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Posts from the ‘Constitutional Law’ Category


Case Analysis: Second Amendment Does Not Protect Concealed Carry

Man drawing a handgun from under his jacket.
The 9th Circuit Court of Appeals ruled last week that the Second Amendment does not include the right to concealed carry.

Man drawing a handgun from under his jacket.The 9th Circuit Court of Appeals ruled June 9, 2016, in Peruta v. County of San Diego that the Second Amendment does not include the right to concealed carry. The court heard the case en banc and decided 7–4. Read more »


Using Tribal Common Law to Effectively Represent Clients in Tribal Court

totem in victoria
Read three examples of how tribal common law can lead to results differing from those reached under state law.
totem in victoria

Image by Stephanie Perry. Victoria, BC.

If you are unfamiliar with tribal courts, you may be surprised to hear they apply tribal customs and traditions to resolve legal disputes. Indeed, I find this is one of the most interesting parts of working for a tribal court. This tribal common law is the foundational law of tribes, and may also govern certain disputes in state court, see RCW 36.12.070. It is critical to understand a particular tribe’s customs and traditions to effectively represent a client in tribal court.

Because tribal common law is not derived from European roots, it can provide a different perspective on common legal principles, and can lead to results differing from those reached under state law. Understanding a particular tribe’s customs and traditions can breathe life into an otherwise failing argument. It can also allow for legal arguments not existing under state law. Below are some examples of how customs and traditions have been applied. Read more »


Case Law Changes to Mandatory Blood Tests

blood test
Under State v. Gauthier, citizens have the right to refuse a warrantless blood test, and such refusal cannot be used as evidence at trial.

blood testDefense attorneys have argued for years that a breath or blood test constitutes a search and that without a warrant, citizens should have the right to refuse the search without consequence. Washington courts have finally agreed with this argument, and the Court of Appeals recently issued an opinion on the issue in the case of State v. Gauthier.

The court held that a blood test should be considered a search and that, unless presented with a warrant, citizens have the right to refuse such a search. The court also held that the prosecution cannot use the right to refuse against a defendant at trial. The ruling changes the landscape of criminal litigation and not only protects defendants from unreasonable searches and seizures, but also from prejudicial evidence at trial. Read more »


Baby Veronica: SCOTUS Rules

baby veronica
Review the Court’s reasoning and learn what comes next for the parties in Adoptive Couple v. Baby Girl.

Remember that your children are not your own, but are lent to you by the Creator.
— Native American Proverb

baby veronicaThe story of 4-year-old Baby Veronica in Adoptive Couple v. Baby Girl, 2013 WL 3184627 was lost amid other SCOTUS decisions last week. The case juxtaposed state adoption law with provisions of the Indian Child Welfare Act (ICWA), 25 USC §1901. Previously, I argued that the Supreme Court should affirm the rights of the father, partially based on a best interest of the child analysis. However, in a narrow 5-4 opinion, the Court essentially held that the father’s actions to block the adoption of his biological child were too little, too late.

Majority: No physical custody, no relationship, no ICWA relief

The majority reasoned that Father could not be granted relief under two major provisions of ICWA. First, under §1912(f) of the act, parental rights can only be terminated by providing additional evidence to demonstrate that “serious harm… will result from continued custody of the child by the parent.” Id.  The court reasoned that in order to trigger the heightened standard of review under §1912(f), there must be a “pre-existing” state of custody by the parent. Construing the term “custody” by its strict dictionary definition, the majority held that because Father never had actual custody, ICWA was inapplicable. Read more »


SCOTUS Approves Use of Pre-Miranda Silence as Evidence of Guilt

jail cell
Learn more about the Salinas v. Texas ruling and how it could affect cases in Washington.

jail cellOn June 17, 2013, the Supreme Court of the United States continued its stream of criminal procedure holdings, this time “holding” that the prosecutor’s use of a defendant’s pre-Miranda silence as evidence of guilt does not violate the defendant’s Fifth Amendment privilege against self-incrimination where the defendant did not expressly invoke that privilege. Salinas v. Texas, No. 12-246, 2013 WL 2922119 (U.S. June 17, 2013). The reason for the quotation marks around the word “holding” is the Court’s fractured 3-2-4 opinion, which I analyze in detail below.

Salinas v. Texas: Facts

Police visited Mr. Salinas at his home in connection with a double homicide investigation. He agreed to accompany police back to the station for questioning voluntarily. During the interview, Mr. Salinas was generally forthcoming and answered most questions. However, when specifically asked whether his shotgun would match the shells recovered at the scene of the murder, he remained silent and became fidgety. The interview then continued with other questions, which Mr. Salinas answered. At trial, the prosecutor argued that Mr. Salinas’s silence indicated guilt, and the jury convicted. Miranda was not at issue due to the voluntary nature of the interview.

Salinas v. Texas: Issue

The sole question is whether the Fifth Amendment’s privilege against self-incrimination bars the prosecutor from using Mr. Salinas’s pre-Miranda, pre-arrest silence as evidence of guilt. Read more »