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Travel Ban 2.0: Trump’s Second Attempt to Ban Immigration

The initial executive order out of President Trump’s White House regarding limiting immigration to the U.S, widely known as the “Muslim Ban,” was an unmitigated disaster.  Rolled out overnight, the order caused chaos across the country as agencies tried to put the order’s new rule into force.  It also drew immediate legal challenges from numerous states, all challenging the order-in whole or in part-as unconstitutional.  Several of these legal challenges succeeded; most notably a challenge out of the state of Washington which culminated in a preliminary injunction–an order preventing the “Muslim Ban” from taking effect whatsoever until the Washington case is fully litigated.  In the face of court order saying that the order was most likely unconstitutional, and the fallout of the original implementation of the order, President Trump did something we perhaps should all have expected-he signed and put into force a nearly identical order.  On Monday, March 6th, President Trump issued an executive order titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into the United States.”

In the past we’ve already covered the effects of the ban, the constitutional problems intrinsic to the ban, the many lawsuits brought after the ban was passed, and the injunction which ultimately put an end to it.  So with that in mind, you’ve got to know that we’ve got some thoughts about Trump’s second iteration of the ban.  So without further ado, lets dive into it–the changes between this new order and the original order courts ruled to be likely unconstitutional, the chances that this order will stand, and the legal challenges the order already faces.

How is This Order Different From the One Courts Already Stopped?

travel banThe short answer, it isn’t very different.  The order still targets specific Muslim majority countries, barring immigration from those countries for 90 days. It also still cuts the number of refugees allowed to be admitted to the U.S. per year by more than half.  However, with this being said, there are some important changes in effect from the initial order–mostly designed to make the order appear more kosher to the courts.

The new version of the order has removed the indefinite ban on the U.S. taking in any refugees out of Syria.  Instead, the order includes a 120-day freeze on taking in those refugees.  However, the order also includes the ability to renew the ban for a longer period of time upon review.  It also doesn’t include any limits on the number of times the ban can be renewed, so in effect the ban could very well be indefinite.

The order also has removed Iraq from the original list of countries slapped with a 90-day immigration ban, leaving only the other 6 original countries.  The reason for this change is a request from the Defense Secretary, fearing that such a ban would injure the U.S.’ ongoing efforts to fight ISIS in Iraq.  The order doesn’t take a ban on immigration out of Iraq off the table though, threatening to put the country back on the list if Iraq’s  leaders don’t increase their amount of intelligence they share with the U.S.

The new crack at the ban also has eliminated language specifically offering preferential immigration status to “persecuted religious minorities.”  This was one of the most widely criticized elements of the order, both by the public and in legal challenges to the order.  The thought being that the provision was designed to favor other religious groups over Muslims.

As opposed to the frenetic same-day introduction of the last immigration ban, the Trump administration has allowed for a slower implementation and time to prepare for implementation.  The ban only goes into effect ten days after its signing–March 16.

The order has a number of other changes.  The order includes specific details about why the six countries hit with the 90-day ban were selected; presumably to strengthen the order against the many legal challenges saying the order was targeting countries based on their Muslim majority.  The order focuses its details sections on the statistics regarding terrorism for each country selected.  The order also no longer affects current visa holders or refugees already granted asylum.

So you’ve likely noticed that these changes are, intentionally, targeted at trying to make the order stand up to the scrutiny of the courts.  In order to determine whether it has succeeded, let’s look at why the last order got hit with an injunction.

Why Was the Last Order Blocked?

Since we’ve covered this issue in previous articles, we’ll keep the discussion of why the last order couldn’t pass constitutional muster on the short side.

A preliminary injunction is granted where the party seeking it can show that they are likely to succeed in their arguments, there would be irreparable harm if the thing they seek to stop isn’t stopped immediately, there isn’t a public interest against granting an injunction, and the party seeking the injunction will be more harmed by what they seek to stop than the party you’re bringing the injunction against will be harmed by the injunction itself.  In the case brought by Washington, the court ruled that they were likely to succeed in their arguments that the immigration ban unconstitutionally singled out targets based on religion or national origin–in other words the order discriminated likely discriminated against protected classes.

Will the New Order Stand Up in Court?

