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Friday, March 03, 2017

JUDGE HIRSCH RULES ON MAYOR GIMENEZ' FEDERAL DETAINER ORDER .......


THE CAPTAIN REPORTS:

(Rumpole notes: the prior post has a copy of the order, scroll down if you want to see it.)

We interrupt this issue of "Diary of a Mad President" to bring you this BREAKING NEWS:

THE 10TH AMENDMENT IS ALIVE AND WELL - IN MIAMI-DADE COUNTY .....
..... so Order's Circuit Court Judge Milton Hirsch today .....

"No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream." (From Judge Milton Hirsch's Order today).

James Lacroix was repeatedly arrested for Driving With License Suspended.  James Lacroix was also a Haitian National living in Miami.  He was here on a "temporary protected status" arriving in the US after the natural disasters that affected his island nation.

After picking up yet another DWLS Felony, at some point, he was ordered deported by ICE.  So, after spending several weeks in jail on his latest DWLS charge, and then pleading guilty to the charge and receiving credit for time served, instead of being released to the outside world, this time, the Miami-Dade Department of Corrections & Rehabilitation (MDCR) held Mr. Lacroix on an Immigration detainer.  Corrections was acting based on the recent Order signed by Miami-Dade County's Mayor Carlos Gimenez which now required them to honor the federal detainers. On February 17th, the County Commission approved Gimenez' Order by a vote of 9-3.

Remember that in January, shortly after his inauguration, President Trump signed an Executive Order promising to cut off federal funding for so called "sanctuary cities".  To avoid the label of being considered a "sanctuary city", Gimenez signed his Order agreeing to hold inmates in local jails for federal immigration agents even if the feds refused to reimburse the county for the expense.

Last Wednesday, Lacroix, after spending a total of 28 hours in jail on the immigration hold, after having already been sentenced to credit for time served, ICE agents came to pick him up and transfer him to their custody.

Enter attorneys Phil Reizenstein and Kristy Kawass.  Handling the case pro bono, they filed a Writ of Habeas Corpus before Judge Milton Hirsch. The Motion was effectively challenging Mayor Gimenez's Order.

Yesterday, Reizenstein argued that the continued detention of Lacroix, even for a minute, violated the 10th Amendment*, which limits the reach of the federal government on states. Reizenstein describes the action of the Trump Administration's threat to pull federal dollars from any city that is a "sanctuary city" protecting criminal illegal immigrants, as "nothing more than the federal government threatening and blackmailing states and Miami-Dade County".

Reizenstein argued that the controlling case on this matter was Printz v. United States, 521 U.S. 898 (1997)where no less than Justice Scalia overruled the federal government's attempts to command state and local law enforcement officers to conduct background checks on prospective handgun purchasers.

This morning, Judge Hirsch, in a 15 page ruling, shot down the Gimenez Order.  Hirsch explains the issues of ICE's detainer requests upon the MDCR this way:


"This practice, however, gives rise to two inequities. First, it obliges the Department to
house, oversee, and control prisoners in whom neither the state nor the county has any ongoing
interest; and it obliges the Department to do so at county expense, because neither ICE nor any
other instrumentality of the federal government makes the county whole for the cost of this
housing, overseeing, and controlling. Second, it results in the continued incarceration in county
jails of persons neither charged with, nor sentenced for violating, any state or county law, and
whose ongoing incarceration by the county is therefore difficult to justify."


Hirsch, citing to Scalia’s opinion in Printz said: "Apparently it was clear to the members of the first Congress that the federal government is without power to compel state authorities to house and maintain federal prisoners – even if the federal government offers to pay a fair price for that housing and maintenance".

Hirsch ruled that:

Lacroix was a county prisoner, but at present the county has neither a reason nor a basis in law to
keep him its prisoner. A federal agency wants Lacroix to be a federal prisoner, but demands that
the county do the imprisoning on the federal government’s behalf. That is a demand that the
federal government is constitutionally prohibited from enforcing, and it is a demand with which
the local government is constitutionally prohibited from complying. "It might well be deemed an
unconstitutional exercise ... to insist that the states are bound to provide means to carry into
effect the duties of the national government, nowhere delegated or intrusted [sic] to them by the
Constitution." Prigg v. Pennsylvania, 41 U.S. 539, 541 (1842) (Story, J.).


