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Sanctuary Campuses: To Be or Not To Be, That is the Question

November 8, 2016 is a day that, for many, will live in infamy. While some celebrated the election of now President Donald Trump, others sat in tears, fearful of the road ahead. These fears were not unmerited. Throughout his bid for the presidency, President Trump boasted about his plans to defund Planned Parenthood, to rescind President Obama’s executive orders tightening restrictions on gun sales, and most frightening to millions of undocumented immigrants, to repeal President Obama’s executive orders regarding immigration. In an attempt to comfort those frightened and worried about the new President and his changes to the nation’s immigration policies, community leaders and mayors across the country released statements immediately following the 2016 election, noting their continued status as sanctuary cities. Sanctuary cities are cities that limit their local law enforcement’s cooperation with federal agencies enforcing immigration policies. Sanctuary cities were a target for President Trump throughout his campaign and continue to be a target to this day.

In addition to cities affirming their status as sanctuaries to undocumented immigrants, college campuses have also pressured their administrations to declare their campuses sanctuaries in order to combat the President’s attacks on the undocumented members of their student bodies. Despite this pressure, many campuses are reluctant to definitively state whether or not they will be considered a “sanctuary campus” given the potential consequences of such a declaration, namely having their vital federal funding stripped. Further, for institutions that are willing to deem themselves sanctuary campuses, it is unclear just what a sanctuary campus will look like and entail. While sanctuary cities, such as San Francisco, Los Angeles, New York, and Houston, have been around for decades, sanctuary campuses are likely to face different challenges and function differently than their city counterparts.

Sanctuary Cities & President Trump’s Executive Order: “Enhancing Public Safety in the Interior of the United States”

While there is no specific legal definition of what a sanctuary city is, the term is often used to refer to those cities that protect undocumented immigrants by limiting their cooperation with federal agencies implementing immigration policy. This often equates to sanctuary cities refusing to allocate funds for the enforcement of federal immigration policy by local law enforcement, prohibiting local law enforcement officers from asking someone their immigration status, and generally refusing to comply with federal agencies attempting to enforce immigration policies within their cities. Some cities have gone as far as to make such practices law while others are content with merely implementing such practices as policy.

Shortly after taking office, President Trump signed an executive order entitled “Enhancing Public Safety in the Interior of the United States,” which strips federal funding from those cities that do not comply with federal law regarding immigration. Within a week of the order, cities across the nation filed suits challenging the order, with San Francisco being the first. In a 41-page complaint, San Francisco argues that President Trump’s executive order is a violation of the Tenth Amendment. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Essentially, the Tenth Amendment limits the power of the federal government and protects the states from what San Francisco deems as “the excessive accumulation of power in any single entity and . . . the risk of tyranny and abuse from any government office.” San Francisco argues that in writing the executive order, President Trump violated the Tenth Amendment and thus, the executive order must be struck down.

San Francisco contends that the new requirements to receive funding, namely the implementation of and cooperation with federal immigration laws, are unduly coercive. The Supreme Court recently reiterated that the Legislative or Executive Branch violates the Tenth Amendment when its conditions for a State’s receipt of federal funds move from mere encouragement to unduly coercive. The Legislative or Executive Branches may use its powers to “create incentives for States to act in accordance with federal policies,” but may not order or coerce the States to enact or enforce a federal program. Further, these incentives pose no issues when “a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds.” The issue, however, arises, when “the State has no choice.” Here, San Francisco stands to lose upwards of $1.2 billion in federal funding, a large part of its $9.6 billion budget. These funds go towards public health programs, transportation and infrastructure projects, supportive housing, and social welfare programs, with only a small percentage of those funds relating to immigration or law enforcement. Thus, San Francisco argues that the funding requirements are unduly coercive and violate the Tenth Amendment.

Currently, President Trump’s administration has not cut any funds to San Francisco. As the City awaits a resolution to its suit, City Attorney Dennis Herrera asked a federal judge to freeze the order until the lawsuit is resolved. The City argued that although President Trump’s administration has not yet cut any federal funding, the mere threat of cuts affects the City’s current budgeting. On April 25, 2017, the City’s request for a freeze on the order was granted by District Court Judge William H. Orrick.

