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Border Patrol Sued Over Traffic Stops

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With arguments over Arizona’s controversial immigration law wrapping up in the Supreme Court last week, the debate over immigration (both legal and illegal) into the United States seems to get more heated every day, and more states considering immigration laws similar to Arizona’s, a recentlawsuit (also reported here) may have flown below your radar.

The ACLU is suing the U.S. border patrol agency Immigration and Customs Enforcement (ICE) over traffic stops that they allege are racially biased and overly-aggressive.

While the basis for many states passing their own immigration laws is the claim that the federal government is not doing enough to stem illegal immigration, the numbers show that during the Obama administration, deportations of illegal immigrants have reached an all-time high, and staffing of border patrol agencies has increased. Furthermore, immigration authorities have placed a heavy priority on deporting illegal immigrants who have committed violent crimes while in the U.S. Anyone who prefers a “get tough” strategy for dealing with illegal immigration should be thrilled at this information, but, for some reason, it largely goes unreported in the media.

While anti-immigrant forces may not have noticed that the Obama administration is being more aggressive against illegal immigration than any other president in decades, people who advocate for the rights of immigrants, particularly the basic civil liberties of undocumented immigrants, certainly have noticed this trend, and, as one might imagine, are not happy about it.

The issue in this lawsuit mostly has to do with racial profiling – the practice of law enforcement agencies targeting members of a particular racial or ethnic group based on the belief that they’re more likely to have committed a crime.

This practice is unlawful in almost any context. The lawsuit asks the court to issue an injunction against the border patrol barring them from engaging in any traffic stops until they have undergone special training on how to avoid racial profiling.

The law governing civil liberties and immigration is a little different from the privacy and civil rights laws that apply in almost any other context, and it can be confusing, both for ordinary individuals, and for the officers charged with enforcing it. When at or near a border crossing, border patrol agents have significant latitude in stopping and searching vehicles when they have any suspicion that violations of immigration laws are occurring.

However, when far away from the border, their power is more or less the same as any other police officer. If they want to stop a vehicle, they have to have a reasonable suspicion that unlawful activity is afoot.

This case was filed in Washington State, and it’s not clear from the articles I’ve found where the traffic stops took place. It’s possible that they occurred near the border with Canada, which is a major entry point for illegal immigrants, which receives much less attention than the U.S.-Mexico border.

In its lawsuit, the ACLU is alleging that such racially-motivated traffic stops are becoming increasingly common, as the U.S. tries to improve security along the northern border, which is much longer than the U.S./Mexico border, and, compared to that border, has been ignored by immigration authorities in the past.

While I am fine with enforcing our current immigration laws (including the deportation of illegal immigrants, with a particular focus on those who have committed crimes in the U.S.), I believe that the constitution, including the protections in the Bill of Rights, should apply to everybody who is in the United States, or otherwise under its jurisdiction.

And I think that basic notions of due process and equal protection should apply when enforcing immigration laws. Call me crazy, but I don’t think it’s unreasonable for the legal protections we would readily extend to a serial killer to also apply to a person who is physically present in this country without the correct paperwork, because they want to make a better life for themselves and their family. But I guess that’s a radical position in this day and age.

Reading the comments on some of the articles covering this story is kind of upsetting. There are a lot of people saying things to the effect of “hey, ACLU, just let the officers do their jobs!” or “who cares about the ‘rights’ of a bunch of illegals?” etc., etc.

Putting aside the fact that the people filing this lawsuit are American citizens, I think the best test of our commitment to the rule of law and the Bill of Rights is how consistently we apply it to everybody, especially the least popular and most vulnerable groups of people.

And action through the judicial branch of government (i.e., lawsuits) is often the only way to ensure that the other two branches of government live up to the promise of the constitution and Bill of Rights.

