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Thank you to everyone who has read and commented on my posts this week. It's been so much fun! And thanks again to Eugene and his co-conspirators for the opportunity. After this final edition I will go back to assisting my colleague John Ross with his Short Circuit newsletter, which he posts here every Friday.

You can see the previous four posts in this series here, here, here, and here, all of which summarize my new book from the University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (available for free here).

Today I'm going to give an example of how a Baby Ninth should work in practice, briefly address a potpourri of issues I haven't had space for, and close with some big picture thoughts about what Baby Ninths mean for how we look at American constitutionalism more generally.

In the book I talk about some food truck cases we've done at IJ, where cities block food trucks from operating for protectionist reasons that aren't plausibly related to public health and safety. Let's suppose you're one of them. You want to park your truck in the lot of an office building. The building's owners also want you to park therethey like that their tenants can buy lunch from your truck. But there's a city ordinance that prohibits you from parking within 500 feet of a restaurant, even if you're on private property. And there are other restaurants on the building's street within that distance.

Now let's say you live in a state with a Baby Ninth. Does this law violate one of your rights "retained by the people"? Well, it certainly seems to get in the way of your right to contract with the building's owners and your right to earn a living by selling from there. But, as I said yesterday, that in itself doesn't mean the city has violated the state constitution. These rights aren't absolute. The city could defeat a claim you might bring if, based on real facts, it can show it's needed to further a legitimate public purpose. That would allow the city to demonstrate that in this case, your asserted rightto the degree that it's implicatedis not actually "retained" but has been given up to the government in the social contract bargain.

In this case you should prevail. It's unlikely the city can show the truck causes any public problems just because it's within 500 feet of a restaurant. For other regulations you might have to abide by, such as fire restrictions, litter control, or food safety rules, the story could be very different. But suppressing competition isn't enough. "We're living in a society!" doesn't mean we delegate to the government the power to simply pick winners and losers.

Notice this is stronger than "rational basis review," as it's currently practiced in federal and in (most) state constitutional law, but it's not necessarily strict scrutiny. It's not even necessarily a presumption against the government. Perhaps my indifference on these shades comes from my years of litigating under the rational basis test, but I've found for most questionable laws you don't need strict scrutiny to be able to constitutionally defeat them; you just need the kabuki theatre of the rational basis test to go away. Then judges can actually take your facts and arguments seriously. This is hardly radical stuff.

And now, as Larry King used to do, some news and views on a few other issues.

The Ninth Amendment itself. When I discuss my book, I've noticed people here and elsewhere often want to talk about the Ninth Amendment itself, or how they can use it do to X legal thing, ignoring the state constitutional side of things. This is an unsurprising result of the focus so many of us have on the U.S. Constitution. But it's a bad habit. Again, unless you're up against the federal government itself, your state constitution is potentially just as useful in fighting the government as the U.S. version. Looking at Baby Ninths isn't just a way to think about the U.S. Constitutionalthough it can be, as I conclude below. Primarily, it's a way to actually do something real concerning state and local government. State constitutional law is neglected in law school and even more so in legal media, but that doesn't mean you should too. Go read your state constitution. If you're a lawyer and interested in bringing a civil rights caseespecially if it's pro bonothink about using the state constitution, including a state's Baby Ninth.

Variations. Most Baby Ninths are almost identical to the Ninth itself, with "impair" often used and "construed" sometimes dropped. I don't think this makes a material difference, but I talk about it a bit in the book. There are a handful with more differences. Minnesota and Mississippi have "retained by, and inherent in, the people." I also don't think that's material. Then there's Georgia and Virginia. Georgia's is super interesting. Read my book (pp. 131-32) to find out why! And other than Georgia's, Virginia's is the only one without "retained."

More direct language. Professor Mitchell Gordon at St. Thomas (MN) has a wonderful article about the oddness of the Ninth Amendment. I'll admit, the language can be a little mystifying. So why did state delegates use it to protect unenumerated rights? They could have just said "there are other rights retained by the people and they are also protected by this Constitution just as much as the foregoing." I think they used the Ninth instead because it was "off the shelf," so to speak. This happens a lot in state constitutional law, with states borrowing from what the feds and others have done instead of drafting anew. Could Baby Ninths have been written differently? Sure. But that doesn't mean they don't protect Lockean rights.

