds of qualified immunity.

The other issue is whether the government agent acted reasonably.  This is entirely fact dependent.  Often, this requires the use of an expert in the field to give a deposition and/or testify at trial.  Here, the court can also find that your rights were violated, but that the agent, at the time of the actions, was acting reasonably under the circumstances.

Absolute immunity is generally only applied to District Attorneys and Judges, although some courts (like the Third Circuit) has applied that immunity to Child and Youth Service workers as well, although in a more limited fashion.  This means that you cannot sue the agent for his or her actions.  If the actions are entirely out of the scope of employment, there might be a separate cause of action, but generally not a 1983 action.

Finally, there’s Monell liability.  Monell is the seminal Section 1983 case and sets the parameters for when a government entity is liable.  In order for a city, township, county, etc. to be liable, the actions of the government entity itself must have caused the damages.  This is very different from general civil liability.  If you go to a retail store and you slip on a spill that was supposed to be cleaned up by an employee, but was not, then the store may be liable.  When suing the government, the plaintiff must show that the policies – or lack of suitable policies – caused the damage.  To analogize back to the retail store, under the Monell theory, the store’s manual must have stated that spills are not to be cleaned up, or entirely neglected to mention spill protocol, in order to be liable.  Thus, actions of government agents, not matter how unconstitutional, do not automatically create liability for the government entity.

  1. Damages

Finally, there must be some sort of damages.  This is generally true of all lawsuits, but especially so here.  If you have no identifiable damages, then you will very likely get what are referred to as “nominal damages.”  This means that the court can ultimately find in your favor, but award you a dollar or less.

As stated above, this is merely a guideline to familiarize the reader about Section 1983 lawsuits and perhaps answer some basic questions.  Each case is unique, and the facts and nuances of each case should be analyzed by an attorney with experience in federal civil rights litigation.  If you think you have a case, or are unsure, I encourage you to call and set up an appointment.


Filed under Constitutional Law

Yes, You Can Record Police Officers During The Course of Their Official Duty

One of the most common questions that seems to arise in the realm of constitutional rights involves whether an individual has the right to record encounters with police officers.  The short answer is: Yes.

Pennsylvania’s Wiretap Act makes it a third degree felony to “intentionally intercept[] . . . any . . . oral communication.”  18 Pa.C.S.A. s. 5703(1).  However, an “oral communication” is defined as “any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.”  18 Pa.C.SA. s. 5702.  Thus, if an individual has no expectation that his statements will not be “subject to interception,” then the statement is not an “oral communication” for purposes of the Wiretap Act.

Two federal courts governing Pennsylvania have concluded that police officers do not have an expectation that their statements will not be intercepted.  First, in Robinson v. Fetterman, the Eastern District of Pennsylvania found that the First Amendment guarantees the rights of individuals to record police officers in the course of their public duties.  378 F.Supp.2d 534, 541 (E.D.Pa. 2005).  In so holding, the Court noted that the “activities of the police, like those of other public officials, are subject to public scrutiny.”  Id.  While some courts have held that the First Amendment right exists for expressive purposes, the Eastern District found that the plaintiff “need not assert any particular reason for videotaping the troopers.”  Id.

Five years later, in Kelly v. Borough of Carlisle, the federal Third Circuit (the appeals court that governs Pennsylvania), found that there was, indeed, a First Amendment right to record the police during their official duties.  622 F.3d 248 (3d Cir. 2010).  The Third Circuit opinion revolved primarily around the issue of qualified immunity (which would immunize the police officers from liability if the law was not clearly established at the time of the violation).  Thus, the holding is not quite as explicit as the Eastern District’s in Robinson, but is present nonetheless.

In short, you may record the activities of the police, so long as your recording does not interfere with their official duties.  For example, you can’t cross into a marked crime scene, or resist arrest for the purpose of continuing the recording, but you can record from a distance that is not going to interfere.


