Lawsuit Filed against Honolulu Police Chief and State of Hawaii - Page 3

jonbirdt · September 8, 2012, 10:55 PM

Probably low, I think they are going to do things in steps and build on the issue. Once the eight pending cases have opinions you will see an en banc review and he will write the opinion.

hermannr · September 9, 2012, 11:47 PM

Ok all you lawyers, help me here. The judge said:

Quote:

The City & County of Honolulu is not subject to 5th Amendment. The Fifth Amendment applies to the federal government, not a municipality.

I thought that McDonald put an end to that kind of argument???? (that is, the 14th ammendment makes the whole Bill of Rights apply to the states too...yes, it only addressed the 2nd specifically, but by inference?)

Radagast · September 10, 2012, 09:53 AM

Over the last century SCOTUS has been selectively 'incorporating' the Bill of Rights to apply against the States (and hence municipalities formed under those states).
Ripped from Wikipedia:
-------
Amendment V
Right to indictment by a grand jury
This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884).

Protection against double jeopardy
This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969).

Constitutional privilege against self-incrimination
This right has been incorporated against the states. See Malloy v. Hogan, 378 U.S. 1 (1964).
A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court.

Protection against taking of private property without just compensation
This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
------------
So in the main the 5th does in the main apply as a restriction on the powers of the City & County of Honolulu.

The McDonald Vs Chicago decision incorporated the 2nd Amendment as a restriction on the powers of the States and the municipalities formed within them.

Radagast · September 10, 2012, 10:02 AM

Just to add, the Privileges and Immunities clause of the 14th amendment appears to be intended to apply the bill of rights as restrictions on the states.
The 19th century post war Supreme Court was just as political as the current one and ruled that it did not.
'Incorporation' is the method by which the 20th & 21 st century SCOTUS justices twist the due process clause to selectively apply bits of the Bill of Rights as restrictions on the States, without having to overrule its old decisions.
Read the McDonald oral arguments, I think it is Justice Scalia who refers to the Gura's Privileges and Immunity argument (that it should be revisited) as the darling of the law professoriate, or words to that effect.

maestro pistolero · September 10, 2012, 11:58 AM

Scalia refers to the incorporation doctrine as one to which "Even I have acquiesced". Justice Thomas in his concurring but separate opinion, did, in fact, use the privileges or immunities clause to incorporate the 2nd amendment.

Jim March · September 10, 2012, 12:21 PM

Well in this case, what the judge is saying about the 5th Amendment "due process" piece is that it's NOT incorporated against the states, but only because the 14th Amendment's "due process" component clearly is. And that's probably correct, if meaningless. So basically he threw out their 5th Amendment claim on that ground, but then found a completely different way to ignore the 14th Amendment equivalent piece.

**Tom Servo** · September 10, 2012, 12:42 PM

Quote:

Justice Thomas in his concurring but separate opinion, did, in fact, use the privileges or immunities clause to incorporate the 2nd amendment.

Yep, but he was the only Justice, out of nine, who did.

Technically, McDonald was an 8-1 loss along the original argument.

maestro pistolero · September 10, 2012, 01:14 PM

That's true. But the only vote count that matters is the one that decided the case. And among the reasoning used was Thomas' incorporation via "P or I". I am very happy to at least have it part of the record, for what it's worth.

KyJim · September 12, 2012, 10:26 PM

The Fifth Amendment initially applied only to the federal government, including the Due Process Clause of the Fifth. Most of the Fifth Amendment has been incorporated and is applicable to the states and their political subdivisions through the Due Process Clause of the Fourteenth Amendment. So, most of the jurisprudence talking about due process under the 5th is incorporated in the 14th. The requirement that a grand jury return an indictment (5th amend.) has not been incorporated via the 14th.

While technically, the judge was correct that the 5th doesn't directly apply to Honolulu, most of it is applicable through the 14th. I don't know exactly the context so this may not be a real issue anyway.