The name. I've seen a couple people object to the nickname. As I'm more than upfront about in the book, I didn't invent it. John Yoo and Akhil Amar did (one in print, one in lectures). But I like it! As John Yoo wrote, it follows from the nickname "Baby FTC Acts" which many states have for consumer protection laws. It's not that states are babies, it's just that all Baby Ninths chronologically came after the Ninth itself. The same isn't true of other provisions, such as the Fourth Amendment.

In the end, what's going on with Baby Ninths? Yes, they're "etcetera clauses," but is there a complementary way to think about why we have them? Via some mild speculation, in the book's afterword, I theorize that what might be going on is a bit of a compromise. As a commentator said, Americans like unenumerated rights, but often don't like specific examples of unenumerated rights. Going into a constitutional convention many delegates will have rights they like and rights they don't care about. In adopting an unenumerated rights clause (whether a Baby Ninth, a Lockean Guarantee, or something else), they know that it could be interpreted to protect all of those rights. And yet they've included these provisions over and over again anyway. Why? Perhaps because they're erring on the side of liberty. Yes, the provisions might be interpreted in the future to protect a right the delegate isn't a fan of, but it also might protect rights she cares deeply about. So she and her various other delegates will err for more freedom instead of not having unenumerated rights at all and giving the statedare I say Leviathanmore power.

It's also telling that no state has adopted a provision that says something like "there are no unenumerated rights." Or even "courts must enforce unenumerated rights very sparingly." Dog/bark?

Finally, what does the story of Baby Ninths tell us about the U.S. Constitution? It doesn't help us directly interpret the Constitution's text. But it does demonstrate that far from unenumerated rights being something that Americans shun, they're something that's normal. Popular, even! And those same Americans who adopted a Baby Ninth sixty-six different times in U.S. history also wrote and amended the Constitution itself. When we're reading the U.S. Constitution, we should be thinking: "Unenumerated rights provisions are common for Americans when they write constitutions. It wouldn't be surprising if there was one in this document as well."

I'll leave you with my book's epigraph. Thank you for reading.

Anna: Oh, yes, I'm sure we could see many things . . . such as iron bars, guards at the doors, et cetera, et cetera.

The King: What is this "et cetera"?

Anna: Well, it means "and all the rest and so forth," Your Majesty.

The King & I

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Baby Ninth Amendments Part V: Real Life, Potpourri, and the Big ... - Reason

IL file photo

The Court of Appeals of Indiana upheld a mans possession of a firearm by a serious violent felon conviction Friday, affirming a trial court decision that a police stop and search of the man was lawful and did not violate his Fourth Amendment rights.

In 2021, Tony Lawrence Richey was stopped by Shelby County Sheriffs Deputy Justin Parker as he was responding to a call that there was a suspicious person walking on Flat Rock River bridge.

Parker found Richey under the bridge, camping.

Richey told Parker he had not been walking on the bridge, but he packed up his camp and called a relative to pick him up.

Parker then went home and during his drive, he saw Richey walking on the road, where the two waved at each other.

After going home to change clothes, Parker left for an appointment in Greenwood.

He saw Richey again and stopped to ask him where he was going. Richey said he was trying to get to Indianapolis. Parker thought it was strange given that Richey was not walking in the direction of Indianapolis.

After almost four hours since his interaction with Richey, Parker saw him again walking around in the rain without any rain gear.

Parker knew there werent any gas stations or restaurants nearby, so he called Deputy Kenneth Thompson to check on Richey. Parker saw Richey enter the woods.

Parker called off-duty Shelbyville Police Officer John Searle about Richey.

Searle later saw Richey when he was driving to a gas station in his patrol vehicle. He noticed that Richey was walking with the flow of traffic, so he activated his red and blue lights and stopped him.

Richey said he would like a courtesy ride, so they called Thompson to give him the ride.

Thompson asked Richey if he had any guns on him because he always makes sure people are unarmed when giving them a courtesy ride.

