Entries Tagged '5th Amendment' ↓

Mask Mandates are NOT a 1st Amendment issue, they are a 4th Amendment issue

I often scratch my head by how little our state legislature and governor know about the US Constitution;

Governments in South Dakota, across the country and the world used mask mandates and business restrictions to slow the spread of the COVID-19 pandemic.

Some lawmakers, though, say those mitigation efforts don’t jive with the First Amendment of the U.S. Constitution. And now a bill making its way through the legislature would narrow the scope of when cities, counties and townships can make people wear masks or force businesses to close in the name of public health.

It is NOT a 1st Amendment issue, it has to do with trespassing and property rights which is covered under the 4th 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 5th and 14th could also apply. But I have often said that mask mandates in general are moot because the US Constitution already protects business owners from trespassers. If you have a sign on the front door of your business that says you must wear a mask and you refuse, that business can call the police and you can be prosecuted for trespassing. Those laws already exist.

I would argue that any municipal government can implement a mask mandate as long as that mandate is about private business and private property and within their 4th Amendment rights (in other words private businesses and even churches could ignore the mandate).

The 1st Amendment argument holds no water because as we saw with Trump’s Twitter ban, private business CAN limit your speech on their premises, platforms or property.

Where I would side on the 1st Amendment argument is that it would be unconstitutional for government to mandate mask wearing on their (your taxpayer funded) property.

Once again the statehouse is filling their short session with foolishness.

When will investigators ever learn?

I have heard many stories from friends and including myself when I was arrested about how investigators/officers try to get around that pesky 5th Amendment;

Zell says Rasmussen did not have access to her lawyer, despite asking for one half-way through the interview.

It goes back to a lot of investigators NOT having criminal law or regular law degrees, just a piece of paper that says they went through the police academy or served in the military. While we are always focusing on the ‘number’ of officers in Sioux Falls, we should instead be focusing on the ‘quality’ of officers. Hire people that understand criminal justice, or at least the 5th Amendment.

I wonder if ‘1984’ is required reading for SF school district students?

It seems administrators have read the classic many times, and are using it for a policy handbook;

The local teachers union opposes a proposed policy that would allow Sioux Falls School District administrators to search employees’ private cell phones, purses and vehicles for suspected violations of district policy.

A school law expert from Ohio said the policy “certainly breaks new ground” and could open the district up to a lawsuit.

COULD?! This is a lawsuit waiting to happen.

But if challenged in court, a judge considering whether the search was appropriate would balance the employee’s Fourth Amendment rights against those of the district.

And don’t forget about the 1st and 5th amendments. I can’t believe the district is even considering this policy, oh, that’s right, administrators and board members allow lawyers to make all their decisions for them, very ignorant lawyers.

Is Stormland’s Don Jorgensen becoming the Queen of irrelevant news?

Hi. I’m Don. Besides using Just for Men hair color, I chase very slow ambulances in my free time.

I read and watched this story, and wondered what it had to do with the price of rice in China. NOT A FUCKING THING. It’s not like either one of these guys ran a stop sign and killed an out-of-state biker. I speed! Daily! We all probably do it w/o realizing it. Speed limits are silly. Speed limits should be determined on how safe of a driver you are, that’s it. If this is the best thing you can come up with on these two yahoos, this is going to be a long road to November.


Oh, but it gets better, Noem is a little Jankolette. Like I said above, speeding is one of those silly crimes, it seems Noem thinks it is so silly, she doesn’t have to pay the fines;

Noem also has six court notices for failure to appear and two arrest warrants.

While I will stand by my original post, I will also say, if you are breaking the law you should at least show up in court to defend why you were breaking or NOT breaking the law, especially if you are running for office. This really is a no-brainer. Does Noem understand how the 5th amendment works? Those teabaggers really don’t get how the constitution works, do they?

Gotta hand it to Steffy, she grabbed this opportunity to make a point out of it;

“Elected officials need to have respect for the laws that are made for all of us as citizens. You need to be accountable and need to take responsibilities for your actions and set the highest standards,” Herseth Sandlin said.

