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Can Donald Trump Actually Take Care of “the Muslim Problem” and Make America Great Again?

Donald Trump. A man so American that bald eagles attack him in fits of jealous rage. Lately, he has also become the political poster boy for the Islamophobia that seems to be gripping certain constituents in the United States. However, what exactly are his proposed plans to resolve “the Muslim problem” in the United States, and are these plans even legally feasible?

1. Shut Down Mosques

Trump declared that select mosques within the United States should be shut down. This alone appears to be a systematic denial of religious freedom, which is protected by the First Amendment. Many of the original colonists in this country came here to avoid religious persecution. The most popular secular holiday in the United States, Thanksgiving, involves a celebration of the religious freedom achieved by the Puritans by coming to the new world. That is not to say that there has never been any effort to suppress certain religious practices by the government.

However, laws designed to prohibit certain religious practices, even Hileah’s attempt to ban the Santeria practice of animal sacrifice, have been declared to be unconstitutional as a violation of religious freedom. Any ban on religious worship in buildings specifically designated for religious worship will likely be declared to be unconstitutional under the First Amendment because while the interest of keeping American safe from “homegrown” terrorists is a compelling government interest, any law that permits the shutting down of mosques could not possibly be deemed to be narrowly tailored enough to truly advance that interest.  Trump

Most likely, if such a law were enacted and then challenged in court, it would be seen as unconstitutional pursuant to Cutter v. Wilkinson, which was a challenge by prisoners in Ohio against the prison’s refusal provide them with an adequate space to worship within the confines of the prison. Just as the prison could not force the prisoners to restrict the practice of their religion to their cells, so the federal government cannot force Muslims to restrict the practice of Islam to their homes.

2. Bar All Non-Citizen Muslims from Entering the United States

If Donald Trump were to become president, he would not be able to actually enact his own ban on the immigration of Muslims, even under his power of commander in chief during wartime. Any ban by presidential order would be determined to be in violation of the United Nations’ International Covenant on Civil and Political Rights, which prohibits all participating countries, including the US, from banning immigration solely on religion.

Congress is the only government entity that can pass laws superseding any international treaties made through the United Nations, since Congress is responsible for the United States’ participation in that organization. Thus, Donald Trump would need to convince Congress to enact a ban on Muslim immigration. Although a mass ban on immigration based on religion is practically unheard of, Congress has enacted mass bans on ideological principles before, most notably against foreign Communists. These bans have been held as constitutional, despite the unconstitutionality of laws placing restrictions on Americans who hold the same views as the banned foreigners. Ergo, Congress could enact a ban on all Muslim immigration that may be held to be constitutional by the courts.

If Donald Trump wanted to avoid having to rely on Congress, he could ban all foreign Muslims on an individual basis. Congress has given the president the power to bar the immigration of anyone whose entry into the United States could have “potentially serious adverse foreign policy consequences” for the US under 8 U.S. Code § 1182. In the broadest sense, any president could make an argument that any foreign Muslim’s presence in this country could have adverse foreign policy consequences. Also, the president has the power to bar the immigration of anyone who fails to be “attached to the principles of the Constitution” in accordance with 8 U.S.C. § 1427(a). Thus, the president can deny immigration to anyone who professes to support Sharia law, or any other religion-based set of law, to the detriment of the enforcement of the Constitution. However, this would not necessarily work to bar all Muslims from immigrating to the United States.

3. Require All Muslim Americans to Carry Special Identification Cards and Be Registered on a National Database

Donald Trump has yet to clarify if his mandatory database for Muslims would involve self-registration or if it would be compiled in the same manner that the no-fly list is assembled, through the suggestion of others based on information gathered about the people on the list. The government has enacted self-registration policies before, where people register with the government for a certain purpose. The most infamous of these registrations have been the Communist registration during the “Red Scare” and the registration that preceded the American internment camps of the 1940s.

However, only mandatory self-registration policies based on race, national origin, familial status, and economic status have been held to be legal. Conversely, the Supreme Court of the United States held in United States v. Robel that mandatory self-registration for ideological purposes is a violation of freedom of association. Thus, mandatory self-registration for religion would likely also be found to be illegal.

Although the ACLU is currently challenging certain aspects of the no-fly list and other, similar databases, this type of surveillance database is legal. Thus, Donald Trump could choose to focus efforts on compiling a list of all Americans who attend Islamic religious services and/or profess to be a Muslim. However, there would not be any actual registration involved.

Requiring all Muslims to carry special identification cards would likely be unconstitutional under United States v. Robel. The issuance of such cards would likely require self-registration, which is unconstitutional.

