Monthly Archive for July, 2012

17yr Old Redefines Sexual Assault Confidentiality Laws Through Twitter

Rape shield and juvenile confidentiality laws are used to protect victim’s identities and reputations. These laws have always been controversial, as they usually make it extremely difficult for criminal defendants to defend themselves from rape and/or other sexual crime charges. These violations of the right to due process were usually tolerated to encourage victims to use the legal system. Savannah Dietrich’s story turns this established debate on its head and pits these confidentiality laws against another important area of Constitutional law.

Dietrich was at a party when she passed out after consuming too much alcohol. While Dietrich was unconscious, a pair of boys undressed the than sixteen year old and sexually abused her. The extent of their sexual attack is unknown, although they did post pictures of Dietrich online. Savannah discovered these pictures a month later. The boys were subsequently charged with sexual assault and misdemeanor voyeurism (looking at someone nude without their consent), although they reached a plea agreement with the prosecution. Dietrich was unaware of the plea bargain until the initial hearings. During the hearings, Judge Dee McDonald ordered all participants not to discuss the crime or the hearings. Dietrich, however, wanted her story to become public and subsequently began twittering about the case, including the names of her attackers. The defense wanted the judge to charge her with contempt of court, but later withdrew the motion after public outcry.

There are many reasons the judge and the defense wanted the gag order, or order to remain silent, in place. Although the defense had already come to a plea agreement, thereby admitting their guilt and avoiding a jury trial, sentencing has yet to be given. The defense may fear public opinion would prejudice the judge into giving a harsher sentence then intended. In addition, the defendants are minors and the judge is compelled by law to keep the identities of all minors involved in a crime a secret for as long as possible.

The plaintiff, however, has already had her identity stripped from her. Part of the boy’s crime was posting nude pictures of Dietrich over the internet. Identifying the boys who did that to her on Twitter hardly seems to compare. Dietrich and her parents also welcome the media attention and consider it a violation of Dietrich’s right to free speech to prevent her from telling the public about what happened. Indeed, Dietrich’s story has already inspired an entire Facebook page dedicated to supporting her.

The irony of the situation, as stated earlier, is that the laws which legalize the judge’s gag order were partly intended for Dietrich’s protection. Before the 21st century, it was not uncommon for victims of sexual assault, usually women, to be blamed for what happened to them. In fact, had Dietrich been living in that era, her underage drinking would have been the focus of the story. The rape shield laws were intended to prevent the defense from using that to assault her character and the juvenile confidentiality laws were intended to allow young women like Dietrich to move on with their lives after the trial was over. It must be noted that Judge McDonald’s order covered Dietrich as well; the defendants were not allowed to talk about Dietrich anymore than Dietrich was allowed to talk about the defendants.

The 21st century, however, has wrought significant changes to the world the criminal justice system operates in. Not just in communications technology, but also how the public views women who are sexually assaulted. Although the laws which obligated Judge McDonald to put the gag order on were done with the best of intentions, they did so with the assumption that women were powerless against a public perception which was completely biased against victims of sexual assault.

Perhaps it’s time to reevaluate these laws, not just for the criminal defendants who may be accused, but also for women like Savannah Dietrich who wish to regain power over their own lives.

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Time To Get Litigious: Middle Finger Arrest Leads To Manhattan Lawsuit

Whatever happened to cool cops?  You know, the kind who you could shoot the breeze with or just call “pig” without having to worry about getting a nightstick to the head?  It seems like they’re rarer than a three dollar bill these days.  But hey, at least now you don’t have to worry about police brutality for your childish antics – only getting arrested.  Thankfully though, even if you do end up in cuffs, you can always sue the heck out of them for violating your First Amendment rights.

That’s exactly what Robert Bell did.  The 26-year-old New Jersey man flipped three cops the bird after leaving a pub last August in Manhattan.  The officers’ backs were turned so they didn’t see it, but a fourth officer did.  And in a show of a complete lack of humor, the cop arrested Bell for disorderly conduct for making an “obscene gesture” and causing “public alarm and annoyance.”

Bell pled not guilty.  Fortunately for him, the charges were eventually dismissed when the reporting officer didn’t show for Bell’s trial.  Unfortunately for the city, Bell wasn’t ready to let bygones be bygones.  Instead, he filed a lawsuit against the city earlier this month.  And based on the allegations in his lawsuit, Bell might actually have a good chance to win.

Civil lawsuits for police misconduct are notoriously difficult to win, especially when the basis for them lie in constitutional right violations.  But winning one can mean big damages for the plaintiff, and Bell’s case is no different.

Plaintiffs who allege such fundamental harm are allowed to sue the government under section 1983 of Title 42 of the United States Code.  To win under the statute, the plaintiff basically has to prove that the person who caused their harm was a government actor and that the plaintiff constitutional rights were actually violated.

The first element is usually easy to prove.  After all, a government actor is anyone who works for the government.  In Bell’s case, the person who arrested him was a cop.  And no one is more intertwined with the government that an officer of the law.