Image by Twitter user Occupy Oakland. @OccupyOakland Image Source

Sanctuary Campuses & The Effect of the Executive Order

As cities await the fate of the executive order, university campuses around the nation are facing increased pressure to declare themselves sanctuary campuses, especially in light of President Trump’s repeal of the Deferred Action for Childhood Arrivals (DACA) Program, a program which protects from deportation nearly 800,000 undocumented people who were brought to the United States as children. Most administrations have resisted and have declined to categorize themselves as sanctuary campuses, fearing a similar executive order or Congressional legislation that would strip their institutions of vital federal funds. Still, while refusing to use the word “sanctuary” in describing their institutions, many still offer support to their undocumented students. This begs the question: what will sanctuary campuses look like in effect and what will be considered a sanctuary campus regardless of its own self categorization?

Sanctuary campuses thus far have declared that they will not allow any federal agencies such as U.S. Immigration and Customs Enforcement (ICE) onto their campuses “without permission or legal process,” such as a search warrant or subpoena. Further, information and records on undocumented students will continue to be protected by existing acts such as the Family Educational Rights and Privacy Act (FERPA), which prohibits institutions from disclosing personal information without the student’s consent. Public safety officers and other members of the school administration additionally will not inquire about the immigration status of students. Should they learn of a student’s immigration status, however, they will not disclose such information voluntarily to federal agencies seeking such information.

Unfortunately for undocumented students, the process for acquiring a search warrant or subpoena is not exceedingly difficult. Thus, the label “sanctuary campus” does not offer much more protection than a campus that merely abides by FERPA in keeping the status of their students confidential. Sanctuary campus designations by institutions are therefore seen as more symbolic than having any substantive effect.

The risk of losing federal funding for universities also promises to have a much more debilitating effect than if a city were to lose such funding. The University of California, for example, stands to lose $9 billion in federal funding for research, education, and healthcare. The University of California is the nation’s largest recipient of federal funding for research and related projects, with approximately 2,500 undocumented immigrants across their campuses. In addition to these federal funds that support research, education, and healthcare, students at these institutions stand to lose billions in loans and grants available to them in the upcoming school years. As a result of such threats, some institutions such as Arizona State University are seeking out donors to provide scholarships for undocumented students to allow them to continue to attend their institutions at the in-state rates.

Although a bill was introduced by Congressman Duncan Hunter earlier this year proposing to cut federal funding for sanctuary universities, there have been arguments against the bill similar to those brought by San Francisco in their suit against President Trump’s executive order. While universities question the legality of such a bill, the mere threat of losing federal funding seems to have had mixed reactions from universities, with some holding steadfast in their commitment to their undocumented students and others backing away from calling themselves sanctuary campuses. It is likely that universities across the nation will take more decisive stances once a ruling is handed down on the constitutionality of President Trump’s executive order. Whether undocumented students will be afforded the opportunity to continue to be contributing members of student bodies in the coming months remains to be seen.

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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.

Fourth Amendment Protection in the Digital Age

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During the course of an investigation into a series of armed robberies in Michigan and Ohio in 2010 and 2011, the FBI submitted applications to three different magistrate judges for orders to access more than five months of historical cell phone location records for Timothy Carpenter. “But the data asked for and received weren’t limited to the days and times of the known robberies—they included months of records that could reveal everywhere Carpenter was every time he made or received a phone call.” And the FBI obtained all of this information without a warrant.

The Supreme Court granted certiorari in Carpenter v United States, a case that offers the Court another opportunity to address how far Fourth Amendment protections against warrantless searches and seizures extend.  Specifically, the issue before the Court was “whether the warrantless seizure and search of historical cell phone records revealing the locations and movement of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”

 

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On appeal before the Sixth Circuit, a divided three-judge panel held that “no search occurred under the Fourth Amendment because Carpenter had no reasonable expectation of privacy in cell phone location records held by his service provider.” The prosecution contended that cell-phone users “presumably understand that their phones convey data to their service providers as a necessary incident of making or receiving calls.”

Carpenter took a contrary position, arguing “magistrate judges have discretion to require a warrant for historical data sought if they determine the location information will implicate the suspect’s Fourth Amendment privacy rights.” Carpenter cited a dissenting argument from the Third Circuit, which proposed:

A cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way. . . . [I]t is unlikely that cell phone customers are aware that cell phone providers collect and store historical location information. Therefore when a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.