The White House certainly believes its changes, although extremely minor in practice, are enough to allow the order to pass muster.  In fact, the Department of Justice has already filed briefs saying that the revisions have rendered all the legal cases regarding the first order moot.  In other words, the injunction has no further effect and the new order must be challenged or not on its own merits.

However, as of March 9th, Washington state lawyers have taken the stance that the changes are so minor as to amount to essentially putting lipstick on a pig.  They argue that the prejudicial purpose behind the order remains and its most offensive portions are essentially untouched.  For this reason, they’ve asked the federal judge who placed the preliminary injunction on the original order to expand his order to cover the “Muslim Ban 2.0.”  A similar attempt to challenge the ban has been brought by Minnesota and Hawaii.  The Attorney Generals for Massachusetts, New York, and Oregon have all made it known that they intend to join in on the challenges brought by Hawaii, Minnesota and Washington.

So will the new and improved “Muslim Ban” stand up?  We’ll have to see how the courts rule.  However, the order has changed very little in actual effect.  It still targets specific nationalities in almost exactly the same manner and it still exclusively targets Muslim majority countries.  The same reasons it was likely unconstitutional before are all still there.  Even if the order itself has removed some of the language making obvious attempts to target Muslims and provided an alternate explanation, Trump’s own statements on immigration and the previous order still can be used as evidence of the discriminatory purpose to the new order.

Nothing in law is ever truly certain, but the definition of insanity is doing the same thing and expecting different results.  The new ban is very similar to the previous order, it seems unlikely that it will pass constitutional muster with such minimal changes.

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Attorney General Sessions is Under Fire for Ties to Russia

The Trump administration just can’t seem to stay away from scandal. Or Russia.

President Trump’s recently appointed Attorney General Jeff Sessions is under hot water for some statements he made during his confirmation hearing. When asked what he would do if evidence emerged implicating that anyone affiliated with the Trump campaign communicated with the Russian government during the course of the campaign, Sessions replied that he “did not have communications with Russians.” Now, we’ve discovered that Sessions had communications with Russia twice. Specifically, Sessions met with Russian Ambassador Sergey Kislyak at the Republican National Convention in July and then at his office in September.

Attorney GeneralDid Sessions Commit Perjury?

The American Civil Liberties Union wants the Attorney General investigated for perjury. Perjury is defined as willfully giving false testimony under oath or affirmation.

While it seems like Sessions would be guilty of lying under oath, it doesn’t necessarily mean he perjured himself. Perjury requires proof that the person “willfully” made a statement he knew to be untrue. This means Sessions must have lied on purpose instead of making an accidental falsehood. This would not only be extremely hard to prove, but Sessions himself clarified that he “did not recall any discussions with the Russian ambassador, or any other representative of the Russian government, regarding the political campaign on these occasions or any other occasion.” Sessions continued to claim that he misinterpreted the question and thought he was being asked whether he was a Trump surrogate that continuously met with Russian officials. Finally, Sessions argued he met with Kislyak in his official capacity as a senator, not as a surrogate for the Trump campaign.

Perjury is a felony that carries a possible prison sentence, plus fines and probation. Certainly if Sessions is investigated and found to have committed perjury, he will be forced to resign as Attorney General and may face incarceration.

Recusal

Due to the controversy surrounding his ties to Russia, Sessions decided to recuse himself from any investigations by the Justice Department into Russia’s interference in the 2016 presidential election. Recusal is a common tool used when a person of power has a potential conflict of interest. For example, a judge must recuse himself from presiding over case if he has an interest in the subject matter or a personal relationship with one of the attorneys in the case. Here, Sessions made his decision after consulting with Justice Department officials who recommended he should no longer participate in the investigation.

Russia and the Bigger Picture

Regardless of whether Sessions willfully intended to deceive Congress during his confirmation hearing, he is now the fifth person affiliated with the Trump administration that has ties to Russia. Most recently, Trump’s National Security Adviser Michael Flynn was discovered to have had an undisclosed meeting with the Russian ambassador back in December. As a result, Flynn resigned from his post.