4. Expand the New York Police Department’s Muslim Surveillance Program to the Whole Country, and Permit Warrantless Searches of Mosques

Donald Trump has expressed his desire to expand the surveillance tactics used by the New York Police Department (NYPD) on Muslims living in New York and New Jersey to be used on all Muslim Americans. These tactics included having plainclothes cops monitoring buildings at all hours of the day and infiltrating student organizations for the sole purpose of gathering information on all members of those organizations. The exact tactics appear to be perfectly legal, and even commonplace, on the surface. However, the legality of the NYPD’s extensive surveillance of people just based on their faith is currently being challenged in the federal courts. Until that case is determined, it is unknown whether or not Donald Trump would be able to legally expand their tactics to the whole of the United States.

Warrantless searches of buildings are only permitted in two instances: in the case of exigent circumstances and in order to secure the area in which the police are attempting to arrest a suspect. Exigent circumstances prompting a warrantless search only exist when evidence may be easily destroyed by the time a search warrant is issued. It is unforeseeable that exigent circumstances would be commonplace in mosques to allow for the warrantless searches that Donald Trump seems to want.

As for a search of the area while arresting someone, this is a very limited search that would not permit for a thorough search of a whole building, which is what Donald Trump appears to be after when he refers to searching a mosque. Any other kind of warrantless search is prohibited by the Fourth Amendment. That is not to say that such a search will never be permitted, as the ban on such searches may be ignored if the political climate is right. After all, Congress famously suspended habeas corpus, which is the right to challenge unlawful imprisonment, during the Civil War.

5. Deporting Syrian Refugees Who Have Entered under Obama’s Presidency

As president, Donald Trump may be able to seek the deportation of some of the Syrian refugees under the Smith Act, which permits the deportation of immigrants who are or have been affiliated with organizations that advocate the overthrow of the American government. Thus, so long as a Syrian refugee had actually belonged to Daesh, also known as IS or ISIS, or provided support to Daesh at some point prior to fleeing Syria, they could be deported in accordance with the Smith Act. However, such a deportation scheme would involve a lot of work, as the government would need to provide evidence showing that the involvement was more than just merely cooperating with Daesh in an effort just to survive or being sympathetic to Daesh’s cause.

Alternatively, Donald Trump’s administration could refuse to grant permanent resident status to Syrian refugees, deny renewal for any visas that were granted to the refugees, and then deport them for overstaying expired visas. However, as some Syrian refugees have been here for more than a year and are already able to apply for permanent residency, this plan may not work for all of the refugees.

As one can see, not all of Donald Trump’s presidential goals could actually be achieved. However, there are a surprising number of ways that some of his plans could actually be deemed to be completely legal, supported by both the Constitution and judicial decisions. It certainly serves as food for thought going into the 2016 presidential race.


Child Spanking In the Modern Age

Doctor Spock was a pediatrician famous for his book on child care. He once said “If we are ever to turn toward a kindlier society and a safer world, a revulsion against the physical punishment of children is a good place to start.”

It often feels like every person has a strong opinion on child spanking. Words like “abuse”, “discipline”, or “firm hand” appear when magazines discuss “proper” parenting. The reasons behind spanking range from biblical to stating that the parents were once spanked and they turned out fine, so what is the harm?

Child spanking creates discourse everywhere, from talk shows to the dinner table. But what is absent from the discussion is what the law says about spanking.

Entering the Home

From the beginning of the American legal system, lawmakers did not want laws that affected how a man runs his home.  Spanking

But things have changed over the years. A woman may work, own property, vote, and is no longer considered her husband or father’s property. Children have gained some rights in school and can be removed from the home due to abuse. These changes came about after a long period of time and hard work from those who advocated for it. But the courts’ hesitation remains.

Abuse is Determined On a Case By Case Basis

In a recent decision by the California Court of Appeals, the Court decided that spanking a child was not abuse by the mother. They examined the mother’s motive, the necessity of her punishment, and the reasonableness of the severity.

The mother hit her children on their behind with her bare hand or a sandal. The spanking did not leave any bruise, welts, or lasting pain and discomfort. So the Court decided that the spanking was not “serious physical harm” and not abuse.

The Court stated that a parent has a right to “reasonably discipline” their child and “give reasonable punishment.” But where did this right come from?

The Legal Status and Rights of Children

Children, or minors, often live in a legal limbo. Their status as a minor protects them from entering bad contracts, being tried as an adult, and protected from sexual predators. The policies come from the judicial view that minors do not understand the consequence of their actions and cannot make the right choices. However, minors vary in maturity, intellect, emotional strength, and life experience. So it can result in a wide variety of outcomes for similar cases.