The deputy discovered a handgun and ammunition. He arrested Richey on suspicion of carrying a handgun without a license.

Richey was charged with Level 4 felony unlawful possession of a firearm by a SVF.

The jury trial began in March 2022. Richey objected to the handgun and ammunition as evidence, but it was overruled.

The state also introduced court records from the Owen Circuit Court showing Richey was convicted in 1995 for eight felony counts: three counts of Class B felony burglary, three counts of Class C felony burglary, one count of Class C felony arson and one count of Class D felony automobile theft for crimes committed in 1994.

They matched Richeys date of birth and tattoos with Owen Circuit Court records to confirm it was him. The state also used a recorded call Richey made from the Shelby County Jail, where he said, I own up to what I did wrong, and mentioned a case that I had in Owen County.

The jury found Richey guilty and the trial court sentenced him to seven years, ordering the first six to be served in the Indiana Department of Correction and his final year on probation.

Richey appealed and presented the court with three issues. The first issue Richey brought to the appellate court was whether officers unconstitutionally seized him, violating the Fourth Amendment of the U.S. constitution and Article 1, Section 11 of the Indiana Constitution prior to discovering a firearm.

The appellate court disagreed with Richey, finding the search did not violate the U.S. Constitution or the state constitution.

Richey asserts Officer Searle lacked reasonable suspicion to initiate a Terry stop of him. However, police officers may initiate a stop when they observe even a minor traffic violation, State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006), and Officer Searle observed Richey walking on the wrong side of the road, which is a Class C infraction, Judge Melissa May wrote. Because Officer Searles Terry stop of Richey turned into a consensual encounter before the discovery of the firearm and Deputy Thompsons search of Richey after Richey disclosed he had a handgun was reasonable, the officers did not violate Richeys rights under Article 1, Section 11 of the Indiana Constitution.

The second issue he brought to the court was whether the state presented sufficient evidence that he had committed an SVF-qualifying offense.

Richey argued that tattoos can be added, removed or modified over time, and that his reference to an Owen County case could mean a case other than the 1994 burglaries.

However, these arguments are simply invitations for us to reweigh the evidence, which our standard of review precludes, May wrote. A reasonable finder of fact could weigh the matching name, date of birth, and physical characteristics described in the Owen County Court records, the tattoos, and Richeys statement during the jail call to mean Richey was the offender convicted of Class B felony burglary in the Owen County case.

Lastly, Richey asked whether the trial court committed fundamental error when it admitted evidence of more than one of his prior convictions.

Rejecting that argument, May wrote, (T)he fact that the jury learned Tony Lawrence Richey was convicted of multiple other felonies in 1995 does not constitute fundamental error.

The case is Tony Lawrence Richey v. State of Indiana, 22A-CR-1107.

Link:
COA affirms SVF firearm conviction, finds stop and search by police ... - Indiana Lawyer

Item 1.01. Entry into a Material Definitive Agreement.

The information contained in Item 2.03 of this Current Report on Form 8-K isincorporated by reference in this Item 1.01.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an

On May 9, 2023, Barings BDC, Inc. ("BBDC") entered into an amendment (the"Fourth Amendment") to the Senior Secured Revolving Credit Agreement, dated asof February 3, 2019 (as amended by the first amendment thereto, dated as ofDecember 3, 2019, as further amended by the second amendment thereto, dated asof December 29, 2021, as further amended by the third amendment thereto, datedas of February 25, 2022, and as further amended by the Fourth Amendment, the"ING Credit Facility"), among BBDC, as borrower, Energy Hardware Holdings, Inc.,Barings BDC Finance I, LLC and Barings BDC Senior Funding I, LLC, as subsidiaryguarantors, the lenders party thereto and ING Capital LLC ("ING"), asadministrative agent.

Under the Fourth Amendment, among other changes, the maturity date of the INGCredit Facility was extended to February 21, 2026.

The above summary is not complete and is qualified in its entirety to the fulltext of the Fourth Amendment and related documents, which is attached hereto asExhibit 10.1 and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

* Schedules to this Exhibit have been omitted in accordance with Item 601 ofRegulation S-K. The registrant agrees to furnish supplementally a copy of allomitted schedules to the SEC upon its request.