Filed under Constitutional Law

A Government of Laws? Only If You Can Guess What They Mean.

John Adams once stated that the U.S. was to be a government of law, and not of men.  This meant that the word of law – the text, not the intent – was to govern.  If the law was inartfully drafted, or had negative and unintended consequences, a democratically-elected Congress could change the law.  If the law was unconstitutional as drafted, then it was void until corrected.  While never perfectly practiced, this ideal has at least been nominally present throughout most of the nation’s federal jurisprudence.  That, I fear, is no more.

In the King v. Burwell decision, No. 14-114, the Supreme Court tossed aside its judicial objectivity in the face of a highly contentious, but important, public debate over the constitutionality of the “Obamacare” statutory scheme.  The Court in King essentially decided that the survival of the statute’s perceived goals was more important than what the statute actually said.  Put another way, the means were less important than the ends.  In a “government of laws,” this is precisely the wrong conclusion.  With History’s ironic sense of humor, King was decided during the 10 year anniversary of another egregious judicial rewriting: Kelo v. New London.

The ACA provides for two types of insurance exchanges: those created by the state, and those created by HHS in those states that have not set up a state exchange.  The statutory regime also exempts individuals from the purchase of health care requirement – the Individual Mandate – if the cost exceeds 8% of their income.  To alleviate this, the ACA provides tax credits to those individuals.  However, the statute creates the tax credit for “Exchange[s] established by the State.”  In creating the administrative rule to execute this, the IRS granted the tax credit to those covered by state exchanges and federal exchanges.  The King Petitioners were Virginia residents (a state without a state exchange) who argued that they were ineligible for the tax credit and thus were exempt from the Individual Mandate, as the cost exceeded 8% of their income.

The language is important here: the section of the law that allows the tax credit refers to “applicable taxpayers,” and provides a credit “equal to the premium assistance credit amount.”  That term is then defined as “the sum of the premium assistance amounts . . . with respect to all coverage months of the taxpayer . . .”  One more round of definitions defines “premium assistance amounts” and “coverage months” in reference to health insurance plans that have been purchased through “an Exchange established by the State.”  Even the term “State” is defined as “each of the 50 States and the District of Columbia,” which Roberts correctly notes “does not include the Federal Government.”

The Government argued (and the federal  courts have now accepted) that the term “established by the State” actually means “established by the State or the Federal Government.”  Justice Roberts, once again writing for a fractured Court on the health care issue, starts off with the statutory interpretation framework he then goes on to ignore: “If the statutory language is plain, we must enforce it according to its terms.” Roberts then explains that, perhaps counter-intuitively, the plain meaning of the words must sometimes be found by their intent and context.

While context is always important in understanding what a word means, context was not the problem here.  If I say “Bob and Fred are builders in our town and Bob built my house,” I cannot legitimately argue that I really meant that Fred built it, even though I previously stated that both are builders.  And, if Fred actually built my house, I would have made a wrong statement, not a true statement taken out of context.  The plain meaning of my original statement certainly cannot be interpreted to mean “Fred built my house,” simply because I could not have meant to say something untrue.  Rather, the plain meaning would have been what I said, and it would have been wrong.  The only way to remedy that incorrect statement is to change it.

However, Roberts tries to argue that the wrong statement was, in reality, the plain meaning (if only you were to discard the “natural meaning”).  The statute says “Exchanges established by the State.”  The statute refers to both State and Federal Exchanges, both of which behave similarly, but are established and administered by two different entities.  However, Roberts concludes that because Congress probably said the wrong thing, that “plain meaning” should be construed to mean “correct meaning.”  Thus, the intent of the statute, not the language that was written down, is the law.  A government of men . . .

After nominally eschewing judicial redrafting of statutes, Roberts begins redrafting the statute.  Despite finding that the “plain meaning” of the statute controls, he acknowledges that “[i]f we give the phrase ‘the State that established the Exchange’ its most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges.” (Emphasis in original).  But because the Act “clearly contemplates” individuals on the Federal Exchange, the law must be reinterpreted.  It is a problem that “arises repeatedly throughout the Act.”  Thus, “Bob built my house,” really means, “Fred built my house,” because Fred really did build my house.