So do we call Kristi ‘Little Janks’ Noem now?


And it looks like spin doctors one & two are at it again. Like normal Republicans, blaming everyone else for their problems. Hey guys, this isn’t about speeding or even gay sex in a Minneapolis Airport bathroom, who cares, wide stances aside. It is about not understanding the 5th Amendment. If Kristi thinks she is innocent, why not show up to court and prove the innocence? Or is Lil’ Janks farm subsidy welfare queen to good for that? Or was she late for her hair and tanning appointment? Or her Rodeo queen belt buckle polishing appointment? Or her cowboy boot polishing appointment? Or her Castlewood millionaire club appointment?

Or even better yet pay the fines? Why don’t you get your crack legal team on this one? While chasing down politicians speeding ticket records is pretty fucking pathetic, not understanding the 5th amendment is even more pathetic. This is the real story, and hopefully someone from the 4th estate will figure that out.

The City of Sioux Falls decides to appeal the code enforcement decision?

Rumor has it the city will appeal to the SD Supreme Court in Dan Daily’s case against the city. Apparently they think they are more powerful then the US Constitution’s 5th amendment and due process rights.

What a waste of taxpayer dollars.

Fix your broken system and move on already.

Will Mayor Huether’s code enforcement rampage backfire on him?

It now is no secret that Mayor Huether is ramping up code violations, not only on complaint basis but it seems proactively. He has pronounced it himself in the media and city employees and private citizens said they have seen the effects already. But won’t this all backfire on him and the city financially if they don’t fix the code enforcement mess?

I wrote a negative red-light camera letter to the Argus Leader almost four years ago. Former Sioux Falls Mayor Dave Munson sent a tough-guy code enforcer on a vendetta against me. It took four citations, four city hearings, four years of litigation, four circuit court dates and $40,000 in legal expenses to exonerate myself. In the process, I showed home rule charter is not democracy.

Mr. Daily sent me the original – unedited version of the letter . . . oh the Gargoyle Leader and their editing pen.

Traffic Camera Case

I wrote a negative traffic camera letter to the Argus some 4 years ago.  Munson sent out the tough guy code enforcer vendetta.  It took 4 citations, 4 city hearings, 4 years of litigation, 4 circuit court dates, and $40,000 in legal expense to exonerate myself.  In the process, I showed Home Rule Charter is not democracy.  Present city procedure ignores the South Dakota Civil Procedures Act and 2 amendments to the U.S. Constitution.

For the camera case, Circuit Court interpreted and applied the law.  The class should be compensated for illegal citations and litigation.  There should be punitive damages.  My situation (above) was 4’s and I suggest a $4 million judgment.   The city plans 10 more cameras.  This case should first go into state court to answer constitutional questions and evaluate city civil procedures.  The assistant city attorney has violated citizen’s rights in city hearings and obstructed justice in circuit court cases.  He represented an unfounded and improperly noticed ethics complaint against a city councilor in order to influence an election. There should be a state Supreme Court ethics hearing and reprimand. The city turned off the camera and, after ignoring 3 prior court orders, finally complied with one.

If the mayor will not repeal home rule or if state court doesn’t revoke it, I suggest a new mayor and term expired council members in 2014 who advocate:


Munson oligarchy became tyranny then a full blown dictatorship.  The mayor makes all decisions such as policy, budget, tax increases, and non-competitive bidding.  The city council has become puppets meant to mimic democracy.  At one time, during Munson, Home Rule Charter could have been amended into a viable concept.  Considering misapplications and citizen torment, it should now be abandoned.  Then, city administration can be welcomed back.  If they apply and can answer a few constitutional questions, they can be reinstated as U.S. citizens.

Daniel R. Daily, Citizen and Constitutional Plaintiff

About F’ing time! Justice prevails!

