Get Home for the Holidays: Tips to Avoid Road Accidents for the Winter Traveler

The holiday season is a wonderful time for many people to take vacations and visit their family friends. It is also a time where cars slide on the ice, drivers drink too much egg nog, and shopping frenzies cause insurance-raising fender benders. Here are some pointers to keep you and your kin safe and out of trouble on the way to your destination.

1. Prepare for driving through the ice and drifting snow

Winter driving requires patience, skill, and knowing when to pull over. One University of Georgia researcher, Alan Black, analyzed ten years of recent weather data to show that 800 drivers die each year just by driving in inclement winter weather such as sleet, snow, and freezing rain. This type of weather also causes well over a million accidents every year.  Winter Driving

Insurance experts and state agencies have compiled many lists of winter driving tips, and here are a few that stand out:

  • Have emergency equipment including jumper cables, a shovel, a scraper/brush, snow chains, and sand in your car. If you are planning a long-distance trip that could leave you stranded, also pack flashlights, food, blankets, warm clothing, and other winter gear.
  • Keep your cellular phone charged.
  • Winterize the car, making sure that your windshield wipers, battery, and tires are in good repair and that you have plenty of antifreeze in the system.
  • Learn how your car’s brake system works and how to react if tires start to slide on the ice.
  • Don’t take unnecessary drives in terrible weather.
  • When on the road, increase the distance between other cars.
  • Use headlights for visibility, but do not use high beams in snow, fog, or heavy rain.

2. Don’t cancel out Black Friday deals by increasing your insurance bill

Tens of millions of shoppers attend Black Friday sales, and they are starting earlier and earlier, creeping into Thanksgiving evening. Often, cars file in and out of cramped parking lots. Progressive Insurance discovered that parking lot claims rose by 36% on Black Friday in 2011. Unfortunately, there hasn’t been a more recent study, but drivers should still be careful. Here, the advice is simple:

  • Stay patient and calm.
  • Use your signals.
  • Choose parking spots where you have high side and rear visibility.
  • Look carefully before you pull in/out of a parking spot

3. Don’t drive intoxicated after a holiday party unless you want a DUI…or worse

Each year, “Blackout Wednesday” packs the local bars and kicks off the holiday season as one of the biggest binge-drinking days of the year. The frequency crashes involving alcohol during the holidays in general is 2-3 times higher than during the rest of the year. In all, 40% of holiday crashes involve alcohol. Bad road conditions combine with drivers’ diminished control of vehicles and poor reaction time produce serious and sometimes deadly accidents. Knowing this, the police and their DUI/DWI patrols are often poised to catch drivers in the act. Here are tips to avoid the ultimate holiday calamity:

  • Plan for yourself and your holiday elves… designate a driver at the beginning of the evening, have the number of a reliable cab, and don’t leave your car somewhere it can’t stay overnight. Make sure your friends also have a plan.
  • Nothing can really “sober” you up except for time. If you’ve had an intoxicant, coffee, water, or pumpkin pie may make you feel good, but won’t make you immediately fit to drive.
  • Beware driving applications (“apps”) that claim to help. Breathalyzer applications can be inaccurate, and so can applications that say they can track DUI checkpoints. If you want guaranteed protection from a DUI, don’t drink or use other intoxicating substances before you drive.
  • Know the DUI laws in your state. In some states, a DUI only requires “physical control” over a vehicle. For example, a person can be asleep in the backseat with keys in their pocket and still technically have “physical control” over the car. States may also criminalize reckless alcohol-related driving even for a driver who tests below the legal blood alcohol limit.
  • In most states, the blood alcohol limit is .08; one strong drink may put a petite person over the line. Factors including metabolism, fatigue, and how much you’ve had to eat can play a role in blood alcohol level. Once again, there’s only one way to make sure you’ll be safe: don’t mix driving with intoxicating “holiday cheer.”

Happy Holidays, and stay safe!

The Problems with Prosecuting Cyber Stalkers

Girl meets guy. Guy asks girl to add him on social media. Girl adds guy. Guy proceeds to insult and threaten girl, as well as stalk her every move online. Guy even threatens physical violence against girl in real life. Girl is terrified.

All of this sounds like a horror movie plot, but this has been the actual story of several cyberstalking interactions. According to a 2014 Pew report for online harassment, 40% of internet users surveyed have experienced some form of online harassment, whereas 73% have witnessed it occur to others.

Although there are many people who have either experienced or witnessed some form of online harassment, only 5% of people who experience any form of online harassment have reported it to a law enforcement agency. However, the Bureau of Statistics reports that approximately 1 in 4 stalking victims reported some form of cyberstalking such as e-mail (83%) or instant messaging (35%).

This begs the question as to why. Why do people refrain from reporting cyber-harassment or cyberstalking to the authorities or pursue legal action?