Judge Hirsch went further by stating that:

The "people" to whom the Tenth Amendment refers include the native-born as well as the
naturalized citizen; the native English speaker as well as the speaker for whom English is a
second, or third, language; the scion of old Yankee stock as well as the newcomer who took the
oath of citizenship yesterday. Miami is not, and has never been, a sanctuary city. But America
is, and has always been, a sanctuary country. As I have written elsewhere, "America, perhaps
more than any other nation, was made great not by its leaders but by its people: by the refugees
who were called to begin life anew; by the pioneers who were called to build a nation; by ‘the
homeless, tempest-tossed’ who were called by the light that shone from the ‘lamp beside the
golden door’." State v. Robaina, 20 Fla. L. Weekly Supp. 406a (Fla. 11th Cir. Ct. 2013) (quoting
Emma Lazarus, "The New Colossus")


With that, Hirsch GRANTED Lacroix's Petition for his Writ of Habaus Corpus.  The Order will undoubtedly be appealed by the County Attorney's Office.  Kudos to Phil Reizenstein and Kristy Kawass for a job well done.

*10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
 
CAPTAIN OUT ......
Captain4Justice@gmail.com






24 comments:

the trialmaster said...

Publicity seeking bottom feeder lawyers. Despite an eloquent opinion from Mr. Justice Hirsch this defendant should be shipped out of the country immediately. He is a clear and present danger as he drives a dangerous instrumentality on our streets with no drivers license, and no insurance. Who pays if he seriously injures someone due to his erratic driving? We, the tax payers. Illegal Immigrants like this defendant need to be deported for our safety. Mr. Justice Hirsch will be reversed on appeal as the issue was moot. Just like he was on declaring the trafficking stature unconstitutional. But he deserves credit for taking on the issue and his well reasoned and creative opinion. Hats off to Mr. Justice Hirsch.

Anonymous said...

Good for Judge Hirsch.

Anonymous said...

There is no better ACADEMIC Judge on the bench than Judge Milton Hirsch. His orders are the finest, most interesting, most intellectual and he follows the law. He is a SCHOLAR of the Constitution. The other judges on the criminal bench know very little compared to him.

The new Judges in the Criminal Division could take lessons on writing orders, knowing the law and being prepared by just sitting in on Judge Hirsch.

Anonymous said...

Withdraw Gorsuch, nominate Hirsch, the true heir to Scalia's legacy.

Anonymous said...

Is there any better evidence that Rumpole is Phil R, than the fact that
the Captain reports on this victory by Phil R? Of course Phil is too classy a guy to toot his own horn even anonymously.

On another note it is really sad that Judge Luck goes to the 3rd while
Judge Hirsch stays in the REG. Defendants need a judge like Hirsch on the
3rd. They don't need another prosecutor on the bench on the 3rd.

Anonymous said...

Maybe Phil is the Captain?

Anonymous said...

Wow! Congratulations to Phil and Kristy and a deep bow of respect to Judge Hirsch for his brillantly written opinion. I agree with 5:42 regarding Luck on the 3rd DCA.

Anonymous said...

There is word that, awed by Mr. Justice Hirsch's well-reasoned opinion, Mayor Gimenez and the top county attorneys are huddling at The REN (a venue) 2.0 in order to find a way to call the Shumie on their detention policy.

Anonymous said...

Does the Miami-Dade Corrections Dept. get no federal funding?

If federal funding is cut off who is going to be asked to pay the shortages from nobody wanting to pay probation costs, GPS monitoring costs, house arrest, boot camp, and all the plethora of programs that KFR's SAO have and that get waived by judges and/or ASAs? Who came up with the "brilliant idea" to give 1-2 years to defendants before they have to start paying court costs instead of having defendants start paying their fines/costs but giving them a year or two with minimum payments?

Anonymous said...

I've always liked Milton and defended him multiple times on this blog, but I will not celebrate his latest opinion. He will be reversed. There's nothing brave about what he did.

As for the comments about his opinions..........yeah, they're fun to read. But, let's get real. The quality of his writing doesn't mean much when he gets reversed as he has been multiple times. His job isn't to be entertaining, rules as he pleases, cut breaks to defendants when he feels like it, or stick his thumb in anyone's eye. It's to follow the law. That's his job..........or have his fans forgotten that? Think of how you all would be reacting if he wrote similarly eloquent opinions hammering defendants. There's nothing courageous in what he's doing. Further, every time he issues one of these improper opinions WE, the taxpayers, suffer the consequences (ie. pay for the unnecessary appeal, reversal, and subsequent litigation).