Jared Kushner, Trump’s son-in-law and current senior adviser, also had a meeting at Trump Tower with Flynn and the Russian ambassador during campaign season. The extent and frequency of any of Trump’s inner circle to Russia remains unclear.

The possible secret ties between the Trump campaign and Russia have more serious implications than simply lying under oath and committing perjury. The real question is why – why did they lie about their ties to Russia? Conspiracy theorists have wondered whether Russia is blackmailing President Trump. They theorize that Trump borrowed money from Russia to keep his personal businesses afloat in the early 90s after a string of bankruptcies, which could explain why Trump refused to release his tax returns. They further believe Russia has some sort of incriminating information about Trump.

With so many ties to Russia, we have to wonder how far up the totem pole these Russian ties go. Do they go all the way to the President?

Media Ban: Can the White House Block Media Coverage?

Just a few months ago in December, Press Secretary Sean Spicer told the world that it is open media access which distinguishes a democracy from a dictatorship.  This statement has become fairly ironic after, a little over a week ago, several news outlets which had previously reported unfavorably on President Trump were barred from a private press briefing in Sean Spicer’s office.  This press briefing replaced the usual daily public briefing.  Most of the biggest media outlets were allowed a representative at the meeting: NBC, ABC, Fox News, and CBC.  However, several much smaller, heavily conservative, news outlets were also given a seat at the table: the Washington Times, the One America News Network, and Breitbart–the far-right news organization founded by White House Chief Strategist Steve Bannon.  The news organizations banned from the meeting included CNN, the New York Times, the Los Angeles times, and nearly every foreign news provider including the BBC.

Media outlets, both those invite to the meeting and those barred, have spoken out against the move; calling it “unamerican” and an unprecedented move towards a lack of transparency.  The move has also received substantial criticism from the public.  Much of this criticism is focused either on the importance of a government that is accessible to its people and the potential that the move violated the First Amendment.

Media BanClosed doors meetings, only inviting those media outlets most favorable to an administration, certainly smacks of impropriety.  However, to call it a violation of the First Amendment is going a bit further than the legal reality.  So let’s look at exactly what the White House did here, why they say they did it, and exactly how what they did interacts with the First Amendment.

Why They Say They Made the Change and How it is Legal

When the government is keeping out news reporters because they don’t like what they say, that’s bad news for the country.  Protecting political speech and the transparency of government to comment on their actions is crucial.  Were the stated goal of the government in keeping specific news outlets, those unfavorable to them, to silence their opposition then there would be a serious case that they are violating the First Amendment.  However, the White House has provided a more neutral reason behind their choice to conduct themselves as they did.

While Sean Spicer has promised to “aggressively push back” against news outlets negatively reporting on the Trump administration, he says this is not the reason for limiting access to the press briefing.  Instead Mr. Spicer stated that the space for seating was limited that day due to time and space being more limited due to President Trump’s CPAC speech earlier the same day.  It is true that it is fairly common for the press to be represented by a smaller press pool.  The members of this pool rotate from day to day and report what they are told to the remainder of the certified press.  What Sean Spicer did was choose to allow a few extra news outlets, news outlets most favorable to the Trump administration, to join that small group.

It may or may not surprise you that there is no actual requirement for the government to give reporters completely equal access to information based on the First Amendment Freedom of the Press.  However, when the government opens up a public forum such as the daily press briefings have been for decades they are required to allow access to the press in a neutral manner.  This means that they can’t act with the intention of limiting access to those whose message or coverage they prefer.  Sean Spicer’s stated reason of limiting access, the amount of space, is likely a neutral approach–even if the result of their actions looks like they are favoring news outlets which report more positively on the administration.  If this happened several more times, with the same people left out, the story might change as the neutral explanation of lack of space and time would become less believable.

The concept of the government and politicians allowing more access to reporters they know to be favorable to their cause is far from a new one.  There have been many cases, both very recent and decades since finished, which have addressed the issue.