Online Harassment and Cyberstalking As a Gendered Problem

There are many forms of online harassment, but cyberstalking is one of the most severe. The National Conference of State Legislatures defines cyberstalking as “the use of the Internet, email or other electronic communications to stalk, and generally refers to a pattern of threatening or malicious behaviors.” Sanctions range from misdemeanors to felonies, depending on the state or federal statute.

The Pew report found that women from the ages of 18-24 experience more severe forms of online harassment at disproportionately high levels. Twenty-six percent of the young women surveyed have been cyberstalked, whereas only 8% of people who experienced online harassment in general were ever stalked.   Cyber Abuse

Many people will block the perpetrator from their social media accounts and pursue no legal action. For milder forms of online harassment, this usually resolves the problem. However, with severe forms of harassment like cyberstalking, there are many obstacles that may deter victims from pursuing a legal remedy. Given that most cyberstalking victims are young women, their lack of experience in dealing with legal authorities may discourage them from going to the police with the issue.

Prosecutorial Obstacles By Jurisdiction

State Laws

Although some states have enacted specific cyberstalking statutes, most states have tacked on an electronic communications element to their existing stalking laws. That means that for someone to successfully prosecute a cyber-stalker, they would need to prove every element of stalking beyond a reasonable doubt. This can be especially difficult, if threats and other behaviors are limited to internet activity.

On January 1, 2016, California will enact its own Electronic Communications Privacy Act (CalECPA) that will require law enforcement agencies to obtain a probable cause warrant before demanding personal data from internet service providers.

Although this legislation is considered a landmark digital privacy law, there are concerns that it may hinder law enforcement from investigating cyberstalking issues.

According to Pew’s Online Harassment report, “66% of internet users who have experienced online harassment said their most recent incident occurred on a social networking site or app.” CalECPA would require that probable cause for a warrant to obtain electronic data from an online service provider. Probable cause exists when there are sufficient facts and/or circumstances for a reasonable person to assume that a crime has been committed.

Fortunately, many internet service providers retain personal data for some length of time, so that a victim of cyberstalking could present evidence from emails, texts, or any other form of electronic communication. However, there is the risk that such data may be deleted or unavailable to show probable cause.

Federal Law

Cyberstalking was not fully addressed until recently. Before, there was no federal recourse for cyberstalking for adults. Federal statutes now include cyberstalking as a form of regular stalking, where a person is placed in reasonable fear of death or serious bodily injury and the behavior of the alleged stalker causes substantial emotional distress.

In 2013, the Violence Against Women Act (VAWA) was reauthorized and amended to include threats by electronic communications to its stalking section. VAWA allows someone to sue a perpetrator in federal court. VAWA also added stalking to its grant programs so that more funding can be used by states for the prevention of stalking and cyberstalking.

On November 12, Senator Al Franken introduced a bill called the Location Privacy Protection Act to ban cyberstalking apps on smartphone devices that can track the location data of other users’ cellphones. This bill is considered an important update to cyberstalking legislation because it addresses our contemporary dependency on smartphones and other portable devices.

International Law

The largest problem with working in an international jurisdiction is that many countries don’t actually recognize cyberstalking as an illegal offense. It can therefore be extremely difficult to prosecute someone overseas for cyberstalking itself. The best solution would be to find an attorney or other legal expert in that specific country’s criminal laws who can file the correct charges.

Since cyberstalking and other forms of online harassment are only recently addressed in US laws, there may be a stigma against reporting cyberstalking to law enforcement. Most advice given online for cyberstalking are self-help remedies, such as blocking the perpetrator or using “caution” when chatting with strangers online. As more cases are reported in the news for successful prosecution of cyberstalking, we may hope to see less obstacles in prosecuting cyber-stalkers in the future.

Closing the Loophole on Discrimination Against Disabled Americans

In most of the United States, the Americans with Disabilities Act helps people seek legal relief from disability discrimination without having to show that their disability was the only reason for the discrimination. One exception, however, exists in the Tenth Circuit Court of Appeals, which covers Colorado, Kansas, New Mexico, Utah, Wyoming, and Oklahoma. In that region, federal courts have held that disabled plaintiffs must show that their disability was the “sole cause” of discrimination. Now, a new Supreme Court case could change that.

