legal

Supreme Court refuses to ‘Free the Nipple’ in topless women case

The Supreme Court on Monday decided not to hear an appeal by three women fined by a city in New Hampshire for exposing their breasts in public who argued that banning female but not male toplessness violates the U.S. Constitution. The justices left in place a 2019 ruling by New Hampshire’s top court upholding the women’s convictions for violating an ordinance in the city of Laconia that makes it illegal to show female breasts in public “with less than a fully opaque covering of any part of the nipple.” The women – Heidi Lilley, Kia Sinclair and Ginger Pierro – were involved in the “Free the Nipple” movement, which court papers described as campaigns against “sexualized objectification of women” and in favor of women being able to go topless in public if they wish. Pierro was arrested on a beach on the shores of Lake Winnipesaukee in May 2016 where she was performing yoga while topless. Lilley and Sinclair were both arrested days later while topless on another beach where they were protesting Pierro’s arrest. The three women were given suspended fines of $100 each, on condition of subsequent good behavior. Among the legal arguments made by the women is that any law that punishes women for exposing their breasts while allowing men to go shirtless violates the Constitution’s 14th Amendment, which requires that laws be applied equally to everyone. The New Hampshire Supreme Court ruled that the ordinance did not discriminate against women, noting that it bars nudity of both men and women. The different definition of what constitutes nudity is based on “the traditional understanding of what constitutes nudity,” that court concluded. Laconia is located about 25 miles (40 km) north of Concord, the capital of New Hampshire.

This is one of those cases that nobody really wanted to deal with.  Even the ladies were given suspended $100 fines and told to behave.  And the Supremes rightfully let stand the NH Supreme Court’s ruling.  The ruling in effect said, “nudity in public is against the law in NH, and yes..the bodies of men and women ARE different.  Get over it.”  Agreed.