The other bit of statutory reconstruction occurs under the third element of the statute.  A tax credit is available to “State Exchanges” “under 42 U.S.C. § 18031.  The Federal Exchange, however, is established pursuant to 42 U.S.C. § 18041.  Roberts gets around this drafting error by pointing out the 18041 actually tells the HHS Secretary to establish the same type of Exchange as outlined in 18031.  Of course, this does not solve the problem.  If Fred built my house, I cannot say that Fred and Bob built it, merely because it looks like a house Bob built.  Likewise, an Exchange operated by the Federal Government is not a State Exchange, regardless whether it is built on the same model and follows the same rules.

Roberts, however, would view my statements concerning Fred and Bob as ambiguous, just as he views “established by the State” as ambigiuous.  This is because the Exchange authorization statute instructs the HHS Secretary to establish “such Exchange” (referring to State Exchanges) in the absence of a state-established Exchange.  Thus, Roberts sees no difference between the one who builds and the one who designs the model, or at least is substantially confused by who is the actual builder to allow others to make the determination.

Despite the Courts’ linguistic exploration, what appears to have actually occurred is a strong dose of judicial Baywatch.  Seeing a statute caught in the undertow of the Constitution and its own incompetence, floundering and splashing about, Roberts and the rest of the legal lifeguards rushed in to save it, ignoring all of the legal and Constitutional hazards in doing so.  Roberts acknowledges that the “arguments about the plain meaning . . . are strong,” but argues that the law would be “untenable” if read according to any normal view of grammar or language.  Thus, in order to save this particular law, the Court has tossed aside its analytical approach reserved for other laws, which effectively means that “Too Big to Fail” has entered the world of constitutional jurisdprudence.

As much as the tendency exists to make this something new, let us be reminded that this week marks the 10th anniversary of another egregious example of redrafting, one which may in fact be considered more detrimental to the law, as it rewrote the text of the Constitution, rather than a particular statute.

The Supreme Court decided Kelo v. New London in 2005, which held that the term “public use” does not, in fact, mean “public use.”  In his decision, Justice Stevens (now retired) chastised those who might be so inclined to interpret words by their plain meaning as holding a “narrow view” which has “steadily eroded over time.”  After all, he wrote that that “narrow view . . . proved to be impractical given the diverse and always evolving needs of society.”

It is no surprise, then, that since the infancy of Progressivism in the very late 1800’s, the Court has utilized the “public purpose” test, rather than the Constitutional text.   Of course, the Court “define[s] that concept [public purpose] broadly,” effectively flipping the protections of the Constitution from the protection of individual rights to the protection of an active Government.  Thus, the Court upheld the taking of property for a supposed “public purpose” in 1954, when Washington, D.C. condemned a non-blighted department store in the middle of a blighted area, for purposes of redevelopment.  It upheld another taking of private property in Hawaii when title was transferred from landlords to tenants to destroy the “social and economic evils of a land oligopoly.”  (No mention was made of the social and economic evils accompanying the sort of government that unilaterally determines A’s property rights are more important than B’s desire to own that property, the sort of dilemma resolved by the Takings Clause in the Constitution).

Economic redevelopment, Justice Stevens concluded, “unquestionably serves a public purpose.”  Thus, in Kelo, the only question for the Court was whether just compensation was paid.  The ability of the government to remove individuals from their homes in order to facilitate a promenade (to be actually used by the public), shopping center, hotel, new private residences, and a large Pfizer facility was not questioned.  Notably, the Petitioners in Kelo all owned property that was to be developed as part of the private, corporate development, not the promenade or public areas.  That, however, didn’t matter.  As Justice Stevens pointed out (correctly, under the aforementioned precedent), “it is . . . clear that a State may transfer property from one private party to another if future use by the public is the purpose of the taking.”  And because “use by the public” has been redefined as “public purpose,” which has then essentially been interpreted as “benefitting the Government,”* the transfer of Suzette Kelo’s house and property to the Government, who was then supposed to transfer title to Pfizer (a decidedly private organization), there was no constitutional issue with the transfer.