Parents or legal guardians of the minors are responsible for their minors’ actions. When parents/guardians assume legal responsibility they also decide how to raise their child. Parents and guardians make decisions about housing, dress, diet, and schooling. They can also decide how to discipline and what kind of healthcare should be provided.

While the ability to make these choices for their children make sense at the moment, the truth is that children will grow up. They will reach the age of majority and will make decisions for themselves. But sometimes the choices made by their guardians affect them into adulthood. This reality is why parenting is one of the most difficult tasks a person can undertake.

Should the Law Revisit Child Spanking?

There are things the legal system cannot regulate and decide. The government entrusts parents and guardians to raise future citizens in a safe and protected environment.

The legal system’s view on child spanking is simple: parents can spank their children. But they do not ask why or question the morality of spanking. They do not look at psychological research or studies on the benefits or damages of spanking. Instead, they base their view on the fact that parents have spanked their children for years. So they have the right to continue to do so.

The legal system does not exist to offer parenting advice. But it does exist to protect its citizens and this includes minors. The question still remains if spanking hurts children in the long term. It is a question the legal system is hesitant to decide.

But when hitting a dog is animal abuse, then how does hitting a child turn into spanking and a parent’s right? There are inconsistencies in the law that must be addressed despite the legal system’s fear of entering the home.

Should Americans Have a Right to A Lawyer in Civil Court?

In 1963, the Supreme Court decided Gideon v. Wainwright, ruling unanimously that the Constitution required all criminal defendants to have a right to representation in court. One of the main rationales Justice Black’s opinion in Gideon was that the “noble ideal” of “fair trials before impartial tribunals  in which every defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

In criminal cases, a person’s liberty may be at stake. However, civil cases can also inflict great personal loss. Some civil cases involve large sums of money, others may involve housing, public benefits, child custody, or employment. Many advocate providing legal counsel as a right in cases where basic rights like family or shelter are at risk. Often, these decisions are the key to helping indigent clients move forward in their lives.

Legal Aid: Solution or Stopgap?

Currently, the poor have some access to legal assistance in civil cases through Legal Aid. Legal aid programs assist in three main types of cases: accessing basic necessities (like housing, healthcare and government benefits); ensuring safety and stability (like domestic violence, guardianship, and student discipline); and economic security (like employment, taxes, and consumer protection). These programs exist all over the country, and are very helpful to many. However, Legal Aid offices are not mandated to take all cases, and due to lack of resources must choose carefully whether to represent clients.  Legal Assistance

However, a right to an attorney in certain cases would guarantee that clients could not be turned away. Even if this were to exist, a separate system of Legal Aid would be an important community resource. This is because Legal Aid often helps clients who are plaintiffs or who are applying for certain programs or benefits; some of what they provide would not overlap with a civil Gideon. A civil right to representation in certain cases could potentially create new legal jobs and would ideally free up legal aid attorneys to do more good work.

Would the Failings of the Public Defender System Be Repeated?

While there is a guaranteed right to representation in criminal cases, there are also many flaws in the public defender system. Especially in some counties, public defense attorneys are overloaded with too many clients and sometimes do not have the time and energy that a private criminal lawyer could bring to an individual case. On the other hand, these attorneys are often incredibly well-versed in criminal law and some of the most experienced trial lawyers. Dedicated public defenders can often be great assets to their clients.

One concern is that the lack of staffing and resources faced currently by criminal public defenders would just be mirrored in a civil defense system. This is a rather cynical argument, as though our society could not possibly provide better funding to both a criminal and civil public defense system. The limitations that public defenders face are due to a lack of economic commitment to the principles of just representation. In a fair legal system, public defense would be sufficiently funded; we should try to move forward by making this a reality rather than naysaying.

The Way Forward

President Obama is a major proponent of increasing civil representation. In September, his administration released a memorandum that established the White House Legal Aid Interagency Roundtable to “increase the availability of meaningful access to justice for individuals and families and thereby improve the outcomes of an array of Federal programs.” This statement reflects another important point about the benefits of civil representation—local and federal governments can set up meaningful programs or pass important legislation in hopes of protecting vulnerable individuals. However, in a system where few people are adequately represented, those programs and laws won’t work as intended.

At the same time, there has long been a national movement within the legal community to find a way to provide an attorney for those facing certain civil issues. Lawyers and judges are uncomfortable with indigent and vulnerable clients trying to represent themselves in complicated matters. In several states and jurisdictions, pilot programs have begun to try to work out what it would take to provide these services.

