Part of funeral protest law too vague to enforce, fed court rules

A federal judge’s decision to strike part of Michigan’s funeral protest law as unconstitutional has both sides declaring victory. [Detroit Free Press]

Judge Thomas Ludington struck subsection (c) of MCL 750.167d, which states:

(c) Engage in any other conduct that the person knows or should reasonably know will disturb, disrupt, or adversely affect the funeral, memorial service, viewing of the deceased person, funeral procession, or burial

Ludington said the subsection was unconstitutional because it was too vague for police to enforce. He left the remainder of the statute intact.

In the case, police pulled an Army vet and his wife from a 2007 funeral procession for having an anti-war sign on their vehicle.  The Freep’s David Ashenfelter talked to both the ACLU and Michigan Attorney General’s office, with both declaring victory.

“It’s a complete vindication of Lewis and Jean Lowden,” said Detroit attorney Hugh (Buck) Davis, who represented the family with the American Civil Liberties Union of Michigan.

He said they were humiliated for simply trying to attend a funeral. Lowden could not be reached for comment.

The Michigan Attorney General’s Office, which had tried to get the suit dismissed, also declared victory.

“This is a victory for protecting the sanctity of funerals and the privacy of families who have suffered a tragic loss,” said spokesman John Sellek, saying Ludington’s decision struck two words — “adversely affect” — from the statute. “The law essentially remains in place.”

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Michigan judge finds health care bill constitutional

DETROIT (AP) — A federal judge on Thursday upheld the authority of the federal government to require everyone to have health insurance, dealing a setback to groups seeking to block the new national health care plan.

The ruling came in a lawsuit filed in Michigan by a Christian legal group and four people who claimed lawmakers exceeded their power under the Constitution’s commerce clause, which authorizes Congress to regulate trade.

But Judge George Caram Steeh in Detroit said the mandate to get insurance by 2014 and the financial penalty for skipping coverage are legal. He said Congress was trying to lower the overall cost of insurance by requiring participation.

"Without the minimum coverage provision, there would be an incentive for some individuals to wait to purchase health insurance until they needed care, knowing that insurance would be available at all times," the judge said.

"As a result, the most costly individuals would be in the insurance system and the least costly would be outside it," Steeh said. "In turn, this would aggravate current problems with cost-shifting and lead to even higher premiums."

Julian Davis Mortenson, a University of Michigan law professor and former U.S. Supreme Court law clerk, said the decision affects only the parties in the lawsuit and is not binding on any other federal judges hearing challenges to the law.

Nonetheless, the Justice Department hailed Steeh’s opinion as the first time a "court has considered the merits of any challenge to this law."

"The court found that the minimum coverage provision of the statute was a reasonable means for Congress to take in reforming our health care system," spokeswoman Tracy Schmaler said. "The department will continue to vigorously defend this law in ongoing litigation."

Robert Muise of the Thomas More Law Center in Ann Arbor, Mich., which filed the case, said he would take it to a federal appeals court in Cincinnati.

The four individual plaintiffs said they do not have private insurance and object to being forced to buy it. They also fear that any financial penalty paid to the government would be used to pay for abortions.

In Florida, a federal judge is overseeing a lawsuit filed by 20 states. They, too, say the law is unconstitutional and claim it would force states to absorb higher Medicaid costs.

A decision on whether to dismiss the case is expected by Oct. 14, though the judge said last month that he would probably dismiss only parts of the complaint while letting others go to trial.

There is also a lawsuit pending in Virginia.

Randy Barnett, who teaches constitutional law at Georgetown University, said Steeh’s ruling could be cited by lawyers trying to persuade other judges.

"This is one judge’s opinion. They’ll read it," Barnett said. Steeh "accepted the government’s argument, the same argument that’s being made in front of other judges."

Death penalty defendant gets life in prison

DETROIT (AP) — A man convicted in the murder of an armored-truck courier dodged the federal death penalty Wednesday and will serve life in prison after jurors failed to unanimously agree on the harsher punishment.

The jury of 10 women and two men was not unanimous on death or life in prison. But under federal law, the judge will automatically impose a life sentence without parole on Timothy O’Reilly.

Michigan’s Constitution forbids the death penalty in state court, but it’s an option for murders prosecuted by the U.S. Justice Department in federal court.

The government alleged that O’Reilly shot Norman "Anthony" Stephens in the back after he was already wounded and on the ground outside Dearborn Federal Credit Union in Dearborn in 2001. He and others got away with $204,000.

