Militarized Police Forces Cause More Problems than They Solve

A few years ago, the Occupy movement was alive and kicking. It meant a lot of things to a lot of people. But one thing that it gave to nearly everyone was a glimpse into militarization of modern police forces. Stories of protesters being hospitalized after being shot with tear gas canisters and rubber bullets in Oakland may have initially conjured images of extreme violence by hordes of unruly citizens in the streets.

militarized police forcesQuite to the contrary, reports told of peaceful protesters being the target of these attacks. In any event, amounts of unruly protesters are almost irrelevant; law enforcement is not allowed to shower unsuspecting families in chemical weapons because of one house on the corner nearby is causing problems.

The recent demonstrations in Ferguson, Missouri, and the subsequent militarized call to action by law enforcement, has catapulted an important question into the headlines: why do police increasingly resemble soldiers?

Where Are These Weapons Coming From?

As our armed conflicts abroad are winding down, the federal government is finding itself with a surplus of military equipment. Under a program referred to as “war-fighter to crime-fighter,” over $4 billion dollars of wartime equipment has been re-purposed to local law enforcement. In addition to assault rifles, armored vehicles and personnel carriers are among the most common to be cruising the mean streets of Anytown, USA.

What’s the Big Deal?

Undoubtedly, there are those who may not see this as a problem. Some may even go as far as to imply if it weren’t for the unruly few alluded to earlier, police would not need to resort to such extreme measures. The problem with these positions is they miss the point entirely. Here are four of the biggest issues with police militarization.

1) Poor Police Tactics – First and foremost, bulking up law enforcement with instruments of destruction doesn’t neutralize what is most likely a constitutionally protected assembly and exercise of free speech. However, it does neutralize communication between the demonstrators and the police. Since the tragedies surrounding protests in 1960s, many police forces have made efforts to make communication and transparency with activists a priority.

Police know – or should know – that their first priority is to protect the community. This also includes protecting the Constitution. It is well settled that the best way to do so is to foster civility. Militarization only mounts tensions, and time and time again has all but guaranteed overreactions and incidents of violence.

2) Threatens Constitutional Principals - Similar to above, but much more ominous, is the likelihood that the First Amendment will not be respected. Scholars debate that the First Amendment, specifically the freedom of expression, was first priority to our founding fathers because it sits at the foundation of every other amendment. Meaning, quite simply, without it, the rest of the Constitution is remarkably toothless.

Sadly, where a police force is militarized, history has shown that any number of specific lawbreakers are not silenced exclusively, but rather tear gas, riot gear, and rubber bullets are used to just shut the entire event down. Otherwise lawful assemblies are declared, rightly or wrongly, unlawful, and chaos ensues.

As a result, citizens who were engaged in lawful political speech are violently and abruptly silenced. Frequently, journalists, who are not engaged in the demonstration at all, are arrested. The result is otherwise protected speech is crushed under the heel of a combat boot.

3) Excessive Force – A helpful illustration of how valuable our nation views the First Amendment is the $4.5 million settlement the city of Oakland reached with documentary photographer Scott Olson. The settlement is to compensate him for his injuries; both from the fractures to his skull as a result of being struck by a lead-filled bean bag bullet, as well as to the deprivation of his constitutional rights.

Olson is no stranger to the dangers of a militarized police force, and as an ex-marine and war veteran, to conflict as a whole. However, his incident is not an isolated one. The Oakland Police Department’s approach to the Occupy protests lead to several other lawsuits and federal oversight. The situation is not looking much better in Ferguson, where the Missouri Highway Patrol has largely replaced the police force, and the federal government has similarly issued staunched warnings over excessive force.

4) Lawsuits – As an overarching theme of all of the above issues are the slew of lawsuits that will inevitably follow. Far from frivolous, these suits are designed to make victims of over-policing whole again. At the risk of repetition, these lawsuits, while necessary to protect victims, ultimately weaken the local community. Money that could have gone to improving safety training for officers or upgrading more important equipment, like jail cells and squad cars – or even pay salaries – will be diverted to compensate victims.