As Martin Luther King famously said, “injustice anywhere is a threat to justice everywhere.” A commitment to civil legal representation for all would be a step forward in defeating injustice.

New York Attorney General Takes on Daily Fantasy Sports Gambling

Recently, New York Attorney General Eric Schneiderman has decided to take on certain fantasy sports gambling websites, particularly ones that advertise daily games such as DraftKings and FanDuel. As he wrote in an op-ed piece for the New York Daily News, “my job is to enforce the law, without fear or favor. For more than a century, New York laws have banned gambling. The few narrow exceptions that exist — which do not include sports betting — all come with strong regulation and oversight to ensure fairness and protect New Yorkers from fraud.”

A.G. Schneiderman has issued cease and desist letters to stop the flow of money into these websites. Schneiderman contends that daily fantasy sports betting is governed by chance to a degree that makes it illegal under New York and federal laws.

What Laws Regulate the Sports Betting Industry?

In 1996, Congress passed the Professional and Amateur Sports Protection Act (PASPA) to restrict sports gambling to certain states. These states currently include Nevada, Delaware, Oregon, and Montana—and only Nevada hosts serious sports betting. Under PASPA, no government entity can license or authorize any lottery, sweepstakes, or other betting scheme based on competitive games involving amateur or professional athletes. Attorney Generals and sports organizations can use PASPA to remedy violations of the law.   Fantasy Sports

More recently, in 2006, the Unlawful Internet Gambling Enforcement Act was passed to regulate U.S. banks and other financial institutions. Those institutions are no longer allowed to be involved in online gambling transactions. The law also affected online blackjack, poker, and other similar games. This means that, in general, many of the bets placed and collected online are processed through offshore banks.

State gambling laws may also pertain to fantasy sports betting. As Law Professor Marc Edelman explains, “not every “game for money” or “bet on an uncertain outcome” is defined as illegal gambling” by states. Rather, most states maintain explicit carve-outs that permit certain activities, such as stock trading, that otherwise would seemingly fall under the category of gambling.” This means that there are some forms of fantasy sports competition that fall short of “gambling” under some states’ laws.

Fantasy Sports Betting Today

Fantasy sports betting existed well before the internet was part of our daily lives. However, until recently, fantasy sports games have been played over an entire season. These games have an entry fee to be part of a league, and an annual prize that is awarded to the manager who most skillfully crafts a winning team. In these respects, they are not much different than any other contest. These fantasy games involve commissioners who regulate play, treasurers who handle the financial stakes, and strategic advising companies that help players decide which athletes to choose. Fantasy sports betters can also be insured to cover the losses if one of the athletes on their “team” is injured during the season.

Daily games, however, are much more akin to other forms of gambling. They are short-term and sometimes risky bets based largely on chance and not on talent. In addition, as with all gambling, the house always takes a cut of the winnings. These games may lure gambling addicts and others who care more about the thrill of the bet than sports.

It is estimated by the American Gaming Association that in 2012, only 1% of sports betting ($2.88 billion) happened in Nevada, where it was completely legal. The other 99% of the betting occurs within other states, involves millions of Americans, and is sometimes facilitated by offshore banking. While some betting involves traditional fantasy sports league play or tournaments like March Madness, daily and weekly online fantasy sports betting is becoming increasingly popular.

Should PAPSA and other laws put a stop to fantasy sports betting?

According to Edelman, many fantasy leagues have support from the athletic organizations that they revolve around. Short-term games, however, are more about betting and have usually had less official support. However, the Guardian reported in May that DraftKings has now been declared the “official daily fantasy partner” of Major League Baseball… and that the National Basketball Association now has an equity stake in FanDuel. Despite this trend, in a city like New York where websites like these could stand to make millions of dollars from illegal gambling activities (and from gambling addicts), it may be time to lay down the law.

The Law of Self-Driving Cars

On November 12, 2015, Mountain View police pulled over a Google Self-Driving car because it was driving 24 mph in a 35 mph zone. Google has explained that they set the maximum speed of their test vehicles to 25 mph for safety reasons. The stop did not result in a ticket. The officer was merely curious about the technology.

However, this particular event does raise several legal questions in anticipation of the future of these autonomous vehicles.

Are Autonomous Vehicles “Street Legal?”

The ability to test drive autonomous vehicles on the roads is state dependent. Currently, the only US states that permit autonomous vehicles through state legislation are California, Florida, Michigan, Nevada, and Washington D.C.

