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Movement to “Ban the Box” Surges Across the Nation

An estimated 70 to 100 million people in the U.S. currently have some sort criminal background.  That’s between one in three and one in four people in the whole United States.  These criminal records, no matter how minor the offense, can be a real hurdle when looking for a job.  There is a real potential that an employer, seeing a prospective employee checked a box on their application indicating criminal history, would reject that application on that basis alone.

If the goal of our criminal justice system is to rehabilitate, barring ex-criminals from gainful employment out of hand is obviously far from ideal.  With this in mind, a movement to “Ban the Box” has swept across the nation.  24 states, many passing laws just this year, have passed laws barring public employers, private employers, or both from inquiring about criminal background on a job application.  To make matters even more complicated, more than 150 individual cities and counties have passed similar laws that apply just in those smaller jurisdictions.

The spread of these laws is still on the rise, just around a week ago Los Angeles County passed their own Ban the Box ordinance.  Connecticut has recently passed a Ban the Box law that will take effect January 1, 2017.  On November 30th, the federal government and the Obama administration even finalized regulations preventing the federal government from asking about an applicants’ criminal background before a job has been offered.  With the upsurge in “Ban the Box” laws, the question becomes fairly simple.  What do these laws mean for employers and employees?

Ban the Box Explained

While the details of any given Ban the Box law vary slightly from law to law, they all have the same basic goal.  They make it illegal for the type of employers named by the law to include questions or check-boxes on employment applications asking about the criminal background of an applicant.  They don’t, by themselves, prevent an employer from asking about criminal history altogether.  However, an employer must raise these questions later in the hiring process.  While violations of Ban the Box rules don’t generally allow for private lawsuits from applicants, applicants can report violations to the state who will then follow up with fines or a lawsuit of their own.

As mentioned above, with so many different places creating their own Ban the Box rules the exact boundaries of those rules can vary from place to place.  Depending on where an employer operates, there can be exceptions "Ban the Box"to Ban the Box rules for certain types of jobs—usually positions that are especially safety sensitive.  However, exactly what positions are considered “safety sensitive” is in and of itself a complicated legal concept that varies from state to state.  Employers seeking to avoid the legal troubles of a Ban the Box violation should speak to an employment law attorney to learn whether there is a Ban the Box law in effect where they operate and if there are any exceptions for the type of positions they are offering.

Beyond the Box: Other Employer Restrictions Regarding Criminal Backgrounds

Ban the box is the tip of the iceberg for state to state differences in how employers must approach an employee’s, or potential employee’s, criminal background.  Different states, and even cities and counties within those states, have their own wildly varying laws placing restrictions on either private employers, public employers, or both when it comes to approaching a job applicant or employee’s criminal background.

Depending on where they are an employer may be restricted as to asking about arrests that did not result in a conviction, criminal records which have been sealed or expunged, older criminal records (usually allowing for records no more than five to seven years old), certain types of crimes, or criminal convictions unrelated to the actual position sought.  While these laws have not seen the same rapid spread in recent years as Ban the Box, they continue to be passed nationwide.

In fact, earlier this year, Pennsylvania passed one of the most sweeping laws on the issue to date—albeit with a slightly different approach.  Pennsylvania’s new law requires law enforcement to remove records of arrests after three years have passed without a conviction.  It also allows individuals to petition to limit access to most non-felonies—with an exception for misdemeanors such as sex offenses, child abuse, or witness intimidation—on their criminal records after ten yeas free from arrest or imprisonment.  This law, coupled with the fact the Pennsylvania already bars all employers from inquiring about arrests that don’t lead to convictions, have left Pennsylvania with some of the nation’s strongest employment protections for former criminal offenders.

Are These Laws for the Best?

Ultimately, these laws are put in place to prevent returning criminal offenders from being shut out of employment opportunities before they get a chance to show their merits.  Those opposed to the spread of Ban the Box argue that employers are best suited to knowing their own employment needs and these sorts of restrictions needlessly increase the costs associated with hiring.  They argue that, especially in light of other restrictions on accessing criminal backgrounds, these laws can leave employers in situations where they are left without information they would consider crucial to a hiring or employment decision.

However, despite these objections, it seems more likely that the only way this would truly save costs when hiring for any position that wouldn’t be subject to the common exceptions is if the employer used criminal background as a quick way to disqualify candidates.  Where an employer uses criminal history in this way, it creates a serious roadblock to the rehabilitation and reintegration into society of former criminal offenders.

