Protected Speech: “giving the finger”

Schwartz & Schwartz v. Insignia & Collins

Flipping-off the cops is totally constitutional
Published time: January 03, 2013 21:53
Edited time: January 04, 2013 01:54

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Next time you see a police officer on patrol, go right ahead and give ‘em the finger. Don’t worry: a federal judge says it’s perfectly alright.

More than six years after John Swartz was handcuffed and arrested for flipping-off a police officer in St. Johnsville, New York, the US Court of Appeals for the Second Circuit says he committed no crime.

Swartz was riding in the passenger side of his wife’s car in 2006 when he gave the finger to a police officer stationed nearby with a radar detector aimed at traffic. When the couple pulled up to their home, a cop came up behind them and asked for Judy Mayton-Swartz’ license and registration, to which her husband insisted she should refuse.

“Shut your mouth, your ass is in enough trouble,” Mr. Swartz recalls Officer Insogna telling him.

After the information was processed and Mr. Swartz exited the car outside of his home, he approached one of the four officers on the scene. “I’d like to speak to you man to man,” he recalls saying.

John Swartz remembers telling the officers that he felt “like an ass” for the whole ordeal, but he never managed to have the conversation that he wanted. Instead, he was handcuffed and charged with disorderly conduct.

According to court filings, the officer that Mr. Swartz initially flipped off considered the gesture a signal of distress. Insogna says he decided to initiate a traffic stop because it appeared Swartz was “trying to get my attention for some reason.”

“I thought that maybe there could be a problem in the car,” he told the court. “I just wanted to assure the safety of the passengers,” and “I was concerned for the female driver,” he added, citing the possibility of a domestic dispute within the vehicle. By the time the car was stopped, however, the officers learned that everyone was okay. Except for John, however, who was brought in to a local police station and released shortly thereafter.

A District Court initially dismissed a lawsuit waged by Swartz that alleged he had been falsely arrested, claiming Officer Insogna’s claim of a possible domestic disturbance wasn’t that far-fetched. The plaintiffs appealed, however, and this week an appellate judge agreed that giving the finger was not reason enough to warrant a stop.

“An irate automobile passenger’s act of ‘giving the finger,’ a gesture of insult known for centuries, to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal,” Circuit Judiige Jon O. Newman writes this week. Newman has appealed the earlier decision that granted summary judgment to the defendants — Officer Insogna and a colleagues — and has remanded for further proceedings.

“The only act Insogna had observed prior to the stop that prompted him to initiate the stop was John’s giving the-finger gesture,” he adds. “Insogna acknowledged in his deposition that he had not observed any indication of a motor vehicle violation. He stated, somewhat inconsistently, that he thought John ‘was trying to get my attention for some reason’ and that he ‘was concerned for the female driver.’”

“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”

“Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.”

Obama Executive Order to Ban LGBT Discrimination

Obama Executive Order to Ban LGBT Discrimination

Updated 3:45 p.m. | President Barack Obama plans to use his pen to ban discrimination against lesbian, gay, bisexual and transgender people by federal contractors — an idea that the White House has resisted for years as it pursued passage of the Employment Non-Discrimination Act in Congress.

The news, announced via email, received instant applause from gay rights advocates.

“With this announcement, the arc of history bends a little farther toward justice,” said Sen. Jeff Merkley of Oregon, the lead ENDA sponsor.

Merkley continued: “Discrimination simply has no place in American workplaces. This executive order will allow millions more Americans to go to work empowered with the right to do their jobs free of harassment or discrimination.

“Most Americans don’t know that it’s still legal in many states to fire someone for their sexual orientation or gender identity. That’s because it not only defies common sense, it goes wholly against who we are as a nation. No more excuses. It’s way past time for Speaker [John A.] Boehner to allow ENDA to have a vote in the House. No one should be fired because of who they are or whom they love.”

Most congressional Democrats had been urging Obama to pursue the executive order for months — and some for years. The White House had no answer when asked repeatedly at daily briefings why Obama had issued executive orders on the minimum wage and other issues affecting federal contractors, but not on ending discrimination.

But the decision, announced a day before the president headlines the Democratic National Committee’s LGBT gala in New York, could help energize the party — and its donor base — ahead of the midterm elections.

The White House touted it alongside other achievements for gay rights in Obama’s tenure, including an expansion of the hate crimes law, adding LGBT provisions to the Violence Against Women Act and repealing “don’t ask, don’t tell.”

