Supreme Court to Rule on Police Shooting Case: Excessive Force and Qualified Immunity

Imagine waking up to your front door opening and being shot multiple times, then finding out the individuals who shot you are protected by qualified immunity. In October 2010, the Mendezes were taking an afternoon nap when they awoke to the sound of their front door opening, followed by the piercing blasts of fifteen gunshots. Five bullets punctured Mr. Mendez’s body, leading to the amputation of his lower left leg. His pregnant girlfriend, now wife, Jennifer, was shot once and a second bullet grazed her hand. On the other side of those bullets stood two Los Angeles County Sheriff’s Department deputies. The deputies were on the property aiding in the search of a wanted parolee.

In the darkness of the room, the deputy saw a silhouette of a man with what he believed to be a rifle, and yelled, “gun!” The “rifle” was actually a BB gun used to kill pests. This is not a completely novel occurrence, and such incidents usually result in officers being individually protected from suit by qualified immunity. Yet this case is different because the District Court for the Central District of California and the Ninth Circuit Court of Appeals held the two deputies individually liable under the Ninth Circuit’s “Provocation Rule.” On March 22, 2017, the Supreme Court heard oral arguments in County of Los Angeles v. Mendez, a case that has the potential to provide clarity on the issue of excessive force claims protected by qualified immunity.

“The Provocation Rule establishes that law enforcement officers are entitled to qualified immunity from damages, unless the officer intentionally or recklessly provokes a violent confrontation. If the provocation is an independent Fourth Amendment violation, officers may be held liable for their otherwise defensive use of deadly force.”

Although the home in this case might appear unconventional, it was where the Mendezes lived for ten months. Their home is referred to as a wooden “shack” in briefs, but even so, the Fourth Amendment protects “shacks.” The Mendezes filed suit against the deputies under 42 U.S.C. § 1983, alleging their Fourth Amendment rights had been violated by an unreasonable search and seizure. The district court held the deputies’ warrantless entry into the shack was a search within the Fourth Amendment and it was not justified by any exigent circumstances or any exceptions to the warrant requirement. The district court also held that the deputies violated the Fourth Amendment knock-and-announce rule by staying silent when they opened the door.

The district court decided that the deputies’ shooting was not excessive force under Graham v. Connor, however, the court awarded damages under the Ninth Circuit’s Provocation Rule. The Provocation Rule establishes that law enforcement officers are entitled to qualified immunity from damages, unless the officer intentionally or recklessly provokes a violent confrontation. If the provocation is an independent Fourth Amendment violation, officers may be held liable for their otherwise defensive use of deadly force. The district court concluded that the deputies’ shooting the Mendezes was not excessive force because their mistaken fear upon seeing the BB gun and reacting was objectively reasonable. However, the deputies were held individually liable because of the prior Fourth Amendment violation and awarded the Mendezes roughly $4 million in damages for the shooting, nominal damages of $1 each for the unreasonable search and the knock-and-announce violation, and attorneys’ fees.

The Ninth Circuit agreed and held the deputies violated clearly established Fourth Amendment law by entering the wooden shack without a warrant. The deputies argued that the reaction from Mr. Mendez with the BB gun was not a violent confrontation because he was simply moving it, thus the rule did not apply. The Ninth Circuit held the Provocation Rule only required that the deputies’ unconstitutional actions created the situation, which led to the shooting and required the deputies to use force that might have otherwise been reasonable.

The Supreme Court granted certiorari and heard oral arguments on two issues, one of those issues was whether the Ninth Circuit’s “Provocation Rule” should be barred because it potentially conflicts with current case law.

In Graham, the Supreme Court held an objectively reasonable standard applies when analyzing the facts and circumstances of excessive force claims such as this. The reasonableness standard is based on the perspective of a reasonable officer on the scene rather than applying 20/20 hindsight or looking at any underlying motivation. The Court reasoned that the “reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”

In a more recent case, Scott v. Harris, the Supreme Court applied the same objective reasonableness standard, but also looked at the series of events that lead to the force applied by the officer. The Court analyzed the actions of the injured party and held his behavior caused the officer to employ the high level of force, thus the Court found the officers’ actions were reasonable under the circumstances.

Currently, a circuit split exists regarding the Ninth Circuit’s Provocation Rule. The deputies argue that Graham applies and that officers need to be free to make split-second choices to respond to threats of force without stopping to replay their prior actions and evaluate whether someone might later accuse them of provoking the situation. Although this is true, some argue that officers should also be required to follow the Constitution in the first place and held liable if they cause the force to be used. The holding in Scott supports this type of analysis. While Graham allows for qualified immunity by looking to what an objectively reasonable officer would do in the situation, the Mendezes propose that Scott also be applied for a totality of the circumstances approach.

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The Proposed “Mendez Test”

The Mendezes propose that the Supreme Court not adopt the Ninth Circuit’s Provocation Rule, but instead adopt a new rule regarding excessive force and qualified immunity. The Mendezes propose that when courts are resolving excessive force claims, that “courts may entertain a claim that police action foreseeably created the need for the use of force against a claimant and should apply to the police action the general standard of reasonableness established by Graham and Scott.

“The Mendezes argue that by applying both cases, consideration would also be given to the ‘relative culpability’ of the various actors involved and all issues would be evaluated from the perspective of ‘a reasonable officer on the scene.'”

Under Graham, to decide if the prior police action was reasonable “a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake” is required. The Mendezes argue that by applying both cases, consideration would also be given to the “relative culpability” of the various actors involved and all issues would be evaluated from the perspective of “a reasonable officer on the scene.” The proposed test differs from the Provocation Rule because it requires “objectively unreasonable conduct instead of an independent constitutional violation.”

Here, the lower courts recognized that when the deputies saw the BB gun, their use of force was reasonable and not excessive. However, the deputies being there without a warrant and not announcing their presence was not reasonable. The deputies ultimately caused the situation and its escalation, and they knew they did not have a search warrant. Furthermore, Mr. Mendez would have been justified and not liable for shooting the deputy under California Penal Code § 198.5, a California law that allows an individual to use force to protect his or her own home and which many states also have on their books.

How can both parties shoot one another and not be held liable? This is exactly what the Supreme Court can clear up by applying and implementing the proposed Mendez test. Police should not have to run through a checklist while dealing with an emergency situation, however that is why exceptions to the warrant requirement exist. This law would allow for innocent individuals to seek redress when officers so blatantly violate the Fourth Amendment and it leads to irreparable harm, and would hold officers individually liable for their actions.

The argument against the Provocation Rule is that officers will be held personally liable if they commit even the slightest Fourth Amendment violation and that officers won’t be able to make the quick decisions that are often necessary. Another argument originates from the reason that qualified immunity exists in the first place. Qualified immunity protects government actors from individual liability in lawsuits without having to go through trial. It holds officers accountable when they act irresponsibly, but it also protects officers from lawsuits while acting reasonably. The Provocation Rule is at odds with qualified immunity in this case because here the officers were acting reasonably when they opened fire, however they did not act reasonably when looking at all of the facts in their entirety. The deputies put themselves in the situation, which lead to the unnecessary shooting of two innocent individuals. The deputies caused the shooting by not having a warrant or announcing their presence. This should be taken into consideration and qualified immunity should not protect those who fall into this category.

