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BART Robbery: If CA Wants Change, then They Can Start By Trusting the Public

Since the middle of the year, the California Bay Area Rapid Transit system (BART) has been hit by a series of “flash mob” robberies. Between May and June, groups of 40-60 young people jumped fare gates and streamed onto trains, robbing and terrorizing passengers. The robberies usually took place in the Oakland stations and typically around 9:30pm. Cameras installed on the trains lead to the arrest of several of these individuals, but similar style robberies involving smaller groups have continued. Fortunately, one such robbery was foiled by Leonard Brown, a 62 year old off duty security officer.

BARTWhat was BART’s Response?

BART has responded to these robberies by installing additional cameras and placing more police officers around the targeted stations. Assistant General Manager Kerry Hamill has since come under fire for refusing to release the videos of these incidents to the media and the public at large, for fear that the media would display a “disproportionate elevation” of crimes that “unfairly affect and characterize riders of color.” Hamill has insisted that these words were only written in an internal memo that was not meant for public consumption. Nevertheless, public backlash has pushed BART to publicly comment that “Transparency trumps everything else. To not be willing to release information to the public because we think we know better what the public can handle is a mistake in my mind.”

Although Hamill’s concerns are grounded in good intentions, they will ultimately undermine not only BART, but the very racial communities she sought to protect. In a multiethnic country like the United States, the various racial groups will, at times, be jealous and resentful of each other. During times of racial tension, the government cannot be seen to favor one group or disfavor another, or it will only increase racial tension. That is the entire point of the Equal Protection Clause of the Constitution.

How Can We Move Past This?

In the past, certain minority groups, mostly African Americans, were completely disfavored by the state. However, we cannot write those wrongs by favoring, or even appearing to favor, African Americans now. If young people of color did indeed commit this violent crime, then not only should they be punished, but the public has a right to know who they are so that they can protect themselves or help the police in their search. Indeed, even “riders of color” would benefit from having the identities publically available; there is nothing in the reports to suggest that these robbers would not target people of their own racial group. And if the robbers are not African American, it would greatly benefit the African American community to have a video proving that.

If the videos are not released, many people will conclude that race relations – or even racial identity – is more important than protecting passengers, any passengers, regardless of skin color. This will fuel even more racial tension and will bring about the unfair characterization that Hamill feared. Indeed, the return of white supremacy and the rise of the “Alt-Right” have shown just how dangerous seemly innocent protection of otherwise criminal activity can become. Racism and disparate impact are real issues that minority groups face, but those minority groups can lobby on their own behalf without the assistance of government officials who are supposed to remain neutral.

If Hamill and others want to avoid wrongful “characterization of riders of color,” she should post examples of positive contributions that people of color have made rather than try and shield the bad apples from the consequences. Leonard Brown, the sixty-two year old security guard who stopped one of the robberies, is African-American himself. If Hamill wants to heal the racial divide and do her job, she can promote men like Brown who do the right thing. Every racial group has good people and bad people – the challenge should be to foster that understanding of duality instead of sweeping the bad people under the carpet.

Florida “Stand Your Ground” Law Ruled Unconstitutional

Just last week, in a ruling on Florida’s controversial “Stand Your Ground” law, a court ruled that an additional embellishment from the Florida legislature-strengthening the rule even further-is unconstitutional. The Stand Your Ground law has variations all over the country. However, Florida’s version has drawn particular scrutiny due to the highly publicized shooting of the unarmed Trayvon Martin by George Zimmerman.

Stand your ground laws are becoming more and more common, if no less controversial, so it’s important to understand exactly how they work. Let’s take a look at what stand your ground laws do, then take a deeper look at this case’s history and what it means for the future of Florida’s Stand Your Ground rules.

Stand Your Ground Laws

Stand Your Ground laws are fairly simple, although substantial, change in law considering how controversial they are. In general, to establish self-defense as a legal defense to a crime it is necessary to show that you first made an attempt to retreat before responding with force to a real or perceived threat. There is generally an exception to this when you are in your home known as the “castle doctrine.”

