Archive for the ‘News of Interest’ Category

Tribal sovereign immunity protects tribes from suits involving both governmental and commercial activities conducted on or off a reservation.

Friday, December 8th, 2006

   By JOHN K. WILEY  / Associated Press



Commercial activities of the Confederated Tribes of the Colville Reservation are protected from lawsuits under tribal sovereign immunity, the state Supreme Court ruled Thursday.


The ruling reverses a Court of Appeals decision in a racial discrimination lawsuit filed by a non-Indian against two corporations of the Eastern Washington tribe and a supervisor.


The opinion, written by Justice Richard B. Sanders, found that state laws echo federal laws granting the Colvilles’ tribal corporations sovereign immunity unless there is an express waiver by the tribe or immunity is abrogated by Congress.


Tribal sovereign immunity protects tribes from suits involving both governmental and commercial activities conducted on or off a reservation. The Colvilles’ reservation covers about 1.4 million acres north of the Columbia River in Okanogan and Ferry counties.


The lawsuit was brought by Christopher Wright, a non-Indian hired by the Colville Tribal Services Corp. in July 2002 as a pipe layer and equipment operator. Wright worked off-reservation on a project to construct a water line for a U.S. Navy housing development in Oak Harbor.


Wright resigned in February 2003. He sued the Colville Tribal Enterprise Corp., its wholly owned subsidiary CTSC, and his former supervisor, Don Braman, alleging race discrimination, racial harassment, hostile work environment, negligent supervision and negligent infliction of emotional distress.


Island County Superior Court dismissed the suit for lack of jurisdiction. That was reversed by the state Court of Appeals, which found CTEC and CTSC were not protected by tribal sovereign immunity.


Breean Beggs, a Spokane Center for Justice lawyer who represented Wright, said his client did not challenge Indian government sovereignty, but only the claim of immunity by a for-profit construction company owned by the tribe.


Beggs said he was unable to contact Wright Thursday. Wright will decide whether to appeal the decision to the U.S. Supreme Court, Beggs said.


“The law is still quite unsettled regarding corporations who have tribes as shareholders,” Beggs said, noting that in five similar cases, courts found no immunity in three.


Tribal enterprise corporations are fairly new and create legal problems when the work is being done off-reservation, Beggs said.


“The real issue is going to come up; when something happens involuntarily, like when a truck owned by the tribal corporation is involved in a head-on collision and kills a family of four,” he said. “Under this opinion, the tribal corporation would have complete immunity and that family would have no recourse.”


Michael Griffin, a lawyer with the Jackson Lewis firm in Seattle that represented the tribe, said Thursday he was trying to contact his client for permission to comment on the decision.


The CTEC owns and manages 14 business enterprises on behalf of the tribe, including three casinos, sawmills and logging companies, stores and a credit union.


Sanders’ opinion was endorsed by Chief Justice Gerry L. Alexander and Justices Susan Owens and Bobbe J. Bridge. Justices Barbara A. Madsen and Mary E. Fairhurst concurred in a separate opinion.


A dissent written by Justice Charles Johnson contends the case should be sent back to a trial court to determine facts about whether the corporations are tribal entities protected by sovereign immunity. Justices Tom Chambers and James M. Johnson signed the dissent.


But Sanders wrote their dissent fails to identify any disputed facts, so “in the absence of an actual factual dispute, this is a question of law.”


Under Washington law, tribal sovereign immunity protects tribal governmental corporations.




The case is Wright v. Colville Tribal Enter. Corp, No. 77558-3.




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LawReader recommends free Office Software. Before buying Office 2007 consider one of these options.

Thursday, December 7th, 2006

 Tired of paying out bundles of hard earned money for the software to run your office applications?  How  does FREE sound to you.  If you don’t really need the heavy duty (and heavy price) of Microsoft Word Office Suite  ($350 to $650) we would recommend you try a FREE download of an Office Suite.

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Open Office Suite – This is an excellent program to put on new workstations or on your child’s or a student’s computer.  No need to spend a small fortune when a free download will do a great job.  We feel very comfortable in recommending OpenOfficeSuite for most users.

 For download go to: 2.0.4

Or try ThinkFree’s ThinkFreeOnline    

   Instead of a download you work online with ThinkFreeOnline. This service could be a life saver if you are on the road and can’t bring the office with you.

ThinkFreeOnline is not downloaded but is accessed online.  It is compatible with  MS Word, MS Excel, and MS PowerPoint. This website uses large and powerful java applets to completely simulate these applications while you are logged on to their site. They offer a free account with 30mb of online file space and you can access any files on your local machine or the internet as well. The service is ad supported in the same way that Google uses the Google Adsense ads.

We tried out two applications.. It took several minutes for the java applets to download and the applications fired up. They did indeed look and act just like MS Office applications. The second  time you  go to their site  the apps will load quicker because the java applets are still stored in the Application Data folder on my PC.

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Case of the Dwindling Docket Mystifies the U.S. Supreme Court

Thursday, December 7th, 2006

By LINDA GREENHOUSE  Reprinted from The New York Times.

WASHINGTON, Dec. 6 — On the Supreme Court’s color-coded master calendar, which was distributed months before the term began on the first Monday in October, Dec. 6 is marked in red to signify a day when the justices are scheduled to be on the bench, hearing arguments.
The courtroom, however, was empty on Wednesday, and for a simple reason: The court was out of cases. The question is, where have all the cases gone?

Last year, during his Senate confirmation hearing, Chief Justice John G. Roberts Jr. said he thought the court had room on its docket and that it “could contribute more to the clarity and uniformity of the law by taking more cases.�

But that has not happened. The court has taken about 40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring. The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one.

The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s. And aside from the school integration and global warming cases the court heard last week, along with the terrorism-related cases it has decided in the last few years, relatively few of the cases it is deciding speak to the core of the country’s concerns.

The reasons for the decline all grow out of forces building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end up on the losing side of an important case might vote not to take it.

In a divided court, in a divided country, the court’s reduced role is perhaps not surprising, nor is it necessarily a bad thing. “In the post-Bush v. Gore era, the court may be concerned about taking the wrong case and making an unpopular decision,� said Frederick Schauer, a professor at the John F. Kennedy School of Government at Harvard, in an interview.

Professor Schauer argued in a recent and much-discussed Harvard Law Review article that the court’s work “had only minimal direct engagement with the central issues of the nation’s public and policy agenda.� In an interview, he said, “I think they like being under the radar.�

In private conversations, the justices themselves insist that nothing so profound is going on, but rather seem mystified at what they perceive as a paucity of cases that meet the court’s standard criteria. The most important of those criteria is whether a case raises a question that has produced conflicting decisions among the lower federal courts.

But there are still plenty of lower-court conflicts that go unresolved, said Thomas C. Goldstein, a Supreme Court practitioner and close student of court statistics who wrote last week on the popular Scotusblog that the justices were “on the cusp of the greatest shortfall in filling the court’s docket in recent memory, and likely in its modern history.�

“I don’t think we’re at the end of history and have fixed all the problems,� Mr. Goldstein said in an interview.

One theory is that the court is so closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at the end of the day, they might not prevail. To grant a case takes four votes, which can be a heartbreaking distance from the five votes it takes to win. Scholars of the court call this risk-averse behavior “defensive denial.�

While such behavior may account for a portion of the shortfall, it can hardly provide a global explanation, because only a relative handful of the 8,000 appeals that reach the court each term are ideologically charged.

Other, more neutral explanations provide likely pieces of the puzzle.

One is the decreasing number of appeals filed on behalf of the federal government by the solicitor general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial hole in the court’s docket.

As recently as the court’s 2000 term, the solicitor general filed 24 petitions, of which 17 were granted. Last term, it filed 10, of which the court granted 4. This term, the solicitor general has filed 13 petitions; the court has granted 5, denied 3 and is still considering the rest.

Another explanation lies across the street from the Supreme Court, in Congress.

Over the years, about half the court’s docket has been made up not of constitutional cases, but of cases requiring the justices to interpret federal statutes. Statutes from the 1970s, including major environmental laws, antidiscrimination laws and Erisa, the employee-benefits law, have been staples of the court’s docket for decades. But as Congress’s willingness to pass new laws has waned, the flow of statutory cases has begun to dry up.
rAnother possible explanation is the method by which the justices screen the thousands of petitions. Eight of the justices, all except Justice John Paul Stevens, pool their law clerks and have only one clerk make the initial recommendation for each case.

The recommendation is not binding, of course. But there is a built-in “institutional conservatism� in which law clerks are afraid to look overly credulous and so are reluctant to recommend a grant, according to Stephen M. Shapiro, a former deputy solicitor general who practices law in Chicago with Mayer, Brown, Rowe and Maw.

“Perhaps the clerks have been trained to be naysayers for so long that they don’t know any other way,� Mr. Shapiro said in an interview.

The sharpest drop in opinions came after William H. Rehnquist became chief justice in 1986. He had made clear his belief that the court under Chief Justice Warren E. Burger was taking too many cases, and Congress assisted in 1988 by eliminating from the court’s jurisdiction a category of “mandatory� appeals to which the justices collectively had long objected.

In the early 1990s, after the number of decisions dropped to 107 from 145 in the space of five terms, Chief Justice Rehnquist responded to reporters’ questions by commenting wryly that the Supreme Court would be the first institution of American government to fulfill Karl Marx’s prophecy of the withering away of the state.

He was kidding, of course. The late chief justice believed in a muscular role for the court, and went on to show that he could accomplish more with less.

The question now, on a docket dominated by cases that only a law professor could love, is how much less.

“It’s not obvious to me that the court should be doing more,� said Orin Kerr, a visiting professor at the University of Chicago Law School who wrote on his blog that constitutional law scholars “are kind of bored these days.�

In an interview, Professor Kerr said that while it was easy to say that the court should be doing something different, “no two people would agree on how it should change.�


Texas Court uses new legal theory to limit attorney fees.

Thursday, December 7th, 2006

HOUSTON, Dec. 6 /PRNewswire/ — The Texas Supreme Court has issued an important decision regarding recovery of attorneys’ fees, ruling for the first time that legal principles previously used to limit or overturn jury damage awards can also be used to rein in legal fees. The December 1 decision came in a case involving a dispute over the distribution of proceeds from the sale of bull semen by Brushy Creek Custom Sires in Taylor, Texas.
Attorney Brett Busby of Mayer, Brown, Rowe & Maw LLP in Houston argued successfully that because the original jury award of compensatory damages against his client was significantly reduced on appeal, a new trial on attorneys’ fees was required.

“We are pleased that the court realized that when damage awards are dramatically reduced on appeal, the sensible thing to do is give the jury an opportunity to reconsider the amount of attorneys’ fees in light of that reduction,” said Busby, who represented Emzy and Ava Barker, owners and operators of Brushy Creek Custom Sires, a business that boarded and provided other services for Brahman bulls.

Dr. Walter Eckman claimed that Brushy Creek had breached its agreement with him by failing to account for sales proceeds.

Houston’s First Court of Appeals reduced the jury’s original award of $112,000 in compensatory damages to $16,000 based on the statute of limitations. While the damage award was reduced, the $244,000 award of attorneys’ fees was not.

The court of appeals reviewed the amount of fees in light of the original damages and concluded that it was supported by sufficient evidence. The supreme court held, however, that the Barkers were entitled to a review of the fee evidence in light of the reduced damages. Because the court of appeals could not perform such a review without substituting its judgment for the jury, the supreme court ordered a new trial on attorneys’ fees.

This is the first time that the Texas Supreme Court has applied the “presumptive harm” rule of the Casteel line of cases to attorneys’ fees. It reasoned that reversal was required unless it could be reasonably certain that the jury’s fee award was not significantly influenced by the erroneous amount of damages it considered. Given the magnitude of the change in damages, the court held that the error was harmful.

The Court also applied the Saenz rule, which states a defendant is entitled to a meaningful evidentiary review of a jury’s determination, to attorneys’ fees. This use of Saenz, which involved non-economic damages, shows the Court’s willingness to put meaningful limits on attorneys’ fees.

“In recent years, windfall awards of damages have been scrutinized by lawmakers, courts, and community groups across the state. The supreme court has taken a significant step in extending this trend of reform to attorneys’ fee awards that are disproportionate to the results achieved in the case,” said Busby.

The Houston office of Mayer, Brown, Rowe and Maw has had another busy and successful year in the Texas appellate courts, including victories in Miga v. Jensen, Alpert v. Gerstner, and COC Services v. Grupo Carso. The appellate group is also handling an appeal of a $1 billion judgment to the Beaumont Court of Appeals. Busby argued his first case in the United States Supreme Court, Day v. McDonough, in February.