If the Supreme Court does not adopt the Mendez test, or uphold the Provocation Rule, the deputies in this case and others in the future will not be held individually responsible for their violations of the Fourth Amendment. However, if the Court wants to change the way officers enforce the Constitution, it should adopt the Mendez test to deter police officers from violating the Constitution and hiding behind qualified immunity.

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California Supreme Court May Allow The Censoring Of Consumers’ Online Reviews

Forums such as Yelp, TripAdvisor, Amazon, Facebook, and Twitter, provide consumers with the opportunity to voice their opinions by detailing their experiences as patrons of various restaurants and other local businesses.  The reviews of prior consumers can weigh heavily when potential consumers decide whether they want to support a particular business or not.

The use of social media to leave reviews creates a medium in which “word of mouth” can reach many more individuals who are in search of a specific product or service that can meet their needs.  The accessibility of these forums reaching vast numbers of consumers lead to both positive and negative effects.  For consumers, the ability to read about others’ good, bad, and neutral experiences can help them determine if the particular business is a right fit for them.  For business owners, both positive and negative reviews can indicate to a business what consumers appreciate and also what the business should be doing in order to improve its interactions with consumers.

However, one of the main problems with online reviews occurs when consumers share false negative reviews of a business.  Recently, California Courts have been presented with legal issues arising from the use of online forums, specifically, whether courts have the power to force any specific forum to take down a defamatory review.  Furthermore, courts must address whether any infringement on a consumer’s First Amendment right to free speech arises if a negative review is declared defamatory.

For instance, recently, a California law firm alleged that a past client fraudulently posted false negative Yelp reviews about her experience with their law firm.  Due to the influence of Yelp reviews on a businesses’ reputation, the law firm requested that the former client take down her negative reviews.  The former client refused and the law firm sued the former client for defamation in state court, seeking help from the courts in ensuring its name would not be tarnished.  This case between the law firm and its former client is Hassell v. Bird, and it has made its way all the way up to the California Supreme Court.

Currently, the California Supreme Court is deciding whether to let the Court of Appeals decision stand or whether the Court will issue its own decision.  On September 29, 2014, the Superior Court declared, which then on June 7, 2016 the Court of Appeals affirmed with an opinion written by Justice Ruvolo, that the reviews of the former client were indeed defamatory.  Although Yelp was not a party to the suit, the opinion ordered Yelp to step in to remove these negative false reviews.  The Court explained that since Yelp is an “administrator of the forum” where the negative reviews are found, Yelp is responsible for removing the defamatory speech.

The counsel for Yelp is optimistic that the California Supreme Court has decided to hear its case because it has given Yelp an opportunity to demonstrate how this decision will have an detrimental effect by “restrict[ing] the ability of websites to provide a balanced spectrum of views online.”  Yelp’s counsel and other community members argue that this judicial decision will restrict a consumers’ First Amendment right to free speech.  On the other hand, the law firm’s counsel, San Francisco lawyer Monique Olivier, strongly asserts that these false negative reviews, if considered defamatory, are not protected by the First Amendment, and therefore there is no infringement on a consumers’ right to free speech.  Presently, the California Supreme Court has not decided the matter and the parties in Hassell are awaiting a decision as to whether the higher court will hear their case.

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Main Issue Addressed by the Courts

The main issue presented before the California Supreme Court is whether an online publisher has a right to notice and the opportunity to be heard before a trial court orders removal of online content.

In Yelp’s Opening Brief on the Merits, Yelp argues that the Court of Appeals decision should be overturned mainly because the court did not provide Yelp with proper due process protections by not taking into account Supreme Court authority that requires notice and the opportunity to be heard when it relates to orders restraining the distribution of speech.  Yelp argues that the Court of Appeals decision was extremely flawed because they created an avenue for courts to easily apply injunctions to non-parties, even without any inquiry into factual accounts of misconduct.  Specifically, Yelp asserts that now anyone who seeks the judicial system to help provide relief to a case regarding defamation, can forum shop in California and “circumvent due process rights” in this state.

Yelp provides that as a publisher of third-party authorized speech, its First Amendment right to control its own website was violated by this decision.  Furthermore, due to this decision, businesses now have an effective tool in removing unflattering commentary whereas online entities like Yelp are denied their right to exercise editorial control in publishing consumer reviews.  Overall, Yelp urges the California Supreme Court to reverse the Court of Appeals’ decision because this case provides an opportunity to abuse the court system in order to stifle speech on the Internet.

In Hassell’s Answering Brief on the Merits, Hassell argues that invoking the First Amendment, the Due Process clause, and the federal Communications Decency Act will not help Yelp escape a court order preventing them from republishing postings that have been judicially determined as defamatory.  Hassell cites to both cases from the U.S. Supreme Court and the California Supreme Court, who have consistently held that defamatory speech falls outside of the scope of First Amendment protections.  For example, U.S. Supreme Court cases, Ashcroft v. Free Speech Coalition and Keeton v. Hustler Magazine, Inc.; and Balboa Island Village Inn, Inc. v. Lemen, a California Supreme Court case, all demonstrate that false statements are not protected from any constitutional provision because they harm both the subject of the false statements and the readers of the statement.

Overall, Hassell declares that the same prohibition against speakers to create defamatory speech should apply to anyone, like Yelp, who is distributing defamatory speech.  Hassell argues that she tried to resolve this matter out of court with both Yelp and Bird, but since she was unsuccessful to coming to a reasonable agreement, she sought the relief that she is rightfully entitled to from the court.

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Potential Lasting Effects on Online Forums 

Any action the California Supreme Court takes will have a lasting effect on the limitations of free speech online.  If the California Supreme Court determines that forum administrators, like Yelp, bear the responsibility of monitoring whether a consumer has posted a negative false review that is considered defamatory, businesses can easily have reviews removed by the forum administrator if they believe that the review is offensive and inaccurate.

Anytime there is a negative review that a business believes is defamatory, the business can just go to court in order to receive a declaration telling the forum administrator to delete the personal reviews made by consumers.

Although this decision helps those who want to protect their businesses from false negative reviews, the decision may also create infringements on consumers’ freedom of expression because there is a possibility that their accurate descriptions of their experiences can be declared defamatory and censored by a court.

The restriction of past consumers to freely express their negative opinions of a business can also have an effect on future consumers, because future consumers may be attracted to a business who did something to improve its consumer experience.  Also, without seeing constructive criticism from consumers, businesses will not know how to become better or have an incentive to change.  An honest review is an important asset to a business because it can encourage more foot traffic or it can provide the business with an opportunity to better cater to its consumers.  Although it is unknown how the California Supreme Court will rule, it is likely that this decision will have a lasting effect on how consumers use social media and online forums to review their experiences.

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Image by Steve Rhodes (via Flickr.com/photos/ari/2131987021)

Abortion Rights: “ash heap of history” or Surviving the Smoke?

One day after Donald Trump officially became the 45th President of the United States, millions of people across the world marched in solidarity with the 500,000 who protested in the nation’s capital. The Women’s March on Washington, brought those of different genders, ethnicities, religions, and circumstance to send, what Planned Parenthood Federation of America President, Cecile Richards, called “a strong message to the incoming administration that millions of people across this country are prepared to fight attacks on reproductive healthcare.”

“the ash heap of history.”

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While the Inauguration has had the effect of stoking the fire for a resistance, one of Donald Trump’s first acts as President was aimed at crippling the very right the Women’s March on Washington aimed to protect. In an Executive Order, the 45th President moved to revive a federal ban eliminating U.S. funding for international health organizations who counsel women on reproductive health, including abortion. With Republicans now controlling the Executive and Legislative Branches of the United States Government, access to legal abortion faces the threat of being placed on, according to Vice President Mike Pence, “the ash heap of history.”