Under a Stand Your Ground law, this requirement to even attempt retreat is removed. In other words, if you have a reasonable belief of an imminent threat of death or serious bodily harm you may immediately escalate to force for self defense–lethal or otherwise. The controversial part of this is that it removes the requirement of an intermediate attempt at escape. The attempt to retreat required by law is usually not so rigid as to require you to run away. If you have no means of escape or de-escalation then no attempt to retreat may be as much as you can do. Under a Stand Your Ground law, regardless of the situation you may immediately escalate to lethal force as self-defense. In the case of George Zimmerman this led to a self-defense ruling for gunning down an unarmed teen while he could have easily escaped.

stand your groundFlorida has had a Stand Your Ground rule in place since 2005. This law gave courts the ability to dismiss charges, such as those against Zimmerman, where the judge found evidence of reasonable self defense. It is this ability to dismiss that has led to this most recent ruling.

In 2015, the Florida Supreme Court ruled that these Stand Your Ground dismissals would come in a pre-trial hearing where the defendant would need to prove that they had a valid self-defense claim. This is standard, if you have a defense it’s up to you to prove it as opposed to forcing a prosecutor or plaintiff to prove a negative. In fact, the very existence of this hearing is beyond what is standard in criminal trials and allowed for much quicker and cheaper results potentially.

However, the response from the NRA to a ruling stating that you’re responsible for proving your own defenses was immediate serious criticism. Nearly immediately after the ruling they began putting heavy pressure on the Florida Governor-Gov. Scott-to push through a law reversing the situation. Just last month, this law finally came to fruition. The new law worked exactly the opposite of the Florida Supreme Court’s ruling. It required the prosecution to make provide clear and convincing evidence in a pre-trial hearing that there wasn’t self-defense in a given case. This obviously flipped the usual evidentiary rules on their head-taking the Florida Stand Your Ground law above and beyond where it was when George Zimmerman was tried. This sort of evidentiary hearing is generally reserved for cases where there is a potential for abuse on the part of plaintiffs such as libel or fraud cases. The change was especially shocking given that Stand Your Ground itself is already a serious change to the usual rules of criminal law.

Gov. Scott’s law was met with immediate criticism, including from the Florida Supreme Court itself. So perhaps it’s no surprise that less than a month later we’re already seeing a case ruling it unconstitutional.

The Government Overstepping Its Bounds

The judge’s ruling points to the unconstitutional overreach of Gov. Scott and Florida legislators in making this law in the first place. Judge Milton Hirsch, a Circuit Court Judge, based his ruling on the laws violation of constitutional separation of powers.

“As a matter of constitutional separation of powers…procedure cannot be legislatively modified,” The Florida Constitution specifically provides that the Florida Supreme Court determinines court practice and procedure. The only exception to this provided by the Florida Constitution is a legislative vote by super-majority–a situation that was not the case here. Evidentiary issues are considered procedural. Thus, the court here found the new law unconstitutional.

If the legislature wants to pass substantive laws, from gun control to street sweeping regulations, that’s totally within their right. They can make the laws which the courts then enforce. However, especially under the Florida Constitution, they do not have to power to change procedural rules such as filing due dates or evidentiary burdens.

The Future of the Case

As important as this ruling is, restoring normal order to criminal proceedings in Florida, there is absolutely no question that the decision will be appealed by the Florida Government. This means that the life of this new Stand Your Ground embellishment will probably not be determined for quite some time. But the law is exactly the opposite of a ruling of the Florida Supreme Court and the Florida Supreme Court has itself criticized the law as overreach, it does seem like the death knell of the rule may be a bit of a foregone conclusion.