The second element is the trickier part.  Alleging a constitutional right violation requires pointing to a specific enumerated right and proving that the government actor’s actions actually violated it.  But if Bell’s allegations are true, he won’t have much trouble on this front either.

Generally when it comes to police misconduct, the usual go-to allegations are unlawful arrest and malicious prosecution.  The reason Bell’s case seems to be in his favor is because arguably he’s already proven both of these violations when his disorderly conduct charges were dismissed last year.  In case you didn’t know already, being unlawfully arrested violates a person’s Fourth Amendment right against unlawful searches and seizure.

Furthermore, because he was arrested for flashing his middle finger at cops, his First Amendment rights were also harmed as well.  And last time the Supreme Court checked, actions like his were considered to be well within one’s constitutional rights.

So what kind of damages could Bell be expecting?  The full gamut, under section 1983 he could potentially get compensatory, aggravated, and exemplary damages.  All of this translates to a good chunk of money from Manhattan’s budget.  All because one cop couldn’t deal with the fact that people aren’t all that crazy about the police.

But what you guys think, is this a fair way to deal with allegedly misbehaving cops?  As always, sound off with your thoughts in the comments section below.

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All Boy Scouts Are Equal, But Some Scouts Are Just Not Welcome

The Boy Scouts of America (BSA) have been one of the nation’s most prominent youth groups in the United States since 1910. With over 110 million members since its founding and substantial support from respected institutions in the country, the BSA has enjoyed a great deal of success.

The scout’s success, however, has brought controversy as well. The Boy Scouts, which claim to focus on teaching moral values, have a long standing rule of banning homosexuals from joining, either as a scout or as an adult leader. The rule has been repeatedly challenged since the 1980’s, even going to the Federal Supreme Court at the beginning of the 21st century. The Rehnquist Court, in Boy Scouts of America v. Dale (2000), ruled that the BSA could keep its discriminatory rule.

This, however, was not the last word on the issue. Every year since the ruling, petitions from current and past members have urged the BSA to reconsider its stance on homosexuals. This month though, the BSA’s leadership announced that after a two-year review of the situation, it has unanimously decided to keep its long standing rule.

Opponents of the Boy Scout’s policy, argue that the rule is blatantly disrespectful and forces homosexual members in the closet, similar to the effect the militaries former “Don’t Ask Don’t Tell” policy did to its members. In the case of the BSA however, the effect is much more harmful as young boys may be confused about what they feel and what they are told. Moreover, this encourages young people to lie about who they are; a violation of the BSA’s code to be honest. The odd thing about the policy on homosexuals however, is that it isn’t expressly written. The BSA code only requires members to be “morally straight” and “clean”.  As Justice Stevens pointed out in Dale, a ban on homosexuality among members of the BSA is only an interpretation, and an interpretation which doesn’t necessary follow from its written code.

The BSA, however, asserts that they have the right to make such rules. The state cannot force private organizations to change their rules, as that would be a violation of the First Amendment’s free speech and free assembly. The BSA, in contrast to the military, is a private organization, free from the government’s anti-discrimination policies. As the majority in the Dale case wrote, it doesn’t matter if individual members of the group disagree, the group’s official doctrine is the one which is binding. Although pro-gay rights groups may agree with Justice Steven’s dissent, that the Boy Scout’s code doesn’t match its behavior, it is not the place of the judiciary to interpret what the BSA’s code means. The Court can only interpret the law and the law is clear that membership in an organization is not a fundamental right the Court can protect.

Opponents will point out that the Boy Scouts are not a private organization. Until 2005, the BSA’s charters were often sponsored by military bases or public schools. Indeed, the Defense Department still hosts and spends $2 million worth of tax dollars to host BSA’s jamborees, a major annual event of the group. Congress has twice passed laws, Boy Scouts Equal Access Act of 2001 and Support Our Scouts in 2005, which require state and local governments to give the BSA access to government land and property if the state or local municipalities receive federal aid. The BSA is far from a private organization; on the contrary, it receives a huge amount of government support for its religious based rules.

Although the Boy Scouts receive sponsorship from several government entities, the BSA itself is not a religious group, as ruled by a federal court of appeals in Winkler v. Rumsfeld (2007). Since the BSA is not a religious group, there is no violation of the establishment clause, which bars any establishment of religion. Thus, governments are free to aid the scouts as the governments see fit.

The laws Congress passed ensure only that state and local governments provide equal access for the Boy Scouts. The laws are there to ensure that government doesn’t discriminate against the scouts and to ensure that they have the same rights to government support as the ACLU, Wal-Mart or any other group holding public events on public property. Although it is sad to see that the BSA will not change its membership stance, it is perhaps best that civil rights groups lobby the BSA’s leadership rather than head to the courts on this matter. Laws should reflect public sentiments and only in fundamental rights should laws constrain private behavior.

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You Gotta Fight For Your Right To Strip Naked At The Airport

Going through airport security just got a whole lot sexier.

An Oregon circuit court judge has held that stripping nude in protest at an airport is protected form of free speech.  So you all have our country’s founding fathers and the First Amendment to thank the next time you see a deluge of skin while you’re trudging through TSA lines.