Hirsch is a smart guy and should be a GREAT judge. And, he's a nice guy to boot. I remain hopeful that he will fulfill his potential and be the judge we all know he can be.

BTDT

Anonymous said...

MIlt has balls. Way to go!

Anonymous said...

The Captain is Mark Eiglarsh. That's no secret.

Anonymous said...

When think of the intellectuals on the bench - in Criminal Court - Judge Milton Hirsch is at the top of the food chain. Next is Judge Martin Zilber and after that is the new Judge Michael Hangman.

Anonymous said...

Hirsch will get reversed AGAIN!

Anonymous said...

So I followed your coverage previously of the trial where Millan's bailiff did something causing a mistrial and Millan recused. I was watching the retrial before Delpino (interesting case with good lawyers) and I see Millan in audience watching trial. Then he proceeds to kibitz with the State for a while even wishing them good luck and then finally has a half hour conference with next of kin in the hall. Weird?

Anonymous said...

I'm with 10:25. Hirsch knows how to write, but why is he always showboating? The case was moot, but he needed to show how smart he is, and tell the Mayor what he thought of his
decision. Don't think the Third will be impressed. But hey, got Hirsch some press.

Anonymous said...

100-------------I wish more judges care as much as Milian. I find absolutely nothing wrong with his approaching anyone, let alone the next of kin, about this case. As you noted, Milian recused himself. So, there's nothing remotely unethical about what he's doing.

But for his bailiff's error, the next of kin wouldn't have to suffer though another trial. It's unfortunate (though not surprising given the current environment) that anyone would criticize Milian's compassion for the family or desire to see justice done.

BTDT

Anonymous said...

Hirsch wrote when he did because, as anybody who knows anything about constitutional law knows, issues that would be lost be being mooted can be preserved for ruling an appeal. Next, I do not see why folks think this will be reversed or that a reversal would be good law. He may be reversed, but doesn't the suggestion that someone be held not based upon a law or a court order but rather just a "request for detainer" creates constitutional issues.
As to his crimes, as an illegal immigrant, he cannot get a driver's license. And, the suggestion that driving is a privilege and not a right is simply ludicrous.

Anonymous said...

309.............No reason to be so condescending, particularly since you're wrong. Generally speaking, an alien can be detained during the period necessary for removal proceedings (I know there were other issues in the case, but this seems to address the one you focused on). See Demore v. Kim, 538 U.S. 510 (2003) and Jean v. Nelson, 105 S.Ct. 2992 (1985), among a slew of other cases. Further, there's no question that driving is a privilege. See Thornhill v. Kirkman, 62 So. 2d 740 (Fla. 1953) and Smith v. City of Gainesville, 93 So. 2d 105 (Fla. 1957). Have a nice day.

BTDT

Anonymous said...

How long will it take for Kevin Emas and Leslie Rothenberg to reverse Milton on this one?

Have you folks seen some of the Supreme Court of Florida opinions reversing the 3rd DCA? It's as if no law could ever be construed in favor of a criminal defendant in the 3rd.

Recently the Supreme Court had to reverse our wonderful 3rd for ruling that the fellow officer rule means that you can simply assume what the other officer knows to form PC for an arrest. State v. Luis Montes-Valeton, DCA3D12-2063. Sure enough, Kevin and Leslie screwing defendants again.

So, go read Montes at the Fla. Supreme Court: 14-1672. Now, one cop has to actually communicate with the other about the PC before an arrest can be made.

Anonymous said...

Millan not Milian goof.

Anonymous said...

You got it wrong idiot. Millan not Milian. Milian would never do what this sad excuse for a Judge apparently did. Millan should stay miles away from that trial if what this blog posted previously is true. Sorry to say that Millan is as dumb as a bag of rocks and that can be very dangerous when someone is a judge-and I like the guy.

Anonymous said...

4:39. How white of you. The comment was sarcastic as almost everyone views a driver's license as an essential right, with the existing law preserved to increase the number of felons who cannot get jobs or housing. Must be a Trump person.

Anonymous said...

1018, 1059, and 143..........classic responses by those know they can't beat an argument on its merits. Hammer the lawyer, call him names, play the race card, etc. Nice.

BTDT