BLAW Test Two

What occurred in 1774?

Representatives of the colonies met for the first time as the Continental Congress

What occurred in 1777?

Continental Congress formed the first Federal Government and adopted the Articles of Confederation (AOC); Continental Congress (CC) was comprised of representatives of the 13 colonies

Articles of Confederation

Generally criticized as a weak document, did not provide that Congress could levy or collect tazes or coin, and Congress could not regulate commerce along colonies or foreign countries.

What occurred in 1787?

Constitutional Convention- Philadelphia- where the U.S. Constitution was agreed upon; went to Congress/ passed same year; states ratified 1788

3 Major functions of the US Constitution

Created 3 branches of government (judicial, legislative, & executive), divided power between the Federal Government and the States (!!!), and protected individual rights & liberties. (!!!)

Federalism

States share power with the federal government (US’s form of government)

What powers were enumerated to the federal government when the states ratified the Constitution?

Declare war, raise an army, coin money, collect taxes, and regulate commerce (business).

Doctrine of Separation of Powers

Article I: Legislative Branch → Makes Laws

Article II: Executive Branch → Enforces Laws

Article III: Judicial Branch → Interprets Laws

Any power not delegated to the federal government is reserved to the states "reserved powers" States can enact laws concerning domestic/family cases, real estate, and education

Supremacy Clause

Established that the U.S. Constitution, treaties, Federal laws and regulations are the Supreme Law of the Land AND that State and Local laws that conflict with valid federal law are unconstitutional

Commerce Clause

3 main areas regulated by federal government: with Native Americans, interstate commerce, and foreign commerce.

Ex. Government regulating Native Americans re: Indian Gaming Regulatory Act of 1988

Foreign Commerce Clause

Allows/ grants Federal government authority to regulate commerce with Foreign nations

States can regulate Foreign Commerce, as long as that regulation is not “unduly burdensome.”

Unduly Burdensome Test (!!!)

Interstate Commerce

Federal Government the power to regulate interstate commerce.

Interstate commerce clause - Original View

Courts interpreted the clause to mean that the Government could only regulate commerce that moved “in” interstate commerce, e.g. across state borders

Interstate Commerce Clause - Modern View

Adds to original view, Feds can regulate activity that “affects” commerce in another state

“Effects On” Interstate Commerce Test [Modern View]*

1. The Regulated Activity does not of itself have to be interstate commerce

2. Any local (intrastate) activity that has an effect on interstate commerce can be regulated and thus subject to the Commerce Clause

Wickard, Secretary of Agriculture vs. Filburn (1942)*

Federal statute that regulated the amount of home wheat consumption/ harvest by Farmers, placed limits on;

Unanimous opinion authored by Justice Jackson

Chief Justice Harlan Stone era

Govt: Wheat supply could be affected by home consumption; could have adverse effect on national supply “interstate commerce”

Court: Filburn’s amount “trivial” $117-> “local” activity

Court: Statue was designed to prevent nationwide shortages and surpluses

Bottom Line: Court backed Government’s regulation under Commerce Clause

State Police Powers

Permits state and local governments to enact laws to promote [Impacts Business]

1. Public Health

2. Safety

3. Morals

4. General Welfare

States retained power to regulate some interstate commerce within own borders

Heart of Atlanta Motel v US 1964

(Civil Rights Act 1964 was passed)

Accessible to motorists using Interstates 75 & 85

As well as numerous state highways

75% of Heart’s registered guests are from “out of state”

Heart refused to rent rooms to African-Americans “local” activity, which was illegal under the Civil Rights Act 1964)

Heart filed suit in the U.S. District Court

1. CR Act of 1964 unconstitutional (federal question)

2. Congress had exceeded its authority under the commerce clause, because Heart believed that Congress could not regulate his activity because it was local or intra-commerce

Court:

1. Civil Rights Act- Constitutional

2. Not confined to regulation “among the states” and we can reach local activity through the modern test

Bottomline: different court makeup from Wickard and the court still backs up the federal gov't.

Why did the court develop the effects on interstate commerce test?