Carpenter further relied on Justice Sotomayor’s explanation that “electronic location tracking implicates the Fourth Amendment because it generates a precise, comprehensive record of a person’s public movements that reflect a wealth of detail about his/her familial, political, professional, religious, and sexual associations.”

Nonetheless, the Sixth Circuit majority agreed with the prosecution and held that the fact the government obtained the cell site date from Carpenter’s service provider, rather than from Carpenter himself, defeated his Fourth Amendment claim. On appeal to the Supreme Court, Carpenter asserted the weight of authority relied on by the Sixth Circuit, which elucidated the third-party doctrine, never treated “third party access to the records as dispositive.” “The mere fact that another person or entity had access or control over private records does not in itself—and without regard to any other circumstance—destroy an otherwise reasonable expectation of privacy.” Carpenter acknowledged that third-party access to records might indeed be “one factor weighing on the reasonable-expectation-of-privacy standard.” But Carpenter alleges Miller and Smith, which predominantly outlined the basis of the third-party doctrine, did not intend for it to be treated as “an on-off switch.”

In concluding that the Fourth Amendment does not protect people’s cell site location records from warrantless searches, the Sixth Circuit relied on the Stored Communications Act. The court believed that the elected representatives in Congress had already struck a reasonable balance between privacy protection and public safety. Carpenter further alleged that the legislation was decades old and was passed before the “proliferation of cell phones and the availability of increasingly precise cell site location information.”

Carpenter requests that the Supreme Court define the scope of Fourth Amendment protection for newer forms of sensitive digital data or, at least in part, address the expansive application of the “third-party doctrine beyond the kinds of records at issue in Miller and Smith.” He claims the Sixth Circuit erred in not relying on a totality of the circumstances approach in their deliberation and that the Supreme Court should find his cell site location data be protected by the Fourth Amendment’s warrant requirement.

Oral arguments were heard before the Supreme Court on November 29, 2017. Opinion by the Supreme Court has not yet been filed. The Supreme Court’s decision on this case could potentially mean a substantial increase in warrant applications—“in 2016 Verizon and AT&T alone received about 125,000 cell site location requests.” How the Supreme Court decides this case will have important implications, especially where “sensors and devices in our homes, cars, and throughout our world will constantly collect, generate, and share data about us with little to no willingness on our part.”

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The Electronic Frontier Foundation and many others have argued it is time for the Supreme Court to revisit this outdated doctrine. A few of the considerations offered in support of this argument include the idea that “patients have a reasonable expectation of privacy in diagnostic test results, even when the hospital maintains the records, … and hotel guests are entitled to protections even though they provide implied or expression permission for third parties to access their rooms.” Similarly, the Sixth Circuit has ruled in the past that people have an “expectation of privacy in email content even if they use a third-party service provider to transmit that email.” Thus, the primary hurdle for the Supreme Court in Carpenter will be to determine how to reset the boundaries of the third-party doctrine in an age where people rely on technology.

 

Mandatory Agency Dues: Beneficial or a First Amendment Violation?

Unions have long been recognized as a major cornerstone to American culture – they have helped ensure fair wages, hours, and benefits for American workers for over a century.  However, the question has continuously come up in legal discourse of whether unions modernly maintain their importance and effectiveness as exclusive bargaining representatives. This question raises an array of issues – one of those being whether public employees should be required to pay union dues when they are not members and do not support the union.

A case recently before the Supreme Court could end laws in 22 states that requires public employees to pay “agency fees” to a union regardless of whether they are members of the union or wish to support it. The case raised the question of whether unions are adequately and accurately representing the real interests of the public employees they are meant to represent.

 

 

Janus v. American Federation of State, County, and Municipal Employees is an Illinois case that was affirmed by the United States Court of Appeals for the Seventh Circuit. The specific question before the Supreme Court was whether Abood v. Detroit Board of Education should be overruled and public sector “agency shop” arrangements invalidated under the First Amendment. An “agency shop” arrangement is a union security clause that requires all members of a bargaining unit, union members and non-members alike, to pay a service fee that is equivalent to union dues.

In Abood, a Michigan law was challenged under the First Amendment but the Supreme Court ultimately upheld the law. The Michigan law allowed a public employer whose employees were represented by a union, to require those of its employees who did not join the union to nevertheless pay fees to it because they benefited from the union’s collective bargaining agreement with the employer. 