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Government Lawyer Convicted of Hate Crime in Harassment Case

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In a classic case of “he should have known better,” a lawyer (or, more likely, a soon-to-be-former lawyer) in New York has been convicted of a felony for making harassing phone calls to his African-American neighbors, which included threats and the use of racial slurs. He tried to make it look like members of the Ku Klux Klan were responsible for the calls, and routed the calls through an Internet service that prevented the source of the calls from being identified through caller I.D. However, the police were able to track the calls back to him.

This lawyer also happened to work for the government of the state of New York. The calls were made in 2010, and after being charged, he resigned from his $104,000/year job in Albany.

And now, finding new employment in a job market that’s notoriously bad for legal professionals is the least of his worries: the defendant has been sentenced to 1-3 years in state prison for criminal harassment, with a felony hate crime enhancement. The prison term is the maximum allowed for the crimes he was convicted of.

I predict that, on some quarters of the Internet, there will be the predictable howling about how this case is another example of “political correctness” run amok, and how hate-crime laws are chipping away at free speech, they give racial minorities special protection, etc., etc.

I should make a few things clear at the outset: hate crimes laws do not give any particular racial group “special” protection. Hate crime laws do not actually create any new crimes. They do not enhance punishments because of the race of the victim. Rather, they enhance punishments for crimes that were motivated by the victim’s race (or other classification, such as religion, gender, or sexual orientation). So, in theory, a white person who robs, assaults, murders, or commits any other crime against another white person specifically because of the victim’s race, could be charged with a hate crime.

Furthermore, hate crime laws do not have any impact of free speech. They don’t make it illegal to express racist, sexist, or homophobic sentiments, if one is so inclined. However, the First Amendment right to free speech has never been interpreted to allow harassment or credible threats of violence against individuals. So, this man’s conduct would have been a crime even without the racial element.

And the fact that he made racist statements in the phone calls was not, in itself, a source of criminal liability. Rather, it was simply used to prove the fact that his actions were motivated by the race of his victims, therefore warranting the hate crime enhancement.

Reasonable minds can differ on whether or not hate crime laws are a good idea. However, there’s a lot of confusion around about what these laws actually do. And when any high-profile hate crime case enters the public discussion, these misconceptions are often repeated by pundits as if they’re fact, which further increases the public’s misunderstanding of the nature and purpose of these laws.

For example, in 2009, Congress passed, and President Obama signed, a law that extended federal hate crimes laws to apply to crimes committed against individuals based on their sexual orientation.

Conservatives in Congress opposed this, because they claimed it might end up being applied in ways that limit free speech and freedom of religion. Presumably, they were concerned that it could be used against religious leaders who speak out against homosexuality.

Predictably, these fears proved to be groundless. Of course, anyone who knew about how hate crime laws actually work could have told them this, because criticizing homosexuality is not, never has been, and never will be, a crime.

After all, hate crime laws that cover crimes motivated by race have been around, in various forms, for decades. Yet groups such as the KKK and neo-Nazi organizations are still around (and, sadly, have shown signs of growing in recent years). I don’t like those groups, nor do I like homophobia. I do, however, love the fact that such groups are allowed to freely express their views, no matter how repugnant I find them.

And I would strongly oppose hate-crime laws if I believed, even for a second, that they would have any impact on our constitutional right to free speech.

However, I believe that crimes motivated by something as irrational as hatred are particularly egregious, and should be subject to heightened punishment. And it’s not as if there isn’t precedent for enhancing the punishment for certain crimes based on their motivation. For example, in every state, murder is illegal (obviously). However, many states have heightened penalties for certain types of murder. For example, in states that have capital punishment, a murder committed primarily for financial gain (such as contract-killing) is often one of the aggravating factors that can make a homicide eligible for the death penalty.

Now, some would say that we shouldn’t care why a particular crime was committed. Rather, we should simply focus on the result of the criminal’s actions when considering a punishment. This, in my view, is a terribly shallow view of culpability and justice. If criminal punishment is, at least in part, about casting moral blame onto the perpetrators of criminal acts, we should look at their actual culpability. And a person’s mental state when committing a crime is obviously an element of that.

