Merry Christmas from Gilmer & Giglio!
Gilmer & Giglio would like to wish you a warm and healthy first day of winter!
In honor of the 230th anniversary of the ratification of the Bill of Rights and week 5, we move on the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Fifth Amendment to the United States Constitution is the source for the prohibition against Double Jeopardy, the requirement that people accused of “infamous” and capital crimes be charged by grand jury indictment, and cannot be compelled to testify against himself nor have his property, life, or liberty taken without due process.
Further reading:
Gamble v. United States, in which the Court addressed the question whether the dual sovereignty exception to the double jeopardy clause was still good law? Answer: “The Court declined to overturn the dual-sovereignty doctrine.”
Colorado v. Spring, in which the Court addressed the question: “Is the suspect’s awareness of the crimes about which he may be questioned relevant to his informed decision to waive his Fifth Amendment rights?” Answer: No.
On this day in 1791, the Bill of Rights was officially ratified by the States of the United States. As we have been discussing over the past few weeks, the Bill of Rights was intended to enshrine in the Constitution those rights that the Founders felt were fundamental. They have been open to interpretation in the 230 years since they were drafted, but they have also stood the test of time. We invite you to celebrate Bill of Rights day with us this year.
In honor of the 230th anniversary of the ratification of the Bill of Rights, we are starting to get to the stuff where we make our living: The Fourth Amendment!
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourth Amendment is always rife with litigation in criminal cases. Essentially, this amendment is intended to prohibit the indiscriminate rummaging through of a person’s property by the government. The amendment requires that a search or arrest warrant must be supported by probable cause that a crime was committed and that evidence of that crime will be located at the location to be searched (or that the individual to be arrested committed the crime). The warrant must further particularly describe the place to be searched and the persons or things to be seized, meaning officers cannot come into your home and seize everything you own with a warrant that simply gives them authority to search anyplace you may be found.
Further reading:
Lange v. California, which addressed the question: “Does the exigent circumstances exception to the Fourth Amendment’s warrant requirement apply when police are pursuing a suspect whom they believe committed a misdemeanor?” Answer: “Pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance justifying a warrantless entry into a home.”
Kansas v. Glover, which addressed the question: “For purposes of an investigative stop under the Fourth Amendment, is it reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary?” Answer: It is reasonable when the officer does not have any contradictory information.
Mitchell v. Wisconsin, which addressed the question: “Does a statute that authorizes a blood draw from an unconscious motorist provide an exception to the Fourth Amendment warrant requirement?” Answer: “When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant.”
Carpenter v. United States, which addressed the question: “Does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment?” Answer: Yes.
In honor of the 230th anniversary of the ratification of the Bill of Rights, in our third week, we are talking about Amendment III:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
I’m going to be hones with you: I read this one in law school, but if you had dared me to remember it until I looked the exact language up a few minutes ago, there’s a solid 75% chance I could not have done it. This language doesn’t come up all that often in our modern world, but it does go to show that the concerns of the founders are sometimes difficult to wrap our heads around and should make us think that the drafters of our Constitution’s ability to imagine the modern world must have been nearly impossible, as well.
Photo by Jakob Owens on Unsplash
Gilmer & Giglio wish you a happy Hanukkah!
Gilmer & Giglio are grateful for our friends, family, and clients this Thanksgiving day! We hope you are spending your Thanksgiving with people you love and are having a healthy and happy holiday.
We will be closed Thursday, November 25, and Friday, November 26. If you need us, give us a call at (3180 459-9111.
In honor of the 230th anniversary of the ratification of the Bill of Rights, we move on to our second week: Amendment II:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As we discussed last week, despite the plain language of this amendment, both the States and Federal government have placed a multitude of restrictions on the possession of firearms, which have been upheld b the Supreme Court. Individuals with certain convictions (even some misdemeanors) are prohibited (under Federal law) from possessing a firearm (specifically: most offenses involving domestic violence).
Further reading:
Caetano v. Massachusetts, in which the Court addressed the question: “Does the Second Amendment protect the right to possess a stun gun for self-defense?” Answer: “Although stun guns are unusual in nature and were not common during the enactment of the Second Amendment, they are included in the Second Amendment’s protections.
Voisine v. United States, in which the Court addressed the question: “Does a misdemeanor crime that requires only a showing of recklessness qualify as a misdemeanor crime of domestic violence under federal statutes 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?” Answer: Yes.
See you next week for the Third Amendment!