The striking part of Kelo, and the precedents upon which it rests, is the ease with which at least some Supreme Court Justices have amended the Constitution.  Justice Stevens acknowledges that for the first 100 or so years of the nation’s existence, the Fifth Amendment meant “public use.”  The “interpretation” Stevens discussed in Kelo was not a reinterpretation, however.  It was a redrafting, as Stevens admits in so many words.  Unlike many cases in which the Court attempts to interpret the meaning of a word or phrase, the Court did not try to argue that “use” meant “purpose” at the time of the Constitution’s ratification.  Rather, it merely changed the words.

This may seem nitpicking, but the distinction is important.  If a reasonable argument exists that “use” meant “purpose” at the time of ratification, then it is certainly possible (though incorrect, in my opinion) that the Court’s interpretation is correct.  But Stevens did not argue that in Kelo; instead, he stated that the Court reversed course because [the Public Use Test] proved to be impractical given the diverse and always evolving needs of society.”  Thus, the Court did not merely decide that they had gotten the meaning of a word wrong.  They decided that times had changed and with it, the Constitution must, too.

And so it is entirely appropriate that the Supreme Court has now rewritten a statute by re-defining the meaning of the statute’s words during the 10 year anniversary of the Court’s most publically known affirmation of the same principle.  Ten years ago this week, Justice Stevens acknowledged announced that the Court had officially changed the text of the Constitution from “public use” to “public purpose.”  Yesterday, the Court announced that it has no qualms about changing statutes, too and with it, established that we are not, in fact, a government of laws.

  • “Benefitting the Government” is my own interpretation and is not a quote from Justice Stevens or the Court. The Court determined that increased tax revenue from the corporation, new jobs, and housing, in addition to the perceived benefits of “redevelopment” constituted “public purpose.”

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Filed under Constitutional Law, News & Events

“Let Them Sell Wine!”: U.S. Supreme Court Upholds Right to Personal Property

The fundamentals of Constitutional interpretation have been changed this week (more on this in a forthcoming blog).  Statutory interpretation has been subordinated by politics and the definition of a “fundamental right” has been amended to include “the mystical aphorisms of the fortune cookie,” in Justice Scalia’s interesting words.  However, property rights have at least fended off two strong attacks by the government, at both the state and federal levels.  In City of Los Angeles v. Patel, the Court held 8-1 that a local regulation requiring hotels to allow warrantless searches of their records was unconstitutional.

The subject of this blog, however is Horne v. Dept. of Agriculture, which addresses the Takings Clause and corrects a rather egregious example of New Deal Era commercial meddling and disregard for individual property rights.  While it unfortunately reaffirms Wickard v. Fillburn (the case in which a farmer was penalized for growing his own wheat for his own consumption based on the aggregate effects on the wheat market), it does prevent the Government from actually requiring that individuals and businesses entirely forfeit rights to a percentage of its property for the benefit of “the market.”

Leaving aside the troubling absurdity that a case such as this was even legitimately contentious enough to get to the Supreme Court, the ruling in Horne v. Dep’t of Agriculture, No. 14-275 was a clear-cut victory for the protection of private property rights.  By no means is the ideological conflict between private property rights and the federal government over – see King v. Burwell or Wickard v. Fillburn for startling examples – but the case was decidedly a victory, nonetheless.  “Under the Department of Agriculture’s California Raisin Marketing Order, a percentage of a grower’s crop must be physically set aside in certain years for the account of the Government, free of charge.  The Government then sells, allocates, or otherwise disposes of the raisins in ways it determines are best suited to maintaining an orderly market.”  While those sentences would have made George III, Lord North, and George Grenville blush, this practice had been occurring for nearly 80 years.