The cameras have been shut down and now if we can dismantle our unconstitutional code enforcement system things my start getting better;

At 2:30 p.m., Police Chief Doug Barthel announced that the automated system would be shut down indefinitely while the city awaits a final ruling in a 2006 lawsuit filed by Sioux Falls businessman I.L. Wiedermann.

This is a MASSIVE constitutional victory for the citizens of SF. Remember, this isn’t about running red lights and safety, this is about due process and your rights. You should be able to face your accuser in a court of law.

While I.L. Wiedermann is a little rough around the edges, I have defended him before, a week after he almost got thrown out of a council meeting, I showed up to the meeting and chastised the mayor about first amendment rights and told him and the council if they can’t take criticism they should resign. When I sat down, a plain clothes PO hovered over me, I turned around and gave him a dirty look, and he walked off. I.L. and Dan Daily have sacrificed a lot for our rights, and they deserve a big ‘Thank You’. Whether you agree or not, the US Constitution is there to protect you from big brother.

Get your Repeal Home Rule T-Shirts FREE!

Home Rule T-shirts (100) wil be distributed free in Sioux Falls tomorrow (Thursday, July 1) between noon and 2PM at the city hall street corner (224 W. 9th).  They’re red-white-blue and in XL only.  Please wear them at city 4th of July events if you support 5th Amendment and SD Civil Procedures constitutional guarrantees Sioux Falls citizens are denied.

Another 10,000 will be perfected and sold on Ebay.  They’ll be $10 + SH for US residents (except South Dakota, free plus shipping & handling).  Proceeds go to Daily VS. City of Sioux Falls (Civ. 08-2478) legal expenses and state supreme court appeal.  Imperfect shirts will be distributed to homeless in Sioux Falls.

UPDATE: Daily vs. Sioux Falls

The city has until July 1 when a 30 day right to appeal into State Supreme court kicks in.  They’re now represented by private council.  It’s a firm specializing in insurance litigation.  They’ve lost 2 lawsuits and are finding it hard to get/keep liability insurance.

Daily’s attorney has removed himself and the best appeals lawyer in the state has taken the case ‘Pro Bono’.  Mr. Dorothy still works as evidence assembler.  He rounded up new council from his contacts when he worked at the States Attorney’s Office in Pierre.  USD Law School is involved.  They’re doing ‘Pro Bono’ research.

It kinda sounds like if the city decides to appeal Caldwell’s decision they could be up shit creek without a paddle. Good thing they are raising the levees.

I have some required reading for the SF city council

“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 offense 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.”

This is the Fifth Amendment of the US Constitution, something that apparently some members of the SF city council are not aware of, even though they put their hand on a bible and swore to uphold it while taking the oath of office, but hey, details, details, details. Who needs the US Constitution when we can be safe?

“It’s unfortunate that the way it’s set up is in question, but I don’t think there’s any doubt that the corner is safer than it was before” said Council Member Vernon Brown. “It has saved lives.”

What was that famous quote by Benjamin Franklin?

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

And it rings true today. There are many things you can do in that intersection to make it SAFE and CONSTITUTIONAL. Something that should have been done from the beginning is to allow DRIVERS to fight their accuser in a court of law.

At least Bob the Builder gets it;

“I’ve long suspected we were over-stepping our bounds a little bit,” Litz said. “It was only a matter of time.”

And Greggo seems to be confused about the role of the Supreme Court;

Council Member Greg Jamison hopes the South Dakota Supreme Court can reverse the decision, but the city will have to live with the results if that doesn’t happen.

Good luck with that. Last I checked it was the SC’s job to uphold the US Constitution and State Law. Better start living with those results.

New City Council Member Michelle Erpenbach is more concerned about safety than dollars, however. She just hopes the city can continue to use the cameras.

“Maybe we’re not doing things exactly right, but if it needs to be tweaked in some way, we’d better do it,” she said.

Damn right you should be concerned about safety. Trampling citizens rights has always proven to be quite UNSAFE. The city council’s lack of constitutional knowledge makes me worry about my own safety.