Analysis: Enemy Combatant Terror Commanders Are Fair Game

Last week, Iranian General Qasem Soleimani was killed in a targeted strike by U.S. forces authorized by President Trump. This preemptive attack has spawned a curious debate over whether Soleimani posed an imminent threat at the time he was taken out. The suggestion, mainly by partisan Democrats, is that it was illegitimate for the president to use lethal force without congressional authorization absent proof that Soleimani was on the cusp of killing Americans — or, better, killing even more Americans. The debate puts me in mind of the early-to-mid 1990s, when our counterterrorism laws were dangerously flawed. Back then, sensible Democrats — as most of them were — knew that these defects had to be addressed. Rather than sound like apologists for anti-American jihadists, they took admirably expeditious action. The problem emerged in the investigation of the proto-Qaeda terror network guided by the so-called Blind Sheikh, Omar Abdel Rahman. I was then a federal prosecutor and took over that investigation in Spring 1993. At the time, having just bombed the World Trade Center, the jihadists were actively plotting something even more monstrous: simultaneous attacks on the Lincoln and Holland Tunnels and the United Nations complex on Manhattan’s east side. The jihadists were also scouting additional landmarks in the city, including U.S. military facilities and the FBI’s downtown headquarters. We knew about the plot — and were in a position to thwart it — because we had a confidential informant. (Back then, neither he nor anyone else got the sniffles over the media’s labeling him a “spy.”) Emad Salem, a former Egyptian military officer, had infiltrated the cell and covertly recorded discussions with the Blind Sheikh about the desirability of bombing U.S. armed forces. Like the Shiite Iranian regime (longtime supporters of Sunni al-Qaeda and Hamas, as well as Shiite Hezbollah), Abdel Rahman, a renowned Sunni sharia scholar, recommended that Muslims put aside their internecine conflicts when it came to fighting America, “the Great Satan.” In the early-to-mid 90s, the United States thankfully did not have extensive experience with international terrorist attacks on the homeland, certainly not the systematic use of mass-murder attacks as a method of prosecuting war that we’ve seen in the last quarter-century. This meant that our legal architecture was sorely lacking. That was a significant defect, given that the government was determined to treat this national-security challenge as if it were a mere crime problem. There were anomalies. If, for example, terrorists successfully detonated an explosive, as they did in the 1993 WTC attack (killing six, including a woman about to give birth, injuring hundreds, and causing massive property damage), we had a bombing statute that prescribed an appropriately severe penalty: life imprisonment. But there was no federal bombing-conspiracy statute. Consequently, any bombing plot had to be charged under the catch-all federal conspiracy statute. Generally applicable to less serious offenses, it makes sundry conspiracies punishable by no more than five years, and as little as no imprisonment. In other words, if jihadists killed a few people, you could put them away forever; but if they were stopped while plotting to kill 10,000 people, the penalty was illusory. In effect, our investigators were penalized for doing their jobs well. There was something of a fall-back position, though it further illuminated the flaws in our criminal code — and, analogously, the foolishness of today’s debate over whether a suspected attack is sufficiently imminent to warrant responding with force. Terrorists who’d been stopped could be charged with attempted bombing, which carried a possible penalty of up to ten years’ imprisonment — still inadequate, but better than zero to five years. Yet there was a catch. Court decisions, even in the bombing context, made proving the crime of attempt much harder than it should have been. Evidence was deemed insufficient unless prosecutors could establish that the suspects had taken enough actions in furtherance of a bombing to meet the legal threshold of a “substantial step.” So . . . what was a substantial step? Was discussing a bombing enough? How about conducting surveillance of a target? Purchasing bomb components? Did it matter whether the plotters had done bombings in the past? No one could really be sure. In effect, the question became: Did it seem, under the circumstances, that the bombing was imminent? On this calculus, even evidence of implacable terrorist hostility and a commitment to use force would not be sufficient to prove an attempted bombing. Investigators would need, in addition, evidence that the plotters were so far along in their planning that we could conclude an attack would have happened if the police had not interrupted it. Consider the perverse incentive this legal framework created. If investigators were fortunate enough to be in a position to stop a mass-murder attack and round up the jihadists, the law nevertheless encouraged them to let the plot continue, right up to the moment before detonation if possible, to ensure that a “substantial step” had been proved. Of course, even if they have an inside cooperator, investigators are never in complete control of a criminal enterprise. The last stage of a plot is the time when plotters may speed up matters to avoid getting caught in possession of incriminating evidence. The higher-ups are apt to flee before the strike, so they’ll be beyond capture when the lower-ranking plotters set off the explosion. The chance that a bombing will happen increases immensely if investigators are discouraged from taking decisive preemptive action that a court may later second-guess as premature. This is one reason (of many) that international terrorism is best regarded as a military threat rather than a criminal prosecution issue. It is one thing to agitate about whether the proof of an attempt is good enough when, if the agents lose control of the situation, the only danger is that a few victims will be defrauded or robbed. It is quite another thing when jihadists are projecting power on the scale of a national military force. That risk is unacceptable. It is interesting to contrast the mid Nineties to today. Back then, most Democrats were committed to the law-enforcement approach to counterterrorism. While you can debate the wisdom of that, those Democrats were at least serious about making sure that court prosecution was as effective as it could possibly be. In the 1996 overhaul of counterterrorism law, the Clinton White House and Justice Department worked closely with a Republican-controlled Congress. They not only addressed the flaws that made uncompleted bombing plots so challenging to prosecute. They also defined new crimes tailored to how modern international terrorism actually works. These improvements enabled investigators to thwart plots in their infancy; we were also empowered to starve jihadist organizations of funding, personnel, and materiel. The bipartisan message was loud and clear: We want terrorists aggressively prosecuted but, even more, we want our agents to have the tools to prevent plots and attacks from taking shape in the first place. Where is that message today? In neutralizing terrorists and their state sponsors, the venerable law of war is, to my mind, a necessary complement, if not a preferable alternative, to the criminal law. One of many reasons is that, when an enemy is making war on the United States, there is no need to wait for an attack to be imminent in order to justify a defensive, preemptive strike. General Soleimani was an enemy combatant commander for the Iranian regime and the jihadist terror networks it uses in Iraq, Lebanon, Syria, and elsewhere. For more than 40 years, Iran has unabashedly pronounced itself as at war with the United States. It has conducted major attacks that have killed hundreds of Americans. In just the past few weeks, Iran’s jihadist militias attacked American bases in and around Baghdad eleven times. Reports of intelligence indicating that Soleimani was planning more attacks in the near term are surely credible. Legally, though, they are beside the point. Soleimani was a proper target regardless of the evidence that any new attack was imminent. The real question is: Why is imminence even an issue? This is not a close call. We are talking about one of the most notorious mass-murderers of Americans on the planet, the top combatant commander of the regime that proudly tells the world its motto is “Death to America.” Why would we want to raise an abstruse question that would make eliminating such a monster more difficult? In the Obama years, Democrats were happy to line up in support of unprovoked U.S. attacks on Libya. The use of lethal force was not authorized by Congress, and Americans were not being threatened. Now, because the president at the helm is Donald Trump, they want to quibble over whether the latest Iranian atrocities and U.S. intelligence were a sufficiently flashing neon sign that more atrocities were imminent? That is irresponsible. In the 1990s, Democrats understood that we needed to fix our laws to make it easier to eliminate threats to attack the United States, regardless of whether they were about to occur or hadn’t even gotten beyond the recruitment-and-training phase. Maybe those Democrats make themselves heard only when one of their own is in the White House. Right now, though, we need to pull together as a united front against an Iranian enemy that could not be clearer about its murderous intentions. Yes, we’re in a period of extreme partisanship. That is no excuse for playing politics with our security.

