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Legally Speaking: Firearms sales running into issue of due process

What a week, #LegallySpeaking wise!

From politicians to juries to the Supreme Court, we saw decisions and verdicts ranging from immigration to guns to drinking to rock-n-roll.

Here is a quick re-cap of what you need to know.

Immigration – The Supreme Court issued its tie decision in United States v. Texas in which 26 states sued the federal government over DAPA. Back in November, 2014, by executive action, President Obama introduced DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). It was explained that this was not a path to citizenship but was instead a way to assure illegal immigrants they would not be deported. It would give legal status and protection to immigrants and allow them to apply for work permits and driver’s licenses. Twenty-six states sued the federal government over DAPA and argued that this type of law needs to come from Congress and that Obama acted unilaterally and sidestepped the rules and typical procedure that are in place to pass laws such as this.

The states requested a preliminary injunction and asked the court to stop the enforcement of DAPA until the lawsuit played out. The US District Court for the Southern District of Texas granted the request and preliminarily enjoined the federal government from going forward with DAPA. The Court of Appeals affirmed the injunction in November, 2015. Subsequently, the Supreme Court agreed to hear the case and issued its decision on June 23. There are only eight justices on the Court since Justice Scalia’s position has not been filled and because of this, there was a tie. The Court was split. As such, the decision of the lower court stands.

What does this mean? It means that the preliminary injunction is still in effect and until it is dismissed or a verdict is rendered, the federal government cannot enforce DAPA. Immigrants will not be given legal status and protection nor will they be given work permits, at least as part of DAPA. This is not the end though. The case is only in its beginning stages so it is very possible, and likely, that once a trial is had and a verdict is rendered it will travel its way up to SCOTUS where it will be heard by nine justices and then America will have its precedent and answer as to whether DAPA will stand.

Guns and the No Fly List – This week Arizona Senator Jeff Flake introduced a bill to prohibit the sale of guns to persons on the No Fly list. This comes on the heels of the deadliest mass shooting in America that occurred June 12 at Pulse Nightclub in Orlando. It’s not surprising to see a flurry of proposals and argument regarding gun control and gun rights after a tragedy involving firearms and typically nothing changes.

The legal argument against Senator Flake’s proposal, and others before it, has to do with due process. Since the right to bear arms is given to us by the Second Amendment to our Constitution and has been affirmed in case law, a person must have due process before that right can be taken away. In other words, they must have their day in court. They must be made aware they are on the list and be afforded the opportunity to fight their presence on the list. Currently this is not done. Those on the list often do not know they are on the list and there are few opportunities, if any, that allow them to fight the designation.

This huge hurdle was recognized and suggestions are contained in the bill that would give some modicum of due process. However, the bill has a long way to go before it becomes a law and, even then, it will face many challenges in court and will likely make its way to the Supreme Court. So, mark your calendar, you could be reading about this anticipated case a couple years from now in #LegallySpeaking.

The Trials re: Freddie Gray – After the death of Freddie Gray in April 2015, six police officers were charged with a slew of crimes ranging from second-degree depraved heart murder to misconduct in office. Prosecutor Marilyn Mosby acted swiftly in charging and prosecuting the officers involved. However, it hasn’t gone as smoothly as she wanted. To date, three officers have been tried: William Porter, Edward Nero and Caesar Goodson Jr. (the driver of the police van and the one charged with the most serious crime). Porter’s trial was first and resulted in a hung jury. The judge in that case ended up being the fact finder in Nero and Goodson’s trials (all the parties waived a jury trial). He found Nero not guilty and just today, June 23, he found Goodson not guilty. Do you see a pattern here? There are still 3 more officers to be tried along with the re-trial of Porter. We will have to wait and see if the pattern continues, which, in my opinion, it will.

Rock-N-Roll – The iconic song Stairway to Heaven has been at the center of a copyright lawsuit in Los Angeles over the past several weeks. A lawsuit was filed against Led Zeppelin (Jimmy Page and Robert Plant) claiming that members of the band had stolen passages from a song entitled Taurus and performed by the band Spirit many decades ago. In fact, when you listen to Taurus and Stairway to Heaven they sound very similar. However, the jury was not allowed to listen to the recordings that you and I have heard. The attorneys were only able to present the sheet music and the jury was only allowed to hear guitar and piano renditions by musicians. This resulted in a verdict in favor of Led Zeppelin. Are you wondering if you would have reached the same decision? Go ahead and take a listen to the two songs and then play them for your friends. Chances are you will reach a different decision than the jury did!

DUIs – Here in Arizona if you have an Arizona drivers license and are being investigated, or arrested, for DUI you are subject to the Implied Consent law. That means that you impliedly consent to a test of your blood/breath/urine for blood alcohol content. If you refuse to take the requested test you could lose your license for 12 months. This punishment is an administrative one enforced by DMV and is not a criminal one. In some other states it is a crime to refuse the test.

In Birchfield v. North Dakota (No. 14-1468) SCOTUS decided that it is unconstitutional to criminally charge someone who refuses a warrantless blood test. Taking your breath or blood is a search that is governed by the Fourth Amendment. As such, the search must be consented to, have a warrant or there must be an exception. One of the exceptions to the requirement of a warrant is if the person has been arrested. If they have been arrested they can be searched under the “search incident to an arrest” exception. However, the Supreme Court found that since a search of blood is invasive and intrudes substantially on the person’s privacy that there must be a warrant to take blood and that the above exception would not work here.

What does this mean? In Arizona it’s not a crime to refuse to take a blood test, but there are consequences. According to SCOTUS, those consequences can remain because they are civil in nature and not criminal. So that means that Arizona cannot make it a crime to refuse to give blood in these circumstances. This is important because Arizona has some of the toughest, if not THE toughest, DUI laws in the country and legislators and lobbyists are always suggesting ways to make them tougher.

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