The Case: Discrimination Due to HIV Status in an Oklahoma Prison

The case, Doe vs. Board of County Commissioners of Payne County, Oklahoma, is about an anonymous HIV-positive man who had a misunderstanding with police. Officers showed up to his house to investigate a hit-and-run accident because they saw that his car had “damage consistent with such an accident.” When they knocked on the door, Doe was startled and grabbed his gun. When Doe realized that the visitors were police, he placed the safety on his weapon, and lowered it. Despite his cooperation, Doe was arrested for obstruction and assault with a deadly weapon and eventually placed in the Payne County Detention Center.   ADA

At the jail, Doe was initially part of the general population. However, when his HIV-positive status was discovered, he was transferred to an isolation unit. In such a unit, prisoners are locked down for 23 hours a day, cannot have recreation time, attend religious services with others, do not have access to television, and may not use telephones or showers without permission. The prison’s log said that Doe was “Moved due to his HIV statuses.” Now, the prison says that this was only one of the factors in the move and the employee who made the log entry has claimed she thought there wasn’t enough room to list the other reasons. Doe “languished in the isolation unit for 47 consecutive days.” He was later released after pleading guilty to a misdemeanor: the remaining charges were dropped. He is now suing over his treatment in the facility.

The key provision of the ADA at stake here says that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  Doe argues that he was discriminated against, and that this law does not say anything about his disability having to be the “sole” reason why he was placed in an isolation unit.

What Should the Outcome Be?

The Supreme Court should rule in favor of Doe to unify the law in the United States. All but the Tenth Circuit have come to the opposite conclusion for very good reasons, including the fact that the plain language of the law does not seem to require a “sole” cause of discrimination. Other courts have also looked at what Congress intended when they passed the ADA, and have concluded that they did not wish to make it overly difficult for plaintiffs to prove discrimination.

In general, the Tenth Circuit’s rule makes it too difficult for plaintiffs to get a fair outcome when they are discriminated against. Requiring disability to be the sole cause of discrimination requires people to guess at people’s motives, or to somehow know what people are thinking. In a case like Doe, it allows the defendants in a case to backtrack and fill in their motives. The more elaborate the excuse for discrimination is, the harder it will be to prove.

Requiring only one motivation for discrimination also has some odd outcomes, as one Third Circuit case pointed out. For example, if a person was not hired by an employer because he was disabled and because he was black, he could file a claim of race discrimination under title VII of the Civil Rights Act. However, he could not then file a claim under the ADA because his disability was not the sole reason for discrimination. A result like this would not make sense.

If this case is decided correctly, disabled plaintiffs all over the country can seek justice under the ADA in the same manner. If not, the ADA’s protections for the disabled will lose some of their power.

California Turns Down Bill That Would Make It Easier To Sue Employers

Thanks to Governor Jerry Brown’s veto of Assembly Bill 465 (A.B. 465), employers in California are permitted to place arbitration agreements in employment contracts without further restrictions. A.B. 465 provided that arbitration agreements, and other waivers of legal rights must be “knowing and voluntary and in writing, and expressly not made as a condition of employment.” The Bill would have also banned mandatory arbitration. Mandatory arbitration requires employees to go to arbitration in the event of an employment dispute instead of taking the matter to court. In short, California employers may continue to enforce arbitration agreements set forth in employment contracts.

What is Arbitration?

Arbitration is an alternative dispute resolution (ADR) method. ARD is a means of resolving conflicts outside of the court system. The two most common forms of ADR are arbitration and mediation.

  • Mediation: Mediation is a process where disputing parties reach a mutual agreement with the help of a third-party mediator. Parties in mediation usually retain significant control over the process. In mediation, the parties in dispute must reach their own agreement; the mediator cannot decide the outcome. The agreement reached by the parties is usually non-binding. Thus, parties may pursue litigation after the conclusion of mediation.
  • Arbitration: Arbitration is a process where a neutral arbitrator (usually a lawyer or a retired judge) make a decision following a hearing. Usually, the arbitrator’s decision is binding and enforceable, unless the parties agree that it is non-binding. Because the decision reached in arbitration is binding, the arbitrating parties cannot litigate the final decision in court, however, awards can be appealed on a very limited basis. If the appeal contesting an arbitration award is successful the arbitration award is voided and the dispute may be litigated in court.

Arbitration is usually initiated when a court orders the parties to arbitrate or there is an applicable arbitration clause related to the dispute. For example, employers may place arbitration clauses in an employment contract that sends employment disputes must be submitted to arbitration.

Arbitration v. Litigation?

Arbitration is frequently a preferred alternative to trial when resolving disputes. Primarily, parties prefer arbitration over litigation because arbitration is a faster process and frequently less expensive than resolving an issue in court. Arbitration is also not part of the public record, unlike court. Thus, if parties want to maintain a degree of confidentiality, arbitration is more ideal.  Arbitration

Since arbitration is usually a more cost effective and confidential method of handling disputes,  employers usually prefer arbitration. If California limits employers ability to arbitration employment law claims, employers could locate elsewhere, which could create a loss of jobs in the state.