There was no dispute that O’Reilly, 37, was there, but his defense team argued that there was doubt over who did the shooting.

"The jury saved his life and we are humbled by the effort they put in," lead defense lawyer Richard Kammen told The Associated Press.

Jurors declined to comment at the courthouse. An alternate juror, Norio Stephens — no relation to the victim — said four were in favor of death. He spoke to reporters after meeting with jurors and U.S. District Judge Victoria Roberts.

Norman Stephens’ widow, Robyn Stephens, said she favored death for O’Reilly "but I’m not the jury."

Jurors deliberated for six hours, poring over a detailed, 29-page verdict form. They said they couldn’t unanimously find that O’Reilly intentionally killed Stephens or inflicted serious injury.

Kammen had repeatedly portrayed O’Reilly as a "clueless" individual who lived with his parents in Camarillo, Calif., until the late 1990s when he moved to Michigan at the urging of a fellow car buff and Detroit native, Norman Duncan.

He claimed that O’Reilly was easy to manipulate and fell under the spell of Duncan, who faces his own trial in the months ahead. Indeed, all jurors found that he was "particularly vulnerable" to Duncan.

"We all know that Norman Stephens’ life had value and his death caused enormous pain," Kammen told jurors Tuesday as he pleaded for prison. "But you don’t have to add to the pain, you don’t have to add to the grief … to do justice."

O’Reilly’s own words helped convict him on Aug. 3: He had boasted about the murder and even laughed in a secretly recorded conversation in 2004 with an inmate in state prison. Prosecutors called the tape the "most damning" piece of evidence.

Years later and while awaiting trial, O’Reilly showed no remorse and told his family that he would beat the charge, according to phone calls recorded in jail. He didn’t testify during the guilt or sentencing phases of the case.

In his closing argument this week, Assistant U.S. Attorney Ken Chadwell said O’Reilly "should pay the ultimate price."

U.S. Attorney Barbara McQuade issued a statement saying she respected the jury’s work.

"We hope that the Stephens family can take some comfort in knowing that the defendant will spend the rest of his life in prison with no possibility of release," she said.

O’Reilly’s father, Patrick O’Reilly, said jurors made the right decision.

"He was there. He shouldn’t have been and he’s going to pay the price," the elder O’Reilly told AP, referring to the robbery and a life sentence.

At the time of his death, Stephens, 30, was hoping to move his family to Philipp, Miss., where he grew up, to live in his late father’s house and escape the pressures of a major urban area. In 1997, he married a single mother of three young boys in Detroit and the couple had two girls of their own. He also has a son who lives in Mississippi.

The last federal death sentence in Michigan was in 2002, when Marvin Gabrion was convicted of killing a woman in a national forest. He is on U.S. death row in Terre Haute, Ind., and appealing the case.

Hutaree defense picks away at gov’t case during bond hearing

DETROIT (AP) — An FBI agent who led the investigation of nine Michigan militia members charged with trying to launch war against the U.S. couldn’t recall many details of the two-year probe Tuesday during a grilling by defense lawyers.

Even the judge who must decide whether to release the nine until trial was puzzled.

"I share the frustrations of the defense team … that she doesn’t know anything," U.S. District Judge Victoria Roberts said after agent Leslie Larsen confessed she hadn’t reviewed her notes recently and couldn’t remember specific details of the case.

Roberts is hearing an appeal of another judge’s order that has kept members of Hutaree in jail since their arrest in late March.

The indictment says the nine planned to kill police officers as a steppingstone to a widespread uprising against the government. Defense lawyers, however, say their clients are being punished for being outspoken.

Prosecutors fought to keep Larsen off the witness stand, saying the defendants had no legal right to question her. But the judge said the agent’s appearance was appropriate because the burden is on defense lawyers to show their clients won’t be a threat to the public if released.

The nine lawyers asked specific questions about each defendant. Larsen said she had not listened entirely to certain recordings made by an undercover agent who infiltrated the group.

She said she didn’t know if weapons seized by investigators last month were illegal because they were still being examined. At other times, Larsen couldn’t answer questions because she said she hadn’t reviewed investigative reports.

Defense lawyer William Swor asked if the No. 1 defendant, Hutaree leader David Stone, had ever instructed anyone to make a bomb. The agent replied: "I can’t fully answer that question."

Assistant U.S. Attorney Jonathan Tukel defended Larsen, telling the judge it wasn’t clear until Monday that she would testify. Roberts, however, said she told the government to be prepared last week.