What’s the Solution?

Often times, there is no clear answer to legal dilemmas. Fortunately, when it comes to a militarized police force, the answer seems plain and simple: stop. Just stop. Don’t do it.

Proponents may insist militarization helps taxpayers by reducing federal government waste, and how proper military training may actually be beneficial in the future and thus militarization just needs to be given a chance. Finally, some may argue that armored cars and assault weapons help keep officers safer.

However, the reality is that whatever benefit to tax payers simply cannot outweigh local communities suffering as excessive force lawsuits stack up, let alone at the peril of long held constitutional principals. Additionally, proper training clearly needs to be implemented, but not with respect to combat weapons in the streets of suburbia. In no scenario should an assault rifle mounted to a tri-pod atop of an armored vehicle – and pointed at protesters with their hands up – be tolerated. Moreover, in the rare occasion a hostile situation calls for more force, departments should all already have highly trained SWAT teams to efficiently diffuse the event.

Finally, with respect to safety, police are already armed with deadly weapons they carry during the course of their daily duty, as well as crowd control gear and tactics. Further adding to their deadliness does not necessarily make them safer. It only makes innocent citizens markedly less safe.

As a result, not only is the Constitution put at risk; life itself is as well.

Supreme Court to Hear Pregnancy Discrimination Case

In 2006, Peggy Young, a UPS air driver, was forced to take an unpaid leave of absence of more than six months from her job when she became pregnant. As a result, Young lost her wages and medical coverage, and her family was put through significant financial hardship.

pregnant workerThe ordeal began when Young’s midwife recommended that she refrain from lifting more than 20 pounds during her pregnancy. Young’s job as an air driver rarely required her to lift more than 20 pounds and when heavy lifting did come up there was always someone nearby the assist. Nevertheless, UPS policy does not allow employees under lifting restrictions to work as air drivers.

If she could not continue to work her current job, Young requested to instead be temporarily placed on a light duty assignment. UPS offers light duty positions to employees who have been injured on the job, have become disabled, or have lost their drivers licenses. Young’s request for light duty was denied. The UPS Division Manager told Young that her pregnancy was a liability and she would not be permitted to return to work until after giving birth.

Young filed a lawsuit against UPS in October 2008 for refusing to provide her the same light duty accommodations as non-pregnant employees equally unable to work.

Pregnancy Discrimination Is an Issue Faced by Many Working Women

While many pregnant women are able to continue working through much of their pregnancies, women working more physically demanding jobs are often at risk for being forced out of work if they become pregnant. Jobs that require physical activity are often low-wage jobs and the families who depend on these jobs are less financially equipped to absorb the costs of unpaid leave, especially with a baby on the way. However, pregnant women who continue to work physically demanding jobs through their pregnancies face increased risk of preterm delivery and low birth weight.

Slight job modifications would often allow pregnant employees to continue working through much of their pregnancies while also mitigating the health risks imposed by physically demanding work. Such modifications include assistance with lifting, more frequent breaks, and the ability to sit while working. However, many employers are inflexible and refuse to provide these accommodations. Peggy Young requested assistance with lifting packages of more than 20 pounds and was instead placed on extended, unpaid leave.

Federal Laws Protect Pregnant Workers

Pregnant women should not have to choose between their jobs and a healthy pregnancy. The following are three federal statutes used to protect the right of pregnant women to maintain their employment. Many states also have laws protecting pregnant workers and prohibiting discrimination on the basis of pregnancy.

1. The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) is a Federal law, passed in 1990, that provides civil rights protections to individuals with disabilities. Among its provisions, the ADA prohibits discrimination on the basis of disability and requires employers to make reasonable accommodations for disabled employees.

Pregnancy itself is not considered a disability for the purposes of the ADA. However, pregnancy-related impairments, such as pre-term labor, hypertension, severe nausea, sciatica, and gestational diabetes can qualify as disabilities if they substantially limit a major life activity. Sitting, reaching, lifting, or bending are just a few examples of “major life activities” provided by the U.S. Equal Employment Opportunity Commission (EEOC).

