Kansas, U.S. Sixth Circuit Delay Same-Sex Marriage Progress

Sixth Circuit delays same-sex marriage progress

Photo: Jeff Belmonte/Wikimedia Commons

A little over a month ago, in a move that seemed to be opening the floodgates for legal same-sex marriages nationwide, the United States Supreme Court declined to hear an appeal from the State of Utah and four other states regarding their bans on same-sex marriage after those bans were ruled unconstitutional by the U.S. Court of Appeals for the Tenth Circuit. The Supreme Court declined without comment, but it was generally understood that they declined to hear the case because at that time, there was consensus among the federal appeals circuits.

However, a recent ruling by the U.S. Court of Appeals for the Sixth Circuit to uphold bans in four states and an application to the Supreme Court from the State of Kansas to delay the issuance of licenses for same-sex marriage may just force the Supreme Court’s hand to finally weigh in on the issue. While many members of the LGBT community celebrated the rulings against bans on same-sex marriages, many are also in agreement with the opposition that the only way to truly settle this issue is for the nation’s highest court to address it.

Same-sex Marriage in Utah

While the ABA Journal is calling the Kansas case “one of the fastest same-sex marriage cases to develop,” here in Utah, it has been a 10 year battle. In 2004, voters in Utah approved Amendment 3 to the Utah State Constitution. This amendment defined marriage and its subsequent benefits as strictly between a man and a woman. The constitutionality of Amendment 3 was challenged based on the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, and ultimately on Dec. 20, 2013, U.S. Fifth District Judge Robert Shelby ruled Amendment 3 unconstitutional.

During a 17-day period between Shelby’s ruling and the State of Utah issuing an appeal to the Denver-based 10th Circuit Court of Appeals resulting in a stay, approximately 1,300 same-sex marriage licenses were issued. In June 2014, in a three-judge panel review, the Court of Appeals upheld Shelby’s ruling.

The State took their appeal to the U.S. Supreme on two issues: whether states should have the ultimate right to make decisions regarding issues of marriage, and if an actual right existed in the U.S. Constitution protecting same-sex marriage.

The Supreme Court’s refusal to hear the case upheld the 10th Circuit Court of Appeals decision that Amendment 3 was unconstitutional.

How Kansas Believes They are an Exception

Kansas also falls into the 10th Circuit, which means the same ruling would apply to them. Federal courts in Kansas are bound by the ruling. After a federal judge in Kansas struck down the state’s ban on same-sex marriage, state officials cancelled their plans to hold a hearing regarding marriage licensing and instead put a temporary hold on all marriage licenses via the Kansas Supreme Court while they could call for new briefs on the issue.

The Kansas federal judge’s striking down of the ban on same-sex marriage was supposed to go into effect on Tuesday, Nov. 11, but on Monday, the state filed an application with the U.S. Supreme Court for a delay in same-sex marriages. Kansas stated they are different than the other cases which the Supreme Court refused to hear because they believe the move by the federal judge interfered with the state supreme court’s review of the matter which was already underway.

The application was filed with Supreme Court Justice Sonia Sotomayor, who also handles emergency legal matters for the 10th Circuit, and on Monday, Sotomayor granted the request to delay issuing same-sex marriage licenses while the state appealed to the 10th Circuit.

How the 6th Circuit Decision Delays Same-Sex Marriage Progress/h3>

When submitting their application to Sotomayor, the state of Kansas relied heavily on the decision on Nov. 6, 2014 by the U.S. Circuit Court of Appeals for the Sixth Circuit to uphold the ban on same-sex marriage in four states: Kentucky, Michigan, Ohio, and Tennessee.

Previous to this decision, the cause of same-sex marriage was moving forward without many hitches. In the past month, the freedom to marry was awarded to same-sex couples in 16 different states. The decision by the Supreme Court to refuse to hear the appeal case paved the way for same-sex marriage in the 10th and 4th Circuits. On October 7, one day after the Supreme Court decision, the 9th Circuit affirmed the freedom to marry via cases from Idaho and Nevada, setting the stage for same-sex marriage in that district as well. Previous to the 6th Circuit ruling, only 15 states remained that didn’t have the freedom to marry for same-sex couples.

According to the Kansas application, with the 6th Circuit ruling, there is now “irreconcilable conflict” among the appeals courts, so “the final resolution of these important constitutional questions by [the U.S. Supreme Court] will certainly be required.”