The depth of appellate experience in Mayer, Brown, Rowe & Maw’s Houston office is unmatched in Texas. The group boasts native Texans who served as former U.S. Supreme Court clerks, including Busby who clerked for Associate Justice Byron R. White (Ret.) and Associate Justice John Paul Stevens. Jeremy Gaston clerked for Associate Justice Sandra Day O’Connor, and new associate Jeff Oldham clerked for Chief Justice William H. Rehnquist. In addition, associate Lee Kovarsky clerked for Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit. Veteran appellate partner Claudia Frost, who heads the Houston appellate group, has specialized in Texas appeals and litigation for 24 years.

Mayer, Brown, Rowe & Maw LLP is among the largest law practices in the world, with more than 1,400 lawyers practicing in seven U.S. cities, six European cities and Hong Kong. It was named the fastest growing law firm in Texas according to the Houston Business Journal. Mayer, Brown, Rowe & Maw is listed in the 2006 Texas Lawyer annual survey as one of the top five highest-grossing firms in Texas with its largest offices outside of Texas. The Houston office’s Appellate group handles cases in the Texas courts of appeals, the Texas Supreme Court, the United States Supreme Court, and the federal courts of appeals, as well as in state appellate and supreme courts throughout the United States.

Nickolas suggests George Clooney for 2008 Senate race. LawReader suggests Ashley Judd for Governor in 2007!

Wednesday, December 6th, 2006

   Mark Nickolas, the unofficial voice of the progressive wing of the Ky. Democratic Party, suggests in his column in the Louisville news magazine LEO that that actor George Clooney could oppose Sen. Mitch McConnell in 2008.  This unlikely but interesting suggestion would not be without precedent.  California has elected actors to the Senate and the Governorship…can Kentucky be far behind?

   LawReader  would suggest, that we shouldn’t stop with George Clooney.  We suggest that Ashley Judd run for Governor.  We don’t even care which party she chooses.  Think about it, she is from Ashland, she attends almost every Univ. of Ky. basketball game, often coming out of the stands to lead a cheer, and she is as beautiful as Clooney is handsome.  The Republicans elected Richie Farmer and his only qualification was that he was a former basketball star at UK.  Ashley Judd would certainly have far greater eye appeal than Ernie Fletcher.

Don’t let us forget the Office of Lt. Gov….we nominate Heather French. Imagine a Judd/French ticket.  We bet this would increase the number of people bothering going to the polls to the 90% level.

 I can imagine a contest between the Democrats and the Republicans to sign her up…there hasn’t been a battle like that might be since both parties tried to enlist Eisenhower in l952. (For our younger readers, the Republicans won that one.)

    If both of these lookers were elected to public office, the image of Kentucky would be positively changed forever.  The only negative thought we have is our recollection of a former Gov. of Illinois who was chosen as the Best Looking Governor in America, later ended up being sentenced to prison.  However, with Fletcher’s  blanket pardon precdent as a guide we could forgive in advance any future violations of law they might commit in order to induce them to run. At a minimum with Judge Melcher’s ruling that they couldn’t be prosecuted in office, we could just let them stay in office until they were too old to send to jail.      

Excerpt from the Nickolas article in LEO:

Read article at: )  Bluegrass Politics: ‘Sexiest Man Alive’ As Our Next U.S. Senator?

Born in Lexington and raised in Northern Kentucky (note that McConnell is from Alabama), the two-time holder of the title “Sexiest Man Alive� (1997 and 2006) would present quite an opportunity for Democrats. Clooney, 45, is no stranger to politics; he even recently testified before the United Nations Security Council about his visit to Darfur, Sudan, where genocide is destroying the population. Clooney is as articulate as he is at ease when discussing issues like Iraq, North Korea, warrantless surveillance, domestic issues and why he’s a Democrat. He was even ahead of the curve this summer by calling for Sen. Barack Obama (D-Ill.) to run for president in 2008.

Clooney has never been shy about expressing interest in politics, though without fail he’s self-deprecating about why he should not run for office. In this month’s Esquire, Clooney mused that the effects of watching his father lose his 2004 race for Congress in Northern Kentucky, and the compromising nature of politics, have caused him to rethink a run. But it’s that very sort of thoughtful assessment — rather than an unabashed desire to be elected to office — that makes Clooney so appealing.

Celebrity actors running for high office is nothing new, as we’ve seen with President Ronald Reagan, Gov. Arnold Schwarzenegger, former Sen. Fred Thompson, Rep. Sonny Bono and many others. Even Gopher from “The Love Boat� (Fred Grandy) served four terms in Congress.


The myth of activist judges.

Wednesday, December 6th, 2006

The myth of activist judges.   Activist judges? Where?

 By Kermit Roosevelt III

At a conference in Texas last month, retired Justice Sandra Day O’Connor raised eyebrows when she revealed that, in 2005, each justice had received by mail a package of home-baked cookies containing “enough poison to kill the entire membership of the court.”

O’Connor’s remarks came in the middle of what has turned out to be her national speaking tour in defense of judges. It’s an unusual step for a retired justice, but these are unusual times. “The breadth and intensity of rage currently being directed at the judiciary may be unmatched in American history,” O’Connor has said.

That assessment may be overstated – the mid-century resistance to decisions such as Brown v. Board of Education, which desegregated public schools, was probably greater – but it is not far off the mark. Fortunately, most current attacks on the judiciary rely on poison pens rather than poison cookies. But they may be just as dangerous to the health of our system of government, and we owe it to ourselves not to swallow them too easily.

The constant refrain of the critics is that the Supreme Court has been engaging in “judicial activism.” No one agrees on precisely what this term means, but its heart is the idea that judges are making decisions based on their policy preferences rather than the law. The charge is levied most frequently against decisions that strike down state or federal laws, but it is also heard when the court rejects presidential claims of authority, as it has in some recent cases related to the detention and trial of terrorism suspects.

Complaints about activism would make sense if the Constitution provided clear answers that judges were ignoring in favor of their policy preferences. But in controversial cases, the Constitution typically does not provide a clear answer. Frequently, it offers a general principle whose application to particular cases requires something much like a policy judgment. The equal-protection clause, for instance, is generally understood to prohibit unreasonable or unjustified discrimination, but it does not tell us what counts as an adequate justification.

So some constitutional provisions require something like policy judgments. This does not mean that judges should decide cases based on their political whims. Precisely because the relevant constitutional rule requires a policy determination, courts should usually defer to the representative branches of government. Congress and state legislatures are generally better at making those calls, and, in most cases, courts should step in to thwart the popular will only if the result of the democratic process is clearly unreasonable.

But not always. Sometimes there are reasons to think that the democratic process should not be trusted. Perhaps a law burdens a politically unpopular group, or one that has historically been the target of unjustified discrimination. Or perhaps the individual interest at stake is so important that courts should err on the side of protecting it. In such cases, courts are justified in not granting other governmental institutions their customary deference.

Many of the people who criticize particular decisions as activist have a fairly transparent political agenda. When they don’t like the result, a decision is activist; when they do, the call for deference disappears. But if judges are honest, they can never satisfy these critics. Honest judges can either try to identify the factors that justify more intrusive judicial review, or they can defer in all cases.

Blanket deference would be a terrible mistake. The separation of powers, one of the cornerstones of our system of government, requires the courts to check the other branches if they overstep their boundaries. Dividing authority among the three branches of the federal government, the Framers believed, was the best way to avoid oppression by any one of them.

In fact, the need for an independent judiciary is even greater now than it was in the Framers’ day. Their vision of separation of powers depends on institutional loyalty – the idea that government officials seek to protect the authority of the institutions they serve, so that senators and representatives will resist presidential incursions on the power of Congress. But the Framers did not foresee the modern party system, and, in the modern world, party loyalty often trumps institutional loyalty. When one party controls both Congress and the presidency, the competition the Framers expected between those two branches all but disappears. The courts alone remain as counterweight.

A court that blindly defers to the other branches fails its obligation to serve as a check and balance. If we reject blanket deference, what remains is the attempt to identify appropriate cases for judicial intervention. That is what judges are doing now, what they have done since the founding. If we look carefully at the cases critics call activist, we will find that most of these interventions are, in fact, justified. Judicial activism is largely a myth.


Kermit Roosevelt III ( is the author of “The Myth of Judicial Activism: Making Sense of Supreme Court Decisions.” He will discuss “The Myth of Judicial Activism” at 4:30 today at the University of Pennsylvania Law School, 3400 Chestnut St., where he is an assistant professor.


Supreme Court Rejects Interpretation of Immigration Drug Law that permitted automatic deportation of even legal immigrants upon conviction of felony drug offense.

Wednesday, December 6th, 2006


 The Supreme Court rejected the governments interpretation of immigration law on Tuesday, ruling that a non-citizen is not subject to mandatory deportation for a drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law.
See- Notable Cases of the 2006-7 Term so Far  Go to Graphic

The 8-to-1 decision restored to one category of immigrants, caught in the nearly impenetrable maze where immigration law and criminal law meet, the ability to avoid automatic deportation and the other dire consequences of being guilty of an “aggravated felony.�

The category is made up of immigrants convicted of simple drug possession in states that treat those offenses as felonies. Federal law treats possession in most instances as a misdemeanor. But in the government’s view, possession when deemed a felony under state law became a “drug trafficking crime,� which under federal immigration law is an “aggravated felony� that strips an immigrant of the right to seek relief from automatic deportation, to seek asylum, or ever to return legally to the United States.

Writing for the majority on Tuesday, Justice David H. Souter said the government’s interpretation was based on a strained and implausible reading of the definition of “drug trafficking crime� in the federal criminal code.

Thousands of immigrants every year might benefit from the ruling, according to Jayashri Srikantiah, a law professor who heads the Immigrants’ Rights Clinic at Stanford Law School and who filed a brief on behalf of Jose Antonio Lopez, the immigrant whose Supreme Court appeal led to the decision, Lopez v. Gonzales, No. 05-547.

In an interview, Ms. Srikantiah said the decision was informed by “a sense of proportionality� and of the “real world consequences� of subjecting legal residents convicted of minor offenses to automatic deportation.

The Immigration and Nationality Act contains a list of aggravated felonies that includes “a drug trafficking crime.� This phrase, in turn, is defined not in the immigration law, but in the criminal code as “any felony punishable under the Controlled Substances Act,� the basic federal narcotics law.

The government’s position was that “any felony� meant any crime that was considered a felony either under federal law or in the state where the prosecution took place. In this way, a conviction for simple possession could become a drug trafficking offense and hence an aggravated felony, which is what happened to Mr. Lopez.

A Mexican who was a permanent legal resident of the United States, Mr. Lopez pleaded guilty in a South Dakota state court to aiding and abetting another person’s possession of cocaine. That crime is a felony in South Dakota, although the analogous offense is a misdemeanor under federal law.

Mr. Lopez served 15 months in state prison and was then placed in federal deportation proceedings as an aggravated felon. After unsuccessfully contesting the designation before the immigration service and the United States Court of Appeals for the Eighth Circuit, in St. Louis, he was deported to Mexico.

The Supreme Court’s decision makes Mr. Lopez eligible to apply for the administrative relief from deportation known as “cancellation of removal,� an option that was foreclosed by his designation as an aggravated felon.

In analyzing the government’s position that any offense “punishable� under the Controlled Substances Act therefore became a “drug trafficking� felony, Justice Souter said that “there are a few things wrong with this argument, the first being its incoherence.� While “trafficking� ordinarily meant “some sort of commercial dealing,� he said, “commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess.�

Justice Souter continued that while the government’s argument appeared implausible, that was “not to deny that the government might still be right; Humpty Dumpty used a word to mean ‘just what he chose it to mean — neither more nor less,’ and legislatures, too, are free to be unorthodox.�

But in this instance, he said, if Congress meant to define drug trafficking in such an “unexpected� way, “Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.�

Justice Souter said that under the government’s interpretation, a central part of federal immigration law, deportation, would depend not on a federal judgment about the seriousness of an offense, but on “varying state criminal classifications.� He added, “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a state chose to punish a given act more heavily.�

The court’s conclusion was that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.�

Justice Clarence Thomas was the lone dissenter, observing in his opinion that “without doubt, Congress could have written the definition with this limitation, but it did not.�

This was not the first time the Supreme Court has resisted a categorical interpretation of immigration law by the executive branch. In a unanimous opinion two years ago, the court ruled that contrary to the government’s view, driving under the influence of alcohol was not a “crime of violence� for which an immigrant could be subjected to automatic deportation.


Kentuckian Mark Nickolas invited to attend Southern Journalists Roundtable

Monday, December 4th, 2006

Mark Nickolas host of  Kentucky’s leading political blog has been invited to attend the Southern Journalists Roundtable in Chapel Hill, North Carolina.  Nickolas, whose blog has a decided democratic/progressive bent, has become the most read political blog in Kentucky.  

Earlier this year won an award as one of the best political blogs in the U.S.  His followers have unofficially designated him as the “real voice of the Ky. Democratic Party�.  
Southern Journalists Roundtable

A once-a-semester gathering of journalists who report and analyze issues in Southern states, as well as Washington, D.C. The journalists meet with faculty and graduate students, as well as invited presenters.  The roundtables are designed to meet three objectives:

1) to give journalist who focus on Southern state governments and politics an opportunity to exchange ideas and information,
2) to connect these journalists with scholars and informed sources and
3) to spotlight trends and issues in the South.  Graduate and undergraduate journalism students are invited to the discussions, as well as political scientists and other scholars who comment on public affairs


Just how rich are you compared to everyone else in the world?

