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.

Utah Prison Relocation Presents Textbook NIMBY Example

Utah prison relocation

Photo: DR04/Wikimedia Commons

With the growth of the Utah prison population not showing any signs of slowing and the vote by 2014 Utah Legislature to move the current Draper prison, a Prison Relocation Commission was assembled and tasked with finding the best site for the new prison. Several options were created and many sites have been suggested and considered. However, the committee is finding that when it comes to the Utah prison relocation effort, while many Utahns may support stricter penalties for criminal activity and oppose decriminalization of certain drug offenses, few residents want to see the necessary infrastructure required to support such a legal system in their backyard.

Brief History of the Utah Prison Relocation Efforts

The growth rate of the Utah inmate population is being estimated at approximately 2 percent per year, a projection which puts the current prison location in Draper short thousands of beds over the next two decades. According to reports from KSL News, in January of 2014, a study put together by an independent firm hired to help with the Utah prison relocation presented four options for making the move as soon as 2018, or as late as 2024. These options ranged from immediate demolition of the prison located at Point of the Mountain, with or without increases in jail capacities, to two options that would phase out the Draper prison with differing final end dates.

A fifth option was to keep Draper as the prison site for the next 50 years, but according to Prison Relocation Commission member and Utah State Rep. Eric Hutchings, R-Kearns, there will still be “a massive dollar figure behind not relocating the prison.” Most agree that the best move is the prison relocation.

In June, it was announced that the state would start developing criteria for a new location, such as ease of access, pre-existing infrastructure, and a population base able to staff and volunteer at the facility. The Commission would also be focusing on a few communities in specific.

While speculation abounded, the names of these communities weren’t released to the public until October, and even then the Commission stated they might have been premature. Regardless, residents of many of the communities have already started voicing their opposition to the Utah prison relocation into their neighborhood. Owen Jackson, the manager of public relations and economic development for Saratoga Springs, one of the communities on the potential list, stated, “We don’t have an interest in it being in our community…It doesn’t fit.” A Facebook page dedicated to opposition of the relocation has already garnered over 1,000 signatures on a petition.

In addition to Saratoga Springs, the Commission seems to have narrowed the list to three other sites, all of which are in Salt Lake County. Two potential sites in Tooele County were taken off the list after the decision that they were too far from the current site in Draper, but also because of “lukewarm community support,” with only 44 percent of the County residents in favor of the move.

Utah Prison Relocation and NIMBY

NIMBY is an acronym which stands for “Not In My Back Yard” and reflects an attitude held by some that while a new development may be good or necessary—anything from transportation hubs to group homes to strip malls. And yes, prisons—they don’t necessarily want that type of development going up in their neighborhood.

Arguments against such development include:

  • Decreased property values
  • Increased traffic
  • Additional environmental, light, or noise pollution
  • Strain of public resources
  • Increased crime

Many of these factors influence the dissent of those who oppose the Utah prison relocation into their “back yard,” even if the development may benefit the community. According to Randy Sant, an economic development consultant, the Utah prison relocation could have the same impacts as “a major industry coming into the community.”

Even though it’s hard to argue the economic advantages of such a move, early on it was recognized that finding a location might be difficult. Bob Nardi, a consultant with the same firm that composed the independent study for the State, stressed the importance of finding a willing and receptive community. “What cannot be engineered is a community that is not interested.”

However, choosing an appropriate location for a prison goes beyond which community the Commission believes should benefit economically. Several other factors play into the decision more than perhaps where to locate a new strip mall. Even though Owen Jackson stated a prison didn’t “fit” in Saratoga Springs, according to the Prison Relocation Commission, they have all of the qualifications.

Sen. Jerry Stevenson, R-Layton, was quoted as saying that the potential Saratoga Springs site had neighboring facilities “that are probably compatible” with a prison, such as an asphalt plant, power corridor, Camp Williams, and Bureau of Land Management property. Stevenson believes these commodities make the site an area unattractive to other residential development.

Other criteria considered for the Utah prison relocation sites included a 100 point scale with factors such as proximity to staff, volunteers and families of inmates at the Point of the Mountain prison. Community acceptance was given a point value of 15. Clearly the residents of these communities believe that number should be higher.

Something’s Gotta Give

While the overpopulation of prison systems reflects the decisions of individuals to commit crimes, it can’t be denied that it is also demonstrative of a society that believes in a criminal justice system that imposes more and longer sentences for those crimes, a system which has been shown in numerous studies to be ineffective in regards to reducing rates of recidivists [repeat offenders].

A council chairman for another of the communities being researched as a potential site went so far as to say, “There’s a sense of frustration at the thought that the state would consider putting a prison complex in our community. It’s just surprising.”

An interesting question to put to those citizens would be what their solution is to the growing prison population. Would they be willing to support programs aimed at reducing redicivism through other means besides increasing prison sentences? Such as the treatment programs that Rep. Hutchings is working toward through a subgroup he is leading. If not, their proverbial “hat in the ring” should be as fair game as other communities able to support a new prison.