Funtimes · October 9, 2012, 04:53 PM

Notice of Docket Activity

The following transaction was entered on 10/09/2012 at 12:54:50 PM PDT and filed on 10/09/2012
Case Name: Christopher Baker v. Louis Kealoha, et al
Case Number: 12-16258
Document(s): Document(s)

Docket Text:
Notice of Oral Argument on Thursday, December 6, 2012 - 9:00 AM - Courtroom 1, 3rd Floor - James R. Browning US Courthouse - San Francisco, CA. Please return ACKNOWLEDGMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details about your case. [8352270] (RB)

September 10, 2012, 12:21 PM	#56
Jim March Senior Member Join Date: February 14, 1999 Location: Pittsburg, CA, USA Posts: 7,034	Well in this case, what the judge is saying about the 5th Amendment "due process" piece is that it's NOT incorporated against the states, but only because the 14th Amendment's "due process" component clearly is. And that's probably correct, if meaningless. So basically he threw out their 5th Amendment claim on that ground, but then found a completely different way to ignore the 14th Amendment equivalent piece. __________________ Jim March

September 12, 2012, 10:26 PM	#59
KyJim Senior Member Join Date: July 26, 2005 Location: The Bluegrass Posts: 6,608	The Fifth Amendment initially applied only to the federal government, including the Due Process Clause of the Fifth. Most of the Fifth Amendment has been incorporated and is applicable to the states and their political subdivisions through the Due Process Clause of the Fourteenth Amendment. So, most of the jurisprudence talking about due process under the 5th is incorporated in the 14th. The requirement that a grand jury return an indictment (5th amend.) has not been incorporated via the 14th. While technically, the judge was correct that the 5th doesn't directly apply to Honolulu, most of it is applicable through the 14th. I don't know exactly the context so this may not be a real issue anyway. __________________ Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.

October 9, 2012, 04:53 PM	#60
Funtimes Junior Member Join Date: April 15, 2011 Posts: 8	Notice of Docket Activity The following transaction was entered on 10/09/2012 at 12:54:50 PM PDT and filed on 10/09/2012 Case Name: Christopher Baker v. Louis Kealoha, et al Case Number: 12-16258 Document(s): Document(s) Docket Text: Notice of Oral Argument on Thursday, December 6, 2012 - 9:00 AM - Courtroom 1, 3rd Floor - James R. Browning US Courthouse - San Francisco, CA. Please return ACKNOWLEDGMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details about your case. [8352270] (RB) __________________ Honolulu Handgun Safety Classes Honolulu Gun Laws and Information

September 8, 2012, 10:55 PM	#51
jonbirdt Member Join Date: November 24, 2010 Posts: 24	Probably low, I think they are going to do things in steps and build on the issue. Once the eight pending cases have opinions you will see an en banc review and he will write the opinion.

September 10, 2012, 09:53 AM	#53
Radagast Senior Member Join Date: July 13, 2001 Posts: 449	Over the last century SCOTUS has been selectively 'incorporating' the Bill of Rights to apply against the States (and hence municipalities formed under those states). Ripped from Wikipedia: ------- Amendment V Right to indictment by a grand jury This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884). Protection against double jeopardy This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969). Constitutional privilege against self-incrimination This right has been incorporated against the states. See Malloy v. Hogan, 378 U.S. 1 (1964). A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court. Protection against taking of private property without just compensation This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). ------------ So in the main the 5th does in the main apply as a restriction on the powers of the City & County of Honolulu. The McDonald Vs Chicago decision incorporated the 2nd Amendment as a restriction on the powers of the States and the municipalities formed within them.

September 10, 2012, 10:02 AM	#54
Radagast Senior Member Join Date: July 13, 2001 Posts: 449	Just to add, the Privileges and Immunities clause of the 14th amendment appears to be intended to apply the bill of rights as restrictions on the states. The 19th century post war Supreme Court was just as political as the current one and ruled that it did not. 'Incorporation' is the method by which the 20th & 21 st century SCOTUS justices twist the due process clause to selectively apply bits of the Bill of Rights as restrictions on the States, without having to overrule its old decisions. Read the McDonald oral arguments, I think it is Justice Scalia who refers to the Gura's Privileges and Immunity argument (that it should be revisited) as the darling of the law professoriate, or words to that effect.

September 10, 2012, 11:58 AM	#55
maestro pistolero Senior Member Join Date: August 17, 2007 Posts: 1,909	Scalia refers to the incorporation doctrine as one to which "Even I have acquiesced". Justice Thomas in his concurring but separate opinion, did, in fact, use the privileges or immunities clause to incorporate the 2nd amendment.

September 10, 2012, 01:14 PM	#58
maestro pistolero Senior Member Join Date: August 17, 2007 Posts: 1,909	That's true. But the only vote count that matters is the one that decided the case. And among the reasoning used was Thomas' incorporation via "P or I". I am very happy to at least have it part of the record, for what it's worth.