There is nowhere that employers are totally banned from inquiring into criminal history.  Ban the Box rules are exclusively a timing related restriction, preventing applications asking about criminal history.  Although there are limitations on how background checks can be used a check made as a contingency to employment will likely reveal any criminal history that could be an issue.  However, as seen in Pennsylvania, the limitations on criminal background checks are becoming further reaching.  There is a real push and pull between the interests of an employer in making informed employment decisions and the interests of a former criminal offender—and society as a whole—in a system that provides the best possible chance for rehabilitation.  That being said, a system where an offender is denied that chance outright before the word go is almost certainly not the right one.

The Unexpected Oregon Militia Ruling and Understanding Criminal Conspiracy

Most have probably heard by now of the Oregon Militia which occupied a federal building in Oregon. For those who have not, the cliff notes version is that a group of armed militia forced their way into the Malheur National Wildlife Refuge and stayed in the building, preventing all others from entering, for 41 days in a standoff with police. The militia stated that the occupation was in protest of the imprisonment of two ranchers for arson and the federal government’s mismanagement of land. The militia members were ultimately arrested on Jan 26th in a confrontation in which one member of the militia was shot to death.

Following their extremely public armed takeover of a federal building, it seemed certain that this militia would face—and be found guilty of—several criminal charges including conspiracy to prevent federal employees from performing their jobs through intimidation, threats or force, and firearms charges.  Of the 26 militia members arrested, 11 pled guilty to charges brought against them immediately.  However, in a shocking recent decision, the leaders of the armed Oregon militants were, all seven including the masterminds Ammon and Ryan Bundy, found not guilty of all charges—including conspiracy charges—against them. One defendant was even found not guilty of stealing federal property after he admitted in court that he took and used a government vehicle. The ruling was surprising even to the militants’ own defense lawyer, who said in interviews after the ruling that he had already been telling his clients to expect to be found guilty.

Oregon Militia Ruling

The acquittals have led many to note the stark contrast between the treatment of those who staged an armed invasion in Oregon—cleared of all charges and allowed by authorities to leave for Chinese food and return again to the refuge—and the unarmed, peaceful Dakota Pipeline protesters—mass arrested, set on by dogs and sonic guns, horses shot by police, sprayed with water cannons on below freezing nights, tents bulldozed, and more.

Dakota Pipeline protesters have themselves said that they had considered arming, but not only believed that a peaceful protest was more effective but were certain they would all be killed if they chose to arm themselves. With this in mind, the ruling has been a source of frustration and anger for many who feel that it shows a gap between the treatment of white people and persons of color in the justice system. However, while the contrast between the treatment of the two groups is indeed notable, jurors on the Oregon militant case have come forward and said that source of their ruling was not their approval or belief in the militants’ actions but instead the failure of the prosecution to prove the elements of conspiracy

Conspiracy is Complicated.

Conspiracy is, without question, one of the most complicated subjects that exists in criminal law.  It is not hard to believe that a jury was unconvinced of all the elements of this extremely complex crime.  At its base, a criminal conspiracy is the agreement between two or more people to commit a crime.  However, the evidence required to prove that an actual conspiracy occurred goes further than this simple explanation would lead one to believe.

The most basic evidence required is the evidence that the conspiracy actually occurred; that two or more people made an agreement to commit a commit a crime. However, from this point the evidence moves to determine the state of mind of the parties when they made this agreement—a much more difficult thing to prove.

Conspiracy is a specific intent crime. This means that it must be done with the knowledge of what you are doing and the objective of completing an unlawful activity. In order to prove this, the prosecution must establish several things. First, they must show that the defendant intended to agree to commit a crime at the time the agreement was entered. Second, the prosecution must prove that the defendant intended to accomplish the criminal objective of the would-be conspiracy when they entered the agreement. If for instance, somebody agreed to rob a bank but in their own mind they actually planned to skip town the next day they would not be guilty.

To say that this can be extremely difficult to establish would be an understatement. After all, the only direct evidence of this intent would be in the mind of the defendant themselves unless they decided to write down or record that state of mind as they made the agreement.  As you might imagine, situations with direct evidence are extremely uncommon. So it is far more common to see intent proven through circumstantial evidence such as a defendant’s actions after the agreement and what the defendant stood to gain if the conspiracy was carried out

In this case, where the militants were accused of conspiracy to prevent federal employees from performing their duties, there would need to be evidence of an agreement to achieve this goal and specific intent to follow through with it. The militants argued that, while they did discuss occupying the buildings, they never actually discussed stopping any individuals from working.  Instead, they argued that they only wanted the lands and buildings themselves. While preventing employees from working seems like a near certain outcome of armed occupation of the lands, if this argument were bought it would mean they the militants never formed an agreement with the intent to commit the crime they are accused of conspiring and not guilty.