Anyone interested in the actual mechanics of the law can read the decision for a description.  This is the pertinent part:

In 2002, the Hornes refused to set aside any raisins for the Government, believing they were not legally bound to do so.  The Government sent trucks to the Hornes’ facility at eight o’clock one morning to pick up the raisins, but the Hornes refused entry.  The Government then assessed against the Hornes a fine equal to the market value of the missing raisins – some $480,000 – as well as an additional civil penalty of just over $200,000 for disobeying the order to turn them over.

The Government then attempted to collect the fine; the Hornes sought to use the unconstitutionality of the Marketing Order as a defense to the imposition of the fine.  After some procedural and legal minutiae (important in the legal world, but less so for the meaning of the Constitution, which we are discussing here), the Ninth Circuit ultimately ruled that the Marketing Order was not  a Taking, as it determined that the Constitution “affords less protection to personal than to real property.”  Because the Ninth Circuit concluded that the raisin growers received some money back from the sale of the raisins they were forced to turn over, the growers were “not completely divested of their property rights.”  The Ninth Circuit viewed the mandate as a regulation, much like a permit.  Thus, the growers received a Government benefit by the Government regulation of the market (really) in exchange for a fee (the cost of the raisins).  Thus, “the Hornes could avoid the reserve requirement by planting difference crops.”

Fortunately, the U.S. Supreme Court disagreed.  First, the Court found that the Fifth Amendment applies with equal force to personal property and real property.  Given the lack of differentiation in the Fifth Amendment, this makes sense.  While the Supreme Court has muddied the waters a bit with past rulings on “regulatory takings,” (which apply to real property), the Court found that “people still do not expect their property, real or personal, to be actually occupied or taken away” by the Government.  By actually taking the raisins from the growers to the Raisin Committee (or the title to the raisins, which is the important distinction), the raisin growers lose all rights to the property.  Thus, this is a “classic” takings case.

The Court also found that the condition to “relinquish specific, identifiable property as a condition on a permission to engage in commerce” constitutes a per se taking.  If the Hornes don’t like the condition, the Government’s argument went, they can sell the grapes for consumption or wine.  “Let them sell wine,” Justice Roberts quipped in response, “is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. “ In short, Roberts wrote, “[s]elling produce in interstate commerce . . . is not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.”

For what it represents, the decision in Horne is a good one.  At a minimum, it holds that the Government has to work to deprive an individual of his rights.  Quoting Justice Holmes, the Court reiterated that “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.”  Thus, “the means [the Government] uses to achieve its ends must be consistent with the letter and spirit of the Constitution.”  So while the Court does nothing this week to limit the Government’s “broad powers,”(and expands them in other cases),  the Court is at least willing to mandate that those powers be exercised in nominal compliance with the Constitutional means.

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The Child Custody Process: An Overview

By Allen Thompson, Esq.

What is “Custody?”

There are two types of custody: physical and legal.  Physical custody is self-explanatory; it is the time in which you are the physical custodian of the child.  Often, this is referred to colloquially as “visitation.”  Physical custody may be supervised or unsupervised.  Supervision may be provided by the primary custodian, another family member, or even the state.  Legal custody is the right to make major decisions in the child’s life, for example, religious upbringing, educational decisions, medical decisions, etc.

Best Interest of the Child

When determining custody, the best interests of the child is the overriding factor.  The Court is not interested in mediating family feuds, but is only attempting to ascertain which environment is best suited for raising the child.  While the Court will consider criminal histories, addictions, size of the residence, and income, it will only consider these factors to determine whether a child may be suitably raised in that environment.  The Court will also consider which party is more likely to create tension and conflict, so maintaining a civil discourse with the other parent is always in your best interest.