On January 31, 2017, President Trump announced 10th Circuit Court of Appeals Judge, Neil Gorsuch, as his Supreme Court nominee. Following the death of Supreme Court Justice, Antonin Scalia, on February 13, 2016, the highest court has not been complete. Senate Republicans have since refused to hold a hearing for President Obama’s nominee. This nominee appointment gave Trump an enormous role in shaping the composition of the Supreme Court. Judge Gorsuch was a traditional pick many Republicans support, however, the main question is whether Gorsuch’s stance on reproductive health care will bring a negative spark, marking the promised destruction of modern day abortion rights.

The Appointments Clause of Article II vests the power to appoint Supreme Court Justices in the Executive Branch and the President. Article II also subjects the President’s nominee to a confirmation by the United States Senate. Following the Senate’s refusal to hold a hearing for President Obama’s nominee, House Speaker, Paul Ryan, said, “Under our Constitution, the president has every right to make this nomination, and the Senate has every right not to confirm a nominee.”

The Supreme Court Justices act as legal protectors of the United States Constitution. In the landmark1803 case of Marbury v. Madison, the Court declared it “emphatically the province and duty of the judicial department to say what the law is.” The Constitution allows justices to “hold their Offices during good Behaviour…” which is interpreted to mean until death, retirement or impeachment for bad “Behaviour.” Although the two other branches of government limit the power of the Supreme Court, a potentially unlimited term gives a Justice power in shaping the laws and future of America.

One social issue the Supreme Court has protected is a woman’s right to a legal abortion. In 1973, the Court expressly declared, in Roe v. Wade, access to legal abortion is safeguarded through the due process clause of the Fourteenth Amendment, giving emphasis to the concept of “substantive due process.” Both the Fifth and Fourteenth Amendments to the Constitution of the United States emphasize no person shall be deprived of “life, liberty, and property, without due process of law.” This concept, analyzed in Roe, examines the question of whether the government’s deprivation of a woman’s “liberty” was justified by a necessary purpose. In a 7-2 decision, the Court found a woman’s right to choose was shielded as a fundamental right under the Fourteenth Amendment through this idea of “liberty.” This gave women autonomy over the pregnancy during the first trimester, preventing any state interference until the second and third trimesters.

The Court’s standard to defend a woman’s right to an abortion, has been further restricted in recent years. Planned Parenthood v. Casey, in 1992, established a State’s ability to make laws restricting pre-viability abortions. The new test allowed restrictions to be placed on first trimester abortions, as long as the restrictions do not place an “undue burden” on women seeking the abortion. The Court’s “undue burden test” generated doubt on whether a woman’s right to an abortion was a fundamental right, which should be held to the highest level of scrutiny. These questions were answered on June 27, 2016 with the Supreme Court’s opinion in Whole Woman’s Health v. Hellerstedt. The 5-3 majority opinion upheld the “undue burden” standard and affirmed abortion is a fundamental right.

The possibility of further restrictions of abortion rights smolder on the horizon, but currently remain at bay.  After Whole Woman’s Health, a Trump appointed nominee will likely swing the Court toward a 5-4 majority in favor of upholding current abortion law. Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan voted to reaffirm Casey’s “undue burden” standard safeguarding a woman’s fundamental right to an abortion. Thomas, Alito, and Roberts were the three Justices to dissent to the opinion. If all the current justices were to remain on the bench until after the next president is elected, the potential threat to abortion rights should remain dormant even if Justice Gorsuch were to side with the dissent.

Specifically, the confirmation of Trump’s nominee creates a right leaning court with moderate conservative Justice, Anthony Kennedy, remaining the swing vote on the issue of abortion. While Kennedy indicated an intention to protect the “undue burden test” by siding with the majority in Whole Woman’s Health, Kennedy’s opinion in a 2007 abortion case suggests personal conflict on the issue. In Gonzales v. Carhart, the Court upheld a congressional ban on “partial-birth abortion.” Kennedy’s opinion suggests he was bothered by the lack of dignity in this procedure. In upholding the ban, Carhart affirmed States have some responsibility toward unborn children and in these rare instances the rights of the unborn overshadow the life of the mother. Kennedy also referenced his belief women may regret their choice stating, “[w]hile we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

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“Trump could establish a relatively young 7-2 conservative court.”

Justice Gorsuch is the first Trump nominee appointed, but with three of the Court’s senior members continuing to age, there remains uncertainty whether he will be his last. If Justice Ginsburg (83), Justice Breyer (78), and Justice Kennedy (80) decide to step down or their health were to fail, Trump could establish a relatively young 7-2 conservative court. In this scenario, the safety net protecting abortion rights is likely to become engulfed in flames.  Especially after Trump publically pledged to appoint justices who would overturn Roe v. Wade and stated “some form of punishment” is necessary for women who have an abortion.

Donald Trump’s appointment of Justice Gorsuch, could also mean a shift in majority regarding reproductive rights. Justice Gorsuch has an impressive legal resume, clerking for two Supreme Court justices, White and Kennedy. A self-described Originalist, Gorsuch is known in the legal profession for his textual analysis in his opinions. Gorsuch told law students at Case Western Reserve University School of Law, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” In the controversial Burwell v. Hobby Lobby case in 2013, Gorsuch penned a concurring opinion stating a mandate for employers to provide contraception coverage under the Affordable Care Act was a violation of the rights to religious freedom of Christian employers and religious organizations.  Gorsuch has not been required to give an opinion on Roe v. Wade, therefore his stance on abortion is largely unknown.

“Our constitution does not begin with ‘I, the President.’ It begins with, ‘We, the People.’”

Feminist leader, Gloria Steinem, pointed out, “Our constitution does not begin with ‘I, the President.’ It begins with, ‘We, the People.’” Year after year, it seems that “we, the people” favor a growing trend toward “pro-choice” abortion rights. For example, in a 2016 Pew Research Center poll, 56% of people stated abortion should be legal in all or most cases, while only 41% said it should be illegal. This majority increased from a 2015 Gallup poll with only 50% identifying as “pro-choice” and 44% identifying as “pro-life.” As our country moves forward with a new conservative President and Legislature, the issue to keep an eye on is the threat to a woman’s fundamental right to choose. Only time will tell how imminent this threat really is.

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Image by: Lorie Shaull

Police High-Speed Pursuits: Giving Police the Authority to Intervene Before the Public is Harmed

Police Pursuits. The idea brings to mind thoughts of bank robbers fleeing from the police after committing a daring heist, only to be pursued by inept cops that wind up crashing into each other as the robbers drive away in perfect Hollywood fashion. However, police pursuits are rarely as glamorous and thrilling. In reality, they are terrifying and dangerous. In fact, according to the National Highway Traffic Safety Administration (NHTSA) more than 5,000 bystanders or passengers have been killed in police pursuits since 1979

In recent years there has been a call for police departments to limit their pursuit of fleeing suspects. A simple google search reveals the continuous calls for police to stop pursuing suspects unless they are considered dangerous or committed known violent felonies. For instance, in Jackson, Mississippi, Councilman Kenneth Stokes, in reference to police pursuits coming into his ward, went as far to suggest to the local population “[l]et’s get rocks, let’s get bricks and let’s get bottles and start throwing them and then [police] won’t come in here anymore.” Similarly, in Washington D.C., Charlie Viverette’s mother claimed police should not have been chasing the suspect that hit her son, killing him. Like Charlie Viverette’s mother, many wish to place the blame for such injuries at the feet of the police rather than the fleeing suspect. In those cases, where the police due pursue a suspect and the pursuit ends with the suspect injured or killed, the police not only face criticism from the public, but the department and the individual officers involved become the subject of a civil rights lawsuit.