Monday, December 4th, 2006

This site offers the opportunity for you to share a little of this wealth with the 6 billion 406 million people making less than you, by making a charitable contribution to CARE.
About our charity: CARE International UK
CARE International is a global humanitarian organisation working with over 45 million disadvantaged people in 70 of the world’s poorest countries. Whether supporting primary health care, promoting sustainable agriculture or developing savings and loan schemes, its programmes promote positive and lasting change and reduce long-term dependency. CARE also provides emergency food and shelter to survivors of natural disasters, wars and conflicts.

If you made a typical public defender’s salary of $30,000 last year.
You are the 429,712,644 richest person in the world!  You’re in the TOP 7.16% richest people in the world!
If you made $100,000 last year  You are the 39,615,049 richest person in the world!  You’re in the TOP 0.66% richest people in the world!
If you made a Ky. Circuit Judges salary of $125,000…You are the 29,907,929 richest person in the world!  You’re in the TOP 0.49%
richest people in the world If you made $200,000 last year
You are the 786,570 richest person in the world!  You’re in the TOP 0.01% richest people in the world!
If you are a top college football coach making just $1 million dollars a year,  you are the 107,565 richest person in the world!  You’re in the TOP 0.001% richest people in the world!

   According to these numbers only about 644,000 people in the world made more than $1,000,000 a year.  The head of Halliburton made over $40 million last year.

Justice Breyer says courts should look after political rights of minorities

Sunday, December 3rd, 2006

WASHINGTON: (AP) Justice Stephen G. Breyer says the Supreme Court must promote the political rights of minorities and look beyond the Constitution’s text when necessary to ensure that “no one gets too powerful.”

Breyer, a Clinton appointee who has brokered many of the high court’s 5-4 rulings, spoke in a televised interview that aired one day before justices hear a key case on race in schools. He said judges must consider the practical impact of a decision to ensure democratic participation.

“We’re the boundary patrol,” Breyer said, reiterating themes in his 2005 book that argue in favor of race preferences in university admissions because they would lead to diverse workplaces and leadership.

“It’s a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful,” said Breyer, who often votes with a four-member liberal bloc of justices.

 On Monday, the court will hear arguments in a pair of cases involving integration plans in primary and secondary schools. The legal challenge, which is backed by the Bush administration, could be among the most significant school cases since the landmark Brown v. Board of Education ruling in 1954 banned racial segregation.

In 2003, the court upheld race-conscious admissions in higher education in a 5-4 opinion by Justice Sandra Day O’Connor.

O’Connor, however, has since retired and been replaced by conservative Justice Samuel Alito. Justice Antonin Scalia, meanwhile, has denounced the use of race in school admissions as lacking any support in the Constitution.

In his interview, Breyer argued that in some cases it wouldn’t make sense to strictly follow the Constitution because phrases such as “freedom of speech” are vague. Judges must look at the real-world context — not focus solely on framers’ intent, as Scalia has argued — because society is constantly evolving, he said.

“Those words, ‘the freedom of speech,’ ‘Congress shall pass no law abridging the freedom of speech’ — neither they, the founders, nor those words tell you how to apply it to the Internet,” Breyer said.

Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-4 vote the McCain-Feingold law that banned unlimited donations to political parties.

Acknowledging that critics had a point in saying the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to the little guy who isn’t tied to special interests.

“You don’t want one person’s speech, that $20 million giver, to drown out everybody else’s. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money,” he said.

Breyer, who has voted to uphold abortion rights, declined to comment on the court’s role in deciding abortion. Justices this term are considering the constitutionality of so-called “partial-birth” abortion in a case some conservatives hope will be used to overturn the landmark 1973 Roe v. Wade ruling.

“The more the precedent has been around, the more people rely on it, the more secure it has to be,” he said.

Breyer commented on “Fox News Sunday,” in an interview taped last week.



Louisville lawyer Teddy Gordon takes School integration back before Supreme Court

Sunday, December 3rd, 2006

Bob Egelko,   San Francisco Chronicle
More than 50 years after the U.S. Supreme Court outlawed racial segregation in public schools, the justices are about to consider whether a school district can voluntarily integrate by considering race in campus assignments.

In cases from Seattle and Louisville, Ky., to be argued Monday, the justices will address the question left unanswered by the Brown vs. Board of Education ruling in 1954: What can the government do when the last vestiges of state-sponsored segregation are erased and schools nevertheless remain racially isolated because of housing patterns, parental choice and perhaps societal discrimination?

Facing that situation, officials in Seattle installed a system that allowed race to be considered as one of several factors in determining enrollment in popular high schools. In Jefferson County, Ky., which includes Louisville, the school district was once under a court desegregation order, and officials tried to avoid resegregating by setting minimum minority and white populations at each school.

“Jefferson County housing is substantially segregated along racial lines,” attorney Frances Mellen said in a brief to the court. “The assignment of all (district) students to ‘neighborhood schools’ would result in a substantial number of racially segregated schools.”

After the court desegregation order was lifted in 2000, Mellen said, the 97,000-student district concluded the only way it could prevent resegregation was to seek African American enrollment of 15 to 50 percent at each school. The proportion of blacks in the district was 36 percent.

The student assignment process, she wrote, “is flexible and uses race in a limited and permissible manner.”

But Teddy Gordon (from Louisville, Ky.), the attorney  for a white woman whose 5-year-old son was assigned to a more distant Louisville school rather than his neighborhood school, said the district’s program was “nothing more than a hard-core, mechanized quota.”

The Bush administration agrees. In papers filed with the court, Solicitor General Paul Clement outlined the administration’s position: A district can assign students by race when necessary to make up for its own intentional discrimination, but not to integrate schools that were never deliberately segregated.

Allowing “the use of a racial classification to achieve a desired racial balance … would remove the critical requirement that individuals be considered as individuals,” Clement said. Such a program, he said, is just as unconstitutional as the segregated school systems that the Supreme Court struck down in 1954.

The administration is supporting white parents challenging both the Louisville and Seattle programs. The Seattle plan — suspended since 2002, when it came under legal attack — gave officials in the city’s 46,000-student high school district a list of factors to consider when a school had more applicants than space. Second on the list, after the presence of a brother or sister at the school, was whether the student’s race would move the school closer to the district population of 40 percent white and 60 percent nonwhite.

A UC Berkeley law professor who supports school districts’ right to consider race in enrollment described the cases as the final chapter of Brown vs. Board of Education.

In the last few decades, “the court has basically ended the business of judicially enforced racial integration,” said Goodwin Liu, who filed arguments in the case on behalf of 19 former University of California campus chancellors. “Now the only question is whether school districts on their own accord can integrate. If not, it’s fair to say that from the constitutional law standpoint, we’ve given up on racial integration of public schools.”

A report by the Civil Rights Project at Harvard University illustrated the persistence of racial separation in public schools, despite the long-standing ban on intentional segregation.

In 2003, the project said, whites made up 58 percent of the nation’s public school enrollment, but the average white student attended a school that was nearly 80 percent white. African Americans accounted for 17 percent of all students, but the average black student attended a school that was 53 percent black. Latinos made up 19 percent of total enrollment, but attended schools that typically were 55 percent Latino.

But another report, by the U.S. Commission on Civil Rights, questioned whether integrated schools were better for students.

Social science studies provide “little evidence that racial and ethnic diversity in elementary and secondary schools results in significant improvements in academic performance,” the commission, controlled by appointees of President Bush, said last week.

T he case also arises at a time of uncertainty about the constitutional status of race in government programs.

Three years ago, after a series of decisions condemning preferential programs for minorities and women, the Supreme Court was widely expected to forbid the use of race as a factor in admission to public universities.

Instead, over the opposition of the Bush administration, the court left the door open a crack. In a 5-4 decision, the justices said an applicant’s race was one of several criteria a public university could consider in the interest of promoting a diverse student body.

The outcome may be different this time. The author of the 2003 ruling, now-retired Justice Sandra Day O’Connor, has been replaced by Justice Samuel Alito, a reliable member of the conservative bloc since his appointment by President Bush in January. In a 1985 application for a promotion in President Ronald Reagan’s Justice Department, Alito said he was particularly proud of his work against “racial and ethnic quotas.”

The Supreme Court’s agreement to review the Seattle and Louisville cases, after lower courts upheld the districts’ integration plans, was a likely signal that Chief Justice John Roberts and his colleagues are preparing to ban racial considerations in public school enrollment, said Pepperdine University law Professor Douglas Kmiec, a Justice Department official under Reagan and President George H.W. Bush.

“Racial balancing is patently unconstitutional, and the Roberts court should — and will likely — say so,” Kmiec said.

He also said the court probably would leave intact its 2003 decision on college admissions. The Bush administration argues that the school district programs are closer to racial quotas than the university program the court upheld and lack the justification for racial diversity that the court found in higher education.

“In the second grade, you’re learning the multiplication tables, not discussing the effects of slavery in the 20th century,” said Pacific Legal Foundation attorney Paul Beard, who filed arguments opposing the Louisville program. “The court recognizes a special niche in the First Amendment for universities and colleges to determine their own educational mission.”

Supporters of the school districts disagree. “The historic purpose of the public schools is to provide common ground for people in all walks of life,” said Berkeley’s Liu.

Some analysts say it is possible that Justice Anthony Kennedy, who voted with the dissenters in 2003 to strike down race-conscious admissions at the University of Michigan Law School, will switch sides and provide the decisive vote for the school district plans.

“I think Kennedy is an idealist about American society and the issue of race,” said attorney Edward Lazarus, a former Supreme Court clerk and author of a book on the court. Lazarus, who supports racial considerations in enrollment but is not involved in the cases, noted that while Kennedy has been critical of affirmative action, he has never ruled it out altogether.

The ruling, due by the end of June, will have a broad impact, though the exact contours of the case are difficult to measure.

The government has no official figures for the number of school districts with voluntary integration programs. Sharon Browne, a Pacific Legal Foundation lawyer who filed arguments supporting a group of white parents in Seattle, said two conservative scholars estimated in a recent study that nearly 1,000 districts nationwide have some type of race-based enrollment policy.

It’s also unclear whether the ruling will affect California. The prevailing view among attorneys and academics is that racial considerations in school admissions are prohibited by Proposition 209, the 1996 initiative that outlawed racial preferences in state and local government programs, regardless of what the Supreme Court finds constitutionally permissible nationwide.

“Even if the case goes the other way, it won’t have any effect on California or Michigan,” where voters adopted a measure identical to Prop. 209 last month, said Paul Beard, another Pacific Legal Foundation lawyer.

Although the state Supreme Court has not yet ruled on Prop. 209′s application to education, he said, an appeals court made it clear that the measure banned “(student) assignments on the basis of race.”

The foundation has sued to challenge race-based programs in Los Angeles and Berkeley and is poised to sue San Francisco if the school board tries to reintroduce race as a factor in admissions. Since a court-approved settlement in 2001 ended the use of race for desegregation in San Francisco, single-race enrollment at some schools has risen above 80 percent.

Liu said, however, that a Supreme Court ruling upholding school district integration programs might convince California courts that race-based student assignments are not “preferences” forbidden by Prop 209. He said enrollment at public schools, where attendance is mandatory, could be viewed differently than decisions on hiring, contracting or admission to selective universities, where there are clear winners and losers.

That was the view of Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals in San Francisco in an October 2005 opinion that has been widely cited by supporters of the school districts — in part because Kozinski is a Reagan appointee who once clerked for Kennedy.

In an enrollment plan intended to preserve racial diversity, “there is no competition between the races, and no race is given a preference over another,” Kozinski said in a ruling upholding the Seattle program. “That a student is denied the school of his choice may be disappointing, but it carries no racial stigma.”

Not so, said Harry Korrell, lawyer for the white parents challenging the Seattle program.

“Racial balancing prefers one individual to another for no reason other than race,” he said in a Supreme Court brief, “and thereby violates the heart of the equal protection clause — the principle that our Constitution is color-blind.”


LawReader publishes ALL decisions of the Ky. Court of Appeals. 52 important decisions handed down this week. Eight cases are published and should be read immediately.

Saturday, December 2nd, 2006

If you rely on West or Lexis you may have to wait months to read these cases and then you will only see 8 of the 52 decisions.

The following is a keynote summary of each case posted by LawReader.  Sign up at and read the synopsis and the full text of each case. For only $34.95 a month you can stay current in the law, and impress your colleagues with your knowledge of the latest law. LawReader membership includes all our resources with no extra charges, and with no long term contract required.