To reach intra-state (local) activity/commerce

Dormant Commerce Clause

If the federal government has chosen not to regulate an area of interstate commerce, then that area is subject to the Dormant Commerce Clause - A state can enact laws to regulate that area of commerce, as long as those laws are not “unduly burdensome” on (interstate) commerce

Parties and entities selling and buying good electronically is known as e-commerce

Is E-Commerce subject to regulation under the Commerce Clause?

Yes.

Bills of Rights

Ratified by the states, the first 10 Amendments (1791), and fundamentals: speech, assembly, press, & religion.

Speech

Fully Protected- Can’t be regulated or prohibited by the government

a. Ex: Political Speech- criticize mayor, government, president

Can be verbal, written, symbolic

Limited Protected Speech

Offensive Speech or Commercial Speech

a. Offensive is not prohibited, but restricted as to “time, place and manner”

“Channel” speech (Think like TV channels) !!!

b. Commercial is also protected, but subject to time, place, and manner (test)

Ex. waiting until later in the day to push out alcohol commercials on a game day (protect the kids)

Ex. Viewer discretion is advised

Unprotected speech

a. Dangerous- “Fire” in a theatre

b. Fighting Words Likely to provoke a Hostile Response

c. Speech that incites violent overthrow of the Government

d. Child P*rnography

e. Obscene

School Speech

Seminal case: Tinker vs. Des Moines Independent Community School District (1969 Supreme Court) Students wore black armbands to school to protest Vietnam War

In Tinker, the Court developed the "substantial disruption to school environment" test still used today. 7-2 decision upheld First Amendment right in public schools

Morse vs. Frederick (2007): (All in one question)

• "Bong Hits 4 Jesus case"

• Chief Justice Roberts wrote opinion for 5/4 majority; had been on court since 2005.

• Frederick unfurled banner (the medium) with message "Bong Hits 4 Jesus" at torch relay for 2002 Winter Olympics parade not on school grounds but across the street from school

• Frederick was suspended for the stunt, later sued

• Frederick: I was testing free speech limits

• Court: his speech "reasonably viewed as promoting drug use" which school had interest in curtailing at "school event."

• Aftermath: ancillary state case settled out of court with Frederick getting paid, banner on display in museum in D.C.

Mahanoy Area School District vs. Brandy Levy (2021)

Freshman cheerleader post social media message

Medium: Snap chat laden with F- bombs, including the school administration, coaches to cheer squad

Message did not threaten harm, insults. etc. or mention anyone by name

Event occurred in 2017.

Levy won at every court level.

This time, Roberts is in the 8-1 majority opinion ruling in her favor.

The court noted that in the day or two post-Snap, it was discussed for a few minutes in Algebra and some cheer squad members were upset about the content of the Snap. The Court in Mahanoy used the Tinker test and found no substantial disruption to school environment.

First big student free speech case of the Internet era.

Can school officials punish students for social media posts even when students post them off-campus, including in their own homes?

Freedom of Religion: 1st Amendment*

Protected Speech: Government May Not Promote Religion

Establishment Clause or Free Exercise Clause

Establishment clause: Federal or state government must be neutral towards religion

1. Can’t Establish a state-sponsored religion

2. Can’t promote one religion over another

Free Exercise Clause

Prohibits the government from interfering with the Free Exercise of religion

1. Government cannot enact laws that prohibit religion

2. Government cannot enact laws that inhibit persons from practicing their religion

a. Ex. Law cannot be passed that prohibits the construction of churches, temples, mosques, synagogues, etc.

Equal Protection

A state cannot deny to any person within its jurisdiction “equal protection” of the law

Supreme Court has also ruled that this concept of equal protection applies to the Federal Government

Equal Protection Standards of Review - Test 1

Strict Scrutiny

Any government activity/ regulation or law that classifies persons based on a suspect class, which could be race, origin, or citizenship, or involves a fundamental right, such as voting, must be reviewed under strict scrutiny.