TRADITIONAL POLICE METHODS USED TO END HIGH SPEED PURSUITS

In attempting to terminate a police pursuit there are a variety of tactics an officer may use. Officers may attempt to “box” a vehicle in by placing cruisers around the suspect’s vehicle and gradually slowing their own speed, forcing the driver to stop. Other methods include using spike stops or the most notable precision immobilization technique, also known as the “PIT maneuver.” During a PIT maneuver, the pursuing officer uses their front push bumper to strike a fleeing vehicles rear quarter panel/bumper of the vehicle, causing the vehicle to spin and end the pursuit. While these are the most common methods, they are not the only methods to end a pursuit.  Each of these methods can involve a high degree of danger for the pursuing officers, the public and the fleeing suspect, as evident by this video, where a fleeing suspect crashes into a police cruiser while trying to avoid spike strips.

CASE LAW PROTECTING POLICE USE OF FORCE DURING HIGH SPEED PURSUITS

The Supreme Court has addressed the issue of use of force in the context of police pursuits only four times. Two of their decisions dealt with vehicles attempting to flee a scene while officers were nearby. The other two, discussed below, addressed the police use of force during the actual high speed pursuit. In each case, the Supreme Court found that either the officer involved did not violate the Fourth Amendment or was entitled to qualified immunity under 42 U.S.C section 1983.

The Supreme Court in 2007 first addressed the Fourth Amendment and use of force during a police vehicle pursuit. In Scott v. Harris, an officer was found to not have violated the Fourth Amendment when the officer rammed a fleeing suspect off the road. Harris was rendered a quadriplegic after leading the police on a six-minute chase that ended when Scott used the push bumper of his cruiser to ram Harris’ vehicle, causing it to veer off into a ditch. The Court held that Scott did not violate the Fourth Amendment because Harris was an actual and imminent threat to the lives of any pedestrians who might have been present, other civilian motorists and the officers involved in the chase.

Harris argued that police should have ceased the pursuit instead of ramming his vehicle, and by ceasing the pursuit the public would have been equally protected. The Court refused to adopt a rule that would give incentives for suspects to escape simply by speeding, running red lights, and endangering the public. Rather, the Court adopted the more sensible rule that “police officer’s attempt to terminate a dangerous high speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

The Supreme Court’s second decision involving police pursuits came just last year in November 2015, with the case of Mullenix v. Luna. On March 23, 2010, Israel Leija Jr., lead police on high speed pursuit. During the 18-minute chase, Leija and the pursuing officers reached speeds between 85 and 110 miles per hour. Leija phoned the local police dispatcher while fleeing and told them he had a gun and threatened to shoot at the police if they did not abandon their pursuit. The dispatcher promptly relayed this information to all the officers involved.

While other officers pursued Leija, Trooper Mullenix drove to an overpass intending to set up a spike strip.  Directly below the overpass another officer waited with a spike strip already deployed. Mullenix decided to consider a different tactic, shooting at the vehicle to disable it however, Mullenix was not trained in such a procedure. As Leija’s vehicle approached the overpass, Mullenix fired six shots, striking Leija four times in the upper body. Leija’s vehicle continued under the overpass, struck the spike strips, hit a median, and rolled. Leija was killed in the incident.

Relying on its precedent, the Supreme Court reversed the lower courts finding that Mullenix did not have qualified immunity. Instead, the Supreme Court held that Mullenix was entitled to qualified immunity because his actions did not violate clearly established precedent beyond debate.

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CONCLUSION

While some continue to call for the police to stop pursuing only the most egregious or dangerous felonies in the name of public safety, perhaps it is more appropriate for departments to authorize officers to end high speed pursuits in an expedited manner. A fleeing suspect in a motor vehicle becomes a high speed missile aimed at the nearest unlucky innocent bystander who’s done nothing more than be in the wrong place at the wrong time. In contrast, it is the suspect who has made the decision to flee in a motor vehicle, placing the public in danger. Perhaps this is why the Supreme Court has never found an officer’s actions in a high-speed pursuit to be unreasonable. As Justice Scalia in Scott opined,

“we think it appropriate in this process to take into account…their relative culpability. It was [Harris], after all, who intentionally placed himself and the public in danger…”

By adopting a policy that reflects these case precedents, police officers will have the ability, with the constitutional authority, to end high-speed pursuits quickly before the public can be harmed. Rather than chase a suspect’s vehicle for 11-minutes or blame the police, perhaps it is time that society places the blame at the feet of the individual who made the conscious decision to endanger the public. By allowing the police to quickly intervene, this will reduce a suspect’s ability to crash into innocent motorist or pedestrians. In addition, those cases brought by suspects claiming a violation of the Fourth Amendment for a tactic during a high-speed pursuit that resulted in injury or death to the suspect, trial courts should evaluate each case beginning with a rebuttable presumption that a suspect who flees in a motor vehicle poses a danger to the public and officers. With this presumption, it is evident by Supreme Court precedent that when the police use tactics that include the use of deadly force to stop a high-speed pursuit, the actions by the officers do not violate the Fourth Amendment against unreasonable seizures. By adopting a policy that reflects this precedent, perhaps more innocent lives like Charlie Viverette, can be spared and the culpability of a high-speed pursuit can be placed where it rightfully belongs.

A Long Journey to Secure Permanent Overtime Rights for California Domestic Workers

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Photo Courtesy of the CA Domestic Workers Coalition

California was amongst the first states to regulate long-hours and impose overtime premium pay at the turn of the twentieth century. However, it was not until almost a century later, that the Legislature and Governor recognized that there was no justification to exclude domestic workers from this fundamental protection. On September 12, 2016, Governor Brown signed SB 1015, a bill making overtime rights permanent for more than 300,000 nannies and caregivers for seniors and people with disabilities. For over a decade, domestic workers in California have mobilized a grassroots, worker-led statewide movement for equal treatment under the law.  Golden Gate University School of Law’s Women’s Employment Rights Clinic (WERC) has served as legal counsel to the California Domestic Workers Coalition since 2010 in the Coalition’s effort to extend basic wage and hour protections to domestic workers.

A combination of racism, sexism, and the fear of regulating the home resulted in excluding domestic workers from most legal protections. While other workers gained labor protection at the turn of the twentieth century, domestic workers—by the 1930’s numbering as many as those in “the railroads, coal mines, and automobile industry combined”—were categorically excluded. In 1974, the Fair Labor Standards Act extended minimum wage protections to domestic workers but not to home care companions for the elderly or disabled.  Domestic workers fared no better in state wage and hour coverage. Approximately 18 states gave minimum wage and overtime coverage to some domestic workers. California regulates wage and hour laws by statute as well as by regulations, called Wage Orders, promulgated by the Industrial Welfare Commission. California began regulating domestic work in 1976, when the Industrial Welfare Commission adopted the Household Occupations Wage Order 15.  Domestic workers who cared for property (housecleaners) were given full wage and hour protections but those who cared for human beings were not. The 1976 wage order completely excluded “personal attendants” – childcare providers and caregivers who spent a significant amount of time caring for children, elderly or people with disabilities from coverage. Personal attendants were excluded from wage and hour coverage based on the erroneous belief that these workers were primarily young or elderly persons doing the work to supplement income received from their parents or social security benefits, respectively.

