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.”

Utah Aiding and Abetting Case Examined by SCOTUS

Supreme Court Examines Aiding and Abetting

Photo: Miroslav Pragl/Wikimedia Commons

In a 2007 Utah case of a drug deal gone bad, the facts have been unclear since the beginning. However, what is known is that one of the defendants was charged with possessing drugs with an intent to distribute, possessing ammunition as a felon, and a firearms charge revolving around either discharging the weapon or aiding and abetting the use of one (although this delves into murky waters again, as it was unclear who actually fired the weapon or had knowledge of it).

These charges led to a sentence of 48 months in prison, plus an addition mandatory sentence of ten years for the firearms charge under Federal law. This conviction was appealed on the basis that the trial judge erroneously instructed the jury regarding the aiding and abetting aspect of the crime, but the Denver-based 10th Circuit Court of Appeals agreed with the trial court, and the case of Rosemond v. United States continued on to the U.S. Supreme Court in November of 2013.

Who’s on First, and Who Shot Whom? The Case at Hand

In 2007 in Tooele, Utah, Justus Rosemond, a previously convicted felon, and two others were attempting to sell a pound of marijuana in a deal set up by one of Rosemond’s accomplices. Upon arrival at the scene of the crime, the potential buyers inspected the marijuana and then assaulted one of Rosemond’s accomplices and ran. Shots from a 9mm were fired at the thieves, and the would-be-drug dealers gave chase.

Those are the only facts not being disputed. After this point, the details get fuzzy. Regarding the shots fired, testimony was unclear as to who did the actual shooting. Immunity was given to both of Rosemond’s accomplices in exchange for their testimony (but not to the convicted felon Rosemond), but while one of the suspects claimed it was Rosemond, the other said her back was turned and she didn’t see who it was–a change from her earlier statement. Even the testimony of a witness was inconclusive.

These details were considered irrelevant by the prosecution who tried Rosemond under one of two theories, either A) he was the actual shooter, or B) he was guilty of aiding and abetting the drug crime because he knew a gun was used. Notice the last part, “he knew a gun was used.” When the jury brought back a guilty verdict, it was a “general verdict,” meaning that they did not state under which theory they convicted him.

So What Actually Constitutes Aiding and Abetting?

Rosemond didn’t appeal any of the convictions except for the firearms charge which added a mandatory ten years to his sentence. The reason for this mandatory sentence can be found under U.S. Code 924(c), which essentially states that if a weapon is used in the furtherance of a drug crime, someone guilty of aiding and abetting that crime is as guilty as the person who used the gun.

However, in the response from the Supreme Court, they stated that in order to be found guilty of aiding and abetting, the government must prove “that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.”

This “advance knowledge” is different than the prosecution and judge’s direction to the jury that he would be guilty of the aiding and abetting if he “knew his cohort used a firearm in the drug trafficking crime.” The defense maintained that he needed to have acted intentionally “to facilitate or encourage” the firearm’s use.

When the case was taken to the 10th Circuit Court of Appeals, they agreed with the district court, even though they stated other Circuit Courts had found along the same lines as the defense. They justified this by stating that previous cases in their circuit had already established precedence in this matter.

While the prosecution stated that even if Rosemond didn’t have advanced knowledge that a gun would be used, the fact that the crime continued (via the car chase) after shots had been fired contributed to their argument that the Rosemond facilitated or encouraged the use of the firearm. According to prosecution, he knew that a gun was used, making him guilty of aiding and abetting.

There were various other arguments on both sides of the issue, and when the case was presented to the U.S. Supreme Court, both the defense and the judges raised various scenarios to establish whether or not aiding and abetting applied in this case.

Ultimately, the Supreme Court found that the circumstances surrounding Rosemond’s case did indeed satisfy certain requirements of 924(c), specifically that he acted with intent to bring about the drug trafficking crime and make it successful “with full knowledge of the circumstances constituting the charged offense.” However, they maintained that the instructions to the trial court jury were erroneous in this issue because “they failed to require that Rosemond knew in advance that one of his cohorts would be armed … to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime.”

In March of this year, the Supreme Court remanded the case back to the Court of Appeals to determine whether or not this objection was properly preserved and whether the error in instructions was sufficient to cause harm to the final verdict.