After the Constitution of the United States was drafted, it became clear to many of the “founders” that additional rights and restrictions should be explicitly provided to and placed upon the government. The Bill of Rights was drafted in 1789 and finally ratified on December 15, 1791. In honor of the 230th anniversary of the Bill of Rights, we will be spending the following 10(ish) weeks talking about each of the first 10 amendments. This week: Amendment 1:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The First Amendment to the United States Constitution establishes the right to free speech, a free press, peaceable assembly and the right to petition the Government. The First Amendment protects people in the United States from the government passing laws restricting their rights to exercise their own religion freely, from speaking freely, from assembling (peacefully) and freely. The Supreme Court has regularly found, despite this language, that reasonable time and place restrictions can be placed on speech. The most common example: laws can prohibit a person from shouting “fire!” in a crowded movie theater. Another example: the local government can require permits for protests or other public gatherings.
The rights contained in the Bill of Rights are foundational. They are the seeds from which so much of our law has sprouted. But they are also subject to interpretation. And restriction. And the plain language is fairly often not the end-all-be-all of what they mean.
Further Reading:
Carson v. Makin, in which the Court addressed the question: “Does a state law prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction violate the Religion Clauses or Equal Protection Clause of the U.S. Constitution?” The Court has not ruled on this case at the time of this writing.
Snyder v. Phelps, in which the Court addressed the question: “Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?” Answer: Yes.
Morse v. Frederick, in which the Court addressed the question: “Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? Answer: Yes. (Note: the student’s sign had the nonsensical phrase, “Bong Hits 4 Jesus” written on it.)
The blog linked to above is oyez.org and it contains a great searchable database of Supreme Court cases that is easy to read.
See you next week for the Second Amendment!
We want to thank current and former service-men, be they clients, friends, or family for their service.
Slowly but surely, the Louisiana Legislature is taking steps impacting marijuana accessibility to the public. Act 424 of the 2021 Louisiana Regular Legislative Session amended La. R.S. 40:1046.
That statute had previously provided that doctors “in good standing” with the Louisiana State Board of Medical Examiners and licensed to practice in Louisiana could recommend marijuana for use by a patient “clinically diagnosed as suffering from a debilitating medical condition.” The amendments to this statute removed the restriction on marijuana in a form that could be inhaled but limited the amount that could be dispensed by any pharmacy so authorized:
(5)(a) No pharmacy authorized to dispense marijuana for therapeutic use in accordance with the provisions of this Section shall dispense more than to and one-half ounces, or seventy-one grams, of raw or crude marijuana every fourteen days to any individual patient.
(b) No pharmacy authorized to dispense marijuana for therapeutic use in accordance with the provisions of this Section shall dispense raw or crude marijuana. to any person under twenty-one years of age without a recommendation from a physician specifically recommending marijuana in raw or crude form for that person."
If you or someone you know is facing prosecution related to marijuana, give us a call at (318) 459-9111 to set up a consult.
The Louisiana Legislature has amended the requirements for issuance of a Temporary Restraining Order (TRO) in Act 394. Prior to this change, the law required that, in order for a TRO to be issued without notice to the defendant, the petitioner needed to submit a “verified petition” or “supporting affidavit.” The law now merely requires “an affirmation as provided in Article 3603.1(C)(3)" that immediate and irreparable injury, loss, or damage will result to the petitioner before the hearing.
Code of Civil Procedure Article 3603.1(C)(3) now provides:
When a complainant is seeking a temporary restraining order for protection from domestic abuse, dating violence, stalking, or sexual assault, it is sufficient for the petition to contain a written affirmation signed and dated by the complainant that the facts and circumstances contained in the complaint are true and correct to the best knowledge, information, and belief of the complainant, under penalty of perjury pursuant to R.S. 14:123. The affirmation shall be made before a witness who shall sign and print his name."
If you or someone you know needs assistance regarding a protective order, give us a call at (318) 459-9111 to set up a consult.
Have a safe and happy Halloween from Gilmer & Giglio!
Acts 322 and 411 extended prescriptive periods and created causes of action for two different types of sexual abuse tort claims.
Act 322 amended the prescriptive periods found in Louisiana Revised Statutes 9:2800.9 to remove any time period within which a suit for damages for the sexual abuse of a minor must be filed. The statute now reads:
(A)(1) An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring does not prescribe.
(2) An action against a person convicted of a crime against the child does not prescribe and may be filed at any time following conviction…
A crime against a child is defined in the Children’s Code, Article 603(12) as any of the following: Homicide, Battery, Assault, Rape, Sexual battery, Kidnapping, Criminal neglect, Criminal abandonment, Carnal knowledge of a juvenile, Indecent behavior with juveniles, Pornography involving juveniles, Molestation of a juvenile, Crime against nature, Cruelty to juveniles, Contributing to the delinquency or dependency of children, Sale of minor children, Human trafficking, Trafficking of children for sexual purposes, and Female genital mutilation.