Repressing the Press: Court Rulings on How the Government Can Limit Press Access

Since a 1977 U.S. Court of Appeals ruling, the White House press facilities have been public sources of information for the press afforded First Amendment protection.  This means that the access of the press cannot be denied arbitrarily for less than a compelling reason.  Any restrictions must be no more arduous than necessary and individual reporters–from specific publications–cannot be arbitrarily excluded from a source of information such as a White House press briefing.  That basically just means the White House needs to be able to provide an explanation for any limitations, especially when it comes to barring specific publications.  They also need to make their limitations as narrow as possible.  This means that if space and time was indeed limited, they’ve provided sufficient reason for their actions barring a proven bias in who was allowed in.

This doesn’t mean that the government must always offer all types of access neutrally.  There have been several cases in the past establishing that a government official can choose who they want to give an interview to, and even bar their employees from speaking to some news providers.  They just can’t call a press conference and limit who can show up by barring specific reporters or news sources.

In fact, just around a week ago another ruling has come out of New York clarifying just this issue.  The preliminary ruling decided that the New York Police Department had acted unconstitutionally by revoking the press credentials of a specific reporter.  The fact that they targeted a specific reporter based on the content of his reporting, although the NYPD stated they had neutral reasons behind revoking the man’s press pass, made their actions unconstitutional in the eyes of the judge on the case because they amounted to the government censoring a particular viewpoint in a public forum–a concept known in law as viewpoint discrimination.

Trump’s War With the Media

The choice to limit those who could attend a press briefing might not always have raised as many eyebrows as it has here.  President Trump has repeatedly attacked the media’s reputation and veracity, claiming that they either do not report on the right things or are misrepresenting him.  While he has made these claims repeatedly, he has not yet provided any evidence supporting these serious accusations.  However, regardless of the truth of President Trump’s words, the comments have drawn substantial attention to his relationship to the press.

President Trump is far from the first President to criticize the media, however he has taken his attacks further than any president has before–to the point of essentially questioning the legitimacy of the media altogether.  This is a huge accusation to make with very little evidence.  It is because of this that, when the White House chooses to limit press access, alarm bells are immediately raised.  Regardless of what you think about the media, allowing the government to limit which media outlets receive information has potentially terrifying implications when it comes to making our own government transparent to the people it serves.  This being said, the White House has not yet crossed any legal line.  There has been no similar limitation on access since President Trump’s CPAC speech.  While it is important to information about our government as available to the people as possible, for now the White House has done nothing unconstitutional.

 

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No Charges for Off-Duty Police Officer Who Fired Sidearm in Dispute with Teenager

An off-duty Los Angeles police officer fired his gun at the ground during an altercation with teenagers.

Off-Duty Police OfficerThe initial confrontation was part of an ongoing dispute with several juveniles who walked across the officer’s lawn. The dispute escalated one afternoon into a full blown confrontation between one teen in particular and the off-duty police officer.

According to the officer’s account of what happened, the teen said he would shoot the officer. While the juvenile tried to walk away, the officer physically detained the boy while the officer waited for police. At this point, several other teenagers joined in. Two juveniles knocked the officer to the ground, and when a group began surrounding the officer, he withdrew his gun and fired a shot at the ground. No one was injured but the altercation was caught on cell phone footage.

Criminal Charges against the Juveniles

The 13-year-old boy who had the initial confrontation with the off-duty police officer was arrested but released after being booked. He was charged with criminal threats and battery. His 15-year-old friend who engaged in the altercation was also arrested on suspicion of assault and battery but was released to his parents.

Criminal Charges Defined

In California, the crime of criminal threats is defined as putting someone in fear. In this case, the 13-year-old was charged for criminal threats because the officer and several eyewitnesses, many of whom were teenagers themselves, corroborated the officer’s story that the teen threatened to shoot the officer.

Assault is found when a person threatens bodily harm and creates a fear of harm in another person. It’s a common misconception that it must also be accompanied by some sort of touching. It does not, so words alone can constitute assault if it could reasonably create a fear of harm. However, in criminal law, it’s often coupled with battery.

Battery is offensive physical contact with another person, either with or without consent. You will notice that while battery has a touching element, assault does not.

Possible Charges against the Officer

A lot depends on what the officer said and did. From the camera footage and by his own account, we see that he was grabbing the 13-year-old teen. Based on the touching alone, he could have been charged with battery. If he also accompanied his touching with threats against the teen, he could have also been charged with assault.