Domestic workers are crucial part of the economic and social fabric of our country.  However, isolated and hidden behind closed doors and mostly unprotected under the law, domestic workers face harsh working conditions. In a California report issued by the National Domestic Workers Alliance, the median hourly wage for nannies is $8.57, for caregivers is $8.69, and for housecleaners is $10.11. The researchers found that sixty percent (60%) of workers were paid an hourly wage at their primary job that is below the level needed to adequately support a family (using a conservative measure of income adequacy). Low wages have resulted in material hardship for domestic workers.  Thirty-five percent (35%) of workers reported that in the past twelve months they were forced to pay their rent or mortgage late and nearly one quarter (23%) reported that in the month prior to the survey there were times when there was no food to eat in their own homes because they had no resources to obtain it. Compounding this problem, twenty-five percent (25%) of domestic workers were paid below the California minimum wage.

In 2001, personal attendants got the right to minimum wage. Thanks to the California Domestic Worker Coalition, personal attendants gained overtime protections in 2014, through AB 241.  AB 241 went into effect in January 2014 but was set to expire or “sunset” on January 1, 2017, unless the Legislature extended or removed the sunset provision. SB 1015 removed the sunset provision, making overtime a permanent reality for personal attendants in California. Now, personal attendants (with some exceptions) are entitled to overtime after nine (9) hours of work in a day and after forty-five (45) hours in a week.

One reason why the overtime bills garnered opposition was the fear that home care would become unaffordable for many low to modest income households. However, available evidence is to the contrary. According to the Paraprofessional Healthcare Institute, institutionalization rates are not higher in states that provide home care workers with minimum wage and overtime. In California, since the passage of AB 241, there is no evidence that institutionalization rates have increased. Furthermore, in the first comprehensive study of California’s employers, the UCLA Labor Center found that only eight percent (8%) of domestic service employers hire for overtime.

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Photo Courtesy of the CA Domestic Workers Coalition

Based on our on-the ground experience, the Clinic has seen a positive impact on both workers and consumers as a result of the new overtime rules. Many agencies and household employers have genuinely complied with the mandate of AB 241. In some cases, workers have seen a reduction in their hours but an increase in their pay, as their employers have eliminated a flat daily or weekly rate. AB 241 has also addressed the most egregious cases, where a single worker works 24/7 shift. These shifts, not only result in significant wage and hour violations, but also detrimentally impact the health of the worker and the quality of care for the consumer. As a result of AB 241, these employers have re-evaluated their shift scheduling and have moved away from 24-hour shift scheduling. With the passage of SB 1015, domestic workers and employers will have clear standards that provide clarity and fosters a stable workforce.

Today’s domestic workers are staffed by trained professionals. These workers are their families’ breadwinners. Making permanent overtime rights for these workers is an important first step in valuing their labor as real work, and recognizing the dignity of those who care for our loved ones.

Hina Shah is an Associate Professor of Law and Director of the Women’s Employment Rights Clinic at Golden Gate University School of Law.

Celebrities, Art, and the Law: When Celebrities Get What They Want and When They Don’t

When Celebrities Get What They Want . . .

Have you seen Kanye West’s latest sculpture?  If not, it’s from his new music video entitled Famous and is now on exhibition at the Los Angeles’ Blum & Poe gallery.  The sculpture, created from wax, is the realistic, nude likeness of: George W. Bush, Anna Wintour, Donald Trump, Rihanna, Chris Brown, Taylor Swift, Kanye West, Kim Kardashian, Ray J, Amber Rose, Caitlyn Jenner, and Bill Cosby.  Understandably, after the video was released on June 24, 2016 it caused quite the controversy.  Kanye even tweeted, “Can somebody sue me already #i’llwait.”  But while it seems unlikely that anyone will sue, the question posed here is—if they did, could they win?  The answer: probably not.

When a celebrity attempts to control the exploitation of their name, likeness, and fame, this falls under a claim of misappropriation.  Some states have adopted the action under a separate common law remedy, however, most have developed it as an offshoot of the common law right of privacy.  Restatement of the Law, Second, Torts § 652(c) (“one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”).  Under Cal. Civ. Code § 3344, the person’s likeness has to be pretty detailed and “readily identifiable.”  The likeness must also be used for commercial purposes.

For example, Vanna White lost a claim of misappropriation under the California statute, but won under the common law when a Samsung commercial contained a robot with her likeness.  Thus, a claim for misappropriation under the common law is much broader than in California.  For instance, “likeness” could encompass not only a picture of you, but also other items that would make one think of you.  And, this “likeness” could be used for both commercial purposes or for non-commercial purposes (such as impersonating someone to induce others to disclose confidential information).

But, when the value of a work of art comes principally from some source other than the fame of the celebrity, this is not misappropriation.  In the iconic case Winter v. D.C. Comics, the Winter Brothers filed suit against DC Comics for misappropriation of their likeness.  In the comic series, the “Autumn Brothers,” half-worm-half-humans are killed by an anti-hero.  However, the court found that the value of the work contained sufficiently transformative elements to warrant First Amendment protection.  The “inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized or whether the depiction or imitation of the celebrity is in sum and substance of the work in question.”

In other words, the question becomes whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.  Here, Kanye’s sculpture has enough transformative elements to be protected under the First Amendment.  While it is clear that the nude figures are indeed the celebrities identified above, Kanye is using them to personify “fame” and what it means to be “famous.”    And, the idea of a boudoir including all of the nude celebrities is, indeed, fanciful.

And When They Don’t . . .

In case you don’t remember, “Left Shark” made its appearance at Super Bowl XLIX.  But few thought about who owned the rights to the costume of this infamous back-up dancer.  Left Shark was one of Katy Perry’s costumed half-time dancers, who became an internet sensation for dancing slightly off beat.  However, after Perry’s legal team sent Etsy-based 3D-printer, Fernando Sosa, a cease and desist letter, the question arose—can Katy Perry copyright Left Shark?  The answer: most likely no.

The extent that clothing is copyrightable is a question that lawyers as well as judges still grapple with today.  Article I, Section 8, Clause 8 of the Constitution states that Congress has the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  Therefore, cultivating creativity is the general concept behind copyright law. Copyright law exists to balance the creator’s entitlement to compensation, and the public’s desire to benefit from creations.  This balance means giving the creators enough rights to have an incentive to create, and the public the benefits of advancing technology and culture.

Courts have concluded that clothing is non-copyrightable because it serves a utilitarian purpose.  17 U.S.C. § 101 defines “useful article” as one having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.  An article that is normally a part of a useful article is also considered a useful article.  For example, even Halloween costumes are seen as utilitarian and thus, in the eyes of the law, are not copyrightable.

While this may seem strange in light of fashion weeks filled with grand designs from Chanel to Valentino, there are, understandably, exceptions to § 101’s general rule.  In the quintessential case Brandir International, Inc. v. Cascade Pacific Lumber Co., the court held that “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements.”  Contrariwise, when design elements are identifiable because they reflect the designer’s “artistic judgment,” they may be seen independently of functional influences, and thus conceptual separability exists.  When features can be identified separately and are capable of existing independently from the utilitarian aspects of clothing, those items may be protected by copyright.