--------------------------------------------------------------------------------

Edgar Online, source Glimpses

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BARINGS BDC, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet...

By now, you have already heard what happened last week on the New York Subway. A gentleman named Jordan Neely, who seemed to be experiencing a mental health crisis, reportedly had a threatening interaction with other subway passengers. One of those passengers, a Marine Veteran named Daniel Penny subdued Mr. Neely and in the course of doing so, allegedly caused his death.

My experience with urban public transportation is from a different city, and a few decades earlier, but I have seen my share of shady characters on the subway. I always felt safe on the subway during rush hour, when it was very white-collar and there seemed to be safety in numbers, but after-hours travel in the shadowy underground is not for the timid.

I also recall that the specter of homeless people suffering from mental illness is a part of everyday life in the city. Sometimes they ask for money; sometimes they yell at intersections. Often, we know them by name and associate them with specific neighborhoods. They were usually animated and could be disruptiveand they didnt always smell greatbut in my experience, they never hurt anyone.

Like most stories, there are bound to be two sides. I think the case will come down to what witnesses say that Mr. Neely did or didnt do immediately before he was restrained. Was Neelys provocation an assault, or was it speech? If it was only speech, was it speech that would make the elusive reasonable person perceive a threat of violence? I wasnt there and I take no position. We will see.

What I find more interesting about the case is the sequence of events after the incident. First, Mr. Penny was questioned and released without charge. Then, protesters quickly organized and demanded his arrest. Shortly thereafter, Mr. Penny was invited downtown for a free sitting with a photographer and to post a $100,000 bond.

The question raised in my mind today is one that has been debated by legal scholars since long before the launch of our relatively young judicial system. How, when, and to what extent should public opinion influence justice?

The easy answer is that law enforcement should be in contact with the citizens. Were learning, I think a bit late, that their demographics should even reflect the citizens. In most cases, the enforcement side of the equation is answerable to their respective governing authorities (i.e. state, federal, or local), except in the case of County Sheriffs, who are typically elected. The prosecutors follow a similar model. Federal, state, and municipal prosecutors, answer to elected officials but are directly elected at the county level.

Courts, on the other hand, should be independent and free of external influence. They should be able to rely upon and maintain the laws passed by representatives of a free people. That part makes sense to me. An alternate point of view is that courts wield a great deal of power and need to be held accountable. Public scrutiny keeps those powers in check and public approval is a source of much-needed legitimacy.

Personally, I think we enjoy sufficient representation from elected officials and that our justice system is robust enough to sort out any bad actors.

Resorting to mob action doesnt cross my mind, but I have the privilege of knowing that my elected officials will return my phone call. People who feel less enfranchised will undoubtedly have another point of view.

Here in Nebraska, we vote to retain our judges after whats called an assisted appointment. Im comfortable with that system, but in Texas, Illinois, and a handful of other states, judges have full-blown, partisan elections with campaign contributions and all of the baggage that follows. Is that an appropriate amount of public influence? Whats the right formula? How do we best balance public accountability with independence and freedom from systemic compromise? Its a tricky equation, and I sometimes wonder if were getting it right.

I also find it ironic that public influence would be linked to legitimacy. I suppose a court could go too far with an unpopular decision and lose public support, but at least for now, I am confident that the courts are better informed, more cautious, and ultimately more trustworthy than the general public.

Historians tell us that our founding fathers wrote our Constitution with two threats in mind: tyrants and the mob. Our Fourth Amendment is intended to protect us against law enforcement, but the founders dedicated a whole unelected branch of government to counter our mob-controlled, publicly elected officials.

When I see prosecutors appear to bend to public sentiment, I think of our darker days when hooded rioters plucked people out of jail for pre-judicial lynchings. Im not suggesting thats what happened in New York.

We simply cant know, but its one of those areas that we need to watch carefully. Our system of justice is far from perfect, but I think its fair to most people, most of the time, and we need to preserve that trust with our watchful eyes.