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Producers of “The Bachelor” Sued For Racial Discrimination

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With very few exceptions, I’m not a fan of “reality” TV. But for some reason, it seems that it’s impossible to follow the news without seeing a story about a reality TV show. And now, a big story involving a reality TV show, and its contestants, has infiltrated the tiny journalistic niche of legal news: would-be contestants of the dating TV show “The Bachelor” are suing the producers of the series, alleging that it engaged in racial discrimination.

I don’t know if these allegations are true. However, the fact that there’s enough of a perception of discrimination that some plaintiffs felt that they needed to file a discrimination suit suggests that race is still an issue in all sectors of employment, and we still have a long ways to go before we’re a truly colorblind society.

The lawsuit claims that prospective “bachelors” and “bachelorettes” who applied to be on the show were systematically discriminated against based on the fact that they were not white. The lawsuit claims that there have been 23 seasons of the show over 10 years, without a single person of color filling either role.

While this may seem like a relatively straightforward employment discrimination lawsuit; but the facts that it involves a popular TV show, and the qualifications for the job of “bachelor” are so subjective, there are some interesting wrinkles.

It appears this isn’t technically a suit under employment law, because the relationship between “bachelors” and the TV network they work for does not appear to be a regular employer/employee relationship, because the term of work is very limited, and the bachelor/bachelorettes don’t appear to be paid a salary. The relationship is more like that of an independent contractor.

And because of that, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, and which serves as the basis for most employment lawsuits, probably doesn’t apply.

Instead, the lawsuit is being brought under the equally-important, but less well-known, Civil Rights Act of 1866. This law was passed shortly after the Civil War, and it was originally intended to ensure that African-Americans have the same right to enter into contracts as whites, in part by requiring courts to treat contracts with African-Americans as parties exactly as they would treat any other contract.

In recent decades, the Supreme Court has significantly expanded its interpretation of this law, holding that it also prohibits private parties from refusing to contract with people based on their race.

The lawsuit also alleges that the defendants’ alleged conduct also violates California’s civil rights laws, which generally go further than federal law, providing for stronger punishments for racial discrimination, and more expansive remedies to the victims of discrimination. In addition, California law bans discrimination based on additional categories that aren’t covered under federal law, such as sexual orientation and gender identity.

With all this said, if the plaintiffs hope to obtain relief under either federal or state law, they will have to actually prove that they were discriminated against based on their race. This will be no easy task. Proving that an employer, or anyone else, intentionally engaged in racial discrimination is pretty difficult.

And in this case, the “job” qualifications for the position of “bachelor” and “bachelorette” seems incredibly subjective. It appears that the defendants would be able to come up with virtually any qualification, and plausibly link it to the job. All they might need to do, in that case, is come up with a qualification that all of the people who became “bachelors” have, which is not shared by many of the plaintiffs. Of course, they’d also have to show that this is not a pretext for racial discrimination, which would be difficult.

The defendants might argue that advertisers and viewers prefer to see white bachelors and bachelorettes starring in these shows. Many anti-discrimination laws have exceptions for “bona fide occupational qualifications.” For example, a job as a model for men’s clothing can only reasonably be done by a man. So, a woman would not be able to sue for sex discrimination if she was not hired as a model of men’s clothing because of her gender. Likewise, this rule can also allow for religious organizations to refuse to hire some employees (if the job is religious in nature) based on their religion.

However, no court in the U.S. has ever held that there is a bona fide occupational qualification for race. While they have left open that a situation could conceivably arise. However, they have repeatedly held that customer preference for a particular race is not sufficient for this exception to apply. So, even if the defendants could show that viewers and advertisers prefer to see white people starring in these shows, a court would probably not find that the bona fide occupational qualification rule applies.

While I don’t know how this case will turn out, and whether or not the producers of these TV shows deliberately engaged in discrimination, the fact that, in 23 seasons, no bachelor or bachelorette of color has ever been featured on either of these shows does not bode well for the defendants. That, by itself, is not enough to conclusively prove that deliberate discrimination took place, but it is certainly a very strong piece of supporting evidence.