Courts often rely on the Denicola Test, which highlights whether the designer was significantly influenced by functional considerations.  In writing for Brandir, Judge Oakes stated, “copyrightability ultimately should depend on the extent to which the work reflects artistic expression uninhibited by functional considerations.”  But, what constitutes “artistic expression” is disputed.  For example, in Kieselstein-Cord v. Accessories by Pearl Inc., the central issue was whether a designer belt buckle was copyrightable.  Under the Denicola Test, the court had to decide whether a designer belt buckle had a visual function that was not tied directly to its utilitarian function of holding a belt together. The court held that the buckles were “sculptured designs cast in precious metals – decorative in nature and used as jewelry is, principally for ornamentation.”  Therefore, the buckles were separate enough to be protected by copyright, although belts in general receive no such protection.  Continue reading “Celebrities, Art, and the Law: When Celebrities Get What They Want and When They Don’t”

A 15 million dollar clock: How much is too much?

In September 2015, Ahmed Mohamed, a freshman at MacArthur High School in Irving, Texas, brought a homemade digital clock to school. Ahmed showed his creation to his engineering teacher, who cautioned him not to show it to others.

Ignoring this advice, Ahmed set the time, which caused an alarm to ring during class. Understandably, his English teacher confiscated the gadget. Even though Ahmed insisted it was only a clock, his teacher notified the school principal because she believed the device “looked like a bomb.”

Ahmed was pulled out of class and questioned by five police officers, the principal, and the assistant principal. They regarded him as both “non-responsive” and “passive aggressive” when questioned. Deemed uncooperative, he was handcuffed, fingerprinted, and interviewed again at police headquarters. Finding no malicious intent, Ahmed was soon released to his parents. While no criminal charges were filed, he was suspended for three days.

The Irving Police Department conducted its investigation of the suspicious-looking item because they believed it to be a “hoax bomb.” They claimed their inquiry was meant to determine Ahmed’s intent for bringing in the device, not whether or not the device was a bomb, as made evident by the fact that the school was not evacuated. Under Texas law, it is a misdemeanor if a “person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to . . . (1) make another believe that [it] is an explosive or incendiary device; or (2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.”

Since the incident, independent bloggers have reverse-engineered the homemade clock, and concluded that the device was a commercially available alarm clock, from which Ahmed simply removed the plastic casing and placed the open wires into a pencil box.

When Ahmed’s arrest was first reported, it received immense attention on social media. According to the Los Angeles Times, Topsy, a social analytics site, reported close to a million people (including President Obama, Hillary Clinton, Sergey Brin, Mark Zuckerberg, and various NASA scientists) outpoured support through the hashtag: #IstandwithAhmed. The news focused its narrative on how this inventive, hard-working, and industrious young man was unjustly harassed simply for being a Muslim of Sudanese decent. Supporters claimed the situation typified racism and Islamophobia in America, and many vilified the teachers, the school officials, the school district, and the police for anti-Islamic sentiments and racial profiling.

The school district charged media outlets as presenting a completely one-sided report of the incident. It seemed to officials that Ahmed spoke more with reporters than to the officers investigating the issue.

Both Beth Van Duyne, Irving Mayor, and Jim Hanson, a former member of the United States Special Forces and now Executive Vice President of the Center for Security Policy, said the situation was handled properly because the teacher was reacting to the device, not the child who brought in the device. Larry Boyd, Chief of Police for Irving, said the situation would have been handled in the same exact manner, regardless of the religion and nationality of the student. Thanks to the U.S. Department of Education’s Safe Schools – Healthy Students Initiative, every student is held to the same stringent zero tolerance policies found in most school districts.

To emphasize this point, the school sent a letter to all parents, reminding them to tell their children to report any suspicious items or behaviors. The school stressed that such precautions were necessary to protect the students from potential or threatened harm. The school’s statement read that if something is out of the ordinary, “it is [important] to immediately report any suspicious items and/or suspicious behavior . . . to any school employee so [it] can [be] addressed . . . right away. [The school] will always take necessary precautions to protect our students [and keep our school community as safe as possible].”

Now, the Mohamed family seeks to file a civil suit against the city and school officials of Irving. Ahmed’s attorneys allege civil rights violations, which caused severe psychological trauma after Ahmed’s “reputation in the global community [was] permanently scarred.” They are demanding relief in the amount of an astounding $15,000,000 (and, of course, an apology).

Inconsistent with his claim of a scarred global reputation, after his story went viral, invitations poured in for Ahmed to visit Facebook, attend a Google science fair, accept an internship with Twitter, meet with Sudanese President Omar al Bashir, pose with the Jordanian queen at a United Nations Summit, appear on various television programs, and go to Astronomy Night at the White House, where the president hosted astronauts and students to promote science and technological careers. In addition, Ahmed and his family have since moved to Qatar, where Ahmed accepted a generous scholarship to join the Young Innovators Program under the Qatar Foundation for Education, Science and Community Development.

It is unknown whether Ahmed will continue to pursue this civil rights lawsuit. If he does, hopefully the city and school officials of Irving will not reach a settlement with him just to avoid another social media outcry. He may have been upset about being placed in handcuffs, but under the circumstances, the school district acted reasonably and within the guidelines of Texas law, the Safe School – Healthy Students Initiative, and MacArthur High’s Code of Conduct.

Habeas for Homo troglodytes

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Millions of people around the world still fight for basic rights. In the United States alone, women continue to fight for the right to have an abortion; Muslims fight to practice their religion without retribution; and gay couples fight for the same benefits given to those who are heterosexual. When we look beyond the U.S. border, the battles loom even larger. Women in Saudi Arabia just received the right to vote last year!

These battles are often won because eventually a voice is heard. But what if no one can understand your voice, despite the fact that you share 98.6% of the same genetic makeup as a human?

The chimpanzee is the human’s closest living relative. In fact, chimps are closer to humans than to gorillas or orangutans. Given this, there are those who propose chimpanzees be reclassified to the human genus, Homo, giving them the scientific name Homo troglodytes. The change in the classification could prove critical, as the rights held by men and women today have repeatedly hinged on how they were defined.

Historically, there are many groups who have fought to gain status as a “person” to receive equal treatment under the laws of the United States. In the late 1800s, Native Americans were still not regarded as “persons” under federal law. Standing Bear and his followers were arrested and detained because they left a reservation without permission. Attorneys filed a writ of habeas corpus (a legal action to seek relief from unlawful imprisonment) and succeeded in obtaining the freedom of Standing Bear and his supporters.

A Writ of Habeas Corpus

The writ of habeas has long been used to obtain rights for those historically denied it, like the Native and African Americans of the 1800s. Activists also fought long and hard for the rights of persons with disabilities, who were regularly institutionalized and deprived of their freedom. Ultimately, the Americans with Disabilities Act of 1990 (ADA) prohibited discrimination and proscribed rules and services that allowed these individuals to live equally within the community.

Like the activists who have come before them, the Nonhuman Rights Project (“the Project”) has been working tirelessly to provide chimpanzees the opportunity to live freely, with minimum confinement. Their aim is to change the common law status of nonhuman animals from “things” (which lack the capacity to possess any legal right) to “persons” (who possess fundamental rights such as bodily integrity and bodily liberty).

Given that chimpanzees have been scientifically proven to be self-aware and autonomous, they should be afforded the right to be free from imprisonment like any innocent person. Instead, many are locked away in what amounts to solitary confinement – a punishment usually reserved for the most brutal criminals.