View post:
Column: : Justice, tyrants and the mob (5/19/23) - McCook Daily Gazette

On April 3, 2018, Jeffrey Parker called 911 from his Huntsville, Alabama residence and threatened to blow his head off. Huntsville Police Department (HPD) officers Pegues and Beckles were dispatched to the call. Upon arrival, Pegues drew her pistol and made a partial entry through the front door, thereby exposing half her body to the inside. She observed Parker sitting on a couch with what appeared to be a gun at his own head. She told Beckles, still outside, what she saw. Beckles informed police dispatch that Pegues had seen Parker with a gun to his head. [1]

Officer Darby heard Beckles radio call about a guy with a gun threatening suicide and responded. Darby arrived and saw that Pegues had her gun drawn but pointed down. He commanded her to point her gun at Parker because he thought that Parker could kill her. Pegues moved completely into the residence and briefly raised her gun but almost immediately lowered it. Both Beckles and Darby followed her inside and demanded that Parker drop the weapon.

Pegues also pleaded with Parker to drop the weapon, but he kept it pointed at his head and refused to drop it. Darby, believing that all three officers were in danger of being shot, fired at Parker and killed him.

Darby was charged with murder. After a jury trial, he was found guilty and sentenced to 25 years in prison.

Officer Pegues testified at Darbys trial that prior to Darbys arrival, she attempted to de-escalate the situation, but that once Darby entered the residence, she could feel the tension just rising. She testified that Parker didnt threaten her or do anything to make her believe he wanted to do anything other than commit suicide.

Officer Beckles testified that at no time during this event did he feel the need to take deadly force action. He stated that Parker didnt make any overt action to indicate that he was about to point his weapon at the officers. He estimated that Parker was ordered to drop the weapon about seven times but failed to comply.

An HPD detective investigated the shooting incident and testified that he found no evidence that Parker ever made a hostile determination towards anybody other than himself.

Officer Darby testified that upon entering the residence he realized that all three officers had no cover between them and Parker. He ordered Parker to drop the gun twice, but Parker refused. Darby shot and killed him. Darby also presented testimony from three other law enforcement officers (expert witnesses) who each testified that Parker's refusal to put his weapon down constituted an imminent threat to the responding officers' lives. [2]

After both sides presented their evidence, Darby requested the trial judge to charge the jury as follows: "The reasonableness of an officer's actions in using deadly force must be objectively reasonable judged from the perspective of a reasonable officer on the scene, the fact that officers are forced to make split-second decisions, and in light of the facts and circumstances confronting them at the time.

In support of his requested jury instruction, Darby cited the United States Supreme Court opinion in Graham v. Connor. [3]The trial judge rejected Darbys requested instruction. Instead, the judge provided the jury with a general self-defense instruction that is available to all citizens who assert self-defense as a justification for their actions. This permitted the jury to examine Darbys conduct from the perspective of an ordinary citizen rather than a trained law enforcement officer.

Darby appealed and argued that the trial judge delivered an erroneous self-defense instruction that permitted the jury to ignore, as irrelevant, the expert testimony from several witnesses that reasonable law enforcement officers would believe they were facing an imminent threat to their personal safety.

The decision of the Alabama Court of Criminal Appeals [4]

The Alabama Court of Appeals reversed Darbys conviction and ordered that he receive a new trial. The court ruled that it was not bound to accept Darbys offered instruction that was based upon the Supreme Courts opinion in Graham v. Connor. The court explained that Graham does not govern a state courts application of state criminal statutes because it involved a civil action brought under 42 U.S.C. 1983. (The federal civil rights statute). [5]Nonetheless, the court observed that the Alabama legislature passed a self-defense statute designed for Alabama peace officers that states: "A peace officer is justified in using deadly physical force upon another person when and to the extent he reasonably believes it necessary in order [t]o defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force." [6]

The court ruled that the trial judge erred by giving the jury a self-defense instruction designed for ordinary citizens instead of an instruction intended by the Alabama legislature to be used for peace officers in self-defense situations. The court explained, [T]he Alabama Legislature has made clear that there is a unique standard to be used in judging a police officer's use of deadly force in self-defense or defense of another while acting in his capacity as a police officer. Thus, the proper perspective from which to evaluate a police officer's use of deadly force in such situations is indeed that of a reasonable police officer in the same situation.