Rea Carey, executive director of the National Gay and Lesbian Task Force also issued a statement, calling the decision “a major step forward in the struggle for freedom and justice for LGBTQ workers and their families.”

Prospects for a House vote on the Senate-passed ENDA bill remain in doubt, despite its 205 co-sponsors and strong poll results on the issue.

Democrats — and the White House — made clear that the executive order isn’t a substitute for congressional action.

“The reality is that many LGBT workers still remain vulnerable to employment discrimination on the basis of sexual orientation or gender identity,” Sen. Tom Harkin, D-Iowa, in a statement. “Without the enactment of the Employment Non-Discrimination Act, it remains perfectly legal to do so in many states across the country.”

“The House Republican leadership should take note of the bipartisan vote in the Senate and the broad public support that exists for ENDA and allow a vote on this legislation,” said Rep. David Ciccilline, D-R.I., a co-chairman of the LGBT Equality Caucus.

“We need to give LGBT workers a fair shot to get ahead in life by making sure employers cannot fire, harass, deny a raise, or refuse to hire someone based on sexual orientation or gender identity,” said Rep. Mark Pocan, D-Wis., another co-chairman of the caucus.

Sen. Orrin G. Hatch, R-Utah, who voted for ENDA in the Senate, urged the president to include the same exemptions.

“While the specifics of this executive order are not yet clear, I believe it must include the same religious protections that are included in the bipartisan Employment Non-Discrimination Act that passed the Senate,” he said. “ENDA strikes a good balance to ensure that discrimination based on sexual orientation will not be tolerated, but also that one of our nation’s fundamental — religious freedom — is still upheld.”

Other Republican lawmakers didn’t immediately react to the news.

Here’s a memo from a White House official announcing Obama’s action.

The President has declared 2014 a year of action — vowing to use the power of his pen and phone to take action on behalf of the American people to strengthen the economy and the middle class. His actions have been driven by the core American principle that if you work hard and play by the rules, you should have the opportunity to succeed, and that your ability to get ahead should be determined by your hard work, ambition, and goals — not by the circumstances of your birth, your sexual orientation or gender identity.

Today, millions of Americans in most states in the country go to work every day knowing they could lose their jobs simply because of who they are or who they love. No current federal law adequately protects lesbian, gay, bisexual, and transgender (LGBT) workers from employment discrimination. That’s why the President has long supported federal legislation to explicitly prohibit employers from discriminating on the basis of sexual orientation or gender identity. Last November, the Senate passed the Employment Non-Discrimination Act (ENDA) with strong bipartisan support. However, the House has failed to act on this important legislation.

Following on his pledge for this to be a year of action to expand opportunity for all Americans, the President has directed his staff to prepare for his signature an Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity. The action would build upon existing protections, which generally prohibit federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. This is consistent with the President’s views that all Americans, LGBT or not, should be treated with dignity and respect.

President Obama is proud of the accomplishments he and his Administration have made to advance and promote equality, justice, and dignity for all members of the LGBT community. From signing an inclusive Hate Crimes law to passing the Affordable Care Act, from reauthorizing the Violence Against Women Act with provisions to protect LGBT victims to ensuring equality in federal housing, we have taken many important steps forward. While work remains to ensure that all Americans, regardless of sexual orientation or gender identity, are equal under the law, we look forward to continuing to make progress in the months and years ahead.

Man Who Shot at Cops During No-Knock Raid Acquitted on All Charges

Man Who Shot at Cops During No-Knock Raid Acquitted on All Charges

“When I knew they were policemen, I lay down, face down. I kept saying, ‘I’m sorry. I’m sorry.’”
July 10, 2014

After a 9 hour deliberation, a jury has found Adrian Perryman, not guilty on all four counts of aggravated assault on a peace officer.

The incident that led to the charges against Perryman happened during the pre-dawn hours of October 26, 2010 in San Antonio, TX.

SAPD’s tactical response unit was executing a no-knock search warrant. The occupants in the house at the time were Perryman, his girlfriend Rebecca Flores, and Flores’s 3 year old grand daughter Savannah.

When Flores saw two shadowy men on the security cameras, she woke up Perryman, and tossed him his gun.

According to MySA News, Flores recalled the events of that night to the jury. “I put my body over Savannah’s,” she said, recalling for jurors what she did in the moments after handing Perryman the gun and before he opened fire. “He said ‘I’ve got a gun and I’m going to shoot — stay out!’”

Flores said it wasn’t until after he fired four shots that she heard anyone yelling “Police!”