Agreed!!  And well said, Andrew.  Attorney and former federal prosecutor Andrew C. McCarthy is the author of that well thought out, and at times tedious, legal analysis.  Bottom line…  President Trump had every legal authority to take out Soleimani.  So, don’t believe a single thing you hear to the contrary by posturing Democrats and the hypocritical anti-Trump idiots suffering from non-stop Trump Derangement Syndrome over at CNN and MSNBC.  Had Obama ordered that strike they would have said it was “bold;” not reckless, etc.  Anyway, we also posted another legal article by attorney Gregg Jarrett.  Scroll down about 13 articles or so for that one to get his input as well.  Thanks Andrew!!    🙂

Opinion/Analysis: In ordering Soleimani killing, Trump acting correctly, decisively and constitutionally

President Trump ordered an airstrike that killed the notorious Iranian terrorist, Qassem Soleimani, who murdered hundreds of Americans. The President was constitutionally empowered to do so. Democrats, of course, reflexively whined that Trump abused his powers. House Speaker Nancy Pelosi’s predictable, Pavlovian response was to complain that the president acted without authorization from Congress. He did, indeed, because he needs no such authorization. Article II of the Constitution vests “executive power” in the president of the United States. As commander in chief of our armed forces, the president is granted broad and substantive authority to deploy military forces overseas to ensure U.S. national security and protect American lives. This is implicit within the vesting clause of the Constitution. On the president’s orders and without congressional permission, our military can engage hostile forces for these purposes. Exigent circumstances often demand immediate action. The delay caused by protracted congressional approval is both unworkable and dangerous. Express consent from Congress is required only “to declare war.” This is derived from Article I of the Constitution – which, unlike presidential powers, confines legislative powers to those “herein granted.” It serves as the basic framework that has enabled all past presidents to act unilaterally and swiftly when serious threats arise, but where a formal declaration of war is not merited. Trump’s action was entirely consistent with decisions made by his predecessors. Presidents have a fundamental duty to act quickly in the face of foreign aggression that jeopardizes both lives and U.S. national security interests. Until his hand was forced, Trump showed remarkable restraint. He did not retaliate with military action months ago when Iran shot down a U.S. drone or attacked oil tankers in the Gulf of Oman or fired rockets into an installation housing American military personnel. One can argue that his forbearance only emboldened Iran’s belligerence. The equation changed when Soleimani directed his terrorist militias to lay siege to the U.S. embassy in Baghdad, threatening American lives. This was preceded by a militia attack on a military base that wounded U.S. troops and killed an American contractor – again, orchestrated by the terror leader. Soleimani, who was there in Baghdad commanding these terror operations, was poised to murder more. According to Secretary of State Mike Pompeo, Trump’s decision to take out the terror leader disrupted another “imminent attack” and “saved American lives.” Soleimani “was actively developing plans to attack American diplomats and service members in Iraq,” the Pentagon revealed. The risk of doing nothing was enormous, Pompeo added. Ordering a military attack without congressional permission is not without considerable historical precedent. President Ronald Reagan launched air strikes against Libya in 1986, as did President Barack Obama in 2011. President Bill Clinton undertook a bombing campaign in Yugoslavia in 1999. In each of these actions, the War Powers Act of 1973 was disregarded or otherwise violated. Meant as a congressional check on the president’s military authority by imposing some restrictions, its constitutionality remains unresolved and it has never been consistently enforced. More relevant, however, is the Authorization for Use of Military Force (AUMF) passed by Congress in 2001. It gave then-President George W. Bush expansive authority to wage military campaigns against enemies connected to the 9/11 attacks. The opaque language of the AUMF has empowered every president since then to continue the war against terrorists in Iraq and elsewhere in the Middle East. Given that Soleimani was head of the Islamic Revolutionary Guard Corps’ Quds Force that was designated by the U.S. in 2007 as a foreign terrorist organization, and given that he was operating in Iraq directing terror attacks against Americans, President Trump would be on firm legal ground to assert justification for his killing under the AUMF. Democrats like Sen. Chris Murphy of Connecticut are stricken with a combination of schizophrenia and hysteria. While admitting Soleimani “was an enemy of the United States,” Murphy suggested Trump was “knowingly setting off a potential massive regional war.” Murphy’s dire prediction (or pessimism) is far from certain. Does Murphy prefer that the terrorist leader, who is estimated by the Pentagon to have killed 608 American troops, remain at large to continue his murder spree? Does the senator have no confidence that American military might is capable of deterring any retaliatory aggression by Iran and defending against future attacks? Apparently not. He fails to comprehend that Tehran will continue its reign of terror until a strong leader and nation stands up to the malignant regime. Sen. Tom Cotton, R-Ark., who served combat tours in both Afghanistan and Iraq, knows better. He adopted a more sensible view when he observed that Soleimani “got what he richly deserved, and all those American soldiers who died by his hand also got what they deserved – justice.” President Trump should be commended for acting correctly, decisively and well within his constitutional authority.