Speculation puts this action by the Supreme Court as early as before the end of their term in June 2015, however, it is also likely that it will be pushed to the beginning of their next term in October. Regardless, both sides of the issue believe they have a right to be heard. For supporters of same-sex marriage, they believe their freedom to marry should still be protected by the 14th Amendment. Meanwhile, opponents maintain their argument that ultimately this is a state’s rights issue and that the Supreme Court should step out of the way.

Postal Service Mail Surveillance Raises Legal Concerns

Mail Surveillance raises legal concerns

Photo: IFCAR/Wikimedia Commons

In 2013, when former CIA systems administrator Edward Snowden leaked information to the public regarding the National Security Agency and other agencies’ usage of global surveillance programs, including the tracking of email and phone records, many were stunned. However, previous to an audit conducted by the Office of Inspector General and obtained under the Freedom of Information Act (FOIA), a mail surveillance program that has been going on for over a century known as “mail covers” has been slipping quietly under the radar. Results of the audit—including the fact that almost 50,000 requests were made last year to secretly monitor the mail of American citizens—are raising many concerns regarding efficiency and abuses of Constitutional rights.

Not the Only Mail Surveillance Program

Mail covers is a program where postal workers will record information from the exterior of letters and parcels at the request of a state or federal law enforcement agency or the U.S. Postal Service’s (USPS) own investigative branch, the Postal Inspection Service. According to a report by the New York Times, law enforcement claims this method of surveillance is still “a powerful investigative tool,” providing information to the agencies about an investigation target’s businesses, associates, bank records, and even accomplices.

While mail covers is the one of the older mail surveillance programs utilized by law enforcement agencies, it is not the only one. Mail imaging—a process where computers take photographs of the exterior of all pieces of U.S. mail—has been used for several years as a central component of mail processing. According to the USPS, these images are only stored for anywhere from a week to 30 days. However, law enforcement agencies are able to request stored images of mail sent by investigation targets.

Another mail surveillance program came into effect in 2001 but wasn’t made public until 2013 when reports revealed that ricin-laced letters were mailed to President Obama and former NYC Mayor Michael R. Bloomberg. The Mail Isolation Control and Tracking Program was created after the 2001 anthrax scare that killed five people. It allows for the tracking or investigation of mail suspected of containing biohazards such as ricin or anthrax.

Mail Surveillance Inefficiencies and Abuses

According to the New York Times, the requests for mail surveillance come from all levels of government, from global intelligence investigations to state criminal inquiries. While Paul J. Krenn, a spokesman for the Postal Inspection Service, stated that “there has to be a legitimate law enforcement reason” for mail surveillance, according to former FBI agent, James J. Wedick, the program can easily be abused because it doesn’t require a judge’s order or warrant. According to the Inspector General’s audit of the mail cover system, approximately 20 percent of orders for mail surveillance from law enforcement outside of the Postal Inspection Service were not properly approved.

In addition to the apparent ease of instigating mail surveillance, there have also been problems with maintenance of records. The audit revealed that even after orders for surveillance had expired, postal workers were still recording and sending data to the law enforcement agencies who requested them. Of the mail covers audited, 928 of them were still considered “active” even though the order had expired.

Another concern regarding mail covers is the abuse of the system. Typically, the Postal Service is only supposed to grant “mail covers” in regards to law enforcement agencies or issues of national security. However, the audit revealed that13 percent of orders were either unjustified or not correctly documented, and several incidents have come to light proving that regulation of this form of mail surveillance is a serious concern.

In 2011, a county supervisor in Arizona, Mary Rose Wilcox, discovered that the sheriff and county attorney had been using mail surveillance on her. Wilcox believed this was a result of her vocal criticisms of the sheriff’s alleged practice of targeting Hispanics in the area. The sheriff and county attorney used the surveillance information to get a warrant for banking and other information about two restaurants owned by Wilcox and her husband. A subsequent raid of one of the Wilcox restaurants at the local airport resulted in the loss of the contract as well as causing a drop in business at their other establishment. Wilcox sued the county and won in a ruling upheld by the Ninth Circuit Court of Appeals.

Another case involved a San Antonio defense attorney who discovered that the federal prosecuting team was using mail covers to track communication between the defendant and the defense team. While this would seem to be a violation of Sixth Amendment of the U.S. Constitution protecting the assistance of legal counsel (to include private communications between client and attorney), since they aren’t actually reading the mail, mail covers in this situation are not being considered a violation as of yet.

A Commitment to Address Concerns

Other claims of violations of the First Amendment protecting free speech and the Fourth Amendment protecting against unreasonable search and seizure are running into the same hurtles as those claiming Sixth Amendment violations. While reading the actual contents of the mail requires a warrant, simply examining the outside of the packaging doesn’t constitute a violation of a Constitutional right.