“I remember telling him the police were here; I thought they were there to protect us. I said ‘Oh, thank God,’” she said.

Perryman took the stand in his defense last week and told jurors how he had shouted a warning before he heard the front door go down and “unloaded” his gun.

“When I knew they were policemen, I lay down, face down,” he said, adding he dropped the gun and began apologizing. “I kept saying ‘I’m sorry, I’m sorry, I didn’t know it was y’all. I’ve been broken into before.’”

This is a landmark case in the instance of no-knock raids. All too often we see innocent people beaten and killed during the execution of this questionable practice.

Hopefully this leads to a drop in the frequency of no-knock search warrants.

The details of the latest victim in the relentless and immoral war on drugs were released this week by the Tampa Bay Times.

A 29-year old man was gunned down in his own home by officers serving a no-knock search warrant. They found .2 grams of marijuana.

How many more grenades will have to be thrown into cribs before police realize that the war on drugs was lost as soon as it started?

Shariah Law in American Courts

Shariah Law & American State Courts

Shariah Cases By State
From Shariah Law and American State Courts: An Assessment of State Appellate Court Cases:

This study analyzes and discusses a total of 50 cases from 23 different states: 6 cases were found in New Jersey; 5 in California; 4 each in Florida, Massachusetts and Washington; 3 each in Maryland, Texas and Virginia; 2 each in Iowa, Louisiana and Nebraska; and 1 each in Arizona, Arkansas, Delaware, Illinois, Indiana, Maine, Michigan, Minnesota, Missouri, New Hampshire, Ohio and South Carolina.

Who would have thought, there are active cases in 23 different states where Shariah Law is being consulted and/or referred to in our American courts. Liberal America is attempting to infuse foreign decisions of foreign courts within our justice system. This will be partly to blame for the downfall of America. You cannot create any more of a war on women in this country than attempting to instill the Shariah Laws in our system of Justice!

Beware of what you permit, you may not appreciate the long term possibilities!

Justices: Can’t make employers cover contraception

HOBBY LOBBY STORES, INC., ET AL., v. KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. Opinion of the court.

Justices: Can’t make employers cover contraception

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WASHINGTON (AP) — A sharply divided Supreme Court ruled Monday that some companies with religious objections can avoid the contraceptives requirement in President Barack Obama’s health care overhaul, the first time the high court has declared that businesses can hold religious views under federal law.

The justices’ 5-4 decision, splitting conservatives and liberals, means the Obama administration must search for a different way of providing free contraception to women who are covered under the health insurance plans of objecting companies.

Supreme Court rules in favor of Hobby Lobby

Justice Samuel Alito wrote in his majority opinion, over a dissent from the four liberal justices, that forcing companies to pay for methods of women’s contraception to which they object violates the 1993 Religious Freedom Restoration Act. He said the ruling is limited and there are ways for the administration to ensure women get the birth control they want.
Related: Justice Ginsburg’s dissent

But White House press secretary Josh Earnest said the decision creates health risks for women, and he said Congress should take action to make sure they get coverage.

“President Obama believes that women should make personal health care decisions for themselves rather than their bosses deciding for them,” Earnest said. “Today’s decision jeopardizes the health of the women who are employed by these companies.”

Contraception is among a range of preventive services that must be provided at no extra charge under the health care law that Obama signed in 2010.

Two years ago, Chief Justice John Roberts cast the pivotal Supreme Court vote that saved the law in the midst of Obama’s campaign for re-election. On Monday, Roberts sided with the four justices who would have struck down the law in its entirety, holding in favor of the religious rights of closely held corporations, like the Oklahoma-based Hobby Lobby chain of arts-and-craft stores that challenged the contraceptives provision.

Hobby Lobby is among roughly 50 businesses that have sued over covering contraceptives. Some, like the two involved in the Supreme Court case, are willing to cover most methods of contraception, as long as they can exclude drugs or devices that the government says may work after an egg has been fertilized.

But Monday’s ruling would apply more broadly to other companies that do not want to pay for any of the 20 birth control methods and devices that have been approved by federal regulators.

Alito said the decision is limited to contraceptives. “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs,” he said.
He suggested two ways the administration could deal with the birth control issue. The government could simply pay for pregnancy prevention, he said. Or it could provide the same kind of accommodation it has made available to religious-oriented, not-for-profit corporations.