Equal Protection Standards of Review - Test 2

Intermediate Scrutiny

The government activity or law is usually going to be based on a protected class, such as gender

Example: The federal requirement that all men must register for the military draft at age 18, but women not required (Rostker vs. Goldberg 1981)

Equal Protection Standards of Review - Test 3

Rational Basis Test

The court will uphold just about any government law/ regulation as long as there is a justifiable reason for the law*

These laws are not hard to pass, because this is the easiest test to use

Example: A law that provides subsidies to farmers but not others is okay or constitutional (this law will pass)

Law that funds social security to the elderly (also will pass)

Substantive Due Process

Requires that laws, statutes and ordinances be clearly written and not overly broad in scope

a. The test for this is whether a reasonable person could comply with the law and whether the law itself is “void for vagueness”

b. It is what the law is, the substance of the law, not how we litigate, but the law itself

Procedural Due Process

Requires that the government give a person proper notice and a hearing, before being deprived of life, liberty or property

a. There is a procedure that has to be followed

b. Procedural due process is how the law is applied, how the process unfolds

c. Even parish to parish the procedure will change

What levels do criminal laws exist at?

Federal, State, and Local.

Who has the most advanced Criminal Justice System in the world?

The United States.

How is the US criminal justice system the most advanced?

The burden of proof is on the State government, never the accused.

What is a crime?

Any act done by an individual in violation of those duties he/she owes to society and for the breach, of which, the law provides a remedy and the wrongdoer will make amends to the public.

What are the penalties for a violation of the duties she/he owes to society?

1. Pay a fine

2. Imprisonment

a. Certain felonies get time in prison, even if it is your first offense

3. Fine & Imprisonment Plus 4. (referred to as The Split in Louisiana)

4. Probation

What are the public policy reasons behind incarceration/imprisonment?

To incapacitate the individual so that they will not harm others

Maybe they are a multi-defender

Possible that a period of incarceration can rehabilitate that person

Deter others from similar conduct

Inhibit personal retribution or contact from the victims

Classifications of Crimes (most serious to not)

1. Felonies- Mala in se, which means they are inherently evil

a. Includes violent crimes (murder, rape, robbery)

b. Certain felonies can include business crimes

i. Which include bribery, embezzlement, fraud

2. Whether federal or state could carry a certain (determinate) prison sentence

3. Misdemeanors- mala prohibita, which means less evil

a. Generally going to carry a sentence of one year or less (federal and state)

i. In Louisiana 6 months is the norm sentence, a few do carry a year (DWI,Simple Battery)

4. Violations- are neither one or two, they are traffic matters and occasionally they fish and game matters in violations

a. Usually a fine and cost

b. Maybe community service/ community service and a fine

What are the essential elements of a crime? Act and Intent

There has to be an act for a crime to take place (Actus Reus)

a. The defendant must have performed the act

b. Ex. Person robs victim, them robbing is the act

i. Merely thinking about robbing someone is not a crime

2. The law likes intent (Mens Rea)

a. No mens rea, no evil intent

b. The defendant must have state of mind to commit the act

General Intent

The person knew or should have known that his/ her actions would lead to a result; would lead to the result that he/ she demonstrated reckless conduct (on a whim)

1. General intent usually with lesser crimes D/S

Specific Intent

Where the person specific, purposefully and with knowledge, commits a prohibited act (some thought behind it)

1. This person intended to achieve a specific result from his actions

Strict Liability Laws

Imposed for persons who commit acts/ crimes in violation of these laws

Pre Trial Criminal Procedure Steps

1. Arrest- the police may precure an arrest warrant/ probable cause to arrest someone or during the commission of a crime

2. Indictment- (by grand jury ONLY) usually murder, or Bill of Information is brought and filed by the District Attorney/ possibly magistrate judge

a. Indictment is NOT Bill of Information, they are brought in different ways

3. Arraignment (does not matter if they are on bond or in jail the process moves on) 1st court appearance for a defendant, the Bill of Indictment or Information may be read out loud that details the charge/ offense, most people “wave reading”

a. Plea entered, not guilty

b. What pleas can be entered in an arraignment? (first two are the most common)

i. Not guilty

ii. Guilty

iii. Nolo contendre “no contest”- cannot be used against that person in a civil matter from the same facts (not a common plea)