1 CONSENT TO SEARCH: The voluntariness of a person’s consent to a warrantless search is a question of fact which must be determined based on the totality of the circumstances
2 DIRECTED VERDICT OF ACQUITTAL LACK OF EVIDENCE: the trial court erred by denying Chadwell’s motion for a directed verdict of acquittal as to this charge. 
3 DIRECTED VERDICT OF ACQUITTAL LACK OF EVIDENCE: it was clearly unreasonable for the jury to find that Swan was guilty of the trafficking charge against him
4 ADVERSE POSSESSION: A party claiming title by adverse possession must show that the possession was so actual and so continuous as to furnish a cause of action every day during the entire period prescribed by the statute
5 SENTENCING: The law holds that a judgment is not final when post-judgment remedies are still available to the parties.  – Where a sentence is not final, the defendant cannot claim that changes to it constituted double jeopardy or were unconstitutional.
6 TO BE PUBLISHED: DOG ORDINANCE: local governing bodies may pass ordinances regulating dogs so long as the provisions are not inconsistent with KRS Chapter 258 – Pit Bull
7 HANDGUN STATUTE: the constitutionality of the Kentucky handgun statute, has been upheld in Posey v. Commonwealth
8 TO BE PUBLISHED: SOVEREIGN AND QUALIFIED IMMUNITY: we reverse that portion of the trial court’s order denying the absolute immunity claim of the Appellant Commonwealth of Kentucky, Transportation Cabinet but affirm the order denying summary judgment on the
qualified immunity claim of Appellant Linda Justice
9 CIVIL RIGHTS ACT-EMPLOYEMENT: Employee is not entitled to the protections of the Civil Rights act because she is not disabled.
10 CHILD SUPPORT MODIFICATION: There is a rebuttable presumption that, unless application of the guidelines to the parties’ circumstances at the time of the motion’s filing results in more than a 15% change in the monthly child support obligation, there has been no material change in circumstances
11 EDUCATION: we believe a cognizable claim exists against a school board for arbitrarily denying a student the opportunity to participate in interscholastic athletics
12 11.42 MOTION: 11.42 motion denied
13 GRAND JURY – JURISDICTION OF CIRCUIT CT.: The fact that a misdemeanor charge was pending in the district court did not deprive the grand jury of its right to indict Smith on felony charges. Once the indictment was issued, the circuit court acquired jurisdiction over the felony offense.
14 11.42 DUTY TO INVESTIGATE: 11.42 motion denied  – A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would
15 CHILD CUSTODY: the Cabinet and the family court substantially complied with the Indian Child Welfare Act
16 ATTACHMENT/EXECUTION : the trial court should have quashed the attachment/execution because the original judgment had been reversed in part by this Court in the prior appeal
17 TO BE PUBLISHED: PROBABLE CAUSE NOT FOUND: the court erred when it denied his suppression motion and found that probable cause existed for Officer Barrett to enter the motel room
18 BOUNDARY LINE DISPUTE: …in determining boundaries, natural and permanent monuments control all other means of description, with decreasing importance given to artificial marks, courses, distances and area in that order, such that area is the weakest of all the components of a property description
19 EMPLOYMENT DISCRIMINATION: an employer cannot escape liability where an
employee’s discriminatory motive, fed to the non-discriminating decision maker, is the real cause of the adverse employment action
20 SUFFICIENCY OF SEARCH WARRANT: to vitiate a facially sufficient search warrant the materiall fact must have been omitted intentionally or with reckless disregard for the truth and the affidavit plus the omitted facts must not be sufficient to support a finding of probable cause
21 JURY STRIKES: as the juror in question herein did not participate in the trial, Morris cannot claim that he was denied a fair and impartial jury on that basis alone.
22 WAIVER: A legal right may be waived by contract even where such right was statutorily created. A waiver may be either expressed or implied and may also be inferred from the conduct of a party.
23 UNINSURED MOTORIST INSURANCE: the law is clear that UIM coverage under a motor vehicle insurance policy may be stacked when the premium charged for the coverage is based upon the number of vehicles insured
24 11.42 MOTION: 11.42 motion denied: appellant’s allegation of ineffective assistance of trial counsel was clearly refuted upon the face of the record.
25 REVIEW OF ADMINISTRATIVE AGENCY RULING: When substantial evidence exists in the record to support an administrative agency’s factual determination, we have no authority to overturn it
26 JURISDICTION OF CHILD CUSTODY BETWEEN STATES: Kentucky proper forum for child custody dispute
27 APPEAL PROCEDURE: appeal must be dismissed because notice of appeal was not timely filed
28 PRISON DISCIPLINE RIGHTS: “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings do not apply.�
29 PRISON DISCIPLINE RIGHTS: In prison disciplinary proceedings, due process requires that a disciplinary committee’s decision to impose sanctions for violations of prison rules must only be supported by some evidence in the record
30 AMOUNT AND DURATION OF MAINTENANCE: “unless absolute abuse is shown, the appellate court must maintain confidence in the trial court and not disturb the findings of the trial judge
31 TO BE PUBLISHED: JURISDICTION OF TRIAL COURT ON REMAND: The scope of a lower court’s authority on remand of a case is not measured in terms of its jurisdiction, but by the direction or discretion contained in the appellate court’s mandate.
32 PARENTAL TERMINATION: Kentucky law has long recognized that “[t]he trial court has broad discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination
33 COLLECTION OF COLLEGE LOAN: the Court finds as a matter of law that it is unreasonable to require student to pay collection costs amounting to 100% of the loan amount (plus late fees and interest). (Note: Fed. Regulation would allow this in some situations.)
34 BAD FAITH INSURANCE SETTLEMENT: Although the harm to Thomas was purely economic, payment on her claim was delayed for almost two years without a reasonable basis to deny the claim, without any investigation, and without any attempt to settle the claim in good faith. The evidence shows that these actions and omissions were an intentional violation of Kentucky law. Punitive damages of $15,000 upheld.
35 PARENTHOOD BY ESTOPPEL (Editor: otherwise known as the “No Good Deed Goes Unpunished Rule�) upheld. Because M.L.H.’s paternity had been established by estoppel, he should not be “relieved of his responsibility as a father
36 EVIDENCE – MARITAL PRIVILEGE: Unlike the adverse testimony privilege of KRE 504(a), the confidential communication privilege does not require a valid ongoing marriage. The confidential communication privilege of KRE 504(b) survives the dissolution of the marriage and may be asserted by a former spouse if the communication occurred during the marriage. –
an extramarital affair cannot be considered a confidential communication under KRE 504(b).
37 UNEMPLOYMENT COMPENSATION: Worker  was discharged for misconduct and is thereby disqualified from receiving unemployment benefits
38 STATUTE OF LIMITATIONS: that medical payments made pursuant to Med-Pay coverage of an (automobile) insurance policy were not equivalent to and are not to be considered BRB or PIP payments so as to toll the statute of limitations found in KRS 304.39-230
39 SENTENCING: the law is clear that a parolee is not entitled to good-time credit for time served on parole when said parole is violated and ultimately revoked
40 SENTENCING: If a defendant breaches a plea agreement, then he is no longer entitled to its enforcement
41 11.42 MOTION: RCr 11.42 motion  filed well outside the three-year time limit to file
42 CONTEMPT POWER: Because the issue presented in the case involved enforcement of a prior order to which appellant is a party, it follows that the circuit court properly exercised
jurisdiction over the appellant.
43 WORKER’S COMP: substantial evidence adduced in the proceedings below supports the ALJ’s decision
44 PRISON DISCIPLILNE: the Department of Corrections can define serious physical injury differently because doing so does not infringe on the statutory rights of criminal defendants charged with a crime under the Kentucky Penal Code and, thus, does not violate KRS 13A.130.
45 TO BE PUBLISHED: APPEAL – KRS 625.110,  FOUND UNCONSTITUTIONAL: we must conclude that KRS 625.110, as currently written,  is unconstitutional to the extent that it prohibits the right of appeal from the denial of a petition to terminate parental rights.
46 GRANDPARENT VISITATION: “[a] fit parent’s [child-rearing] decision must be given deference by the courts, and courts considering the issue must presume that a fit parent’s decision is in the child’s best interest. A custodial parent should encourage a positive relationship between children and grandparents
47 MODIFICATION OF CUSTODY ORDER: two statutes require that a motion to modify a prior custody order made earlier than two years after its date must be accompanied by at least two affidavits.
48 TO BE PUBLISHED: LANDLORD AND TENANT: In the absence of a special agreement to do so, made when the contract is entered into, there is no obligation upon the landlord to repair the leased premises
49 RENEWAL OF DOMESTIC VIOLENCE ORDER: a DVO should not be renewed merely at the request of the petitioning party. Rather, there must be some showing of a continuing need for the DVO.�
50 TO BE PUBLISHED: UP THE LADDER DEFENSE: The issue is not whether the City was engaged in the regular or recurrent business of providing utility services, but whether the building of a sewer system was a regular or recurrent part of the City’s business.  –
Likewise, the Board erroneously determined that the construction of the sewer system was a regular or recurrent part of the City’s business simply because “(t)he business of providing utilities per force requires the installation and maintenance of the utility
51 TO BE PUBLISHED: PROCEDURE FOR CUSTODY CHANGE DUE TO RELOCATION OF PARENT: Our case law clearly holds that custody modification
falls exclusively within the purview of KRS 403.340 and 403.350, and any other judicially-created “gateways� to custody modification are inapplicable..
52 WORKER’S COMPENSATION: …it is insufficient to merely  demonstrate the existence of evidence which would support a claimant’s position.


Mark Your Calendar. The Ky. Bar Assoc. announces date for 2007 State Convention

Friday, December 1st, 2006

Hon. Robert Ewald, President of the Ky. Bar Association has announced that the 2007 State Bar Convention will be held June 20-22 in Louisville at the International Convention Center.

The Bar Association has asked all trial judges to make allowance on their dockets for all attorneys to be able to attend the convention.

LawReader suggests that you express to your local judges, your desire to attend this important gathering of your peers.

Justice for a Parent and Child. Virginia’s Court of Appeals does the right thing for common sense and custody laws.

Friday, December 1st, 2006

Washington Post, Thursday, November 30, 2006; Page A22

FOR MORE THAN two years, Janet Miller-Jenkins has been blocked from seeing her 4-year-old daughter because of a nasty custody dispute with her ex-spouse, who has been defying a court order to allow regular visits. This week, the Virginia Court of Appeals issued an opinion that should be utterly unremarkable: It held that under federal law, Virginia courts must honor the custody orders of their sister courts in Vermont, where Ms. Miller-Jenkins and her ex were joined and where they asked a court to dissolve their union.

Yet the court’s decision in Miller-Jenkins v. Miller-Jenkins is a big deal, because what’s in question is a civil union, not a marriage. A lower Virginia court had refused to give effect to the Vermont courts’ orders allowing Ms. Miller-Jenkins to visit her daughter, citing a state law that prohibits any recognition of civil unions or other same-sex relationships from out of state.

Legally, this case isn’t hard. Morally, it’s even easier. Janet and Lisa Miller-Jenkins entered a civil union in Vermont, had a child together — Lisa is the biological mother — and then split. After petitioning the Vermont courts to dissolve the union and make a custody determination that explicitly recognized Janet as a parent, Lisa took their child, Isabella, to Virginia and began defying the very order she had requested. The Vermont court held her in contempt, but Frederick County Circuit Judge John R. Prosser gave her sanctuary, ruling in 2004 that under Virginia law she was “the sole biological and natural parent” and that she “solely has the legal rights, privileges, duties and obligations as parent.”

This was lawless, as the appeals court has now found — it was a triumph of anti-gay politics over clear statutory command. Federal law prevents any Virginia court from interfering in an ongoing custody case in Vermont or any other state. There is no exception for gays or lesbians. The idea is to prevent parents who don’t like the result they get in one state’s courts from trying their luck elsewhere. Whatever hateful things Virginia law may say about civil unions are therefore irrelevant; its courts must honor the orders of that Vermont court.

Sadly, further appeals are likely, so in the immediate future her clear victory in court may not bring Janet Miller-Jenkins closer to her daughter. That’s wrong. Their unlawful separation has lasted far too long already.


U.S. Supreme Ct. Vets False Claims Act. QUI TAM HURDLES

Friday, December 1st, 2006

Marcia Coyle The National Law Journal

 A 17-year-old whistleblower suit by a now 81-year-old former engineer at the Rocky Flats nuclear weapons plant has triggered U.S. Supreme Court review of a crucial issue under the fastest growing area of federal civil litigation today, the False Claims Act.

In Rockwell International Corp. v. U.S. and ex rel. Stone, No. 05-1272, the justices on Dec. 5 will examine a critical restriction on who can bring so-called qui tam lawsuits under the act.

Was Principal Engineer James S. Stone “an original source of the information” that served as the basis for a jury’s finding that Rockwell, starting in 1987, violated the act by hiding from the government environmental, safety and health problems related to its processing of nuclear waste?