Sanctuary Cities Face Sanctions Under a New Bill

Since even before Trump’s election, immigration has been one of the most contentious topics of law in the public eye. Since the election of Trump, that contentiousness has spilled out into a battle between the Federal government and state and local governments as these governments resist allowing the hand of the fed into their own approach to immigration. Certain cities have drawn Trump’s ire more than any others. These so-called sanctuary cities such as San Francisco and Los Angeles have been on the receiving end of particularly vicious tweets and public commentary from Trump for their comparatively lax approach to immigration law and refusal to cooperate with the expanded powers of Immigration and Customs Enforcement (ICE) Agents under the Trump administration. This ire has also included an executive order from back in April pulling federal funding which was subsequently blocked in the courts until both the definition of “sanctuary city” and the amount of funding to be withdrawn was substantially limited.

The deadline for cities to respond to the terms of this order has come and past last week, so we can expect more action on this order in the near future-likely in the courts. However, in the last few days, conservative disapproval of “sanctuary citizens” has manifested itself in an entirely new form—a bill that has passed the House called the “No Sanctuary for Criminals Act.” (NSCA)

sanctuary citiesThe bill has yet to pass through the Senate, although the Republican majority there makes its passage very likely.  However, it’s important to note that it is still a bill and not yet a law. But the act itself is so likely to pass that it’s worth preparing for its implications and near certain legal backlash.

The primary effect of the “No Sanctuary for Criminals Act,” despite the name’s implication that it impacts specific criminals, is to target “sanctuary cities” with substantial funding hits. The law essentially sanctions any city who refuses to turn over people to ICE or jail people on behalf of federal authorities. It similarly sanctions cities that won’t comply with ICE actions of any type—requests to hold suspected undocumented immigrants and the like.

Specifically, the bill makes it so that jurisdictions which fall out of line become ineligible to receive any funds under the Immigration and Nationality Act, the “Cops on the Beat” program, the Omnibus Crime Control and Safe Streets Act and any other grant from the Department of Justice or Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization.

This is a potentially enormous amount of money to pull from these jurisdictions. Under the bill, this money would be redistributed to jurisdictions in compliance with the Act.  However, just like the executive order before it, the bill has received substantial criticism as to its constitutionality which will likely culminate in a lawsuit should it pass the Senate.

The 10th Amendment and Spending Restrictions

The majority of the concerns voiced over the NSCA are in regard to the 10th Amendment. The text of the10th Amendment reserves all rights not given to the Federal government under the constitution for the states. However, as part of the implications of this, it also prevents the Federal government from compelling the states or their agents to action unless they specifically have the power to do so under the Constitution.

This rarely comes up in a modern context and the Supreme Court have become more and more reticent about limiting federal action on 10th Amendment grounds. However, they have done so several times in the past several decades. For instance, in 1998 they ruled a law unconstitutional where it required state and local law enforcement to conduct background checks on those trying to buy handguns. The law amounted to the federal government forcing state participation in a program and was thus ruled unconstitutional.

This isn’t much of an issue for the “No Sanctuary for Criminals Act.” It doesn’t so much command the states or their jurisdictions to act so much as pull the funding rug out from underneath them if they don’t. This can cause its own constitutional problems however in terms of how the federal government may handle funding.

The federal government generally has the power to distribute funds as it sees fit. However, when funding provisions are so draconian as to be coercive they are unconstitutional. This has most recently come up in the context of the Affordable Care Act in 2012 with the Supreme Court ruling that the funds pulled from states refusing to participate represented a “gun to the head” of the states.

To be constitutional, funding provisions and restrictions must meet five requirements:

  1. The spending must promote the general welfare;
  2. The conditions on the funds must be clear and easy to understand;
  3. The conditions must be related to the goal of the program it is associated with;
  4. The condition must not itself require the states to act unconstitutionally; and
  5. The funding conditions must not be coercive.

The first three elements aren’t really an issue here. The clarity of the act isn’t really an issue and they’ve made a clear point of trying to limit the funding cuts to areas that could be considered related to immigration and national security. But the breadth of the cuts themselves will likely become contentious if the bill becomes a law as states seek to limit the bill to only strictly related funding sources.

The fourth element is interesting and will likely be a source of a great deal of future litigation. The ACLU has voiced concerns that the bill could demand cities to act in violation of the 4th Amendment by requiring local law enforcement to hold people without due process or probable cause when directed to by the federal government.