Assistant U.S. Attorney Ronald Waterstreet played an audiotape of what he said were several militia members talking freely about killing police. The participants talked over each other, often laughed and made goofy noises and disparaging remarks about law enforcement.

Defense lawyer James Thomas said some exchanges sounded "like a 6-year-old watching a cartoon." Larsen disagreed.

"They’re talking about killing police officers. I don’t think you can joke about that," the agent replied.

Prosecutors objected to questions about interpreting the secretly recorded conversations, but the judge said they were fair game.

"A lot of this case is going to be about the spoken word," Roberts said.

The judge will resume the court hearing Wednesday. Prosecutors will have a chance to question people who are willing to be responsible for some of the nine if they are released from jail.

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USDC(EDM): Disabled OU student can stay in dorm

A college student with an “intellectual disability” has a civil right to live in an Oakland University dorm with his friends, thanks to an order by U.S. District Court Judge Patrick J. Duggan.

The student Micah Fialka-Feldman sued to live in the dorms under the Federal Rehabilitation Act. OU wouldn’t let him live in the dorm because he was not on path to earn a degree from the university.

Fialka-Feldman had been taking a bus from his home in Huntington Woods to OU’s campus in Rochester.

HT: The Daily Tribune

[UPDATE: OU’s gonna appeal? OU’s gonna appeal!!!

In re: Freedom of speech in public schools and cyber-bullying

I’m almost ashamed to admit this,* but when I was a senior in high school, I was suspended for cursing.

I’m sure that you can relate: I was working on a class project, receiving little or no help from many in my group. As I was trying to do put the finishing touches on it, someone came in and started giving opinions about how I should have done it and why their way was better.

Being an emotionally immature 16-year old who was already annoyed with the lack of support I received on the project, I responded with a two-word phrase commonly heard on shows like The Sopranos. The teacher walked in just in time to hear it, yada yada yada, I had an unscheduled three-day vacation.

Why should you care, Reader of Michigan Lawyers Weekly?

Well, apparently I should have hired a lawyer (from The Detroit News):

Hart took the problem to the school’s vice principal and principal, who took it to a district administrator, who asked the district’s lawyers what they could do about it. In the end, citing "cyber-bullying" concerns, school officials suspended the girl who posted the video for two days. That student took the case to federal court, saying her free speech rights were violated.

Last month, a U.S. District judge in Los Angeles sided with the student, saying the school went too far.

In that case, a student** posted a video on YouTube calling another female middle school student a “brat” and “slut” and, of course, texted everyone they knew about it. The girl’s embarrassment led her to her guidance counselor’s office, which led to a chain of events in which the offender who posted the video was suspended.

Judge Steven V. Wilson wrote:

"To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul (of the law)," judge Stephen V. Wilson wrote in a 60-page opinion.

"The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments," he wrote.

“Cyber-bullying” has become a big issue of late as members of Congress and state legislatures are trying to make laws to regulate the effects of when the mean things kids say are amplified to a mass audience online.

In some cases, the subject hasn’t even been a student.

In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the Web site, the student referred to the principal as a "big steroid freak," and a "big whore," among other things, and stated that he was "too drunk to remember" the date of his birthday.

District Court Judge Terrence McVerry found that even though the profile was unquestionably "lewd, profane and sexually inappropriate," the school did not have the right to restrict the student’s speech because school officials were not able to establish that the profile caused enough of a disruption on campus.

"The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the world-wide web," he wrote.

That case is pending in the U.S. 3rd Circuit Court of Appeals.

And another one in Florida:

In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for "cyber-bullying." Katie Evans had created a Facebook page criticizing an English teacher as "the worst teacher I’ve ever met," and invited others to express their "feelings of hatred."

Her attorney, Matthew Bavaro, said the reach of the Web was irrelevant to whether a student is allowed to express themselves freely.

"The audience, whether it’s one person or 1 billion people, doesn’t change that Katie still had a First Amendment right," Bavaro said.

Opinions from courts and law professors seems to be unanimous:

Eugene Volokh, a First Amendment expert and law professor at the University of California, Los Angeles, who has criticized a bill in Congress that would make cyber bullying punishable by as long as two years in prison [said,] "People don’t appreciate how much the First Amendment protects not only political and ideological speech, but also personal nastiness and chatter. … If all cruel teasing led to suicide, the human race would be extinct."

* “Ashamed” probably isn’t the right word. It’s not like I have sleepless nights about it.

** You probably won’t be surprised to find out that the case arises from Beverly Hills, California and that the attorney for the student who posted the video is her father. The girl was awarded $1 in damages and the suspension removed from her record.