The court observed that the ordinary citizen self-defense instruction given to the jury permitted the jury to ignore extensive testimony from multiple witnesses regarding the training a police officer receives with respect to confrontations with an armed person. The court noted that this testimony supported a finding that a reasonable police officer in Darby's situation could have concluded that Parker's conduct represented the imminent use of deadly force. In other words, that testimony supported a finding that Darby acted in self-defense or defense of another when he shot Parker.

Heres a summary of the lessons law enforcement officers can take from this case:

1.It would later be determined that Parker was holding a flare gun that had been intentionally painted black,but there is no evidence indicating that any of the officers were aware of that fact.

2.Quote is taken from the Alabama Court of Criminal Appeals opinion.

3.490 U.S. 386 (1989}. In Graham, the Supreme Court created an objective reasonableness standard for police use of deadly force grounded in the Fourth Amendment. The Supreme Court ruled that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Further, the Court ruled that when police use of force situations are evaluated, the fact that officers are forced to make split-second judgments must be considered.

4.Darby v Alabama, (CR-20-0919) (3/24/23).

5.The Alabama Court of Criminal Appeals determined when reviewing state criminal statutes, it is not bound to follow a constitutionally grounded Fourth Amendment-based opinion of the United States Supreme Court regarding the standard for police use of deadly force. The Alabama court cited a quote from a California case, People v. Perry, 36 Cal. App. 5th 444, 465, 248 Cal. Rptr. 3d 522, 536 n.10 (2019) as authority for declining to follow Graham v. Connor regarding its application to a states criminal statutes. The California court ruled, Perry contends throughout his briefing that we are bound to apply the standards articulated in Graham in this case. Graham was a civil rights action brought pursuant to section 1983 of title 42 of the United States Code and it involved an alleged violation of the Fourth Amendment. Long-standing and deeply held principles of federalism counsel that we have no obligation to import those standards into our state law defining criminal offenses."

See also, People v. Couch, 461 N.W.2d 683, 684 (1990) in which the Michigan Supreme Court rejected the prosecutions argument that the U.S. Supreme Courts opinion in Tennessee v. Garner, 471 U.S. 1 (1985), requires it to change the Michigan fleeing felon rule to comply with the Supreme Courts ruling in Garner, (i.e. Deadly force cannot be used against unarmed and non-dangerous fleeing felons). The Michigan Supreme Court explained that Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court.

The Alabama court did not offer any United States Supreme Court opinion or federal appellate opinion as authority for its decision on this issue. It is unknown whether the federal courts would agree with the Alabama, California and Michigan courts that have considered this issue.

6. 13A-3-27(b)(2), Ala. Code 1975.

7.490 U.S. 386, 397 (1989). See also, recent university law review articles that take the position that state courts are not bound to follow the Supreme Court opinions in Graham and Garner when confronting use of deadly force issues involving state criminal charges directed at police officers. For example, see, Flanders, Chad and Welling, Joseph (2015) Police Use of Deadly Force, State Statutes 30 Years after Garner, Saint Louis University Public Law Review, Vol. 35: No.1, Article 7. And Shah, Raoul, (2018) Licensed to Kill? An Analysis of the Standard for Assessing Law Enforcements Criminal Liability for Use of Deadly Force, Mitchell Hamline Law Journal of Public Policy and Practice, Vol. 39/ Issue 1.

8.The new bill, commonly referred to as AB-392 is found at Calif. Pen. Code 835a (c)(1), (A)-(B).

9.SeeKathleen Y. Murray, Exploring A Necessary Standard For the Use of Excessive Deadly Force by Law Enforcement: A Flawed Solution With Positive Potential,University of Toledo Law Review, Vol. 52, p. 397 (Spring 2021).

10.Calif. Pen. Code 835a (c)(1), (A). Deadly force must be necessary To defend against an imminent threat of death or serious bodily injury.

11.Calif. Pen. Code 835a (e)(2). Based on the totality of the circumstances, a reasonable officer would believe that a person has the present ability to immediately cause death or serious bodily injury.

12.See, Calif. Pen. Code 835a (e)(3).

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Alabama appeals court reverses murder conviction of Ala. officer ... - Police News