The controversy started back in April when John E. Brennan was arrested by police after he shed his clothes while going through a security checkpoint at Portland International Airport.  Brennan claimed the action was to protest what he viewed as harassment from TSA screeners.  According to Brennan, he flies a lot for his work and was finally fed up with the constant security scrutiny.  Not surprisingly, the cops didn’t find his antics amusing.  They charged him with disorderly conduct and indecent exposure.

However, with the circuit court judge’s favorable ruling, Brennan’s actions seemed vindicated.  But is that such a good thing?

The prosecutor in Brennan’s case argued that establishing such a precedence would make trying defendants accused of indecent exposure needlessly difficult, if not impossible.

It’s a valid point to consider.  In essence, Brennan’s defense was that although he intentionally disrobed in a public place, he shouldn’t be guilty of indecent exposure because his was an act of public defiance, protected by the Constitution.  It’s no stretch of the imagination that anyone in the future who gets arrested for the same offense could claim the same defense Brennan did and win (at least in Oregon).  The line between public nudity being illegal or merely a legitimate form of protest certainly appears to be a murky one, indeed.

But don’t be so quick to come down against this ruling.  While it might initially seem like one that overly complicates what should be a simple prosecution, the court’s decision here actually helps better define indecent exposure under the law.

The reason is because indecent exposure actually carries an intent component under most state laws, Oregon included.  While most people may think that the crime only requires that someone flash their privates in public, to be found guilty under the vast majority of state laws the defendant actually has to do it with the intent to arouse him or herself.

This distinction is ultimately what led to Brennan’s finding of not guilty.  His defense was clearly able to show that his actions weren’t done for the purpose of seeking any sexual gratification, but rather that it was done simply to protest the TSA’s practices.  So in essence, the court’s ruling only cements the importance of the suspect’s intent.  And therefore, any real flashers who try to claim this wouldn’t be successful since their purpose would be to get their rocks off.

Of course, it also leaves open the possibility that a pervert might expose themselves under the guise of protest when in actuality their aim is more sexually devious.  It’s certainly a risk, but all legal defenses carry the same flaw.

For example, a person could kill another person with premeditation, but lie and claim it was done in self-defense.  If they’re believed, a murder charge could be reduced to manslaughter or complete exoneration.  The possibility of misuse is always there.  However, isn’t it better to leave open the possibility for a legitimate defense rather than foreclosing it completely and potentially doom innocent people to jail and/or fines?

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Privatization of Public Safety May Sink or Swim When A Lifeguard Is Fired For Rescuing A Person

Many employees are afraid for their positions if a wrongful death occurs. Tomas Lopez was understandably upset when he was terminated from his lifeguard position for saving a life. It turns out that Hallandale Beach, where Lopez had been working, has certain “safety zones” that the lifeguards are required to watch. Maksim Samartsev, the man Lopez helped save, was outside the established safety zone when he was drowning with his lungs full of water. Lopez’s supervisors reprimanded Lopez for his failure to follow the rules and fired him.

Jeff Ellis Management, the company Hallandale Beach contracts lifeguard safety to, initially defended the termination. The manager argued that all lifeguards were responsible for their assigned zones and that leaving those zones before a shift was over opened the company to legal liability for the patrons who were inside the lifeguard’s safety zone. The company was not responsible for Samarsev’s safety, as he was outside the areas covered, but Jeff Ellis Management was responsible for the area Lopez had left. If someone in the safety zone had been endangered while Lopez was out, the company would have been liable. It really doesn’t matter what Lopez was doing while he was away, he left his post and that was grounds for termination.

Although Jeff Ellis Management’s defense of Lopez’s termination is flawed, the odds of a life threatening in both covered and uncovered areas are very low; the justification is still legally valid. The area Samartsev had been in was clearly marked by a sign which stated that patrons in the unprotected area swam at their own risk. Moreover, the contract the company had with Hallandale Beach made the company responsible for the safety zones and the safety zones only. The management company had no fear of liability from Samartsev’s death, but plenty of liability existed when Lopez left his duties. The issue, however, has already resolved itself. The CEO has offered Lopez his old job back and noted that the area Lopez left had two other lifeguards present at the time Lopez left. Although Lopez has declined to return to his old job, the entire incident has raised concerns about the wisdom of privatization of public safety.

The recessions of the last decade has pushed the trend towards privatization of what are normally government responsibilities. Hiring private companies to fight fires or watch the beach is usually much cheaper than having the city or state do it all on its own. With governments so hard pressed for money, every penny saved is a penny useable elsewhere in the future.

The downside of having private business run public safety though is that businesses have priorities other then public safety. Businesses have to profit or, at the very least, not lose money. This rule has lead to unfortunate incidents, such as firefighters letting homes burn down because the residents hadn’t paid their fire insurance yet or lifeguards fired for not following company policies designed to limit liability.

Although these decisions are legally right, these are devastating public relations disasters. In the end, it may cost the companies more than any lawsuit possibly could. Hallandale Beach is considering not renewing Jeff Ellis Management’s contract and the company has enough negative online coverage to render it extremely difficult to find a new one.

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