Critics of arbitration and supporters of A.B. 465 have largely argued that allowing mandatory arbitration agreements in employment contracts are unfair to employees. A.B. 465, as discussed above, would have limited employers’ ability to place arbitration agreements in their employment contracts.  It appears coercive to mandate that employees with otherwise viable employment law claims must submit their cases to arbitration. Employment attorneys note that frequently employees with viable cases receive far less in arbitration awards than they would have received in a traditional jury trial. Thus, the veto would appear to be a loss for employees in California.

Despite the apparent disadvantage the veto might have for employees, existing law in California already protects employees from seemingly unfair arbitration agreements. Under standard contract law, if an arbitration agreement is unconscionable or overly favorable to the employer, the arbitration agreement will be invalid.  Moreover, California law also requires employers to pay for arbitration should a dispute arise. Thus, employees with disputes have a cost-effective method of resolving employment disputes.

What Does the Veto Mean for California Employers?

Governor Brown’s veto means that employers in California may continue to place mandatory arbitration agreements in employment contracts. Nevertheless, employers must still adhere to California laws regulating arbitration that are already in place.

The Beginning of PreCrime?

What is Predictive Policing?

Predictive policing is an attempt to make police more proactive. Often, police react to crime by responding to 911 calls or arresting people who they see break the law. However, new technology allows police to prevent crime before it starts. Large amounts of data about past crimes are fed into computer programs that determine where and when (and sometimes with whom) the risk of crime increases.

Since TIME magazine called predictive policing one of the “50 Best Inventions of 2011,” more towns and cities are embracing this new technology.

Geographical Predictions

Predictive policing based on mapping has been very successful in combatting crimes like auto theft that occur frequently (and so create a lot of data) and follow certain patterns. Officers generally receive a map each day with highlighted areas to patrol when they are not responding to calls. In some places, patrolling the high-risk mapped areas is not mandatory. However, it is encouraged by departments because it gives officers more information.  PreCrime

Many U.S. cities contract with PredPol, a private company that takes crime data and uses a patented process to make predictions. In Santa Cruz, California, the police use the tool to map potential gang violence, batteries, aggravated assaults, drug crimes, and bike thefts. In Los Angeles, the police chose specific areas to experiment with Pred Pol and waited for the results to come in. In the Foothill area, the experiment was successful and property crimes fell by 12%. Now, the LAPD has adopted it in 14 out of 21 of its divisions. It is estimated that the prevention provided by this technology could save citizens $9 million dollars a year.  One critique is that the system does not work as well with crimes that don’t “have enough data points” or that involve “crimes of passion.” For these reasons, homicides are more difficult to predict on a map.

Individualized Predictions

Recent advances in predictive policing mean that it is also being used to target violent crime. Since violent crime typically involves individuals instead of property, it is no surprise that police departments are now tracking specific people as part of their “prediction” strategy. These predictions are often based in theories about criminal psychology. For example, the Chicago Police have developed a list of 400 people most likely, at the given time, to commit a violent crime. To do so, they use social media data, crime information, suspicious person reports, and 911-calls. However, this so-called “heat list” has led to criticisms by civil liberties groups like the ACLU. The risk is that predictive policing increases police scrutiny on individuals regardless of whether or not they have committed a crime.

Other jurisdictions are also embracing a more individualized risk model. In Maryland, for example, social service workers are teaming up with statisticians to predict which families will be most likely to seriously harm their children. Meanwhile, in Kansas City, the authorities have identified almost 1,000 people belonging to criminal groups and are targeting them specifically with interventions intended to curb violent crime.

What are the Criticisms of Predictive Policing?

While map-based predictive policing is certainly effective at deterring some types of crime, civil liberties activists are concerned that it may target residents of certain neighborhoods unfairly. If utilized in the wrong way, this type of policing may create a vicious cycle.

For example, racial profiling or increased patrolling of certain neighborhoods may lead to black or Hispanic individuals’ arrest for drug crimes at a higher rate than their white counterparts (who commit a similar number of those crimes). Data from these arrests may create a false impression that there is more of a “drug problem” in predominantly black or Hispanic neighborhoods, leading to increased patrols, more scrutiny, and more arrests. A similar problem may involve patrolling in “rich” versus “poor” neighborhoods.

Targeting individuals may be even more problematic. It sets up a new and invasive type of surveillance, not over neighborhoods in general, but over people in particular. Now, license plates are scanned, devices can track mobile phone signals, and surveillance cameras and tablets with facial-recognition technology are now available to police. This makes a very detailed level of tracking attainable, and moves us closer to a “Minority Report” world.

What is the Future of Predictive Policing?

Predictive policing holds great promise as a deterrent to certain types of crime. However, the use of predictive policing must continue to be scrutinized carefully so that it does not interfere with important civil rights. Many cities are now experimenting with this technology, so society will eventually know its effects, good and bad.