In Abood v. Detroit Board of Education, the First Amendment challenge by plaintiffs, (public school teachers in Detroit, Michigan) against defendants (the Detroit Board of Education and the exclusive union representative of public teachers in Detroit) was premised on the allegation that the union was engaged in various ideological activities of which plaintiffs did not approve and argued that the agency-shop clause was a deprivation of their freedom of association. Ultimately, the Supreme Court upheld the law but ruled that the fees could only be great enough to cover the cost of the union’s activities that benefited the non-members. Although the Court held that a public employer could enforce mandatory agency fees to non-members, the Court held that such fees could not be expanded to enable the union to use a portion of them “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective-bargaining representative.” 

The case recently before the Supreme Court challenged Illinois’s agency-fee law, claiming that it is unconstitutional under the First Amendment because it requires non-union members who disapprove of the union to nevertheless pay dues proportional to the costs of the activities that benefit them. Janus is now the fourth case since 2012 to challenge the Supreme Court’s holding in Abood.

Similar to the Michigan law that was challenged in Abood, the Illinois Public Labor Relations Act, 5 ILCS 315/1 et seq., is a law in which a union representing public employees is authorized to collect dues, not only from its members, but also from non-members. This Act is a comprehensive statute designed to govern labor relations for a significant number of public employees; it establishes a duty for a public employer to bargain collectively with the exclusive representative of a unit of public employees and provides employers of public employees to require non-members to pay agency fees that equate to their “fair share.”

“Fair share” fees are a proportionate share of the costs of collective bargaining and contract administration for non-member employees, on whose behalf the union also negotiates. The Act provides that “[o]nly the exclusive representative may negotiate provisions in a collective bargaining agreement providing for the payroll deduction of labor organization dues, fair share payment, initiation fees and assessments” and allows for public employers to require non-member employees to pay their proportionate share of those costs.

In 2015 the governor of Illinois, Bruce Rauner, filed suit in federal district court to halt the unions’ collecting these fees, his ground being that the statute violates the First Amendment by compelling employees who disapprove of the union to contribute money to it. The governor’s complaint was dismissed by the district court for lack of standing because the governor had nothing to gain from the relief sought (i.e. the elimination of the compulsory agency fees). However, two public employees – Mark Janus and Brian Trygg – had already moved to intervene as plaintiffs in the case. For the sake of judicial efficiency, the district court granted Janus and Trygg’s motion, ruling that there would be no material difference between intervening in the governor’s suit and bringing their own suit in the same court.

The district court nonetheless dismissed Janus’ and Trygg’s complaint – but on different grounds. Plaintiff Brian Trygg was found to be precluded from litigating this claim in the present case due to previous litigation he was involved in that entailed the same set of facts and parties, and where he failed to raise the First Amendment issue in his appeal of that case. In contrast, Plaintiff Mark Janus has never before challenged the requirement that he pay the union “fair share” fees and he was thereby not precluded from litigating this issue in the present case.

However, as the plaintiffs acknowledged from the beginning, only the Supreme Court can overrule Abood and the case must first travel through the lower courts (i.e. the district court and court of appeals) before Supreme Court review can be sought. Thereby, Janus’ complaint was dismissed by the district court, and affirmed by the Seventh Circuit, on the grounds that he failed to state a valid claim.

 

 

On appeal to the Supreme Court, Janus argued that the Illinois Statute unconstitutionally “empowers an exclusive representative not only to speak and contract for unconsenting employees in their relations with the government, but also to force those employees to pay for its advocacy.” Janus asserted that such a requirement is an infringement on an individual’s First Amendment rights because it deprives employees of his or her fundamental right to choose which speech is worthy of his or her support and wrongly requires non-member employees to “subsidize the union’s advocacy.”

 

Implications of Supreme Court’s Decision

There is a split in opinion on whether invalidating mandatory agency fees for nonmembers would be beneficial or detrimental. Those against mandatory agency fees argue that unions can still adequately and effectively function as exclusive bargaining representatives without requiring those who do not support the union to pay fees and that unions “cannot claim that loss of those fees will compromise their viability.” Thereby, the First Amendment rights of millions of employees should be honored and the “unconstitutional imposition of fees should not be allowed to persist.”