2. The Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a Federal law, passed in 1993, that entitles eligible employees to take up to 12 weeks of job-protected, unpaid medical leave to care for a new child or an ailing family member. FMLA also entitles employees to medical leave when a serious health condition prevents the employee from being able to work. This includes situations where the employee’s inability to work is related to pregnancy or prenatal care.

Unfortunately, many employers use FMLA as an excuse to avoid making reasonable accommodations and simply force pregnant employees to take FMLA leave. As a result, pregnant workers often use up most or all of their 12 weeks of FMLA leave before their babies are even born and are left without job-protected time off for childbirth and infant care.

3. The Pregnancy Discrimination Act (PDA)

The Pregnancy Discrimination Act (PDA) is a Federal law, passed in 1978, that amended the Title VII of the Civil Rights Act (1964) to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions. The PDA requires employers to treat pregnant women the same as other employees with a similar ability or inability to work. Peggy Young is suing UPS pursuant to the PDA.

The EEOC Recently Issued Additional Guidelines on Pregnancy Discrimination

On July 14, 2014 the EEOC issued an updated enforcement guidance document, clarifying the requirements of the PDA and other Federal statutes relevant to pregnancy discrimination. Issues covered by the EEOC guidance include:

  • Pregnant workers cannot be forced to take leave when they are able to work
  • Similarly situated men and women must be grated parental leave on equal terms
  • When pregnancy related impairments require accommodations under the ADA
  • When employers must provide light duty assignments to pregnant workers

Regarding light duty assignments, the EEOC guidance clarifies that pregnant employees must be granted the same access to light duty as other employees similarly unable to complete their job duties. Disparate treatment may be proven via:

  • Pregnancy-related comments, such as, “having a pregnant worker in the workplace creates too much liability,” accompanying a denial of light duty
  • Other workers equally unable to work given light duty – the fact that pregnancy is not an injury, illness, or disability is irrelevant if the inability to work is the same
  • Disparate impact – where a light duty policy disproportionately denies pregnant workers light duty, the employer must prove the policy was a job-related business necessity

As you can see, the EEOC guidance appears to be directly referencing Peggy Young’s case. The guidelines even use a 20-pound lifting restriction as an example of a pregnancy-related handicap that would require light duty.

The Supreme Court Will Examine Pregnancy Discrimination in the Workplace

Peggy Young cited the PDA as the basis for her 2008 lawsuit against UPS. The Maryland District Court ruled in favor of UPS, holding that a policy that only provides light duty assignments to employees with on-the-job injuries, ADA disabilities, or suspended drivers licenses is gender-neutral and does not suggest an animus against pregnant women. The Fourth Circuit Court of Appeals affirmed this ruling, finding that the policy was “pregnancy-blind” and that to hold otherwise would read a “preferential treatment” mandate into the statute that was not intended by Congress.

As evidenced by the guidelines issued earlier this summer, the EEOC’s interpretation of the PDA is in stark contrast to the Fourth Circuit’s. This places the Supreme Court in the position of choosing between the EEOC and Fourth Circuit’s conflicting interpretations of the PDA. If the Court finds in favor of Peggy Young and upholds the EEOC guidelines, this would be a huge step forward in terms of equal accommodations for pregnant employees.

 

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Can I Be Sued for Writing Negative Reviews Online?

The technological advances of the last several years have made online shopping a way of life. At the heart of this new activity is the ability to broadcast consumer complaints. Sites like Yelp!, Angie’s List, and Amazon have turned the average consumer into an aficionado, giving nearly anyone the ability to publish opinions to a massive audience.

negative reviews onlineWhile buyers may be overjoyed by the wealth of consumer-driven reviews online, some sellers aren’t so happy. Some are so displeased that they have resorted to filing lawsuits against reviewers.

As a result, online shopping has added a new feature to the shopping experience: lawsuits against opinionated consumers.

How Can Sellers Sue?