While the Prison Relocation Commission stated in June that they would like to have a site selected before the start of the 2015 Legislature in January, it looks like the time table may have to be pushed back so long as opposition is so strong.

Police Body Cameras Subject of Debate in Utah

police body camera debate

Photo: Glogger/Wikimedia Commons

Two recent cases in Utah where deadly force was applied by police officers have raised questions about the use of police body cameras. In both cases, it has been determined by the Salt Lake County District Attorney’s Office that the use of deadly force was justified. This decision was made largely as a result of the fact that both officers were wearing body cameras at the time of the shootings and it was possible to evaluate their actions. While many have wondered if a national policy regarding police body cameras could have alleviated problems in the aftermath of the Ferguson, MO, incident, others are concerned about the potential implications of such a requirement.

Police Body Cameras in Utah

Two separate cases in Utah have made considerable news: the fatal shooting of Dillon Taylor and nonfatal shooting of Timothy James Peterson. While footage remains to be released regarding the Taylor incident as the result of a pending investigation, the officer in the Peterson case has been cleared as a result of the body camera he was wearing and inflammatory statements made by Peterson previous to the shooting.

In a recent Utah poll, 83 percent of Utahns stated that they strongly or somewhat agree with police body cameras or some other device that would record the officers’ interactions with the public. Currently, 145 Utah officers are wearing the cameras with 114 more scheduled to get them in upcoming months. However, the state’s largest police department, the Unified Police Department, currently prohibits police body cameras, even if an officer has purchased one on his/her own.

According to Salt Lake County Sheriff Jim Winder, who oversees the Unified Police Department, he isn’t against them. He just believes they shouldn’t rush to equip every officer with a camera without making sure they have policies in place regarding privacy concerns and how the footage will be used.

“I think they promote better customer service,” Winder said. “I think they promote liability reduction for the agency. The reason to have them is not just to protect the cop.”

Pros and Cons of Police Body Cameras: Can Big Brother be a Good Thing?

Utah isn’t the only state mulling over the use of police body cameras. In a recent panel discussion on the topic, San Diego Police Chief Shelley Zimmerman stated that their goal was to have all 1,800 San Diego patrol officers equipped with body cameras by the end of 2015. However, as opposed to Utah where the footage from police body cameras is available to the public through the state’s public records law, California has chosen to only release records through the court system. Zimmerman said she would reconsider her stance if public safety was at stake, such as in the case of the Ferguson, MO, shooting. The public safety isn’t the only listed benefit of police body cameras. In addition to transparency, Zimmerman believes the use of body cameras can help restore public confidence in police.

Another benefit to the cameras directly links to the Ferguson incident, but a quick YouTube search of the term “racial profiling” indicates Ferguson wasn’t the only incident where law enforcement officers have been accused of this type of behavior. The behavior by some people to treating other people differently based on their race could be affirmed or acquitted regarding police actions if police body cameras were employed more regularly. Questions of abuse of power or unnecessary use of force could also be addressed. In September, the U.S. Border patrol stated that it would start testing body cameras on their agents as a result of numerous complaints.

Another benefit that was addressed at the San Diego panel was the fact that many situations that start as hostile become calmer once a suspect knows he/she is being filmed. Even though police officers are not required to notify an individual that they are wearing a body camera, many have found it to their advantage in tense situations. “[N]umerous officers have indicated they were glad they had them,” Zimmerman said.

While police body cameras can also be beneficial tools in officer training, one of the concerns regarding the cameras is that they would be used as part of performance evaluations. Another concern is that while many newer officers approve of using the cameras, many veteran officers are struggling with adapting to the technology, especially considering that many departments only require the officers to turn it on when dealing with individuals, something veteran officers may forget to do.

Other concerns relate to privacy and how the video might be used. For example, even though videos of failed sobriety tests are prevalent online, it is generally agreed that such video shouldn’t be used to make people look foolish. Also, this video could be used out of context. An example was used of an officer entering a home where child abuse may be reported. A house may look messy because of time of day or the child has been playing, but even though no abuse may be apparent, this type of video evidence of “unfit living conditions” might be misused in divorce proceedings.

The Future of Police Body Cameras in Utah

Sheriff Winder has raised other questions regarding the use of police body cameras that he feels need to be addressed before implementing a program with the Unified Police Department, questions such as how long video records need to be kept, how they are classified, and how editing will occur. Cost will be another issue.

In order to address some of these issues, Winder has assembled a panel to study the use of police body cameras, including police officers, members of the community, and at least one person who has admitted to being “anti-police.”

Winder believes it is best to thoroughly research this before implementation in order to avoid a civil lawsuit. He referred to an article from the U.S. Department of Justice which included a letter from the Police Executive Research Forum which stated, “The decision to implement body-worn cameras should not be entered into lightly…once the public comes to expect the availability of video records–it will become increasingly difficult to have second thoughts or to scale back a body-worn camera program.”