The Custody Process

The first step in obtaining a child custody order is to file a Complaint for Custody.  The complaint must be filed in the county in which the child(ren) have resided for the past 6 months.  The residency of the parent filing does not matter.

Generally speaking, both biological parents may file custody actions, so long as neither parent’s parental rights have been terminated, either voluntarily or involuntarily.  In some instances, a grandparent may bring a custody action.  As a general matter, the rights of grandparents are not as broad as a biological parent, although grandparents’ rights are determined based on the particular circumstances.  If you are a seeking physical or legal custody of your grandchild(ren), call a family law attorney to see if your particular situation allows you to file for custody.

Once the custody complaint has been filed, a conciliation conference will be scheduled with a Custody Master.  During this conference, the Master will attempt to mediate an acceptable custody arrangement between both parties.  If an arrangement is made, the Master will recommend the agreement to the Judge and the terms will be binding on both parties after the Judge signs the agreement and enters it as an Order.  Even if one party disagrees, the Master will eventually recommend an Order to the Judge, who will then determine whether to sign the Order or not.

If one party is unhappy with the order, an appeal may be taken to the Court of Common Pleas.  In that event, a trial will be held before the Judge.  This is where you may bring in witnesses, introduce evidence, etc.  The other parent will have the same opportunity to do so.  Depending upon the age of the child(ren), they may be called to give their testimony, as well.  After the trial, the Judge will deliberate and enter an Order, which will be binding on all parties.

Why bother with a custody order?

Often, individuals inquire as to whether a custody order is necessary, as the parents have arranged an agreement outside the court system.  While the Court certainly encourages parents to do this, the major benefit to having a custody order is that it is legally binding and enforceable, even if the other party disagrees with the terms.  Without an enforceable Order, the authorities are extremely unlikely to get involved in determining custody disputes.  If, however, there is an enforceable custody Order, it is relatively easy to see if one party is in compliance.


If a party violates a custody order to a significant degree, a Contempt Petition may be justified.  This petition will inform the Court that one party has failed to comply with the Order.  While it is generally best to ignore minor or infrequent infractions, such as delays in drop-offs, phone calls, etc., more serious or consistent violations of the Order should likely be reported to the Court via Contempt Petition.  If you already have a family law attorney, consult with your counselor.  The more serious and/or frequent the violations, the more severe the penalty for the violation.

Modifying an existing order

Once a custody order is in place, either parent may attempt to modify it by filing a Petition for Modification.  Here, you explain to the Court why you believe it is in the child’s best interest to modify the current custody order.  While the law does not require a significant change in any circumstances to modify a custody order, it is generally best to be able to explain what circumstances have changed since the order you seek to modify.  Once you file the Petition for Modification, the process is the same as if you had filed an initial custody complaint, and you will be scheduled for a conference with the Master.


It is important to note that most Courts will start with the presumption that both parents should enjoy 50/50 custody, both physical and legal.  Thus, it is unlikely that one parent will successfully “take the child” from the other parent through a “custody battle.”  As mentioned above, the best interest of the child is the guide; thus, the Court is not particularly concerned with who filed the complaint, whether the parties like each other, etc.  So long as neither party has a significant criminal record that would affect the child (i.e. child endangerment, abuse, serious drug problem), both parties are likely to enjoy a fair amount of physical custody.  Consult with a family law attorney about realistic goals in your case.

Finally, legal custody is nearly always shared jointly, at least initially.  Because legal custody is defined much more closely to the constitutional rights of upbringing and management, the courts are generally very hesitant to grant one parent sole legal custody.  As with any custody matter (or any legal matter), the particular facts of your situation will guide the process and determine the ultimate custody Order.  Thus, it is worth discussing your options with a family law attorney before proceeding with a custody complaint, contempt or modification petition, or in attempting to defend against one of these.

If you’d like to speak to one of our family law attorneys about the custody process, initiating a custody claim, defending one, filing a contempt petition, or modifying an existing order, you may call (610) 845-3803 to set up an appointment.