One word: defamation. Defamation, specifically libel, is the communication to a third party of a false statement that damages or harms the reputation of another. The old saying about “words never hurting” is not true in the legal world.

Nonetheless, hearing about sellers initiating defamation lawsuits over bad reviews sounds outrageous, and has caused many to ask, “Why aren’t the websites hosting the comments liable?” and “What about the First Amendment?”

Well, the websites aren’t liable because federal law (specifically 47 U.S.C § 230) protects the websites from being sued for providing a medium through which defamatory statements may be published. The idea is to hold the author liable and not the website. Additionally, the First Amendment doesn’t protect speech that is defamatory. That itself sounds ironic, because the text of the First Amendment quite literally says that “no law” shall abridge free speech.

Should Shoppers Stop Reviewing?

Absolutely not. The First Amendment doesn’t protect speech that is defamatory, but even that comes with a caveat: truth is an absolute defense. So, if your review states the truth or states an unvarifyable opinion, then you won’t lose a libel suit.

Moreover, we have a pretty strong love for free speech in this country. So strong, in fact, that many states have drafted laws that protect individuals who are being sued simply for speaking their mind. An anti-SLAPP motion typically allows the defendant to collect attorney’s fees and costs for defending against a lawsuit they never should have had to answer for in the first place.

Although receiving a cease and desist letter for posting a review would be disconcerting and terrifying, to say the least, shoppers should take solace that the truth will protect them. At the same time, businesses should think twice before threatening consumers. Consider: one of the companies who recently threatened to sue a reviewer lost their Amazon seller account as a result of the ordeal.

Don’t Worry NSA, Google Has E-mail Surveillance Covered

It shouldn’t be surprising that Google monitors Gmail for child pornography. After all, this is the same company that scans e-mails and bombards uers with advertising for legal services. However, the scans of John Skillern’s Gmail will likely result in a lengthy prison sentence rather than annoying advertisements.

gmail surveillanceIn 2008, Google applied new software to its e-mail system. The software consists of a “database” of child abuse images (only data, no actual pictures!) which is compared to Gmail attachments. If there is a match, child protection agencies are alerted, who then send tips to local police.

The system is automatic, so Google employees aren’t involved in the process. Since Google’s e-mail system is the world’s largest web-based e-mail service, with about 425 million users worldwide, this system is one of the largest surveillance systems in human history.

A few weeks ago, Google’s new software led to the arrest of John Skillern. Skillern is a registered sex offender, convicted of sexually assaulting an eight year old boy in 1994. After Google scanned Skillern’s Gmail, police obtained a search warrant and allegedly found child pornography on his phone and tablet. The 41 year old Houston City restaurant cook was charged with one count of possession of child pornography and one count of the promotion of child pornography.

“Those Who Sacrifice Liberty for Security Deserve Neither”

Pedophiles who thought the “right to be forgotten” could shield their evil online are in for a rude awakening. There is no doubt that child pornography and the child abuse it promotes is profoundly wrong and people like Skillern deserve to rot in the deepest prison cells.

However, this type of surveillance is morally ambiguous at best and outright dangerous at worst. First, there’s the slippery slope argument. If Google can monitor private communications for child pornography, could they also monitor Gmail for drug use or criminal conspiracies? Can the software scan for politically sensitive issues like religion or terrorism? How about activists’ movements like Occupy or Tea Party? Surveillance always starts with good intentions. If the NSA has proven anything, it’s that employees of massive surveillance technology abuse it at the first opportunity.

Of course, slippery slopes are an easy argument, even if America’s legal system tends to ride slippery slopes all the way to crazy town. Google currently has little potential for employee abuse since Google’s system is automatic, with almost no human control. The software automatically compares data, not even actual photos, for a match. When Detective David Nettles said “I can’t see that photo, but Google can,” he was misleading reporters.