While this was likely the lynchpin of any legal determination of innocence by the jury in this case, it only touches the tip of the iceberg when it comes to the complexity of proving criminal conspiracy.  Defendants must also be established to have knowledge of the existence of the conspiracy and the illegal object of the conspiracy. In most states, they must also have been shown to have taken a substantial step towards or an overt act in furtherance of the crime that is the goal of the conspiracy. Exactly what can constitute such an act or step can vary from state to state—and a discussion of what exactly is the minimum that can constitute such an act or step could be the subject of a book—but an example might be purchasing a gun to be used in a conspiracy to rob a bank.

This may seem like a lot hoops to have to jump through to prove conspiracy, but the punishment for conspiracy requires a rigorous evidentiary standard. In a conspiracy, each conspirator is on the hook for the criminal acts of every other conspirator so long as the crimes were committed in furtherance of their conspiracy—whether they knew about them or not. There are some states where a person found guilty of conspiracy is sentenced to penalties related to, but less than, the punishment for the crime they conspired to commit.  However, in the majority of states—including Oregon—a person found guilty of a conspiracy to commit a crime will receive the same sentencing as if they had committed the actual crime.

What This Case Means for the Future.

The result of this case has shaken many to the core—from those who argue it reveals a two-tiered justice system to the Oregon federal workers who have stated that they are left in fear after what they worry could be taken as a tacit approval of the militants’ actions—encouraging further action in the same vein.

The Bundy’s, who led the militia, aren’t totally off the hook.  Even though they are acquitted, they still will not go free just yet as they also need to stand trial in Nevada for an armed standoff with authorities over unpaid grazing fees. Although, this is unlikely to do much to assuage concerns as five other militia members walk free.

The legal reality is that conspiracy is a very complicated and difficult to prove area of criminal law, it is very possible that there simply was not enough evidence to mount a fully effective case on this issue. It is even possible that the evidence was lacking when it came to firearms charges and stolen federal vehicles. That may be the legal reality, but it is unlikely to combat the perception of injustice created by the contrast between the result of this case and the treatment of protesters such as those at the Dakota Pipeline.

Nude Recordings of Minors Showering Not Lascivious Enough to Constitute Child Pornography

A Tennessee man’s sexual exploitation convictions have been overturned by the state’s highest court because his nude recordings of minors weren’t lascivious enough to be considered child pornography. Tennessee’s sexual exploitation laws are basically a reworded version of other production of child pornography laws, but unlike other states, Tennessee doesn’t consider the viewer’s intent of sexual arousal an element of the crime. Because of this distinction, a man’s recordings for his own perverse satisfaction ended up landing him a conviction for mere spying.

Thomas Whited was arrested for hiding a camera phone in the bathroom and bedroom used by his 12-year-old daughter. The phone was positioned in the bathroom to record his daughter as she prepared for a shower and after-shower bathroom activities.  The phone in the bedroom was planted just before Whited’s daughter and her 14-year-old friend entered the bedroom to change out of their bikini swimsuits into dry clothes.  The phone was eventually found by Whited’s wife, who reported her husband to the police after finding several videos of the young girls on the phone. nude recording in bathrooms

Whited was convicted of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. Whited appealed his case to the Tennessee Supreme Court, mainly on the fact that the videos didn’t include sexual activity and, because of that, couldn’t be considered sexual exploitation under the state’s statute, nor could they be considered lascivious.

If you have an image/video of a naked individual, at what point does that photo become obscene and considered child pornography?

Many Laws Require the Presence of Sexual Activity

Typically, images are considered child pornography when there is a visual depiction of sexually explicit conduct involving a minor. That’s a pretty broad definition though, so the question comes down to how sexually explicit conduct is defined.

The federal legal definition of sexually explicit conduct, in which the Tennessee court applied their own similar definition, doesn’t require images to depict sexual activity in order to be considered sexually explicit, but rather the federal code only requires a “lascivious exhibition of the genitals or pubic area of any person.”

What does lascivious exhibition even mean, then? Certainly, a word that’s meaning is, in a way, subjective. Black’s Law Dictionary defines lascivious as,

“tending to excite lust; lewd; indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations.”