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Much Ado About Nothing?: Montville, New Jersey’s Underage Drinking Ordinance and What’s Left of the 4th Amendment

There’s been some discussion of a new ordinance in Montville, N.J. that supposedly allows police officers to enter homes at will (or at least upon probable cause) that underage consumption of alcohol is occurring on the premises. The news reports have some truth in them, but are also not complete.

Under current state law, it is illegal for a person to provide, offer, or make alcohol available to an underage person, or to provide a place for underage persons to consume alcohol. N.J.S.A. 2C:33-17 categorizes this as a disorderly persons offense, meaning that a person can spend up to six months in jail and pay fines up to $1,000. (The underage consumer is penalized only if he or she is consuming alcohol in public). Prior to Montville’s ordinance, a police officer with probable cause that (1) a violation of state law is occurring and (2) a person is in danger or evidence will be destroyed, may enter the property without a warrant. Under Montville’s ordinance, the officer still needs to have reasonable suspicion that a violation is occurring and there must still be exigent circumstances. Thankfully, searches of homes and offices are still considered to be somewhat protected from warrantless searches, so police officers can only search your home if exigent circumstances exist (i.e. there’s a really pressing reason they can’t get a warrant). Whether the definition of “exigent circumstances” has become a bit too loose as of late can certainly be debated, but, in theory, the protections for the home remain and, at a minimum, receive homage and lip service from the courts.

While the Montville ordinance really doesn’t affect the 4th Amendment rights of its residents, it does affect their criminal liability in underage drinking incidents. The two major differences between state law and Montville’s ordinance are: (1) state law applies to the homeowner, rather than the underage drinker, on private property, while the Montivlle ordinance applies to the individual consuming the alcohol on private property, and (2) the penalties for Montville’s ordinance are far less severe than the state penalties.

Up until 2000, a police officer confronted with a report of underage drinking at a private residence had one of two options: charge the parents with a violation of N.J.S.A. 2C:33-17, or look the other way. Under New Jersey law, underage consumption of alcohol is illegal for the underage consumer when he or she consumes alcohol in public. The parents or homeowners, however, are penalized when the underage drinking occurs in a private setting. Recognizing that there was no “slap on the wrist” type of penalty for underage drinkers in a private setting, and knowing that police were at least sometimes hesitant to charge parents and homeowners with disorderly persons offenses for allowing underage drinking, the New Jersey legislature passed N.J.S.A. 40:48-1.2 in 2000, which allowed municipalities to pass ordinances dealing with underage drinking. Montville’s ordinance is a direct result of this law, mirroring its language and penalties.

Montville’s ordinance makes it a municipal offense – punishable by $250 or $350, depending on the number of prior offenses – for underage persons to consume alcohol on private property. While providing the same statewide exceptions for religious purposes or with parental permission and in the presence of the parent, the Montville ordinance provides police officers with a third option. Rather than penalize the owner of the house or walk away, the officer has the option of providing a penalty directly to the underage person consuming alcohol. The town is selling this as an alternative to the harsher state penalties: whether this will be an additional charge or an alternative charge will remain to be seen (one hopes that the officers don’t take the opportunity to charge both the individual under the ordinance and the homeowner with the state offense, although it is certainly a possibility).

Regardless of whether police officers enforce the ordinance in conjunction with the state law or not, the primary concern (if the news reports are to be believed) is the ability of police officers to enter homes without a warrant to investigate underage drinking. Nothing in the ordinance suggests that it grants new 4th Amendment-eroding powers to the police. Under Montville’s ordinance, a police officer still needs both probable cause that an underage person is consuming alcohol without parental permission and in the presence of the parent, and exigent circumstances must exist. Thus, from a 4th Amendment standpoint, nothing changed in New Jersey. Whether current 4th Amendment jurisprudence adequately protects our rights from the government, however, is a different question altogether.

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