So what could go wrong when a computer system does all the surveillance? Ignoring the obvious Terminator reference, machines don’t understand context. Many child pornography laws require that the defendant have a certain state of mind, a criminal intent, for the defendant to be convicted. Suppose a defendant’s Gmail was hacked. Or a virus spread images of child pornography across random computers. Or if a child protection agency employee Gmailed a district attorney the photos as evidence. Google would pick out the transmissions, even though none of these cases would result in a conviction. Skillern looks like he possessed child pornography for the purpose of looking at and selling young children, but with 425 million users, there could easily be grey area cases.

The Future of Same-Sex Marriage May Be up to the Supreme Court

The states have an enormous amount of leeway when it comes to marriage. On occasion, however, a state’s laws regarding marriage may be called into question, requiring a high authority to step in and offer a well-reasoned answer. For example, Virginia outlawed interracial marriages for many years, until someone challenged the law and eventually had it overturned in the landmark decision of Loving v. Virginia.

same-sex marriageAs coincidence would have it, Virginia has recently become the third state to ask the Supreme Court to weigh in on their gay marriage law. Joining Utah and Oklahoma, and undoubtedly more in the coming weeks, Virginia’s Attorney General is essentially asking the Supreme Court to answer one highly controversial question: do homosexual couples have a fundamental right to marriage?

The Supreme Court is under no obligation to hear any of the cases. Even if they do decide to weigh in, there is no real deadline facing the Court. Notwithstanding, the situation presents a daunting situation; nine unelected justices may ultimately be responsible for ending the most tumultuous debate in decades.

For proponents of gay rights, that may not be such a great thing.

Earlier this year, same-sex marriage made news when a California ballot initiative attempted to define marriage as between a man and a woman. Reviewed by the Supreme Court, the appeal was shot down on jurisdictional grounds. What that means is that the court never really, officially reached the merits of whether same-sex couples can marry, but rather simply said the people challenging it didn’t have a legal leg to stand on.

In another victory for supporters of same-sex marriage came about in 2013, when the same Court held the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman, is invalid, because the law offered no legitimate purpose that outweighed the discriminatory, damaging effect DOMA had on same-sex couples. The Court reasoned that “by seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The initial inclination many may have is that the Court will make the same decision with respect to states. What makes this time different?

Unlike DOMA, which is a piece of congressional legislation, these laws are all unique to their respective state. As such, they are written differently, and may have provisions that could potentially satisfy the Court’s requirement for a legitimate purpose. Remember, DOMA was deemed to have no legitimate purpose, and, similar to bans on interracial marriage or same-sex marriage at a federal level, there also may not be any legitimate purpose of any of these states laws. However, and regardless of anyone’s personal beliefs, the devil is in the details with respect to statutory construction. With so many different state laws the Supreme Court will have to choose form, it’s possible they may make a ruling based on the best written – or most poorly written – law that appears before them.

Which leads to the next issue: variety. With the copious amount of appeals reaching the Supreme Court’s door, the justices will have the option of picking one (or potentially several) cases on which to base their ruling. While variety may be a good thing, as it ultimately gives the justices more freedom to pick the best case to support their legal reasoning, it’s also not such a great thing for that exact reason – if the Supreme Court wishes to limit the impact of the decision, they can. If they want the decision to have the broadest impact as possible, they can do that too.

So, for example, the Supreme Court may only decide on Virginia’s case based on the unique challenges Virginia is facing, and decline to hear the other cases. In doing so, they could indirectly have an impact on every same-sex couple, without actually ever having to reach a final decision on the merits.

Finally, justices are not keen on recognizing new rights. They may not necessarily have to with respect to gay marriage if they simply do not find a legitimate purpose in any of the state’s laws. What that does, however, is perpetuate and stretch out the same-sex marriage battle, making each challenge and each appeal it’s own little constitutional rule instead of one, overarching definitive rule. That will result in a patchwork of ideology, legal reasoning, and doctrinal law, and ultimately confuse the issue even further.

It is entirely possible none of this may happen. The court may decline to hear any case until there is more of split between circuits, and they may make another victory or offer a crushing defeat for same-sex marriages. As more states appeal, one thing becomes clear: they’ll have to do something, and whatever that something may be, it seems to have more potential to further promulgate and muddle same-sex rights than it does to clear things up.