The Project has filed habeas proceedings for four chimpanzees, stating that they deserve the right to bodily liberty. Two of those chimpanzees (Tommy and Kiko) are confined in the hands of private owners, while the other two (Hercules and Leo) are held in a lab at Stony Brook University.

Unfortunately, the New York County Supreme Court recently concluded that, because a chimpanzee has no ability to bear any legal responsibilities and societal duties, they cannot be considered a “person” and cannot receive the same legal rights as a human.

The Executive Director of the Project obviously disagreed with the results, and noted a fundamental aspect of common law that the court ignored. “[C]ommon law is supposed to change in light of new scientific discoveries, changing experiences, and changing ideas of what is right or wrong. It is time for the common law to recognize that these facts are sufficient to establish personhood for the purpose of a writ of habeas corpus.”

Personhood Status and What’s at Stake

On January 7, 2016, the Project re-filed its common law writ of habeas corpus on behalf of Kiko, who is held in a cage in a cement storefront in Niagara Falls, New York. This new attempt targets the court’s explanation of their defining issue: personhood status, which is whether the chimpanzees are able to carry out duties and responsibilities.

There is ample support that chimpanzees do in fact have the capacity to assume duties and responsibilities. They routinely shoulder duties and responsibilities both within chimpanzee societies and within mixed chimpanzee/human societies. The Project’s founder, Attorney Steven M. Wise, submitted over 60 pages of affidavits from leading chimpanzee cognition experts from around the world, including Jane Goodall.

Given the treatment and number of chimpanzees in captivity, the stakes are high. Over the past 50 years, chimp numbers in the wild fell from roughly 1 million to 170,000. There are currently over a thousand chimps in the U.S. living in laboratories or in the private hands of entertainers, pet owners, and roadside zoos.

Specifically, Hercules and Leo face miserable lives in a lab setting. They live without companionship, undergo invasive testing, and have not received the sort of education that all intelligent and autonomous beings need and deserve. Furthermore, Chimpanzee experts are certain that Hercules and Leo have suffered severe emotional and mental trauma.

As with any voice that has long been unheard or ignored, it takes time to amplify the message. Fortunately, there are actually many milestones that have been accomplished in this latest battle for chimpanzees.

Signs of Progress

The case of Hercules and Leo marked the first time a U.S. court issued an Order to Show Cause to an institution holding a chimpanzee in captivity. In April 2015, Stony Brook University was forced to defend their confinement of Hercules and Leo in court. New York Assistant Attorney General Christopher Coulston argued a lack of precedent, but Justice Barbara Jaffe countered that the issue was at the very essence of common law and asked, “isn’t it incumbent on judiciaries to at least consider whether a class of beings may be granted a right?”

While Justice Jaffe ultimately ruled against Hercules and Leo, she concluded that a human had standing to bring suit on behalf of injured, nonhuman animals, and she rejected all the procedural barriers that the Attorney General of New York attempted to place before the court. Although not a complete victory, this marked a major milestone for chimpanzee rights.

As for where this is all heading, no one can quite know – however, Justice Jaffe and the New York courts have helped frame the future. “Legal personhood” may not be synonymous with “human,” but its parameters, including “what rights” exist and “who counts” under the law, will continue to be actively debated and discussed. Against a backdrop where the United States Supreme Court has granted personhood to nonhuman corporate entities, it is crucial for fierce advocates to hold their ground and forge ahead like Standing Bear did in 1879.

The Project’s January 2016 writ of habeas for Kiko (documenting the ability of chimpanzees to carry out duties and responsibilities) marks the latest legal effort in the battle. To follow the cases concerning Hercules, Leo, Kiko, and Tommy, go to www.nonhumanrights.org.

Trump’s Immigration Policy: Borderline Unconstitutional

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The 2016 Presidential primaries are well on their way, and the issue of immigration reform has been a contentious one, to say the least. This is especially true on the Republican side, where leading candidate Donald Trump has advocated extreme measures to reform immigration policy, such as building a wall between the U.S. and Mexican Border, and temporarily banning Muslim immigrants from entering the U.S.

However, Trump’s other plans for immigration reform, which call for mass deportations and the abolishment of birthright citizenship, have dominated discussions. Besides the fact that these two policies are criticized for being impractical and prejudicial, implementing either policy would most likely also be unconstitutional.

As of the 2013, there are currently over 11 million undocumented immigrants in the United States. In an interview with CNN’s Dana Bash, Trump said that if he were elected President, he would deport all undocumented immigrants, and then allow the “really good people” to re-enter the country through an expedited process. However, those “really good people” would not be recognized as citizens.

Mass deportation of all undocumented immigrants would take about 20 years and cost an estimated $500 billion. This includes the cost of all the police, judges, lawyers, enforcement agencies and transportation needed to find and deport 11 million people, but it does not include the cost of bringing back the “really good people.”

However, the biggest question arising from Trump’s plan is not the costs associated with it, but rather the constitutionality of the plan.

There is a basic constitutional understanding that the United States has broad power to protect its borders, to decide who may enter its territory, what people who enter can do while inside its borders, and how long they may be allowed to stay.

Accordingly, the Trump Plan raises three interconnected issues: 1) which branch (if any) would have the authority to order the deportation of 11 million people; 2) does the deportation of 11 million people violate the Due Process Clause; and 3) if the plan splits up families with American-born children, would the American-born children be deported with their parents? 

 

Which Branch Can Order the Deportation of 11 Million People?

Congress is the legislative branch and decides most issues by passing laws. The executive branch, led by the President, has very wide discretion in deciding how to enforce those laws. The judicial branch, consisting of federal district courts and ultimately the U.S. Supreme Court (the highest court in the land), can issue rulings that decide disputes, such as the question of which branch is ultimately responsible for immigration policy.

In 2014, President Obama issued an executive order that overhauled the nation’s deportation policy. The executive order lifted the threat of deportation of more than 4 million illegal immigrants and was directed at people with no criminal record, whose children were U.S. citizens. However, lower courts blocked President Obama’s executive action after twenty-six Republican-governed states sued to stop it, claiming he exceeded his presidential powers under the U.S. Constitution.

Trump has already publically stated that if he became President, he would create a “deportation force” that would go door-to-door looking for undocumented immigrants. Trump has also laid out an immigration plan that calls for a nationwide system to verify workers’ legal status (tripling the number of immigration and customs enforcement agents) and implements a tracking system to identify people who overstay their visas.

Donald Trump has yet to specify how he plans to execute his immigration plan. However, one thing is for sure: if he plans on utilizing an executive action to deport 11 million people, he will face similar push-back from those who believe he is exceeding his presidential power.

 

The Due Process Clause Applies to Illegal Immigrants and Requires a Hearing and Appeal

Although the federal government has broad power in protecting the nation’s borders, neither the legislative or executive branch may violate the due process clause when deporting individuals – even if those individuals are undocumented.

The Fifth and Fourteenth Amendments to the U.S. Constitution each contain a due process clause. The due process clause states that federal or state governments may not take an individual’s “life, liberty, or property” without due process of law.