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Should Death Row Inmates Be Allowed to Donate Their Organs?

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You’re probably familiar with the long-running debate about the death penalty- including arguments over its morality, effectiveness, cost, and fairness. The argument over whether or not the death penalty should exist is well-trod ground.

However, there are many ancillary debates relating to the death penalty, which do not directly relate to whether or not we should have capital punishment. Most of these debates start from the premise that the death penalty should exist, or that, for better or worse, it won’t be going away anytime soon.

These include questions from the exact method should be used to execute convicts, what crimes should be eligible for the death penalty, who should be subject to the death penalty (the debate focuses primarily on minors and the mentally disabled).

However, there’s another debate that has long been simmering below the surface, and has recently grown in prominence: the question over whether or not inmates on death row should be able to donate their organs after they are executed. In March of 2011, an inmate on Oregon’s death row wrote an opinion piece in the NewYorkTimes, in which he explained his desire to donate his organs after he is executed. He has even offered to drop all of his appeals, if he is allowed to donate his organs.

On its surface, it seems perfectly logical that the organs of death row inmates should be harvested and donated to those who need them, presuming that the organs are suitable for donation. In fact, some might argue that organ harvesting should be standard procedure, with the inmate having no say in the matter. After all, if the state has already stripped a person of his legal right to live, taking away their legal right to determine what’s done with their organs after they die seems like a triviality.

Most people who favor letting inmates donate organs, however, seem to believe that the choice should be up to the inmate.

In either case, the argument is simple: whether you favor the death penalty or not, it probably isn’t going away anytime soon. So in the meantime, why not let the death of a person (which is never a pleasant thing, even if they were convicted of a horrible crime) save or improve the lives of several other people?

After all, there are over 100,000 people in the United States awaiting donor organs, and almost 20 of them die every day. Across the U.S., about 3,000 people are on federal (both civilian and military) and state death row. A single healthy person, by donating their heart, liver, kidneys, lungs, and other vital organs, can save the lives of up to 8 people. And by donating their corneas, skin, and even (thanks to advances in medical technology over the last decade or so) their faces and entire limbs, they can vastly improve the quality of life of many additional people. And currently, no jurisdiction in the United States allows prisoners condemned to death to donate their organs. They are buried or cremated right along with the rest of an executed prisoner’s body. To many, this seems like a huge waste.

However, there are some reasons why we should think long and hard before changing the rules to allow these organ donations. First of all, there’s the issue of consent. When a person is on death row, it’s arguable that they are totally incapable of making a truly free and rational choice about anything, let alone something as profound as organ donation.

Furthermore, there are laws in the United States that make it illegal to sell human organs, or exchange them for any other type of “valuable consideration,” which would presumably include leniency in sentencing. However, if the inmate is going to be executed either way, that doesn’t seem to be an issue.

There are also concerns that the need for donor organs, and the ability of inmates to donate them after they’re executed, might lead to prison officials and court systems trying to hasten the execution process. For example, suppose an inmate has agreed to donate his organs in the event that he’s executed, but still maintains his innocence, or at least believes that he has legal grounds to have his sentence reduced to life in prison without parole. One could imagine a scenario where the courts try to rush his appeals through the system, in order to have him executed as quickly as possible, so that other people can benefit from his organs.

And finally, there’s the issue of medical ethics: a team of doctors would have to be on hand at the site of the execution to harvest the prisoner’s organs. The vast majority of doctors, however, believe that the Hippocratic Oath requiring that they “do no harm” prohibits them from using their medical expertise to participate in executions, in any way. It may be hard to find a doctor who’s willing to harvest the organs from a just-executed inmate, because they might believe that they are, in effect, participating in the execution process. But I think it should be up to individual doctors to make the decision of whether or not to participate in the process.