False imprisonment occurs when a person is restricted in his or her movement without legal authority or justification. Here, the officer held the teenager down, but it appears he had valid justification – he was containing the boy until police arrived. He wouldn’t have been charged with false imprisonment.

Nor would he have been charged with excessive force by a police officer. An officer’s force is “excessive” if it results in serious injury or even death while arresting a suspect. Excessive force is only found when an officer is acting in his or her capacity as a law enforcer. The officer in this case was acting as an off-duty private citizen.

Why Wasn’t the Officer Charged?

To put it simply, there wasn’t enough evidence to charge him with a crime. After the fact, it is easy to say that he shouldn’t have drawn his gun, especially when he’s a grown man involved in a confrontation with a 13-year-old boy over something as inconsequential as crossing his lawn. The officer is bigger, stronger, and older. The juvenile did not appear to be armed. Nevertheless, eyewitness reports demonstrate the teenager said repeatedly he was going to shoot the officer. Camera footage also shows the officer being tackled by two teenage boys. The threats of violence coupled with being tackled to the ground reasonably made the officer feel threatened.

A person has a right to defend him or her self – known as self-defense – meaning they can use reasonable force to protect oneself. Not everyone carries a gun, and certainly it wouldn’t be the first mode of defense for most people, but the officer didn’t shoot at anyone and thankfully no one was hurt. Whether the force he used to protect himself was reasonable is really subjective.

Right or wrong, the officer wasn’t charged, but the potential reprimand from his job and fallout in his community may just be punishment enough.

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Protest Peacefully and Lose Your House Under Arizona S.B. 1442

As one controversial law, executive order, or policy position after another comes out of Congress or the White House, it is little surprise that we’ve seen an incredible amount of protests in the last few weeks.  Protesting is a tradition as American as apple pie, from the Boston Tea Party from which the hard-right conservative party took their name to the Civil Rights Movement of the 50s, 60s, and 70s.  The tradition has been carried forward, with protests abounding on both side of issues ranging from abortion to taxation to federal use of land.

In recent months, however, protesting has become a bit of a target for criticism–especially where protests occasionally result in violence or property damage. Compounding these criticisms has been the widely cited, and essentially unsupported, accusation of “paid protesters” making a living off their involvement in demonstrations.

Protest

Conservative politicians in Arizona have begun moving forward on legislation based on these accusations, a bill known as S.B. 1442.  This is still a bill, not yet a law, so it isn’t taking effect just yet.  However, it has made it past the House in Arizona and is moving forward to a primarily conservative State Senate.  The bill is, frankly, incredibly questionable both in what it seeks to achieve and its constitutionality.  With that in mind, let’s take a look at what this law does, why it seeks to do it, whether it has the potential to pass constitutional muster if passed, and the results of litigation over similar laws in the past.

The Law, What it Does, and Why They Say They Want It

S.B. 1442, as written, expands racketeering laws and the definition of rioting.  While this sounds innocuous, the goal and effect of the law is to expand the power of police to arrest protesters and the ability to crack down on protests.  For example, it allows police to arrest peaceful protesters if they believe the protest may eventually turn violent.  It also provides the power to criminally prosecute, and seize the assets of, anybody who plans or is involved in a protest where property damage occurs–regardless of their immediate involvement in the actual damage.  It does this by expanding racketeering laws, the same ones initially instituted to help target organized crime such as the Mafia by allowing the police to more easily target an entire criminal enterprise, to include rioting.  It is worth noting that rioting itself is barely defined at all within the legislation, allowing an extremely broad approach to what exactly could constitute a riot.

Racketeering law, and the Racketeer Influenced and Corrupt Organization (RICO) Act specifically, are notable for being exceptions to a general rule that you are unlikely to be punished for the unpredictable criminal acts of a third party unless you have a fairly direct level of involvement in promoting the act itself.  This makes sense, if the guy in front of you in line at the bank robs the place, you wouldn’t expect the police to arrest the whole line.   However, S.B. 1442 takes these racketeering rules to a genuinely terrifying place.  They give the police the power to preemptively make arrests just because a planned protest might turn violent.  They can even arrest organizers who weren’t at the protest.  Planning a protest could lead to losing your property as the police could seize assets under the law.  The law would allow arrests where people not actually associated with a protest commit property damage in its vicinity.