Despite the fact that what tends to excite an individual is subjective to each person, there are general ideas of what pornography looks like. In fact, Justice Potter Stewart so famously described his threshold for obscenity as not definable, but rather,

“…I know it when I see it…”

Mere Nudity Isn’t Enough

Mere nudity isn’t enough to establish lascivious exhibition of private body areas. If you have a hard time wrapping your head around this, case law has previously pointed out the example of innocent photographs of naked children in the bathtub.  How do you know it when you see it here?  It would be hard to distinguish one from the other when you’re looking at merely a naked person.

Courts developed what they called the Dost factors, which take many things into consideration when determining whether there’s lascivious exhibition, but the Tennessee Supreme Court rejected those standards and instead they looked at comparative cases and found these considerations significant in the case at hand:

  • The level and nature of the nudity in the videos,
  • The emphasis on the minor victim’s private body areas,
  • The fact that the victims were engaged in everyday activities ordinarily performed nude,
  • The defendant’s audible comments and interactions with the victims recorded on the videos, and
  • the defendants’ recorded actions depicting his voyeurism in setting up the camera.

What did the court say? The nude recordings of the daughter showering were “everyday activities ordinarily performed nude” and because the videos didn’t appear to be focused solely on the children’s private body parts, they weren’t necessarily lascivious exhibition.

Did Whited luck out on a technicality? It’s not an issue of whether the court got it wrong, but rather a question of whether Tennessee lawmakers will be redrafting their statutes to have a more inclusive definition of what constitutes child pornography.  I imagine they will after this case.  Had the Tennessee statute been inclusive of language defining sexual exploitation or pornography to include an element of intent of sexual arousal/gratification, the issue of lasciviousness would have been moot at that point.

Marijuana is Legal for Recreational Use in Four More States; Now What?

On November 8th, California, Maine, Massachusetts, and Nevada joined the current four states and DC in the legalization of marijuana for recreational use. Some herald this as success, others decry it as a tragedy. What is beyond question is that those who do choose to use marijuana should keep in mind the limitations of the legalization measures and the continuing risks.

Possession Limits

As a baseline, all the passed measures require that you be at least 21 years old to possess marijuana. Under the new measures, there are limits to how much an individual may possess and grow for personal use. Possessing or growing more than allowed is still illegal, even under state law. California allows a person over 21 to possess 28.5 grams of marijuana, Maine allows two and a half ounces, and Massachusetts and Nevada allow one ounce. All four states allow a person over 21 to grow up to 6 marijuana plants and to keep the harvested marijuana for their personal use.

Growing Restrictions

In addition to the possession limits, there are requirements upon how you must go about growing marijuana. First, the marijuana must be for your own personal use or given in limited quantities to Marijuana Lawothers over 21. You may not accept payment for marijuana grown for personal consumption and can only give away a limited amount. The four measures vary slightly on location requirements for growing. Overall, all four require any marijuana be grown in a place where it is kept safely out of the reach of children.

Sale and Giving Away

Both selling and giving away marijuana are addressed in the new measures. In all four states, under the new measures, you may give away, without any sort of payment, up to one ounce of marijuana. Sale is absolutely forbidden unless you follow new state licensing and regulatory procedures to become a marijuana business.

Where and When?

All four measures also limit where and when marijuana may be used. The measures all prohibit marijuana use in public, including public establishments like bars. They also prohibit marijuana use in or near premises frequented by children such as community centers and schools. None of the measures change DUI laws so driving under the influence of marijuana is still a criminal act in these 4 states.

Effective Date

Each of these measures has their own effective dates. That is, the day that the measures become law. California’s measure was quickest, it was effective the day after the election, November 9, 2016. Massachusetts’ measure will take effect on December 15, 2016. Nevada’s measure will take effect on January 1, 2017. Maine has yet to establish a clear effective date due to a battle currently raging in Augusta.

The Maine Problem

The marijuana legalization measure in Maine prescribed that it would take effect 30 days after Governor LePage signs it. However, LePage has been a vocal opponent of the measure ever since it was allowed onto the ballot. Currently, LePage is making statements that the measure violates federal law and will require legislative tinkering to even be viable. The opponents of the measure are currently demanding a recount, as the measure passed on a margin of 4,000 votes. Needless to say, with the recount demands and his personal opposition, LePage is currently refusing to sign the measure. This leaves Maine law on the subject in limbo.