Those groups can tell the government that providing the coverage violates their religious beliefs. At that point, creating a buffer, their insurer or a third-party administrator takes on the responsibility of paying for the birth control. The employer does not have to arrange the coverage or pay for it. Insurers get reimbursed by the government through credits against fees owed under other provisions of the health care law.

That accommodation is the subject of separate legal challenges, and the court said Monday that profit-seeking companies could not assert religious claims in such a situation.

Justice Anthony Kennedy, who was part of the majority, also wrote separately to say the administration can solve its problem easily. “The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it,” Kennedy said. He said that arrangement “does not impinge on the plaintiffs’ religious beliefs.”

Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the requirement to offer birth control.
In a dissent she read aloud from the bench, Justice Ruth Bader Ginsburg called the decision “potentially sweeping” because it minimizes the government’s interest in uniform compliance with laws affecting the workplace. “And it discounts the disadvantages religion-based opt-outs impose on others, in particular, employees who do not share their employer’s religious beliefs,” Ginsburg said.

Leaders of women’s rights groups blasted the decision by “five male justices,” in the words of Cecile Richards, president of the Planned Parenthood Action Fund.

The administration said a victory for the companies would prevent women who work for them from making decisions about birth control based on what’s best for their health, not whether they can afford it. The government’s supporters pointed to research showing that nearly one-third of women would change their contraceptive if cost were not an issue; a very effective means of birth control, the intrauterine device, can cost up to $1,000.

The contraceptives at issue before the court were the emergency contraceptives Plan B and ella, and two IUDs.
A survey by the Kaiser Family Foundation found 85 percent of large American employers already had offered such coverage before the health care law required it.

Most working women will probably see no impact from the ruling, corporate health benefits consultants expect. Publicly traded companies are unlikely to inject religion into their employee benefit plans, said Mark Holloway, director of compliance services at the Lockton Companies, an insurance broker that serves medium-sized and growing employers.
“Most employers view health insurance as a tool to attract and retain employees,” said Holloway. “Women employees want access to contraceptive coverage, and most employers don’t have a problem providing that coverage. It is typically not a high-cost item.”
It is unclear how many women potentially are affected by the high court ruling. Hobby Lobby is by far the largest employer of any company that has gone to court to fight the birth control provision.

The company has more than 15,000 full-time employees in more than 600 crafts stores in 41 states. Hobby Lobby is owned by the family of David Green, evangelical Christians who also own Mardel, a Christian bookstore chain.

The other company is Conestoga Wood Specialties Corp. of East Earl, Pennsylvania, owned by a Mennonite family and employing 950 people in making wood cabinets.

The court’s decision was apparently quite narrowly written to only apply to privately & family run businesses. However, I believe these decisions shall be more the norm at 5-4 and narrowly written; thereby excluding a wide array of court cases.

Supreme Court bans warrantless cell phone searches

Supreme Court bans warrantless cell phone searches, updates privacy laws
Major ruling updates privacy laws for 21st century

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The Supreme Court ruled Wednesday that police cannot go snooping through people’s cell phones without a warrant, in a unanimous decision that amounts to a major statement in favor of privacy rights.
Police agencies had argued that searching through the data on cell phones was no different than asking someone to turn out his pockets, but the justices rejected that, saying a cell phone is more fundamental.

The ruling amounts to a 21st century update to legal understanding of privacy rights.

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice John G. Roberts Jr. wrote for the unanimous court.

“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”
Justices even said police cannot check a cellphone’s call log, saying even those contain more information that just phone numbers, and so perusing them is a violation of privacy that can only be justified with a warrant.
The chief justice said cellphones are different not only because people can carry around so much more data — the equivalent of millions of pages of documents — that police would have access to, but that the data itself is qualitatively different than what someone might otherwise carry.
He said it could lay bare someone’s entire personal history, from their medical records to their “specific movements down to the minute.”
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The chief justice cited court precedent that found a difference between asking someone to turn out his pockets versus “ransacking his house for everything which may incriminate him” — and the court found that a cellphone falls into that second category.
Complicating matters further is the question of where the data is actually stored. The Obama administration and the state of California, both of which sought to justify cell phone searches, acknowledged that remotely stored data couldn’t be searched — but Chief Justice Roberts said with cloud computing, it’s now sometimes impossible to know the difference.
The court did carve out exceptions for “exigencies” that arise, such as major security threats.

Riley v. California

Read more: http://p.washingtontimes.com/news/2014/jun/25/supreme-court-bans-warrantless-cell-phone-searches/#ixzz35gzGLf9f
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