While undocumented immigrants do not enjoy all of the rights granted to U.S. citizens by the Constitution – for example the right to vote – courts have ruled that, while they are within the borders of the United States, undocumented immigrants are granted the same fundamental constitutional rights granted to all Americans. In 2001, the U.S. Supreme Court ruled in Zadvydas v. Davis that the due process clause of the 14th Amendment applies to all undocumented immigrants in the United States whose presence is “unlawful, involuntary or transitory.” This means that each and every one of the over 11 million undocumented immigrants Trump wants to deport has the right to a hearing (and possibly an appeal) before they are ever deported.

Furthermore, even if Trump can identify every undocumented immigrant in this country, it would cost taxpayers millions of dollars to pay for all of the legal fees necessary to properly give every undocumented immigrant a fair trial. Moreover, attempting to deport large quantities of undocumented immigrants, without due process, would not only be blatantly unconstitutional – it would raise countless humanitarian issues as well.

 

Issue of Deportation of American-Born Children Along with Their Parents

Donald Trump has repeatedly vowed to end President Obama’s deportation-relief policies for parents of American-born children. “We’re going to keep families together, but they have to go,” said Trump. This effectively means that Trump is advocating for the abolishment of birthright citizenship and the deportation of children who are U.S. citizens.

“Birthright citizenship” is a principle stemming from the 14th Amendment of the U.S. Constitution; it refers to the idea that children of undocumented immigrants, born within the geographical limits of the U.S., are automatically entitled to American citizenship.

In other words: if a child is born in the United States, they are an American citizen, regardless of whether or not their parents are American citizens.

However, some have suggested that the 14th Amendment’s phrase, “and subject to the jurisdiction thereof,” is open to re-interpretation. State lawmakers across the country have even gone as far as to present legislation that claims the U.S. does not have jurisdiction over U.S.-born children of undocumented immigrants.

These attempts lack legal foundation. The U.S. Supreme Court decidedly addressed this issue in the landmark decision of U.S. v. Wong Kim Ark. In Ark, the court held that a baby born in San Francisco, California to Chinese parents (who at the time were not permitted to naturalize as U.S. citizens) became a U.S. citizen at the time of his birth.

That case unambiguously defined the 14th amendment as it relates to citizenship, and it has been settled law for over 100 years. Moreover, the Supreme Court has since affirmed the understanding that undocumented immigrants are in fact “subject to the jurisdiction” of the United States under the 14th Amendment.

Therefore, if Trump wants to take away a firmly established right of citizenship, he would have to push congress to amend the Constitution first.

 

The federal government’s policy on immigration has risen to the top of the political and constitutional agenda, and over the next year, the nation will watch it develop. Donald Trump’s plans for immigration reform have been revered by some for being refreshingly honest, and criticized by others for being prejudicial and impractical.

Only time will tell whether Trump will be elected to represent the Republican Party in the 2016 General Election. And only time will tell whether his plans – some of which are currently unconstitutional – will be ever be executed.

“Yes Means Yes” Bill Fails to Adequately Address Link Between Alcohol and Sexual Assault

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Much talk has surrounded California’s “Yes Means Yes” bill. SB 967 has been hailed a major shift in the way colleges will approach sexual assault by instituting an affirmative consent standard. Authored by Senator Kevin de Leon, SB 967 was signed by Governor Jerry Brown on September 28, 2014. While the “Yes Means Yes” bill did not go unchallenged by Republicans, it was unanimously put forward. Despite the unanimity, many have criticized the bill. Critiques have questioned a number of aspects of the bill, first and foremost it has been labeled as ambiguous, and many critics have alluded to possible negative consequences of the bill.

The first question is what changes will the bill actually put forth compared to how the law works now? Much attention has been given to the affirmative consent standard that the bill outlines. Specifically the bill defines consent as, “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Furthermore, “[a]ffirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” Lack of protest or resistance is not sufficient to assume consent, nor is evidence of a dating relationship or past sexual history between the persons engaged in sexual activity.

Ideally, under this proposed paradigm shift, the person initiating sexual contact would have to obtain consent, as opposed to the old standard, which put the burden on the person being pursued to object or forcibly resist. Consequently, this shift in responsibility is expected to diminish victim blaming or questioning for failing to say no or actively resist. Some universities in California and throughout the nation have already adopted this standard of consent. While the motivation for the “Yes Means Yes” bill is admirable, it does not resolve the ‘he said she said’ scenario presented under ‘no means no’ ideology.

What is really missing from the bill is an effective procedure that addresses the use of alcohol and drugs. There should be a larger emphasis on the role of drugs and alcohol with respect to a student’s ability to provide consent to sexual contact or intercourse of any sort. The Bill states in relevant part:

(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

(C) The complainant was unable to communicate due to a mental or physical condition.

In essence the bill attempts to preclude the accused from using their intoxicated status as a defense, or to claim that the victim failed to protest or resist. Again, this represents a shift in responsibility from the victim to the accused in obtaining consent and ensuring that its validity. The validity of consent where drugs and alcohol are involved remains ambiguous.

College students are inundated with drugs, alcohol, and a new sense of freedom without any parental supervision. College is often the highlight of a person’s youth, the glory days; but for nearly one in every four women, college is a period of time in which they were sexually assaulted. In many of these cases, one or both parties were under the influence of drugs or alcohol. In fact, according to statistics, ninety percent of sexual assaults on college campuses involve alcohol.

The all too common sexual assault between college students is reflected in an incident that occurred between two freshman students at Occidental University. Referred to only as John and Jane Does, the initial contact between the students appears to have been consensual. What is in question however, is the nature of Jane Doe’s consent: whether the woman—who was intoxicated to the point of blacking out—had the ability to legitimately agree to have sex at all. Also in question is whether John Doe, also extremely drunk, violated the school’s policy by failing to recognize the woman’s consent was essentially meaningless as it was given while she was incapacitated.

Many male and female students engage in sexual activity after using drugs and alcohol. Males typically use alcohol as a way to gain confidence to initiate a “hook-up.” On the other hand, some female students rely on alcohol as an excuse to engage in sexual intercourse and avoid being labeled negatively. But too much alcohol can sometimes be a recipe for unintended consequences.

It is a reality that sex and alcohol go together. Unfortunately, so too does alcohol and sexual assault and rape, particularly on college campuses where the environment fuels a culture of sex, drugs, and alcohol. It is without question that alcohol impairs a person’s judgment. Alcohol affects a person’s conscious state of mind, lowering inhibitions, making it hard to concentrate, and making a person more impulsive. These side effects of alcohol cannot always be observed, especially if the observer is also similarly impaired. Symptoms of alcohol use such as slurred speech, loss of coordination, vomiting, and loss of consciousness are more obvious, but these only manifest after extreme alcohol consumption. The involvement of drugs and alcohol in sexual assaults on college campuses is all too common. Consequently, the proposed law fails to adequately address a student’s ability to give consent if under the influence of drugs or alcohol.

The bill merely states that, where the, “complainant was incapacitated due to the influence of drugs, alcohol….” The term incapacitated is ambiguous. Is it physically or mentally incapacitated or both? What does it mean to be incapacitated? The bill does not say. On its face the term incapacitated goes too far. An individual is not able to operate a motor vehicle if they are determined to be under the influence of alcohol. This seems a much lower standard than incapacitated.

While the ‘Yes Means Yes’ bill does address some major issues and will hopefully check victim blaming and put the responsibility on individuals to obtain consent throughout a sexual encounter, the requirement of obtaining affirmative consent does not necessarily change anything in an accusation of rape or sexual assault. By far the biggest problem with the bill is that it fails to address the biggest issue of sexual assault and rape on college campuses, the involvement of alcohol.