States that have rejected legislation for self-driving cars are Arizona, Colorado, Louisiana, Minnesota, New Hampshire, Oklahoma, South Carolina, South Dakota, and Wisconsin. Several other states are still considering the legalization of self-driving cars. Having a Google car drive itself cross-country would not be legally possible at the moment.  Self-Driving Cars

California is considered one of the most important states for the legislation of self-driving cars, primarily because of the promotion of Tesla’s Autopilot feature and Google’s Self-Driving Car project. Currently, California issues permits for the “testing” of autonomous vehicles so long as the manufacturer can show that the vehicle meets certain unnamed criteria, that the manufacturer publish safety reports, and that the operator of the vehicle holds a valid state driver’s license.

For more specific regulation of the autonomous vehicle testing, the California statute left this to the state’s Department of Motor Vehicles. Car manufacturers must apply for a special permit before they are allowed to test any of their driverless cars on actual California roads. As a means of easing the public into the idea of a driverless vehicle on the streets, the DMV also held public hearings and workshops in January 2015.

Do We Still Need Drivers’ Licenses?

The goal of autonomous cars is to replace the fallible human driver with an infallible self-driving system. Potentially, people who cannot or refuse to obtain a valid state driver’s license would be able to use a self-driving vehicle as their primary mode of transportation.

Currently, of the states that permit the testing of autonomous vehicles, all of them require that the driver/operator has a valid state driver’s license for the class of the vehicle. The assumption is that if the vehicle requires any emergency human intervention, the driver can “take over” the wheel or driving apparatus to prevent an accident. Drivers are also required to interface with law enforcement should the vehicle get pulled over.

But there is speculation as to whether this will be necessary as the technology improves over time. Most accidents involving autonomous vehicles are usually not the fault of the vehicle. The California DMV posted incident reports for nine traffic accidents it has recorded involving a self-driving car. All nine accidents were due to human error.

Another study conducted at the University of Michigan found that autonomous cars had more accidents than human driven cars, but the accidents resulted in less serious injuries. Even with more crashes, autonomous vehicles appear to be safer because they result in less fatalities or other serious injuries. As the technology improves and there is an increase in semi to fully autonomous vehicles, many theorize that this will result in an overall reduction of car accidents.

Potential Changes In Accident Liability

Who then would be at fault if the car is driving? Who would pay for the damages?

Insurance is state-based, with some states using a no-fault system, while others using tort liability. In a no-fault state, each person’s insurance pays for their insured driver’s damages, regardless of who was at fault. In a tort liability or “at-fault” state, the party responsible for the accident is responsible for paying the damages to both parties.

The Insurance Information Institute predicts that with the increase in autonomous vehicles, more states will switch to no-fault. There could be a push for more uniform, federal regulation on autonomous cars instead of relying on the state systems alone. This could ensure that autonomous cars be treated as no-fault regardless of the location of the accident and/or drivers.

Furthermore, there may be a shift from personal liability and car insurance to products and manufacturer liability. If a manufacturing defect caused the accident, then affected parties could seek damages from the manufacturer or anyone else along the manufacturing chain. The result could then lead to a shift from insurance companies who cover individual drivers to insurance companies focused more on products liability coverage for businesses.

Speeding Tickets and Other Police Involvement

Although the Google car has never received a ticket, what would happen if police pulled over an autonomous vehicle for speeding or running a red light? Who would receive the ticket?

Currently, autonomous vehicles can still be controlled by their human operators at any time. Drivers are still required to pay attention in the vehicles even though they are not actively driving. More than likely, since the cars can still relinquish control to their human drivers at any time, the driver still remains responsible for the speeding ticket.

A bigger issue occurs if law enforcement were to obtain control over autonomous vehicles. It would be useful if a police officer could override the car steer it away from danger. However, there are major privacy and individual rights concerns about the boundaries that need to be established for any overriding law enforcement controls. There would be a fine line between a useful override for emergency circumstances and losing control (or even being detained in your vehicle) without providing permission.

These issues have not yet been addressed by the vehicle manufacturers, but federal legislators are already proposing a bill to protect such privacy rights.

New York Representative Grace Meng has recently proposed the Autonomous Vehicle Privacy Protection Act of 2015, which was introduced to the House in early November. It remains to be seen whether this bill will pass into law, but the bill does reflect growing concerns over autonomous vehicles and the possible issues that may arise with their rise.

Even with these potential problems, policymakers and manufacturers are taking slow steps towards the future of autonomous vehicles to ensure that they are both legal and safe. A recent RAND Corporation study found that there is a greater potential of benefits than detriments to this technology. As long as lawmakers and manufacturers continue to work together, we may be fortunate enough to see the first autonomous vehicles for purchase in the future.