Even though this is the case, the audit by the Inspector General brought these issues to light, and as a result, senior Postal Service officials have publicly stated that procedures are being tightened.

“Performance measures and weekly reporting have been put in place to record receipt of outside agency criminal mail cover requests and to ensure timely processing.”

Does Officer’s Ignorance of Law Violate the Fourth Amendment?

Question of Fourth Amendement violation

Photo: J

The Fourth Amendment is once again up for review in the first case to be argued in the new U.S. Supreme Court term. In the case of Heien v. North Carolina, Nicholas Heien was arrested and charged with two counts of trafficking cocaine after the vehicle he was traveling in was pulled over. However, in-depth research into the law revealed that no laws were broken previous to Heien being pulled over, and subsequently there was no reason for the officer to pull over the vehicle. Therefore, it would seem that the defendant’s Fourth Amendment rights had been violated. The case bounced around the North Carolina court system and now has found its way to the Supreme Court.

The Original Case

In April 2010, Maynor Javier Vasquez was pulled over on I-77 in North Carolina after Sergeant Darisse of the Surry County Sheriff’s Department observed a broken brake light. When the officer pulled over the vehicle, he noticed Heien in the backseat lying under a blanket. This obviously raised concerns, and after speaking with both men and finding that their stories didn’t seem to match, he requested permission to search the vehicle. Permission was granted to Sgt. Darisse, and the search turned up a bag with 54.2 grams of cocaine.

[In this instance, Darisse had “reasonable suspicion” to search the vehicle but not “probable cause.” Heien could have declined the search. For more information on the topic of “search and seizure” and your rights when being pulled over, click our previous post, Questionable Focus on Highway Interdiction Nets Billions to Law Enforcement]

After being indicted on two counts of trafficking cocaine, Heien filed a motion to suppress the evidence based on his claim that a Fourth Amendment violation had occurred because technically Sgt. Darisse was in the wrong for pulling them over. In what is considered an antiquated law dating back to earlier models of vehicles equipped with only one “stop lamp”, North Carolina–as with many other states–still has on the books a statute stating that essentially only one “stop lamp” is required for a vehicle.

Heien argued that even though one of the brake lights on the vehicle was broken, the other was still functioning. Therefore the traffic stop was not objectively reasonable. The North Carolina Court of Appeals agreed and reversed the trial court judgment. However, the North Carolina Supreme Court reversed this decision, stating that because the law was so antiquated and no one had really examined the statute in decades, the officer’s “mistake of the law” was reasonable. The case was sent back to the Court of Appeals who found no errors this time around with the trial court’s original judgment, but still expressed in the dissenting opinion that this raised questions of “fundamental unfairness” in regards to the fact that citizens traditionally aren’t allowed to use “ignorance of the law” as an excuse, so why should law enforcement be allowed this right?

Heien again went to the North Carolina Supreme Court, but the Court rejected his appeal. Now the case has found its way to the United States Supreme Court.

The Fourth Amendment, Exclusionary Rule and Good-Faith Exception

The Fourth Amendment protects against unreasonable searches and seizures, which is the question at hand in the case of Heien v. North Carolina. In his defense, Heien is citing the exclusionary rule, a legal principle which states that evidence obtained in violation of a defendant’s constitutional rights may be inadmissible in court.

The problem that Heien may encounter is the good-faith exception to the exclusionary rule. This essentially states that if an officer was acting on “good faith” and had reasons to believe his/her actions were legal (such as in Heien’s case), the exclusionary rule doesn’t apply.

The interesting thing about this case is that while there are three ways the case could be resolved under federal law–essentially stating that the stop was lawful and evidence will be admitted, the stop wasn’t lawful and evidence shouldn’t be admitted, or the stop wasn’t lawful but the good-faith exception will apply–the Supreme Court is really only deciding if a violation of the Fourth Amendment occurred. They are not addressing the exclusionary rule or good-faith exception.

In other words, while the Supreme Court may decide that the stop was indeed unlawful, that doesn’t mean the evidence obtained during the search won’t still be used against Heien.

Only time will tell what the Supreme Court will decide, but one thing seems certain: the case of Heien v. North Carolina is most likely far from closed. In addition, if the Supreme Court rules for the state, many concerns could be raised regarding the fact that “ignorance of the law” is an argument which has always been denied to regular citizens but apparently doesn’t apply to law enforcement.