The high court’s interpretation of a statute that Justice Samuel A. Alito Jr. as a lower court judge criticized as unclear will affect not only who qualifies as a qui tam “relator” but also the ability of defendants, often large corporations, to dismiss early these complex and expensive suits.

The False Claims Act is becoming the principal tool by which the federal government combats fraud, said FCA practitioner Peter B. Hutt II, a partner at Miller & Chevalier, who filed an amicus brief supporting Rockwell on behalf of the Washington Legal Foundation.

The FCA provides for treble damages and penalties and a lesser burden of proof than criminal statutes that require proof beyond a reasonable doubt and do not necessarily allow the government to recover as much money, he explained.

“Anyone who does business with the federal government and takes federal money in any way is a potential target of an FCA lawsuit either by the federal government directly or by a qui tam plaintiff,” said Hutt. “There has been a constant, slow increase in the number of cases, constantly changing theories of liability and new classes of industries as defendants.”

And where there is alleged fraud by large companies, such as by the most recent target — pharmaceutical companies — Hutt said, “The dollars get very large, very quickly.”

From fiscal years 1987 through 2005, settlements and judgments for the federal government in FCA cases have exceeded $15 billion, of which $9.6 billion, or 64 percent, was for cases filed by whistleblowers under the FCA’s qui tam provisions, according to a report last January by the U.S. Government Accountability Office. The whistleblowers’ share of the qui tam settlements and judgments was more than $1.6 billion during this period.


The FCA provides that any person who knowingly submits, or causes the submission of, false claims for government funds or property is liable for damages and penalties.

Under the FCA, the government can prosecute an action on its own, or a private person may bring a qui tam action. The FCA calls a qui tam plaintiff a “relator,” also known popularly as a whistleblower.

The government has the right to intervene in the relator’s lawsuit. If the government declines intervention, the relator has the right to go forward alone.

To prevent so-called parasitic lawsuits by relators who try to capitalize on information about fraud already made public, the FCA prohibits qui tam suits “based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or [Government Accountability Office] report, hearing, audit, or investigation, or from the news media.”

This “public disclosure” bar has one exception. A qui tam suit that triggers the public-disclosure bar may proceed only if the relator is “an original source of the information.” An original source must have “direct and independent knowledge of the information on which the allegations are based,” and have “voluntarily provided the information to the Government before filing [a suit] which is based on the information.”

The original-source exception is at the heart of Rockwell’s case in the Supreme Court. It has argued unsuccessfully before a district court and an appeals court that Stone was not an original source because he had no first-hand knowledge of the fraud at issue.

“The public-disclosure bar with its original-source exception is the single most litigated issue in the entire False Claims Act jurisprudence,” said John T. Boese, partner in the Washington office of New York’s Fried, Frank, Harris, Shriver & Jacobson and author of the leading FCA treatise, Civil False Claims and Qui Tam Actions.

The government, he said, intervenes in about 20 percent of all qui tam cases. In the 80 percent proceeding without the government, the original-source issue arises in much more than half, he said, adding, “It also can arise, as in Rockwell, where the government intervenes, and that is more and more true because of the legal fees issue.”

If a relator can be dismissed on the original-source issue, the defendant doesn’t have to pay legal fees and costs if it loses, explained Boese.

“You can imagine the amount in a case litigated as actively and vigorously as the Rockwell case,” he said, estimating legal fees at up to four times the $4.2 million jury award. “And the government doesn’t have to pay the relator a share of what it recovers.”

Over the years, the courts have expanded what is a public disclosure, and therefore the original-source exception has become more important, said James Moorman, president of Taxpayers Against Fraud Education Fund, which operates a False Claims Act Legal Center and will file an amicus brief supporting Stone.

“None other than then Judge Alito ruled in a FCA case that when the government gave a document to a relator who had filed a [Freedom of Information Act] request, it had, in effect, issued a public report triggering the public-disclosure bar,” Moorman said. “This astounded everybody, but there it is.

“So the original-source rule, which protects you from being bumped out by the public-disclosure bar, is crucial.”


Rockwell operated the Rocky Flats nuclear weapons facility in Colorado under a contract with the U.S. Department of Energy from 1975 through 1989. Stone worked as principal engineer there from November 1980 until March 1986.

After Stone was laid off, he informed an FBI agent that environmental crimes had allegedly been committed at Rocky Flats during his period of employment. The FBI agent prepared an affidavit, obtained a search warrant and conducted a search. About a month after the search, Stone filed his qui tam action alleging that in an effort to maximize its receipt of award fees and other payments under its government contract, Rockwell had violated the FCA by falsely representing to DOE that it had complied with applicable environmental, safety and health requirements in its operation of the facility.

In the meantime, the government conducted a criminal investigation into Rockwell’s management of Rocky Flats. In March 1992, Rockwell pleaded guilty to 10 environmental violations.

In 1995, the government intervened in Stone’s qui tam action and both filed an amended complaint restating Stone’s initial allegations and asserting additional claims.

At trial, the primary issue was whether Rockwell had concealed from DOE environmental, safety and health problems related to the processing and storage of saltcrete and pondcrete, two forms of processed toxic waste.

Rockwell’s counsel, veteran high court litigator Maureen Mahoney, head of the appellate practice at Latham & Watkins from the firm’s Washington office, argues that Stone had no direct and independent knowledge that the pondcrete leaked toxic waste or that Rockwell had represented otherwise to DOE because he left Rocky Flats before either the pondcrete or the toxic waste statements were made.

The 10th U.S. Circuit Court of Appeals, Mahoney contends, incorrectly interpreted the statute’s requirement of “direct and independent knowledge” of the later fraud to require only limited knowledge “underlying or supporting” the fraud allegation.

“The 10th Circuit expanded that narrow exception so broadly that it effectively swallows the jurisdictional bar,” she wrote in court papers regarding the original-source exception.

Noting that the federal circuits have adopted varying standards, Mahoney argues, “The best reading is that the relator must have direct and independent knowledge of information sufficient to permit the trier of fact to conclude that a false statement was made to the Government in support of a fraudulent claim for payment.”


In its opposition to Supreme Court review and in lower court proceedings, the government argued that Rockwell had understated substantially the significance of Stone’s knowledge. He had been instructed in his job not to divulge environmental and other problems to DOE, and he had uncovered through his own efforts design problems for the pondcrete blocks that would result in toxic-waste releases.

“Stone’s role in this case was therefore very different from that of the ‘parasitic’ relators at whom the ‘public disclosure’ bar is directed,” the government argued in its opposition brief.

Stone’s high court counsel, Maria T. Vullo, a partner in New York’s Paul, Weiss, Rifkind, Wharton & Garrison, said there is no confusion in the circuits on how to interpret the original-source exception.

“I think the way the circuits have approached the issue is really a function of how they describe particular facts of the case,” she said.

“The plain language of the statute is what it is and to the extent Rockwell has a gripe, that’s a gripe for the Congress to add some standard that’s not existing in the statutory language right now. We will argue that we meet all of Rockwell’s new tests.”

Fried Frank’s Boese noted that defendants and the government can question whether someone is an original source at any stage of the litigation because it is a jurisdictional issue.

“What Rockwell is arguing very effectively is that Stone’s theory of liability was abandoned both by Stone and the government and never presented to the jury,” he said. “What was presented was a whole new theory that the government developed in course of its criminal investigation. They argue he was not the original source of the theory of fraud that was eventually successful.”

But Rockwell is “throwing all kinds of smoke” in front of the Supreme Court, countered Moorman of Taxpayers Against Fraud. The case, he said, is part of a continuing campaign by business and industry “to hobble and undermine” whistleblower lawsuits.

“They struck out on their constitutional attacks on the statute and now they’re trying to get an interpretation that would do the same thing,” said Moorman.


California Supreme Court . Justices change precedent on warrantless searches for youths

Friday, December 1st, 2006

DAVID KRAVETS  Associated Press
SAN FRANCISCOPolice may conduct warrantless searches of juveniles only if they know in advance that the youths are on probation or parole, according to a California Supreme Court ruling that reverses a 16-year precedent.
The 6-1 decision, mirroring a 2003 decision on warrantless searches of adults, is aimed at checking police misconduct.
Both rulings stop the practice of officers conducting illegal searches but getting the evidence admitted at trial because the police found out after the search that the defendant was on parole or probation. Youths and adults on parole or probation give up their Fourth Amendment right to be free of warrantless searches.
Thursday’s ruling, the justices reasoned, prevents authorities from conducting warrantless searches, especially in blighted or high-crime neighborhoods, in hopes that their targets were on parole or probation.
When the justices banned such searches targeting adults three years ago, the court let it continue for youths because the penal system’s goal for them is rehabilitation, not punishment.
But the high court changed course Thursday, overturning the gun possession conviction of a 17-year-old boy, identified only as Jaime P., because the loaded handgun found in his car should have been suppressed from trial. Admitting that evidence under the earlier precedent generated “legally unjustified results,” the court ruled.
Writing for the majority, Justice Ming Chin reiterated the court’s 2003 decision regarding adults, saying that determining whether a warrantless search is reasonable must be “based upon the circumstances known to the officer when the search is conducted.” Allowing a warrantless search when there was no valid probable cause, he wrote, “would legitimize unlawful police conduct.”
Jaime P. was pulled over in 2004 by a Fairfield police officer for failing to use his turn signals – which was not a traffic offense because there were no other moving vehicles nearby. The officer saw a box of ammunition in plain site and found a .44-caliber handgun underneath a seat after searching the vehicle.
The boy’s attorney moved to suppress the gun as evidence because it was discovered after an illegal traffic stop. The youth was on probation for a vandalism charge, so a Solano County judge upheld the search. The youth, a gang member, was convicted and spent eight months in juvenile hall and at a boys work ranch.
An appeals court said it wanted to reverse the conviction, but was bound by precedent.
In changing the precedent Thursday, the court said it re-examines an earlier decision when it is “unsound or has become ripe for reconsideration.” The justices noted that the precedent was under attack by legal scholars, and even by the state’s lower courts.
In a footnote to that 3-year-old opinion, the court said it was treating juveniles differently because the justice system “embraces a goal of rehabilitating youngsters who have transgressed the law, a goal that is arguably stronger than in the adult context.”
The Los Angeles County District Attorney’s Office had urged the court not to change course, saying it was in the state’s interest to supervise and monitor juveniles offenders as much as possible. The justices ruled such a goal would “not be impaired by requiring that the officers conducting such searches be aware of the search condition.”
“It’s unfortunate that our California Supreme Court has taken this turn,” Deputy District Attorney Brentford Ferreira said Thursday.
In dissent, Justice Marvin Baxter voted to uphold the search.
“Despite the officer’s ignorance of the juvenile’s probation search condition,” he wrote, “I would find that the traffic stop and subsequent inventory search of the car did not violate the juvenile’s rights under the Fourth Amendment.”
The case is In re Jaime P., S135263.

Search and Seizure. US Supreme Court Lets State Rulings Barring Drug Dog House Searches and Restricting Traffic Stop Drug Searches Stand

Friday, December 1st, 2006

The US Supreme Court Monday refused to hear two appeals from states where the courts have moved to impose restrictions on drug-related searches. While the court’s decision not to hear the cases signals no change in federal law, it does mean that residents of the states in question will be protected from the practices at issue.

In the first case, Florida v. Rabb, police received a tip that James Rabb was growing marijuana in his home. They pulled him over for a traffic violation and found him in possession of a small amount of marijuana and some books about growing pot, then went to his home and had a drug dog sniff the exterior. The dog alerted, and the police used that alert as the basis for a search warrant. A subsequent search found a grow operation, and Rabb was charged on that basis.

A Florida appeals court threw out Rabb’s conviction, arguing that the drug dog sniff of a home amounted to an unconstitutional invasion of privacy.

 Last year, the state of Florida appealed to the US Supreme Court, and the high court ordered the appeals court to reconsider its decision in the wake of the Supreme Court’s 2005 drug dog search ruling in Illinois v. Caballes,(click to read more about this case) where the court approved the constitutionality of drug dog sniffs during traffic stops. But the Florida appeals court instead cited another US Supreme Court case, Kyllo v. US, (click to read more about this case) where the court held that the use of infrared sensors to detect heat emissions from a grow lamp was an impermissible violation of the Fourth Amendment.

By refusing to hear Florida’s appeal in the Rabb case, the court signaled it was not prepared to extend its Caballes reasoning to home searches.

On the other hand, the high court last year also refused to hear the case of David Gregory Smith, (click to read more about this case)  in which the Utah Supreme Court upheld his conviction after a search triggered by a drug dog sniff at his front door.

In the second case, Illinois v. Sloup, John Sloup was arrested for possession of a crack pipe during a traffic stop. Sloup appealed his conviction on the grounds that the police officer did not have reasonable suspicion an offense had been committed before asking Sloup’s permission to search his vehicle. An Illinois appeals court agreed with Sloup, and overturned his conviction. By refusing to take the state’s appeal, the US Supreme Court let the decision stand.