Agreed!!  And well said, Gregg.  Attorney and legal scholar Gregg Jarrett is the author of that spot-on legal op-ed.  Gregg is now a Fox News legal analyst and commentator, and formerly worked as a defense attorney and adjunct law professor. He is the author of the No. 1 New York Times best-selling book “The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump.” His latest book is the New York Times bestseller “Witch Hunt: The Story of the Greatest Mass Delusion in American Political History”   Outstanding!!    🙂

Senate confirms Justin R. Walker for District Judge

The Senate confirmed a former clerk to Justice Brett M. Kavanaugh, who was a staunch defender of his boss during the controversial hearings last year, for the federal bench Thursday over Democrats’ concerns the pick lacked enough trial experience to be a judge. Justin Walker was confirmed to the U.S. Western District of Kentucky by a 50-41 vote. He became the 110th district court judge appointed by President Trump. Mr. Walker teaches legal writing at the University of Louisville. He previously clerked for Justice Kavanaugh when he sat on the federal appeals court in Washington and clerked at the Supreme Court for now-retired Justice Anthony M. Kennedy. During Justice Kavanaugh’s confirmation hearings, Mr. Walker appeared regularly on network television to defend his former boss’s record and reputation after the nominee faced allegations of sexual misconduct. Justice Kavanaugh vehemently denied any wrongdoing. “For those of us who know Justin Walker and have seen his work up close it’s clear that President Trump made an outstanding choice to be a district judge for the Western District of Kentucky,” Senate Majority Leader Mitch McConnell said Thursday. “Mr. Walker has sharpened his legal skills at the highest levels.”

Many of the Senate Dems who voted against Mr. Walker’s nomination due to “lack of experience” as a judge, were the very same Senators who supported then Pres. Obama’s appointment of Elena Kagen to the U.S SUPREME COURT, and she had never served a day in her life as a judge.  Typical hypocrites.  The Dems just can’t stand that President Trump has put another young (he’s 37 years old), conservative judge on the federal bench with a lifetime appointment.  Elections DO have consequences, and its driving them insane, lol.  We wish Judge Walker the very best in his new position.