Still Illegal

Even with these measures passed, marijuana is still illegal across the US. Federal law still designates marijuana as a schedule one drug. This means, even if you follow all the rules set forth in the new measures, federal law enforcement such as the Drug Enforcement Agency, Bureau of Alcohol, Tobacco, and Firearms, Federal Bureau of Investigation, and Federal Marshalls may still arrest and prosecute you for possession, growing, or giving away marijuana. This comes from the fact that the United State’s federal system gives federal law supremacy over state law as explained here. To summarize, the new measures communicate to state, county, and city level police that they cannot arrest or prosecute anyone following the rules outlined in the measures but do not hold any sway over federal law enforcement.

Federal law enforcement trends on prosecuting marijuana possession have not been consistent. In this area, the President holds a lot of sway. Under the administrations of Presidents George W. Bush and Barack Obama, federal investigators and prosecutors have prosecuted those using or growing marijuana even in states that have legalized medical or recreational use. President-elect Donald Trump has not been clear in his views on marijuana. Years ago, he asserted that all drugs should be legalized. However, on the campaign trail, he proclaimed that he is ok with medicinal marijuana but not with recreational use. It is difficult to predict how a Trump administration will handle marijuana prosecution.

Overall, marijuana laws are changing. Marijuana is still not legal in the US, even for medicinal use. State laws, like the recreational marijuana measures, only protect marijuana users from state law enforcement. If you do choose to use marijuana under a state recreational marijuana measure, keep in mind the limits placed by the measure and the risks of federal prosecution.

Take Trump Tower

With President-Elect Trump using Trump Tower as his base of operations for his transition team, 5th Avenue in Manhattan is swamped by police, secret service, and security guards. If the rumors that Trump plans to spend weekends at Trump Tower are true, than New Yorkers could face diverted traffic, rerouted subways, and a no-fly zone over the city for the next four years. Security concerns are also abound, as having the President live in a skyscraper in the city will be a magnet for terrorists and madmen alike.

So far, New Yorkers have had to contend themselves with protests and taking the Trump name off some buildings. However, there may be a legal option that New York could pursue that would save them from this nightmare: Take Trump Tower.

Eminent Domain

Eminent Domain should be a familiar term to the President-Elect. Mr. Trump has spent years abusing eminent domain, a process whereby government can seize private property for public use if the property owner is given just compensation. New York may have the opportunity to turn the tides on the alleged billionaire. 

Eminent domain requires that the government seize property for public use, such as a highway. New York requires a determination that a property is necessary for construction of a public improvement. Although the state could come up with a feasible “public improvement,”  like a public park or charity, here the mere act of taking the tower could also be considered a public use. Trump’s mere presence is congesting traffic and disrupting the local economy. Having Trump in New York on a regular schedule for the next four years would destroy any public use around Trump tower and potentially endanger the lives of many Americans.

Trump’s lawyers would likely argue that Trump is putting his tower to public use, as he is the President-Elect and running the nation. However, America already has a location for that kind of use: the White House. It would be a huge waste of money to maintain both the White House and Trump Tower as headquarters for the nation’s Executive branch.

Civil Asset Forfeiture

Civil Asset Forfeiture allows the government to take property from alleged criminals. In order for the government to seize property under civil asset forfeiture, the property has to be associated with the crime. This definition allows the government to bypass traditional criminal due process – the defendant need not be found guilty for the government to seize the property. States have often abused civil asset forfeiture to seize all kinds of property, including cash, cars, and even real estate.

New York is probing the Trump Foundation for fraud. If New York were to bring criminal charges against Mr. Trump, they could assert civil forfeiture over Trump Tower if the state could show that Trump ran his foundation from his tower.

Conflicts of Interest

If New York were to seriously threaten Trump Tower, the President-Elect would almost certainly take to Twitter to insult everyone involved. Republicans would no doubt accuse New York of harassing the President-Elect through shady legal avenues.

Trump and his supporters should ask themselves though, how is it that Trump is the first President who could have his property taken from him ? Although Trump’s property is more prominent than most – Trump loves to put his name on buildings in big gold letters – there is another reason. Unlike prior Presidents, the President-Elect has neglected to place his businesses into a blind trust. Instead, he’s letting his kids run his businesses.

This presents serious conflicts of interest. If Trump had to choose between defending America and defending his property, which would Trump choose? Trump properties are in many locations around the country, including California and New York. It would not be difficult for the states most opposed to Donald Trump to threaten to seize his properties if Trump tries to push policies that those states do not want.

If blue states in America can threaten Trump’s properties, what about Trump’s real estate abroad? If Trump’s property in Scotland or Dubai were threatened, would Trump threaten military action to save his businesses, even if his businesses have nothing to do with America’s interests?



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