The two cases are binding only in the states where they were tried, but could provide grist for the mill in other states as well when courts there hear similar cases. In the meantime at least, Florida residents are safe from warrantless drug dog sniffs of their homes (but Utah residents are not) and Illinois residents have slightly more protection from unwarranted searches during traffic stops.

Drug War Issues Search and Seizure


Newsbrief: Supreme Court Allows Drug Dog Vehicle Searches Without Cause 1/28/05

The Supreme Court has once again expanded the ability of police to conduct warrantless searches, this time okaying the use of drug-sniffing dogs to check motorists detained for traffic violations even when police have no reason to suspect they have committed a crime. The decision provides constitutional protection for what has become an increasingly common practice on the nation’s highways in the war on drugs. It also, according to an impassioned dissenting opinion, could lead to widespread drug dog sweeps of sidewalks and parking lots.

The Monday ruling came in the case of Roy Caballes, who was stopped by Illinois police for speeding on Interstate 80 in 1998. While Caballes complied with the request to produce his driver’s license, registration, and proof of insurance, troopers brought a drug dog to sniff his car because he “seemed nervous.” The dog alerted, providing police with probable cause to search Caballes’ vehicle, where they found pounds of marijuana. He was sentenced to 12 years in prison, but his conviction was overturned by the Illinois Supreme Court, which held that police “impermissibly broadened the scope of the traffic stop” by using the drug-sniffing dog without suspicion that Caballes possessed drugs.

At the Supreme Court Cabelles’ attorney argued that the Fourth Amendment protects motorists from searches such as dog sniffs, which he said could be humiliating and intimidating and should not be allowed without particularized suspicion. But the state of Illinois, backed by the Bush administration Department of Justice — and precedent in the federal courts — argued that walking a drug-sniffing dog around a vehicle to see if it could detect illicit drugs was not a “search.”

In a 6-2 decision, the Supreme Court found for the state. “The dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation,” wrote Justice John Paul Stevens for the majority. “Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.” But Stevens wasn’t done yet. “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment,” he added.

Still, at least for two justices, providing a constitutional imprimatur for suspicionless drug dog sniffing of vehicles was too much. In a dissent joined in part by Justice David Souter, Justice Ruth Bader Ginsburg warned that the majority opinion could make traffic stops more “adversarial” and lead to widespread drug dog searches. “Injecting such animals into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial and (in at least some cases) longer,” she wrote. “Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population,” she wrote. The decision “clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots.”

While Monday’s ruling allows police to use the occasion of a traffic stop to let drug-sniffing dogs check out a vehicle, it does not allow for the indefinite detention of drivers to give the dogs time to arrive to do the non-search search. Lower federal courts have varied in determining what period of time constitutes a constitutionally permissible detention, with some allowing waits of up to 90 minutes.

Steven Silverman, executive director of the Flex Your Rights Foundation, counsels drivers confronted with threats of calling in the drug dogs to exercise their rights and simply ask to be on their way. “Basically, if police can’t bring a dog to the scene in the time it takes to run your tags and write a ticket, the use of the dog becomes constitutionally suspect,” said Silverman. “In our video, ‘BUSTED: The Citizen’s Guide to Surviving Police Encounters,’ we warn viewers that police will often threaten to bring dogs to the scene. Since police cannot detain you for the purpose of investigating an additional crime — unless they have evidence you’ve committed one — our advice is still to ask if you are free to go.”

Click here to read the case, Illinois v. Caballes, 03-923, online — scroll down to reach the opinion.


Supreme Court Nixes Warrantless Heat-Sensor Searches, Oregon Grow-Op Case Updates Fourth Amendment to Deal With New Technologies 6/15/01

Police must first obtain a search warrant before using a heat-sensing device to look inside a person’s home, a narrowly divided Supreme Court ruled Monday. In an unusual Supreme Court alliance, conservative justices Antonin Scalia and Clarence Thomas joined with liberals David Souter, Ruth Bader Ginsburg and Steven Breyer to form a 5-4 majority.

While the Rehnquist Supreme Court has historically taken an accepting approach to drug war erosion of Fourth Amendment protections from illegal search and seizure, the ruling in Kyllo v. US marks the third time this year that the court has rejected drug searches and imposed limits on a drug war that previously seemed limitless. In an Indianapolis case last November (, the Court held that suspicionless drug checkpoints on public highways violated the Constitution. And in a recent South Carolina case (, the Court ruled out state drug testing of pregnant mothers without their consent.

“This is an important victory for the Fourth Amendment because it says again the home is a protected area,” University of Iowa law professor James Tomkovicz, who filed a friend-of-the-court brief for the American Civil Liberties Union, told the Los Angeles Times. “I think [the justices] were worried about what comes next, the technology that would allow the government to stay out but detect what is going on inside the home.”

“One less thing to worry about,” one Washington area indoor marijuana grower chortled to DRCNet. “I definitely feel more secure in my home now.”

Monday’s ruling came in the case of Florence, Oregon, resident Danny Kyllo, who was arrested in 1992 for growing marijuana after federal agents used a thermal imaging device to pick up infrared radiation from within his home. The agents told a federal magistrate the heat signature matched the pattern of a marijuana grow-op. The judge then approved a search warrant based largely on the thermal imaging evidence, and agents subsequently raided the house.

Kyllo was indeed growing marijuana — 100 plants were found during the search — and eventually accepted a conditional guilty plea, which allowed him to appeal the legality of the warrantless thermal imaging surveillance. On appeal, he argued that the seized plants could not be used as evidence against him because police did not have a search warrant before surveilling his home with the thermal imaging device. Kyllo lost at the federal appellate level when the 9th US Federal Court of Appeals’ ruled that the use of heat sensors did not constitute a search of Kyllo’s home and therefore did not require a search warrant.

The Supreme Court disagreed. For the majority, the question to be decided was two-fold. First, did thermal imaging surveillance constitute a search in the constitutional sense; and second, if so, was such a warrantless search reasonable and therefore constitutional?

In the majority opinion, Justice Scalia wrote: “Where, as here, the government uses a device that is not in general public use to explore intimate details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Quoting earlier Fourth Amendment search and seizure rulings, Scalia wrote that “at the very core” of the amendment “stands the right of a man to retreat into his own home and there be free from government intrusion. It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been unaffected by the advance of technology,” Scalia wrote.

“In the case of the search of a home’s interior — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw the protection of this minimum expectation would allow police technology to erode the privacy guaranteed by the Fourth Amendment.”
The minority opinion, authored by Justice Stevens and joined by Chief Justice Rehnquist and Justices O’Connor and Kennedy, bought the Justice Department argument that thermal imaging did not constitute a search and was therefore permissible without obtaining a search warrant. “No intimate details of the home were observed, and there was no intrusion upon the privacy of individuals,” wrote Stevens.

But, Scalia retorted in the majority opinion, heat-sensing devices “might disclose, for example, at what hour of each night the lady of the house takes her daily sauna and bath — a detail that many would consider ‘intimate.’”

The Supreme Court has in recent years upheld a number of police surveillance techniques on the grounds that they did not constitute searches under the Constitution. Tactics okayed by the Court include the use of drug-sniffing dogs, the use of binoculars to look in a yard, and the use of low flying airplanes and helicopters to spy on private property. In all of those instances, the court held that officers were free to use their senses to peer into a private area.

Sophisticated surveillance devices that can see through walls are different, the court held. Allowing warrantless searches with such devices “would leave the homeowner at the mercy of advancing technology — including imaging technology that could discern all human activity in the home,” Scalia wrote.

While with this ruling, the American people have seen fundamental constitutional protections brought into the 21st Century, it’s not all over yet for Danny Lee Kyllo. Although the Supreme Court reversed the appeal’s court ruling on the admissibility of thermal imaging evidence, it did not throw out Kyllo’s conviction. Instead, it remanded his case back to the federal circuit court to decide whether, absent the thermal imaging evidence, any basis to order a search warrant existed.

The ruling and the dissent are both available at online

Newsbrief: Supreme Court Lets Stand Ruling Allowing Drug Dog Searches Outside People’s Homes 4/8/05

On Monday, the US Supreme Court declined to hear an appeal of a Houston case in which police used a drug dog to sniff outside a man’s garage. The non-ruling comes on the heels of the court’s January decision ratifying the use of drug dogs in traffic stops. In that ruling, dissenting justices David Souter and Ruth Bader Ginsburg warned that it could lead to more intrusive drug dog searches, and police in Houston are apparently prepared to test the limits of the law.

But they won’t have to. Instead, the Supreme Court let stand a federal appeals court ruling against David Gregory Smith. In that case, police sicced a drug dog on Smith’s garage and when the drug dog alerted, police used the alert as the basis for a search of Smith’s home. As a result, he was arrested and ultimately convicted of drug possession. Smith argued that the drug dog sniff was an improper police search that violated his Fourth Amendment rights against arbitrary searches.

“The use of a drug-sniffing dog at the entrance of a private home to detect the contents of the dwelling strips the citizenry of the most basic boundary of personal privacy by gathering invisible information coming from the interior of the home,” Smith argued in his appeal.

While the US Supreme Court has upheld the use of drug dogs, confusion lingers over the permissible extent of their use. Smith argued that the correct precedent in his case was not the January highway drug dog case but a 2001 case involving the use of thermal imaging, in which the court held that a warrant was necessary. “No distinction exists between a thermal-imaging device and drug-sniffing dog in that they are both sense-enhancing and permit information regarding the interior of a home be gathered which could not otherwise be obtained without physical intrusion into a constitutionally protected area,” Smith argued.

But by refusing to accept Smith’s case, the Supreme Court both affirmed his conviction (and 37-year sentence for methamphetamine possession) and left unsettled the limits to drug dog searches.
– END –



No-Knock warrants and Kentuckys new No Duty to Retreat Self-Defense statutes are a dangerous combination.

Thursday, November 30th, 2006

   In November two cases were in the national news involving situations where police shot and killed people they were trying to arrest.  In both cases the issue of whether the person whom the police were attempting to arrest were adequately advised that the person confronting them was a police office.

   In one case the police had obtained a No-Knock search warrant and broke down the door of a 90 year old woman.  When the police broke down her door she  responded with gunfire.  The police returned her fire and killed the woman.  The police were acting on a tip that a man at that residence had previously sold drugs there.  There is no evidence that the old woman had a man living at the house or had ever sold drugs.

   In New York City undercover officers confronted a man who was attending his bachelor party before his scheduled wedding later in the day.  They police claim they had heard someone in the mans group make a comment that they had a gun in their possession.  The police killed the groom to be and in the process fired 50 shots.  The men attacked by the police were found to be unarmed.

   Both cases when viewed under a new statute adopted by the 2006 session of the Ky. Legislature may place police in danger of being legally shot when attempting to enter a home or effect an arrest if they have not clearly identified themselves as police officers.
See: KRS 503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle –Exceptions.  and KRS 503.050 Use of physical force in self-protection

The United States Supreme Court held long held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. . Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995)

A number of exceptions to the duty to Knock and Announce has been discussed in Ky. rulings.  See Adcock v. Commonwealth below.   Another recent case by the Ky. Supreme Court limited the use of police ruses to gain entry without a warrant.  See: Krause v. Commonwealth.

    The new versions of KRS 503.055 and KRS 503.055 were adopted to give homeowners and occupiers of motor vehicles the right to use deadly force against
“attacks� on the occupant.  

So we find that while the police are granted the right to break down a door and then announce that they are police in certain types of cases, we have the legislature giving more rights to citizens to use deadly force against intruders.

The key to these cases is the proper identification of the police officer as a police officer.
The use of non-uniformed undercover officers to effect the No Knock warrants, or to attempt to stop a motor vehicle has become a highly dangerous enterprise for both the policeman and the citizen who can now fire away without having to try to withdraw.

It is commonplace in such cases that the police claim they announced they were police, but the citizen never heard the announcement or was to frightened by the breaking down of their door to properly evaluate that announcement.

 We would submit that the use of No Knock warrants should only be effected by uniformed officers, and they should make a very serious commitment to their duty to announce who they are…if for no other reason than for their own safety.

It remains the duty of the reviewing court to determine the reasonableness of the No Knock entry.   See: Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 1421-1422, 137 L. Ed. 2d 615 (1997). The Court in Richards  noted,  that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.” Id.

Adcock v. Commonwealth of Kentucky, 967 S.W. 2000 (KY, 1998)
Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S. Ct. at 1918. The knock and announce rule has three purposes:
(1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and
(3) to protect people from unnecessary intrusion into their private activities. Id.

[22]     However, “that is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Id. at 934, 115 S. Ct. at 1918. The Wilson court left “to the lower courts the task of determining the circumstances under which an unannounced entry, under the Fourth Amendment, is reasonable.” Wilson, 514 U.S. at 936, 115 S. Ct. at 1919.

[23]     The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. “In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 1421-1422, 137 L. Ed. 2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.” Id.

[24]     Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.