Those against mandatory agency fees argue that because unions do not depend on compulsory dues to carry out their duties as exclusive bargaining agents, the states “do not have a compelling interest in suppressing the free speech rights of public employees who choose not to support the union.” Moreover, asserting that invalidating compulsory dues would take the question of the value of collective bargaining away from the courts and the legislature and put it back in the hands of the “individuals best situated to discuss that question intelligently and arrive at their own, informed answer.”

 

 

On the other hand, those who want to keep mandatory agency fees argue that union representation is beneficial for all – including employers, employees, members and nonmembers alike. Those in favor of keeping mandatory agency fees argue that unions are effective voices for promoting the day-to-day concerns of employees in the bargaining unit, including wages, health and safety, paid sick days, and health-care benefits; and that agency fees are necessary and integral to the successful execution of this system which provides states with an important strategy for managing large and complex public workforces. In addition, proponents have argued that agency fees are imperative to ensure and promote workplace equality and economic security for working women, people of color, LGBT workers and our nation as a whole.

Conclusion

The Supreme Court heard oral arguments on February 26, 2018. A decision to overturn Abood would create newly recognized First Amendment rights for employees in mandatory bargaining units. The Court’s decision on this issue will not only determine whether mandatory agency fees are constitutional, but may also elicit broad implications for employees in mandatory bargaining units if the Court does decide to overturn Abood.

 

Katrina to Maria: Pet Evacuation in the Eye of the Storm

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Photo Photo by Dave Saville – Sep 22, 1999 – Location: Princeville, NC

Erin, a mother of three children under the age of five, considered her options as Hurricane Irma approached her town of Naples, Florida in September 2017. The local arena would be the safest evacuation shelter for her family, but the arena would not permit Erin to bring the family’s golden retriever, Stella. A local church allowed pets, but it would not be much safer than their home. Evacuating the state was concerning because hotels were booked throughout the entire southern United States and gas was scarce. Luckily, she managed to secure a hotel, about four hours away, which would shelter her family, including Stella, from the storm. Fortunately, they could spare $500 to cover the hotel.

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Erin’s family on route to their hotel in preparation for Hurricane Irma.

This was a common situation for Irma victims. Some families in Naples were unable to evacuate, but fortunately the storm surge never hit, and those who stayed made it through the storm. Hurricane Irma is not the first storm to cause concern for pet families. When New Orleans was hit hard by Hurricane Katrina in 2005, the city was unprepared. Although 80 percent of New Orleans’ population evacuated before the storm hit, nearly 100,000 people remained trapped, many without cars, in the storm that flooded 80 percent of the city. Over 30 percent of the city was living in poverty; a segment of the population which was left particularly vulnerable. Tens of thousands of people, locked out of overfilled shelters, were left stranded with no food and water. Forty-four percent of individuals who did not evacuate stayed because there was no plan for pets, and they would not abandon their pets. Not all citizens were rescued, and many did not survive the storm. Over 1800 people died, directly or indirectly from Hurricane Katrina. Some families left their companion animals behind with the belief that they would return in a few days. Instead, families were trapped outside of the city for weeks, which left over 100,000 animals to fend for themselves, 70,000 of which died. Individuals were not prosecuted for leaving their pets behind, leaving pets behind was the city’s plan, or lack thereof. “Pets were not allowed on the bus, and when a police officer confiscated a little boy’s dog, Snow Ball, the child cried until he vomited.” Snowball was never found.

In 2006, Congress passed the Pet Evacuation and Transportation Standards (PETS) Act, a landmark act for emergency preparedness. PETS requires  a community’s emergency plan account for the needs of families with companion or service animals. PETS provided protection to pets and their families during Hurricane Sandy, Harvey, Irma, and Maria. The image of evacuation has changed a lot from Katrina to Harvey. Eicher, an evacuee during Hurricane Harvey, shouted to first responders, “We have two kids with down syndrome, a pig and a three-legged dog.” The first responder’s reply: “Sounds good, (let’s) do this.” During preparation for Hurricane Irma, hotels along the evacuation route accepted pets and waived pet fees to accommodate families. One hotel raved that they took in over 900 dogs during the storm and reduced their pet cleaning fee from $150 to $50. But what about the families without a car, that cannot afford a hotel or the $50 pet cleaning fee?