Appeals court rules Pennsylvania county can keep cross on its seal

The Third Circuit Court of Appeals ruled Thursday a Pennsylvania county’s 70-year-old seal and flag is allowed to remain after being targeted by the Freedom From Religion Foundation. The U.S. Court of Appeals for the Third Circuit in Philadelphia ruled 3-0 Thursday that after the Supreme Court upheld the Bladensburg “Peace Cross” war memorial in June as a historic monument, the Lehigh County can maintain its seal as a symbol that “has become part of the community.” The seal and flag feature grain silos, the Liberty Bell, a heart, among other items. But it was the cross at the center of the seal that the Wisconsin-based group had a problem with. FFRF sued the county in 2016 to get the cross removed. A federal judge ruled in FFRF’s favor in 2017 based on the Lemon test from the Supreme Court case, Lemon v. Kurtzman, requiring courts to decide whether the government is trying to “endorse” religion with a mention of God or religion, something the court has moved away from since the June decision by the Supreme Court. “It is common sense that religion played a role in the lives of our nation’s early settlers,” said Diana Verm, senior counsel at Becket, a religious liberty law firm. “It is only right that Lehigh County can continue honoring its history and culture.” The group that complained about the seal was disappointed in the court’s decision. “The appeals court decision validates a Lehigh County seal that sends a wrong, exclusionary message,” Annie Laurie Gaylor, FFRF co-president, said in a statement. “The county should be welcoming of all residents regardless of religion — and it’s appalling that the court didn’t prod county officials to move in that direction.” First Liberty Institute, which successfully defended the Bladensburg Peace Cross at the Supreme Court, filed a friend-of-the-court brief in the case and said the mere presence of a cross “does not establish a religion.” “The Supreme Court made it clear in its recent decision in The American Legion v. American Humanist Association that the days of offended observers forcing governments to scrub all public references to the divine are over,” Stephanie Taub, First Liberty Institute general counsel, said in a statement. “We’re thrilled to see our victory in that case already making an impact.”

Great news!  This is a HUGE victory for religious rights!  We’re thrilled to see the anti-religious bullies getting smacked down in federal court.  Outstanding!!    🙂

Supreme Court: Right to bear arms protected by highest category of liberty recognized by law

Last weekend’s mass murders in El Paso, Texas, and Dayton, Ohio, have produced a flood of words about everything from gun control to mental illness to white nationalism. Most of those words have addressed the right to keep and bear arms as if it were a gift from the government. It isn’t. The U.S. Supreme Court has twice ruled in the past 11 years that the right to keep and bear arms is an individual pre-political liberty. That is the highest category of liberty recognized in the law. It is akin to the freedoms of thought, speech and personality. That means that the court has recognized that the framers did not bestow this right upon us. Rather, they recognized its pre-existence as an extension of our natural human right to self-defense and they forbade government — state and federal — from infringing upon it. It would be exquisitely unfair, profoundly unconstitutional and historically un-American for the rights of law-abiding folks — “surrender that rifle you own legally and use safely because some other folks have used that same type of weapon criminally” — to be impaired in the name of public safety. It would also be irrational. A person willing to kill innocents and be killed by the police while doing so surely would have no qualms about violating a state or federal law that prohibited the general ownership of the weapon he was about to use. With all of this as background, and the country anguishing over the mass deaths of innocents, the feds and the states face a choice between a knee-jerk but popular restriction of some form of gun ownership, and the rational and sound realization that more guns in the hands of those properly trained means less crime and more safety. Can the government constitutionally outlaw the types of rifles used by the El Paso and Dayton killers? In a word: No. We know that because in the first Supreme Court opinion upholding the individual right to keep and bear arms, the court addressed what kind of arms the Second Amendment protects. The court ruled that the Second Amendment protects individual ownership of weapons one can carry that are of the same degree of sophistication as the bad guys have — or the government has. The government? Yes, the government. That’s so because the Second Amendment was not written to protect the right to shoot deer. It was written to protect the right to shoot at tyrants and their agents when they have stolen liberty or property from the people. If you don’t believe me on this, then read the Declaration of Independence. It justifies violence against the British government because of such thefts. Governments are the greatest mass killers on the planet. Who can take without alarm any of their threats to emasculate our right to defend our personal liberties?

Agreed..   Thanks to Andrew Napolitano for reminding us how much our precious Second Amendment is protected.  Andrew is a former judge of the Superior Court of New Jersey.  He is the author of nine books on the U.S. Constitution.