4. The Trial - final phase at the state level

a. All must unanimously must agree on jury

b. If all agree that defendant did not commit the crime then he/she is innocent

c. If defendant is found guilty, they can appeal, but if the defendant is found innocent/ not guilty the government cannot retry or appeal

d. If it is a hung jury (no verdict) the government can retry in front of new judge,new jury

Armed Robbery (LA)

The taking of anything of value while armed with a dangerous weapon; 10-99 years sentencing range

If the DA does armed robbery enhancement re: bill as as a "Firearm"it adds 5 years (so goes from 10 to 15 years)

Simple Robbery (LA)

The taking of anything of value by force or violence; 1-7 years; no weapon

Bribery

Act of one person giving another person money, property, or anything of value in exchange for a favor in return

Bribery: Offeror

is guilty when the bribe is tendered/ offered (the person who makes the bribe)

Bribery: Offeree

only guilty if the bribe is accepted (the person who was offered the bribe)

Conspiracy

1.) Takes 2 or more persons to form an agreement to commit a crime

2.) To be liable, an “overt act” must be taken in furtherance of the crime

3.) The crime itself does not have to be committed

An attempt to commit a crime is a crime.*

Ex. Neighbor shoots at friend but misses. (some form of attempted murder or manslaughter)

Conspiracy and Attempt are distinct from each other, but can lead to one another

Aiding & Abetting the Commission of a Crime

Sometimes persons assist in the commission by rendering support after the fact

Serious felony

Corporations

Corporations are legal persons, but cannot act on its own

Common Law: No, courts held that corporations lacked “mens rea” (intent)

Employees/ managers get probation/ jail

Constitutional Safeguards

4th Amendment, search warrant, probable cause, and warrantless searches.

4th Amendment

protects persons and corporations from overzealous investigatory techniques, and unreasonable searches and seizures from the government, we have these so that we can be secure in our persons, possessions, and homes (unreasonable search and seizure)

Search Warrant

based on probable cause.

Probable Cause

The “substantial likelihood that a person has” or will commit a crime

Judge to sign a warrant

Warrantless searches

Has to be based on probable cause standard

1.) Plain View

Don’t need a warrant, you can see it. Don’t have to move anything.

2.) Consent

Give consent, obvi.

3.) Incident to Arrest

If someone is patted down and leads to confiscation of a drug, weapon, etc.

Rodriguez v U.S. (2015)

Defendant was stopped by K-9 officer

Asked for ID/registration, etc. (30 minutes)

Calls for backup

Asks Rodriquez to get out, who denies permission to search vehicle

7/8 Minutes pass before officer #2 arrives

Dog sniffs, alerts, finds meth

Moves to suppress search on no reasonable suspicion for that lengthy duration of a traffic stop

Routine traffic stops are not arrests, once basic information is handled the authority for stop ends

Issue before Court: Was the extension of the stop a violation of the 4th amendment? Yes.

5th Amendment

Right against self incrimination, do not have to testify against self

Does not apply to non testimonial evidence (prints, ID, DNA)

If you are granted immunity from prosecution, you can’t plead the 5th

6th Amendment

1.) Right to Impartial Jury

2.) Right to Confront and cross-examine witnesses

3.) Right to have a lawyer

4.) Speedy Trial

Bail: right to bail after arrest*

Main Reason: Secure a person’s presence at court

Miranda Warnings

1.) Right to remain silent

2.) Right to an attorney (appointed or not)

3.) Not a requirement unless they ask you incriminating questions

Attorney - Client Privilege

5th Amendment, either the client or the lawyer can invoke privilege

Double Jeopardy

Protects persons from being tried for the same crime twice

Exception: if the same act involves several different crimes, the State/

Government may elect to try those crimes separately Then later the defendant can be tried on other charges

8th Amendment

Cruel and unusual punishment, prohibits torture of criminals, does not prohibit capital punishment