Twelve years after Hurricane Katrina, the evacuation of pets during natural disasters has improved. There are several factors that all evacuees must consider regardless of socio-economic status: transportation, gas, shelter, special needs of family members, pets or other domesticated animals, time and cost. PETS merely requires states to consider pets in their evacuation plans, not to solve the various issues which hinder families from evacuating with their pets. Without addressing such issues, many families are in the same position as Hurricane Katrina victims. The awareness of pet evacuation concerns from Hurricane Katrina to Maria has increased, but the coverage of the 2017 storms neglected to address the ongoing issues that plague underserved communities.

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Photo by: Liz Roll Photo by Liz Roll – Sep 07, 2005 – Location: New Orleans, LA

Like Katrina, if you live paycheck to paycheck without a savings to fall back on, you have to stay and work for as long as possible. When you are ready to leave, it may be too late. Pet owners without a car may struggle to find public transportation to the nearest pet-friendly shelter. PETS does not require that all emergency shelters be pet-friendly. “There is a class issue involved here, (while) Marriott hotels welcomed the pets of Katrina evacuees as ‘part of the family,’ people who had to rely on the Red Cross for shelter were forced to abandon that part of the family or attempt to ride out the storm. It cannot be denied that many poor people are dead as a result of ‘no pets’ policies.” For the population that is most desperate for an improved policy, PETS falls short of their needs. Communication is a major barrier to meeting the needs of underserved communities and their pets during evacuation. While information and tips for families are available, access to these resources is not guaranteed. There are barriers to serving underserved communities and implementing plans to meet the needs of all families.

Pets For Life (PFL), a Humane Society of the United States (HSUS) program, has bridged the gap between municipalities and underserved communities by utilizing grassroots outreach to build partnerships with families. PFL is designed specifically to “empower communities that—because of economic, social, linguistic, or cultural factors—do not have access to pet-care information, resources, (and) related services.” The disparity in services for these communities transcends to emergency evacuation. Emergency plans need to address these issues with a grassroots approach.

More than 30 states have passed legislation or adopted a plan to address pet evacuation in emergencies. States that have multi-billion dollar agriculture industries, like South Carolina, have more detailed plans for the evacuation of animals than states without an agricultural focus. Although the purpose of PETS is to ensure that all citizens are willing and able to evacuate to safety, the concern in developing plans is more centered on protecting business than saving lives. PETS requirements are broad, and the implementation at the state and local level differs greatly from community to community. In the midst of emergencies, the public focus tends to be on punishment and shame, instead of solutions.  

Today, unlike a Katrina society, where pets were pulled from their families and thrown off buses to die alone, society is quick to threaten prosecution for pets abandoned before a storm. During Hurricane Irma, residents were threatened to face felony charges after their dogs were found abandoned in backyards. One Animal Control Director said, “There is absolutely no excuse for doing that.” But the pet owners did not face animal cruelty charges because the animals were not abandoned, they were actually in the process of being evacuated.

In the chaos of the storm, animals can be misplaced or presumed to be forgotten. The typical response from the public is, “I would never leave my pets,” but this is disconnected from the actual experience of an emergency evacuation. One California fire evacuee, Christina, suddenly woke at 3 a.m. to a sky engulfed in flames. She grabbed her dogs and made it out of the neighborhood within four minutes. Minutes later, several homes in her neighborhood were burned to the ground. Some neighboring cats and dogs hid or ran in the chaos, leaving families with no option but to leave the doors open and hope their pets made it out.

Public Domain 3
Photo by: Liz Roll Photo by Liz Roll – Sep 07, 2005 – Location: New Orleans, LA

PETS, a break-through act for families and their pets in emergencies, has not solved the problems that initiated its conception. PETS was crucial in recognizing the power of the human-animal bond and the critical need for pet evacuation plans. States need to take a step back and re-evaluate their focus on pet policies. Implementation of grassroots outreach programs is essential to bridge the gap between the agenda of local and state evacuation plans and the vulnerable populations that the plans were meant to protect. “There is no power for change greater than a community discovering what it cares about.”

 

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.

chp_police_interceptor_utility_vehicle

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 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

Caged in

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

immmigration-rally

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

Beer

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.