Alan Dershowitz: Mueller wrongly introduces dangerous concept of ‘exoneration’ in review of Trump actions

The word of the day, following the confusing and confused testimony of former Special Counsel Robert Mueller before two House committees Wednesday, is “exonerate” – or more precisely, “not exonerate.” Exoneration is not the job of our legal system. Mueller’s attempt to introduce it is an extraordinary and dangerous innovation that would endanger the presumption of innocence we all have under the law. During and following Mueller’s testimony, much of the media went into overdrive highlighting one sentence in the former special counsel’s 448-page report on Russian interference in our 2016 presidential election, as if it were breaking news. The sentence, which Mueller reiterated in his testimony, said: “Accordingly while this report does not conclude that the President committed a crime, it also does not exonerate him.” But this sentence from the Mueller report, which was completed in March, was not news at all. Mueller simply repeated that formulation Wednesday and some Democrats treated it as a breakthrough invitation to begin impeachment proceedings. There is a grave and frightening danger in introducing the concept of exoneration into our legal system. It suggests that a person may still be presumed guilty even if the decision was made not to prosecute him or her, or even if a jury rendered a verdict of not guilty. Surely, this is the impression that the Mueller report and Mueller himself intended to convey by the sentence, which is the last one in his report. Surely, this is the impression that the Democrats are trying to convey to voters. But the truth is that even a full trial doesn’t exonerate or not exonerate anyone, since the rules of evidence limit the testimony and other evidence that can be heard by a jury. Exoneration is for God, historians and other non-legal institutions that have access to the totality of information. It should never become part of our legal system and it should never be used as a partisan political weapon by politicians. Mueller should never have spoken of exoneration in his report or in his testimony. Under Mueller’s concept of exoneration, a criminal investigation would become a three-part multiple-choice test with “guilty,” “not guilty” and “exonerated” as the three choices. In the context of a prosecutorial decision, the choices would be “prosecute,” “don’t prosecute,” “exonerate” and “not exonerate.” But these choices are not part of the American legal system. Our system operates on a binary approach, not a multiple-choice one. When a prosecutor decides not to prosecute, or when a jury renders a verdict of not guilty, that has to be the last word when it comes to the criminal law. By introducing the concept of “not exonerated” the special counsel exceeded his own powers and even those of the Justice Department. There is absolutely nothing in the Justice Department rule book or in the regulations governing the role of a special counsel that gives him or her the power to exonerate or not exonerate. And for good reason Prosecutors and special counsels only hear evidence on one side of the case. Their job is to determine whether there is probable cause to send the case to a judge or a jury for a full trial, with cross-examination, defense witnesses and zealous defense lawyers. Mueller should have been questioned hard about the use of the term “exonerate.” He was asked a few questions, which he studiously avoided answering. There should be a separate set of hearings, both in the House and Senate, to deal, as a matter of principle, with the idea of introducing the dangerous concept of exoneration into our legal lexicon. Scholars and others should be invited to testify about the implications of prosecutors or special counsels using that term in their reports or public statements. To illustrate the dangers of public officials using this term, think back to what disgraced former FBI Director James Comey said with regard to Hillary Clinton’s handling of emails when he held a news conference in the closing days of the 2016 presidential election campaign. Though Comey didn’t use the term “not exonerated” – instead he expressed his opinion that although Clinton would not be prosecuted, she displayed extreme carelessness – he basically told the world that she had not been exonerated. Democrats, including me, railed against Comey for going beyond the traditional statement that a decision had been made not to prosecute Hillary Clinton. But today, some of these same Democrats are exulting about Mueller’s statements that President Trump was not exonerated. This double-standard fails the “shoe on the other foot test,” which demands that the same standards be applied regardless of party affiliation. So let’s redact the words “exonerate” and “exonerated” from the Mueller report, from the vocabulary of prosecutors and from our legal system. These words set an absurd standard that wrongly casts a shadow of suspicion over people who are not charged with crimes or found not guilty after a trial.

Agreed!  And well said, professor!  For our new readers, Dr. Alan M. Dershowitz is Felix Frankfurter professor of law, emeritus, at Harvard Law School. His latest book is “The Case Against Impeaching Trump.” Follow him on Twitter: @AlanDersh Facebook: @AlanMDershowitz.  Dr, Dershowitz is also a loyal Democrat, and was a big Hillary supporter.  So, that gives him even more credibility in this discussion.  Thanks Sir!    🙂