[25]     A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis. 2d 110, 492 N.W.2d 627 (Wis. 1992), cert. denied, 507 U.S. 977, 122 L. Ed. 2d 796, 113 S. Ct. 1428 (1993), overruled on other grounds by State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (Wis. 1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced “police, search warrant.” As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the officer did, in fact, announce his presence and purpose before entering the defendant’s residence. 492 N.W.2d at 630. Furthermore, the court held that the use of the ruse to entice the defendant to open the door in the execution of a search warrant did not violate the Fourth Amendment or the knock and announce rule because “the reasons behind the rule were satisfied — there was no real likelihood of violence, no unwarranted intrusion on privacy, and no damage to the [defendant's residence].” Moss, 492 N.W.2d at 631; see also Wilson, supra, and Commonwealth v. Goggin, 412 Mass. 200, 587 N.E.2d 785 (Mass. 1992).
[26]     In fact, notwithstanding the presence of exigent circumstances, federal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry obtained through the use of deception, accomplished without force, is not a “breaking” requiring officers to first announce their authority and purpose.

United States v. Salter, 815 F.2d 1150 (7th Cir. 1987); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir. 1993); Hawaii v. Dixon, 83 Haw. 13, 924 P.2d 181 (Hawaii 1996); State v. Myers, 102 Wash. 2d 548, 689 P.2d 38 (Wash. 1984); Commonwealth v. DeCaro, 298 Pa. Super. 32, 444 A.2d 160 (Pa. Super. Ct. 1982); State v. Iverson, 272 N.W.2d *fn1 (Iowa 1978).
… In other words, an entry accomplished without force is not a “breaking” within the meaning of the majority of state statutes, as well as 18 U.S.C. § 3109, and therefore does not implicate the knock and announce rule. “The employment of a ruse to obtain the full opening of the [defendant's] door was not a “breaking.” And since the door was then wide open, the subsequent entry . . . did not involve a ‘breaking’ of the door.” Dixon, 924 P.2d at 187. (quoting Dickey v. United States, 332 F.2d 773 (9th Cir. 1964)).
Ky. Supreme Court rules that Police Lie to gain entrance to residence violated 4th. Amendment.

In a decision that was dissented to by Justices Roach and Wintersheimer, the Ky. Supreme Court established a principal that the police ruses, which have been often approved by the court, can go to far when it effects a coerced consent to search.


click to read full text

Reversing and  Remanding,
“the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ."

Appellant, Frederick Carl Krause, III, entered conditional guilty pleas in McCracken Circuit Court to First Degree Possession of a Controlled Substance,
Cocaine ; Use/Possession of Drug Paraphernalia, Second Offense; and Possession of Marijuana. For these crimes, Appellant was sentenced to three days' imprisonment and two and one-half (2'/2) years of probation ....we reverse the Court of Appeals' opinion, vacate  Appellant's convictions and sentence, and remand for further proceedings.

When one of the residents, most likely Appellant, opened the door, Trooper Manar stated that a young
girl had just reported being raped by Yamada in the residence. He asked if he could look around in order to determine whether her description of the residence and its furnishings was accurate.

 The trial court found that Trooper Manar "knew there would be no such evidence because he knew there was no assault. His intention was to gain consent to search for drugs."

Despite finding that "the ruse employed [by Trooper Manar] raises serious Constitutional rights questions and is not an appropriate police practice,” the trial court
ultimately concluded “that Defendants voluntarily consented to a search for evidence of an assault.”

On appeal to this Court, the sole issue for our consideration is whether the consent given by Appellant and his roommate was constitutionally valid. In Cook v.
Commonwealth, 826 S.W.2d 329 (Ky. 1992), this Court stated that “consent is one of the exceptions to the requirement for a warrant.” Id. at 331 (citing United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L .Ed .2d 598 (1976)).

We further indicated that the “test for determining if consent is constitutional is set out in Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S .Ct. 2041, 36 L.Ed.2d 854 (1973).” Id .
In Schneckloth, supra, the Supreme Court held that “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ." Id. at 228, 93 S .Ct . at 2048. Whether consent is the result of express or implied coercion is a question of fact, id, at 227, 93 S.Ct. at 2048, and thus, we must defer to the trial court's finding if it is supported by substantial evidence. RCr 9.78 .

The ruse in this instance was employed for the purpose of gaining consent (1) to make a warrantless entry into a home ; and (2) to conduct a plain view warrantless
search of the residence. Thus, the underlying purpose and policies in this case differ from the purpose and policies in the Adcock case. The guiding factor here is to determine whether this particular ruse frustrated the purpose of the constitutional requirement that consent to make a warrantless entry into and search of a home must be voluntary, and thus, free of implied or express coercion .

Finally, we believe that if the type of ruse utilized by Trooper Manar was sanctioned by this Court, citizens would be discouraged from "aiding to the utmost of
their ability in the apprehension of criminals" since they would have no way of knowing whether their assistance was being called upon for the public good or for the purpose of incriminating them. Schneckloth, supra, at 243, 93 S.Ct. at 2056 (internal quotation

Moreover, widespread use of this type of tactic could quickly undermine "the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness." Id. at 225, 93 S.Ct. at 2046.

We are careful to note that our holding is limited and narrow. We do not hold that the use of ruses, in general, is unconstitutional . The United States Supreme Court has long held that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States , 287 U.S . 435, 441-42, 53 S.Ct. 210, 212, 77 L.Ed . 413, 416-17 (1932)

Because the record lacks sufficient evidence to support a finding of voluntary consent, the decision of the Court of Appeals is reversed, and Appellant’s sentence and
convictions are vacated. This matter is remanded to allow Appellant to withdraw his guilty pleas pursuant to RCr 8 .09 and for further proceedings consistent with this
Lambert, C.J ., Graves, McAnulty, Minton, and Scott, J .J., concur.

I must respectfully dissent from the majority opinion because it misinterprets the
clear statement of the circuit judge which found that the police were given consent to
search . The order denying the motion to suppress evidence entered on July 25, 2003
clearly states that the defendants gave consent for the police to search for evidence of
an assault.: Under all the circumstances, I believe that consent was given and that this
judgment of conviction should be affirmed in all respects.
Roach, J ., joins this dissent.

I must respectfully dissent from the majority opinion because it misinterprets the
clear statement of the circuit judge which found that the police were given consent to
search . The order denying the motion to suppress evidence entered on July 25, 2003
clearly states that the defendants gave consent for the police to search for evidence of
an assault.
Previous article on this topic.
Ky. Sup. Ct. will consider if police can lie to gain entry to home.
The Courier-Journal in a feature story by Andy Wolfson reports that the Ky. Supreme Court will hear oral arguments on the issue of whether the police can lie to gain entry to a home.  In a McCracken County case, a detective told  Frederick Krause III, that the a small girl had said she had been sexually abused in his home and the officer wanted to check out the furniture and bedding.  This was a fabrication and the intent of the search was to look for drugs.  The officer found drugs and made the arrest.  This issue raises questions if consent can be voluntary when it is procured as the basis of a ruse.
 Several prior decisions of the Ky. Supreme Court tend to predict that court will allow ruse to justify search.
Adcock v. Com., 967 S.W.2d 6 (Ky., 1998)
W]hen police officers execute a search warrant on a personal residence by conducting a successful ruse that results in the occupant voluntarily opening the door which is followed by the officers announcing their identity and purpose prior to entering the home, these actions are reasonable within the requirements of the Fourth Amendment.
        This Court granted discretionary review. Additional facts will be set forth as necessary in the course of the opinion.
        As noted by the Court of Appeals, RCr 9.78 provides the procedure for conducting hearings on suppression motions, as well as the standard for appellate review of the trial court’s determination. “If supported by substantial evidence the factual findings of the trial court shall be conclusive.� RCr 9.78. When the findings of fact are supported by substantial evidence, as we conclude they are herein, the question necessarily becomes, “whether the rule of law as applied to the established facts is or is not violated.� Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (citing Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19, 102 S.Ct. 1781, 1791, n. 19, 72 L.Ed.2d 66 (1982).
        Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S.Ct. at 1918. The knock and announce rule has three purposes: (1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and (3) to protect people from unnecessary intrusion into their private activities. Id.
        However, “[t]hat is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.� Id. at 934, 115 S.Ct. at 1918. The Wilson court left “to the lower courts the task of determining the circumstances under which an unannounced
entry is reasonable under the Fourth Amendment.� Id. at 936, 115 S.Ct. at 1919.
        The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. “In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.â€? Richards v. Wisconsin, 520 U.S. 385, —- – —-, 117 S.Ct. 1416, 1421-1422, 137 L.Ed.2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.â€? Id.
        Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.
        A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis.2d 110, 492 N.W.2d 627 (1992), cert. denied, 507 U.S. 977, 113 S.Ct. 1428, 122 L.Ed.2d 796 (1993), overruled on other grounds by State v. Stevens, 181 Wis.2d 410, 511 N.W.2d 591 (1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced “police, search warrant.� As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the officer did, in fact, announce his presence and purpose before entering the defendant’s residence. Id. 492 N.W.2d at 630. Furthermore, the court held that the use of the ruse to entice the defendant to open the door in the execution of a search warrant did not violate the Fourth Amendment or the knock and announce rule because “the reasons behind the rule were satisfied–there was no real likelihood of violence, no unwarranted intrusion on privacy, and no damage to the [defendant’s residence].� Id. at 631; see also Wilson, supra, and Commonwealth v. Goggin, 412 Mass. 200, 587 N.E.2d 785 (1992).
        In fact, notwithstanding the presence of exigent circumstances, federal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry obtained through the use of deception, accomplished without force, is not a “breaking� requiring officers to first announce their authority and purpose. United States v. Salter, 815 F.2d 1150 (7th Cir.1987); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir.1993); Hawaii v. Dixon, 83 Hawai’i 13, 924 P.2d 181 (1996); State v. Myers, 102 Wash.2d 548, 689 P.2d 38 (1984); Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982); State v. Iverson, 272 N.W.2d 1 (Iowa 1978).
        The trial court in this case relied on Salter, supra, in which an officer, posing as a hotel clerk, telephoned appellant’s hotel room and requested her to come to the front desk. When appellant opened the door, officers positioned outside of her hotel room prevented her from closing the door and immediately entered the room. The Seventh Circuit engaged in a statutory analysis and held that there was no “breaking� and thus 18 U.S.C. § 3109 1 was not implicated by entry through an open door. Since the occupant voluntarily opened the door, entry by ‘ruse’ was permissible. See also Contreras-Ceballos, supra (an officer’s use of force to keep open a door that was voluntarily opened in response to the officer’s ruse was not a “breaking� so as to implicate § 3109.)
        We find the recent case of Hawaii v. Dixon, supra, to be factually similar to the case at hand and quite instructive. In Dixon, officers employed a ruse to gain entry into a defendant’s hotel room. Three officers placed themselves on the sides of the defendant’s hotel room door while a hotel security guard approached and knocked on the door. The security guard informed the occupants that he was there to check the air-conditioning. When the hotel door opened, the officers “entered the room simultaneously, announcing ‘in an assertive tone of voice’ that they were the police and ordering [the defendant] to get down.� 924 P.2d at 183. A search of the room produced drugs and paraphernalia.
     The Hawaii Supreme Court held that the use of a ruse violated neither statutory law nor the Fourth Amendment because the purposes of the knock and announce rule were not frustrated. Id. at 182. The court first engaged in a discussion of statutory law from various jurisdictions and concluded that entry gained through the use of deception is permissible so long as force is not involved. Id. at 188. In other words, an entry accomplished without force is not a “breaking� within the meaning of the majority of state statutes, as well as 18 U.S.C. § 3109, and therefore does not implicate the knock and announce rule. “[T]he employment of a ruse to obtain the full opening of the [defendant’s] door was not a “breaking.� And since the door was then wide open, the subsequent entry … did not involve a ‘breaking’ of the door.� Id. at 187. (quoting Dickey v. United States, 332 F.2d 773 (9th Cir.1964)).
       After analyzing the Wilson v. Arkansas, supra, standard and a number of opinions from other jurisdictions, the Dixon court further held that the use of a ruse to gain entry did not violate the defendant’s constitutional protections under the Fourth Amendment. Id. 924 P.2d at 189. The Court adopted the reasoning set forth by the Washington Supreme Court in State v. Myers, 102 Wash.2d 548, 689 P.2d 38, 42 (1984):
        The guiding factor in determining whether a ruse entry, to execute a search warrant, constitutes a “breaking� under the Fourth Amendment should be whether the tactic frustrates the purposes of the “knock and announce� rule. Those purposes are: (1) reduction of potential violence to both occupants and police resulting from an unannounced entry, (2) prevention of unnecessary property damage; and (3) protection of an occupant’s right to privacy.
        It appears obvious that a ruse entry, especially when the deception is not realized until after the entry has been accomplished, actually promotes both the purpose of preventing violent confrontation between the officer and the surprised occupant and that of preventing unnecessary property damage. (citations omitted)
        Accordingly, the Dixon court concluded that “[w]here the purposes of the knock and announce rule are not frustrated, and may, indeed, be furthered by the use of a ruse to obtain entry to execute a valid warrant, the tactic is not constitutionally unreasonable and, therefore, not violative of fourth amendment protections.� Dixon, supra at 191.
        Appellant further argues that even if this Court concludes that police may utilize a ruse to gain entry absent exigent circumstances, if such is unsuccessful, the police must still follow the knock and announce rule. “If the ruse employed is unsuccessful and the officers did not gain peaceful entry, then the ‘knock and wait’ rule comes into play.� State v. Ellis, 21 Wash.App. 123, 584 P.2d 428, 430 (1978).
        The flaw in Appellant’s argument is that she believes because the disguised officer
did not gain actual entry into her residence under the guise of a pizza delivery person, that the police did not gain peaceful entry and thus the ruse failed. As such, the officers were required to follow the requirements of the knock and announce rule. We disagree. The ruse was successful because it enticed Appellant to voluntarily open the door in the first place. At that point, the necessity for the ruse evaporated. Officers gained peaceful entry through the open door without having to use any force. As previously stated, such does not constitute a breaking or forceful entry. Although officers may have preferred to have gained access under the pretense of the delivery ruse rather than having to announce their identity, the ruse still accomplished its intended purpose, namely, to prevent Appellant from disposing of the drugs prior to the officers gaining entry into her residence.
        Even if the ruse in this case was unsuccessful, the trial court found that there were sufficient facts to conclude that the officers complied with the requirements of the knock and announce rule. The trial court specifically made the finding that the officers announced their presence prior to entering Appellant’s residence. Moreover, we reject Appellant’s proposition that the officers were required to wait until she specifically denied them access. Waiting would have served none of the purposes of the rule.
Because an occupant, in the face of a valid search warrant, has no right to refuse admission to police, no interest served by the knock and announce rule would be furthered by requiring police officers to stand at an open doorway for a few seconds in order to determine whether the occupant means to admit them.
        State v. Richards, 87 Wash.App. 285, 941 P.2d 710, 713 (1997); United States v. Kemp, 12 F.3d 1140 (D.C.Cir.1994).
        Contrary to Appellant’s assertion, we find nothing in the language of Wilson v. Arkansas, supra, to be inconsistent with the Dixon court’s analysis or our application thereof. The United States Supreme Court, while reiterating the knock and announce rule in the context of the Fourth Amendment, clearly has not foreclosed the use of police deception to gain entry into a residence for the purpose of executing a valid search warrant. Indeed, we agree with the decisions cited herein, that such a tactic, so long as it is accomplished without the use of force, promotes the underlying purposes of the knock and announce rule and is constitutional and reasonable under the Fourth Amendment.
        Accordingly, we hereby affirm the decision of the Court of Appeals upholding the trial court’s order denying Appellant’s suppression motion.
Riley v. Commonwealth of Kentucky, 120 S.W.3d 622 (Ky., 2003)
  Appellant’s “stalking horse� defense is premised upon his assertion that “Operation Night Vision� was a subterfuge to enable other police agencies to conduct unconstitutional searches of parolees’ residences under the guise of a parole officer’s “routine visit.� Prior to the decision in Knights, supra, a majority of federal courts had, indeed, held that a search was unlawful when the probation or parole officer was acting as a “stalking horse� for a police investigation, i.e., when the officer’s visit was but a ruse for an entry and search by the accompanying police officers. See United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994) (�[I]t is impermissible for a probation search to serve as subterfuge for a criminal investigation.�); United States v. Grimes, 225 F.3d 254, 259 (2nd Cir. 2000); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.
1997); United States v. Oolev, 116 F.3d 370, 372 (9th Cir. 1997); United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996); United States v. Coleman, 22 F.3d 126, 129 (7th Cir. 1994); Shea v. Smith, 966 F.2d 127, 132 (3rd Cir. 1992). However, in the process of reversing the suppression of evidence seized in a probation search that was for “investigatory,� as opposed to “probationary,� purposes, Knights eliminated the “stalking horse� defense.
        Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.
        Knights, supra, at 122, 122 S.Ct. at 593 (citations and quotations omitted). The Ninth Circuit Court of Appeals has subsequently held United States v. Stokes, 292 F.3d 964 (9th Cir. 2002), that, in light of Knights, “our circuit’s line of cases holding searches of probationers invalid on the ground that they were subterfuges for criminal investigations is, in that respect, no longer good law.� Id. at 967 (overruling Ooley, supra).
        We agree that Knights eliminated the so-called “stalking horse� defense. Thus, we need not engage in a subjective examination of the official purpose behind this particular “Operation Night Vision� visit. We simply hold that the search of the remainder of Appellant’s mobile home did not violate his constitutional right to be secure against unreasonable searches and seizures.