While violence is not something we should necessarily congratulate, peaceful protest is one of the most poignant forms of political speech available to the public.  Publically questioning the political status quo quite rightly receives the protection of the First Amendment–both through freedom of speech and freedom of assembly–the constitutional right to come together and express your ideas as a group.  So one has to ask, what is the motivation behind such a sweeping law with such huge connotations when it comes to curtailing First Amendment rights of people on both sides of essentially any issue?

When asked, the politicians promoting the bill provided a couple of justifications for the law.  The primary one has been that the existing laws are not enough to discourage violent protest.  A particularly odd position given that all the elements of rioting–property damage, assault, etc–are already crimes allowing arrest and criminal punishment.  However, the politicians behind S.B. 1442 have said that this isn’t enough.  They say that it’s necessary to stop the potential for crime before it starts.   However, when you are essentially targeting people based on future speech a law becomes a lot more questionable.

A secondary justification for this bill has been the idea of paid protesters, or as one politician behind the law has called them “professional agent-provocateurs.”  To start with, as mentioned above, there is actually no evidence behind this oft repeated accusation.  It certainly is a common enough talking point, but one with no actual factual support.  There are certainly organizers behind many protests, as  has been the case with most protests for a long time, but that doesn’t make a protest paid and in fact makes it notably less likely to be violent in nature.  What’s more, the law itself is much more broad in scope then its creators perhaps intended.  It could be applied to any protest, regardless of affiliation, stance, or belief–allowing police to arrest those peaceful protesters.

Similar Situations Have Already Reached the Supreme Court

Given the shaky ground S.B. 1442 is already based on, you’d think it would either be the first situation of its kind or at least learned from the mistakes of its predecessors.  However, the Supreme has actually ruled on a case including similar attempts to broaden the application of racketeering laws in the case of Scheidler v. National Organization for Women.  The case did not go well for the expansion of racketeering law, to the tune of an 8-1 decision.

The case, decided in 2002 in the end to a 17-year old case, the National Organization for Women against anti-abortion activists.  The case sought to extend the provisions of the RICO Act to these anti-abortion protestors.  They argued that such activity could be considered extortion and properly fell under racketeering law–a sort of nationwide conspiracy to shut down abortion clinics.

The Supreme Court did not agree.  They said that these protesting activities did not fall within the realm of federal racketeering law as written.  What’s more, Justice Ginsberg’s concurring opinion noted that the court was “rightfully reluctant” to expand the scope of racketeering law to include political protesting.  She specifically noted that such a change had the danger of treating the sit-ins of the Civil Rights Movement as criminal.

Is S.B. 1442 Constitutional?

No, almost certainly not.  I’m not going to beat around the bush here, the proposed rules actually fly in the face of the values of the Constitution.  Where a law curtails the First Amendment rights of the public, as S.B. 1442 clearly does, it is held to the highest levels of scrutiny before it can be considered constitutional.  Such a law must apply the minimum possible level of restriction to Constitutional rights in support of an absolutely crucial government interest.  What’s more, courts are particularly suspicious on prior restraints on speech–attempts by the government to chill or prohibit speech before it occurs.

The content of the bill is of the sort most disfavored by courts determining if a law is constitutional.  Instituting the threat of arrest for a peaceful protest prior to the protest even happening, allowing the police to seize your property based on this arrest–that is the definition of a government action chilling speech before it happens.

While preventing crime and protecting the public can be a crucial government interest, to call S.B. 1442 the least restrictive means to that end is outright laughable.  There are already laws making all the elements of rioting a crime, those limit the value of this would be law and already act as deterrents to such behavior.

If S.B 1442 becomes law, something that is looking fairly likely given the composition of the Arizona State Senate, it will almost certainly not remain so for long.  It is not only nearly certainly unconstitutional, it is even contrary to the previous stance of the Supreme Court of the United States.  The idea of a law like this is outright un-American, the fact that it was introduced frankly disappoints me personally.  If it is indeed passed, expect lawsuits challenging the constitutionality of the law–along with a likely injunction halting the effect of the law–to quickly follow.