However, it is the last element, coerciveness, which has been the target of most of the conversation when it comes to the constitutionality of the NSCA. This is partially because what exactly makes a spending provision coercive under the law is a bit hard to nail down. The most obvious element of coerciveness is just how much money is in question. The exact amount necessary has ranged substantially from case to case. In some cases, the amount to be pulled by the NSCA might qualify, in others far more is necessary. The ACA case has implied that the amount is not the only consideration however. Where a state or jurisdiction has grown to rely on a source of funding, that likely factors into whether pulling that funding is coercive. It also makes a funding provision more coercive if a new program is put in place and funding from a more established federal program requires involvement in this new program. The NSCA may run afoul of this somewhat due to the many older programs it denies funding from where jurisdictions fail to follow the provisions of their new program.

The Future of the NSCA

So, are the funding provisions of the NSCA unconstitutionally coercive? Unfortunately, the answer is an unhelpful maybe. There are certainly some elements that point in that direction and a large portion of the determination will come down to exactly how much money a given jurisdiction stands to lose. However, coerciveness is a poorly defined, heavily fact-specific legal concept. It’s just impossible to reasonably say one way or another. However, will there be lawsuits challenging the constitutionality of the NSCA if it passes the Senate? Yes, absolutely. However, for now the NSCA is just a bill. Until it becomes a true law, we can expect that the many critics of the spending provisions will stick to making themselves heard in the public and not yet in the court.

Martin Shkreli Goes on Trial

The man who charged America $750 for Daraprim, an anti-AIDS pill, is going to trial.  However, Martin Shkreli is not on trial for raising the pills by 5,000%, but for defrauding shareholders. Shkreli is accused of using money from one hedge fund to pay deficits in a previous hedge fund. Between 2009 and 2014, Shkreli allegedly began a fund, took bad stock bets, started another fund, used the money from fund #2 to pay fund #1, and repeated the process numerous times before his rise to infamy turned the spotlight on him. Federal agents arrested Shkreli on December 19, 2015 for security fraud.

Shrekli is Not the First Pharma Executive to Face Trial, and Won’t Be the Last

Shkreli is not the first pharmaceutical executive to go on trial, although he is the most famous and hated one. Barry Cadden avoided charges of second-degree murder, but was found guilty of multiple fraud, conspiracy, and racketeering charges. Cadden allowed his business, New England Compound Company, to use expired ingredients and falsified logs to mislead regulators. As a result, people nation-wide were given tainted injections for back injuries. The tainted injections lead to an outbreak of fungal meningitis that affected more than 700 people. The scandal ultimately resulted in the deaths of 76 of those ill. Cadden has been sentenced to 9 years in prison.

shkreliShareholder’s Profits Above All Else Is Not a Sustainable Business Strategy

Shkreli often justified his decision to raise the price of Daraprim to such high marks by claiming that he was acting in the best interests of his shareholders. That claim sounds absurd in light of his upcoming trial, but it does raise a critical philosophy in our legal system: business executives have an absolute duty to act in the best interests of their shareholders, but owe nothing to the public at large. This ranking of interests is evident in Shkreli’s prosecution: raising prices to absurd levels has not resulted in any legal consequences for Shkreli, but blowing off his shareholders likely will. Even Cadden, who is being prosecuted for harming the public, is not liable for the deaths of consumers, but for lying to the government about the effects of his product.

Shkreli might believe that what he is doing is beneficial to his company, but these interests seem to be short-term gains only. The negative media attention and Congressional investigations were not expenses that Turing Pharmaceuticals, Shkreli’s former employer, wanted. Cadden lead NECC into Chapter 11 bankruptcy. In the long run, this kind of moral less pursuit of the company’s profit above all other considerations would appear to have dire effects on the long-term viability of the company itself. Companies should consider, not just the potential for short-term profits, but the long-term consequences as well. It might be considered smart business to take over an industry that people’s very lives depend on and then maximize that dependency for as much profit as possible. But then Americans shouldn’t be so shocked and outraged when men like Shkreli and Cadden abuse that system.