This Act also revives any claim described above which may have already prescribed for a period of three years from the effective date of the act (June 14, 2021). This means that any claims arising under the circumstances above that may have prescribed under prior versions of the law now have 3 years from June 14, 2021, to be filed and litigated.
Act 411 creates Louisiana Civil Code Article 2315.11 establishing exemplary damages for the tort of sexual assault in the workplace. These exemplary damages are only applicable to the perpetrator, not their employer. If a claim under this provision is found to be frivolous or fraudulent, the plaintiff shall be cast with costs and attorney fees for the defendant and may also be sanctioned by the Court. The prescriptive period for this offense is 3 years from the date of the offense or from the date the plaintiff is notified by law enforcement of the identity of the perpetrator, whichever is later. Finally, this statute draws its definition of sexual assault from La. R.s. 46:2184: ““sexual assault” means any nonconsensual sexual contact including but not limited to any act provided in R.S. 15:541(24) or obscenity (R.S. 14:106).”
If you or someone you know is facing accusations of sexual assault, give us a call at (318) 459-9111 to set up a c consult.
Act 252 of the 2021 Regular Legislative Session amended Code of Criminal Procedure Article 701 to reduce the period of time by which the prosecution must file a Bill of Information charging a defendant who is incarcerated on a misdemeanor charge. §(B)(1)(a) now provides that the Bill of Information must be filed within 30 days of the defendant’s arrest (reduced from 45 days) in misdemeanor cases. However, this change in the law does not take effect until January 1, 2022.
During the last regular session, the Louisiana Legislature added several sections to Louisiana Code of Criminal Procedure Article 556.1 establishing new duties on courts and defense lawyers in providing advice to their clients. The prior version of the law requires the Court to advise a defendant entering a plea of guilty to the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
The amendment now requires that the defendant be advised:
(5) That if he pleads guilty or nolo contender, he may be subject to additional consequences or waivers of constitutional rights in the following areas as a result of his plea to be informed as follows:
(a) Defense counsel or the court shall inform him regarding:
(i) Potential deportation, for a person who is not a United States citizen.
(ii) The right to vote.
(iii) The right to bear arms.
(iv) The right to due process.
(v) The right to equal protection.
(b) Defense counsel or the court may inform him of additional direct or potential consequences impacting the following:
(i) College admissions and financial aid.
(ii) Public housing benefits.
(iii) Employment and licensing restrictions.
(iv) Potential sentencing as a habitual offender.
(v) Standard of proof for probation or parole revocations.
The amendment further establishes that failure to so advise a defendant does not entitle him to reversal of his conviction and that this information can be provided to the defendant using a form.
Act 248 of the 2021 Regular Session of the Louisiana Legislature created two new offenses to be aware of, both prohibiting the staging of motor vehicle accidents.
La. R.S. 14:68.4.1 - “Staging of a motor vehicle collision” prohibits:
A. Staging of a motor vehicle collision is any of the following with an intent to defraud:
(1) Causing a motor vehicle collision for the purpose of obtaining anything of value.
(2) Providing information in connection with a motor vehicle collision, knowing that the collision was intentionally caused, for the purpose of obtaining anything of value.
(3) Providing false information in connection with a motor vehicle collision that did not occur for the purpose of obtaining anything of value.
This new crime is a felony, for which an individual convicted faces imprisonment, with or without hard labor, for not more than 5 years, and/or a fine of up to $5,000.
The act also established La R.S. 14:68.4.2 - “Aggravated staging of a motor vehicle collision” which prohibits the same conduct as §684.4.1, but adds the element, “which causes death or serious bodily injury to another person.” The penalty for this offense is imprisonment, with or without hard labor, for not less than 5 years nor more than 30 years, and/or a fine of up to $15,000.
Finally, this act adds these two offenses to La. R.S. 15:1352(A), which defines them as “racketeering activity,” which adds sentencing enhancements of up to 50 years and fines of up to one million dollars.
If you or someone you know is facing charges under these new statutes, give us a call to set up a consult at (318) 459-9111.
Act 241 of the 2021 Regular Session of the Louisiana Legislature amended much of Title 56, which governs the Wildlife and Fisheries Commission. Specifically, these amendments removed the potential punishment of imprisonment from violations of various hunting and fishing regulation violations. These amendments also reorganized the violations classes and established administrative procedures for enforcement of violations which could then be punished by civil penalties.
If you or someone you know would like to set up a consult to discuss a hunting or fishing violation, give us a call at (318) 459-9111 to schedule an appointment.