Ky. court will consider if police can lie Ruse let detective gain entry to home
By Andrew Wolfson  – The Courier-Journal

When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he’d heard drugs were being sold, he knew the occupants probably wouldn’t consent to a search if he said he was looking for narcotics.
So he lied.

He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.
Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl “Fritz� Krause III.
“I was outraged,� recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. “You would think you could trust authorities to tell you the truth.�
Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia — but on the condition he could challenge the legality of the search.
Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant’s consent to a search can ever be “voluntary� — as required for a search without a warrant — when it is the product of a police officer’s deceit and misrepresentation.
Courts have long held that police may try to trick suspects during interrogations — by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.
But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.
“Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself,� said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.

Ruse raises questions

In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.
But Clymer said the ruse raised “serious constitutional questions� and was “not an appropriate police practice.�
Dissenting from a 2-1 decision affirming Clymer’s decision, Chief Court of Appeals Judge Sara Combs called the deception “a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures.�
Manar, who acknowledged in court that he made up the story to get into Krause’s home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn’t comment on the court case, citing bureau policy.
A state police spokesman, Sgt. Phil Crumpton, said the department also couldn’t comment, because of the appeal.
But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that “ruses are a sometimes necessary element of police work.�
In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter — and a self-addressed, stamped envelope — from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.
“You kind of wince a bit and it’s not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes,� said Louisville Metro Louisville Police Detective Larry Duncan. “I refer to it as a little white lie.�
But police commanders say deception can backfire. “If you tell a suspect you’ve got his prints and he knows he wore gloves� when committing the crime, “he knows you’re lying, and you lose any rapport you’ve build up with him� said metro police Capt. Donald Burbrink.
Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking — because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.
Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don’t do it.
Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given “freely and voluntarily.�
FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, “our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house.�

Searching for drugs

The events leading to Krause’s conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause’s roommate, Joe Yamada.
Manar knew he didn’t have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar — he wasn’t sure which — that a girl claimed she had been assaulted and that the assault took place at their house.
“I thought that would ease his mind a little more than confronting him with the drugs,� Manar said.
Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.
Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn’t join the appeal, was placed on probation for three years, and Krause for 2½.
Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because “the right to be secure in your own home has gone out the window.�
His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.
“If the court upholds this decision,� he said, “the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there.�

Reporter Andrew Wolfson can be reached at (502) 582-7189.

KRS 503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle –Exceptions.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or
great bodily harm to himself or herself or another when using defensive force that is
intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of
unlawfully and forcibly entering or had unlawfully and forcibly entered a
dwelling, residence, or occupied vehicle, or if that person had removed or was
attempting to remove another against that person’s will from the dwelling,
residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an
unlawful and forcible entry or unlawful and forcible act was occurring or had

(2) The presumption set forth in subsection (1) of this section does not apply if:
(a) The person against whom the defensive force is used has the right to be in or
is a lawful resident of the dwelling, residence, or vehicle, such as an owner,
lessee, or titleholder, and there is not an injunction for protection from
domestic violence or a written pretrial supervision order of no contact against
that person;
(b) The person sought to be removed is a child or grandchild, or is otherwise in
the lawful custody or under the lawful guardianship of the person against
whom the defensive force is used;
(c) The person who uses defensive force is engaged in an unlawful activity or is
using the dwelling, residence, or occupied vehicle to further an unlawful
activity; or
(d) The person against whom the defensive force is used is a peace officer, as
defined in KRS 446.010, who enters or attempts to enter a dwelling,
residence, or vehicle in the performance of his or her official duties, and the
officer identified himself or herself in accordance with any applicable law or
the person using force knew or reasonably should have known that the person
entering or attempting to enter was a peace officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any
other place where he or she has a right to be has no duty to retreat and has the right
to stand his or her ground and meet force with force, including deadly force, if he or
she reasonably believes it is necessary to do so to prevent death or great bodily harm
to himself or herself or another or to prevent the commission of a felony involving
the use of force.

(4) A person who unlawfully and by force enters or attempts to enter a person’s
dwelling, residence, or occupied vehicle is presumed to be doing so with the intent
to commit an unlawful act involving force or violence.
Effective: July 12, 2006
History: Created 2006 Ky. Acts ch. 192, sec. 2, effective July 12, 2006.

KRS 503.050 Use of physical force in self-protection — Admissibility of evidence of prior acts of domestic violence and abuse.

(1) The use of physical force by a defendant upon another person is justifiable when the
defendant believes that such force is necessary to protect himself against the use or
imminent use of unlawful physical force by the other person.
 (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.
 (3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.
 (4) A person does not have a duty to retreat prior to the use of deadly physical force.
Effective: July 12, 2006 – History: Amended 2006 Ky. Acts ch. 192, sec. 3, effective July 12, 2006. — Amended 1992 Ky. Acts ch. 173, sec. 2, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 30, effective January 1, 1975.
KRS 503.090 Use of physical force in law enforcement.
(1) The use of physical force by a defendant upon another person is justifiable when the defendant, acting under official authority, is making or assisting in making an arrest,
and he:
(a) Believes that such force is necessary to effect the arrest;
(b) Makes known the purpose of the arrest or believes that it is otherwise known
or cannot reasonably be made known to the person to be arrested; and
(c) Believes the arrest to be lawful.
(2) The use of deadly physical force by a defendant upon another person is justifiable
under subsection (1) only when:
(a) The defendant, in effecting the arrest, is authorized to act as a peace officer;
(b) The arrest is for a felony involving the use or threatened use of physical force
likely to cause death or serious physical injury; and
(c) The defendant believes that the person to be arrested is likely to endanger
human life unless apprehended without delay.
(3) The use of physical force, including deadly physical force, by a defendant upon
another person is justifiable when the defendant is preventing the escape of an
arrested person and when the force could justifiably have been used to effect the
arrest under which the person is in custody, except that a guard or other person
authorized to act as a peace officer is justified in using any force, including deadly
force, which he believes to be necessary to prevent the escape of a person from jail,
prison, or other institution for the detention of persons charged with or convicted of
a crime.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 34, effective January 1, 1975.


Seven million, or one in every 32 American adults, is behind bars, on probation or parole

Thursday, November 30th, 2006

By KASIE HUNT Associated Press

 WASHINGTON (AP) — A record 7 million people – or one in every 32 American adults – were behind bars, on probation or on parole by the end of last year, according to the Justice Department. Of those, 2.2 million were in prison or jail, an increase of 2.7 percent over the previous year, according to a report released Wednesday. 

 View U.S. Justice Department Bureau of Criminal Statistics reports at:
 More than 4.1 million people were on probation and 784,208 were on parole at the end of 2005. Prison releases are increasing, but admissions are increasing more.
Men still far outnumber women in prisons and jails, but the female population is growing faster. Over the past year, the female population in state or federal prison increased 2.6 percent while the number of male inmates rose 1.9 percent. By year’s end, 7 percent of all inmates were women. The gender figures do not include inmates in local jails.

 “Today’s figures fail to capture incarceration’s impact on the thousands of children left behind by mothers in prison,” Marc Mauer, the executive director of the Sentencing Project, a Washington-based group supporting criminal justice reform, said in a statement. “Misguided policies that create harsher sentences for nonviolent drug offenses are disproportionately responsible for the increasing rates of women in prisons and jails.”

 From 1995 to 2003, inmates in federal prison for drug offenses have accounted for 49 percent of total prison population growth.

 The numbers are from the annual report from the Justice Department’s Bureau of Justice Statistics. The report breaks down inmate populations for state and federal prisons and local jails.

 Racial disparities among prisoners persist. In the 25-29 age group, 8.1 percent of black men – about one in 13 – are incarcerated, compared with 2.6 percent of Hispanic men and 1.1 percent of white men. And it’s not much different among women. By the end of 2005, black women were more than twice as likely as Hispanics and over three times as likely as white women to be in prison.

 Certain states saw more significant changes in prison population. In South Dakota, the number of inmates increased 11 percent over the past year, more than any other state. Montana and Kentucky were next in line with increases of 10.4 percent and 7.9 percent, respectively. Georgia had the biggest decrease, losing 4.6 percent, followed by Maryland with a 2.4 percent decrease and Louisiana with a 2.3 percent drop.

How to add a link back to the LawReader Home Page in your browser tool bar.

Thursday, November 30th, 2006

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