Mistrial: Understanding the Bill Cosby Sexual Assault Trial

Just recently we discussed the serious criminal allegations of sexual assault leveled against famous comedian Bill Cosby. The accusations, factually mirroring the allegations of dozens of other women, have drawn an enormous amount of attention after Cosby’s admission during a deposition of having sex with women after drugging them with Quaaludes. The details of the suit, dealing with the charges of one Ms. Andrea Constand, are something we have discussed in full before. However, the results of the trial were made public just last week—a hung jury and a mistrial.

A hung jury occurs when the jurors in a case are incapable of reaching an agreement as to whether the accused is guilty or not guilty. In a criminal trial, a jury’s decision must unanimously determine that a party is guilty beyond a reasonable doubt in order to reach a guilty verdict. When the jury can’t reach a unanimous verdict, even if it is only one juror in disagreement, the result is considered a hung jury and the judge is generally required to declare the trial a mistrial.

Bill CosbyThe Jury’s Deliberations

After six days of deliberating on their verdict the jury in Mr. Cosby’s trial were unable to reach agreement as to their final decision. Ultimately, this came down to disagreement over the definition as to the meaning of terms under the law. Especially the meanings of “unconscious,” “without her knowledge,” and “reasonable doubt.” The jurors also apparently had some questions about whether the sexual acts were consensual and especially whether Ms Constaand was too impaired to consent for the entirety of the act.

The criminal evidentiary standard of beyond a reasonable doubt is intentionally, and rightfully, an extremely high standard of proof. Any real doubt whatsoever as to any of the elements required to prove the allegations against Mr. Cosby would require a juror to find him not guilty.

While the evidence against Mr. Cosby in this case is substantial, consent is a notoriously tricky thing to get a jury to determine as we’ve discussed in the past. Whether this is a product of culture or the fact-specific nature of the determination, it only takes a reasonable doubt as to consent to leave a juror with a not guilty verdict. Mr. Cosby’s attorneys worked very hard to create this doubt by pointing to previous encounters between the two-focusing on disputed encounters including  fifteen minutes of clothed “cuddling” in a hotel room, conversations after the alleged assault (72 phone calls which Ms. Constand describes as a necessary part of her job due to Mr. Cosby’s position of power at the University she worked for).

The admitted actions of Mr. Cosby are heinous, a man in a position of power admittedly drugging and having sexual encounters with a woman whose job he holds considerable control over is simply unacceptable. However, in a criminal context the specific minutiae of an encounter can come into play for a juror in splitting definitional hairs in creating a reasonable doubt. It sounds like this, as it often does in the context of sexual assault and rape trials, is what occurred here.

Will Cosby Be Retried?

A hung jury and a mistrial is not a guilty or a not guilty result. However, the situation has always created a bit of a constitutional kerfuffle when it comes to double jeopardy-your right not to be put on trial twice for the same crime.

The Supreme Court has held that jeopardy attaches as soon as a jury is impaneled. In other words, once the jury is sworn in you’ve faced jeopardy on the issue once regardless of the result.

However, despite this, the Supreme Court has held since 1824 that mistrials are the exception to this rule. They’ve doubled down on this position a number of times since. In recen                t years, they’ve done so as recently as 2010. Thus, the mistrial remains as an odd constitutional exception to the usual rules of double jeopardy and Mr. Cosby can still face trial on these sexual assault charges again.

In fact, Mr. Cosby not only can face charges again but he absolutely will face these sexual assault charges once more. Hung jury verdicts are generally considered wins for a defendant in criminal litigation as they are not a guilty verdict and give defense attorney’s a more practiced crack at the case. However, the prosecutors in this case have already begun preparations for a retrial of Mr. Cosby. What’s more, they have said that they have learned from this first trial and will focus on removing the ambiguity that led to this first mistrial. This will all take time though and we’ll have to wait and see how this second trial will unfold for Mr. Cosby.