All in all, I think that some type of system which would allow inmates to make the choice to donate their organs is a good idea, on balance. Like every decision related to both the death penalty, and organ donation, that we have to make as a society, this is not a perfect solution. It certainly wouldn’t make the controversy over the death penalty go away, and would probably heighten the debate. Furthermore, it seems that this country is on a (very slow) path toward eventual abolition of the death penalty – with a few states recently eliminating it, and the Supreme Court regularly placing new restrictions on when it can be used. I don’t think making this one change should change our course in that direction.

In my view, allowing condemned criminals to donate their organs would be a good policy which might save hundreds of lives. However, I think it’s a decision that should be completely independent from the debate over the death penalty’s existence.

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California Supreme Court: Managers Do Not Need to Ensure That Employees Take Breaks

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California has a long history of liberal and progressive politics, particularly when it comes to protecting the rights of employees. And while the state legislature has passed a wide range of laws meant to protect employees, the California Supreme Court has also played a significant role in the development of many employee-friendly policies that California employees often take for granted.

So, a recent ruling from the state’s high court comes as something of a surprise, whether you agree with the ruling or not. The Court held that California employment law does not require employers to make sure that employees actually take the breaks to which they are legally entitled.

It’s important to note that the right of all employees in California to take at least a 30-minute meal break during a standard shift, and their right to two 10-minute breaks for every four hours worked, has not been affected. If an employer were to try and stop an employee from taking their legally-mandated breaks, there would be trouble.

What the state Supreme Court did here was resolve a question that, until now, created some uncertainty for employers. The law was not clear on whether or not employers had to actually order their employees to take the breaks to which they are entitled.

In its ruling, the court essentially says that, while employers are required to offer a minimum amount of break time to their employees, the law cannot dictate what the employees actually do with that time, and if they choose to spend it working, that is their right.

I’m of two minds about this decision. On one hand, I think it leaves the door wide open for abuse, especially of employees who don’t know much about their rights under California employment law. An employer could simply “forget” to inform his or her employees that they’re entitled to breaks, and if they eventually get sued for failing to offer their employees break time, they could simply claim that the employees chose to work through their breaks. And in many cases, it would be difficult to prove otherwise.

Groups that advocate for strong protections for workers are understandably concerned that this ruling could turn into an easily-exploitable loophole in California’s worker protection laws, which are otherwise some of the strongest in the country.

On the other hand, I recognize that it would be impractical for the law to micromanage the behavior of employees on their breaks, and while the law should protect employees, ensuring that they are paid at least a minimum wage, that they have a reasonably safe work environment, and that they have breaks to ensure that they don’t become overly fatigued on the job. All of these protections tend to be good for both employees and employers in the long run. The benefits for the employees are obvious. But for the employers, having healthy employees who aren’t fatigued because they’ve been working non-stop for 10 hours can actually save them money, mostly by reducing the rate at which accidents occur, thereby reducing workers’ compensation expenses.

However, the law cannot accomplish these goals by micromanaging every little detail of how employers implement them. Doing so would be expensive, impractical, and would probably bury employers and employees in unnecessary bureaucracy.

So, how do I feel about the California Supreme Court’s ruling in this case? Honestly, I doubt it will change much for the vast majority of employees. The fact is, the majority of employers in California make a good-faith effort to comply with federal and state employment law, and probably took steps to ensure that their workers took the breaks to which they are legally-entitled.

And it’s important to note that if this ruling has a significant negative impact, with abuses taking place at a much higher rate than expected, the state legislature can always update the law to overrule the Supreme Court on this issue.

After all, in this case, the court was simply interpreting the law passed by the state legislature. If this ruling has unintended effects, or the legislature believes that the court made the wrong decision, they can simply change the law to make it clear that employers are, in fact, required to ensure that their employees actually take their breaks.

However, I doubt that this will prove necessary.

As I said, I think that most employers will not change their practices in response to this ruling.

As long as employers are clear that this ruling does absolutely nothing to compromise the rights of their employees to take breaks, and are certain to inform their employees that they have a right to take breaks, and do not try to stop them from doing so, things should be fine.

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