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The Return of Stop and Frisk?

Donald Trump’s statements during the first presidential debate of 2016 raised two issues about Stop and Frisk; a controversial practice used by police departments across the country. Firstly, there was confusion about the accuracy of Mr. Trump’s statement that the practice is still constitutional. There was also speculation as to why gun rights activists, specifically the National Rifle Association (NRA), remained silent after Mr. Trump’s comments about Stop and Frisk.

What is Stop and Frisk?

As a general rule, police officers must obtain a warrant based on probable cause for a search or seizure to be constitutional under the Fourth Amendment. Stop and frisk, also known as a “terry stops,” provides an exception to the warrant requirement.  The name “terry stop,” comes from the case Terry v. Ohio, where the Supreme Court held that police officers may briefly detain a criminal suspect without a warrant. Due to safety concerns, officers may also perform a “pat-down,” or search a suspected criminal’s outer clothing, upon reasonable suspicion that the individual is armed and dangerous.  Stop and Frisk

A controversial facet of this practice is that stops require an officer’s “reasonable suspicion” that an individual committed or is about to commit a crime, rather than probable cause.  Probable cause requires at least some concrete evidence that a crime has been committed, whereas reasonable suspicion merely requires an officer’s reasonable belief of criminal activity. Stop and frisk critics argue that the practice has led to increased racial profiling, because police officers do not need concrete evidence for stops.

Are Terry Stops Still Constitutional?

After the debate, there appeared to be confusion among fact-checkers as to whether Mr. Trump was correct that terry stops are still constitutional after the decision in Floyd v. City of New York. In Floyd v. City of New York, a district court judge ruled that the New York Police Department’s stop and frisk practice was an unconstitutional violation of the plaintiff’s rights under the Equal Protection Clause and Fourth Amendment.

As Lester Holt correctly pointed out, the decision was made because the practice constituted racial profiling. The court’s decision was based on statistical data demonstrating a disproportionate impact on Blacks and Hispanics under the practice. Of the 4.4 million people stopped under the policy only 10 percent were White, while 52 percent were Black, 31 percent were Hispanic. Of the millions of people frisked, only 1.5 percent had weapons on them. It also appeared that whites were just as likely to possess drugs or weapons as their Black and Hispanic counterparts. Since the court’s decision, a monitor has been appointed at the NYPD to oversee that the practice stays within constitutional limits and Mayor de Blasio has dropped the appeal.

In short, the practice was found unconstitutional as it was applied in New York City, but, terry stops in general are still constitutional.

Why Has the NRA Been Silent about Terry Stops?

Several conservative commentators criticized the NRA for its silence regarding Mr. Trump’s support of the stop and frisk practice. During the debate, the NRA tweeted about every anti-gun comment made by Mrs. Clinton. Yet the NRA remained silent during Mr. Trump’s statement “we have to take the guns away from these people that have them and that are bad people that shouldn’t have them.”

The data generated by New York City’s stop and frisk policy supports the NRA’s anti-gun restriction arguments. In New York City, crime rates have continued to drop, even after the aggressive stop and frisk policy was modified.  In other words, crime rate reductions do not seem to correlate with weapon confiscation. These statistics provide more credibility to the organization’s famous saying “guns don’t kill people, people kill people.”

Shouldn’t the NRA join the ranks of people disputing the constitutionality of terry stops… perhaps with a Second Amendment argument?

Trump Disagrees with Ramani Having Constitutional Rights

Donald Trump has added the Sixth Amendment of the Constitution of the United States to his ever-growing list of laws that he wants to either change or ax if he becomes president. This time, Mr. Trump is focused on the fact that the man who is currently facing criminal charges for the recent bombing and attempted bombings in the New York City area, Ahmad Khan Ramani, is guaranteed legal representation. Just like Dzhokar Tsarnaev, a young man who recently got the death sentence for the Boston Marathon, Mr. Ramani will have the right to a lawyer for his case even though he is currently facing charges in both New York and New Jersey for the bombing in Chelsea and the placing of bombs in public places in New York and New Jersey.

Despite what Mr. Trump thinks as to who should be allowed to enjoy this particular right from the Constitution, there is no way that Ahmad Khan Ramani will be denied legal representation from a court-appointed attorney. The right to an attorney exists for all defendants in the United States who are facing potential criminal sentences of a year or more in prison. While this right is granted the Constitution, it was not recognized by all courts until the Supreme Court of the United States ruled in 1963 that all citizens, regardless of their financial status, were entitled to legal representation when they may face a sentence of a year or more in prison if convicted in both the federal court system and the state court system.

The Right to an Attorney

While Donald Trump is going around insinuating that this means Ahmad Khan Ramani will have the best criminal defense lawyers that money can buy, or at least a criminal defense team that would rival O.J. Simpson’s “dream team,” the Constitutional right to legal representation in criminal matters only means that Mr. Ramani is entitled to a court-appointed defense lawyer, who may be a great lawyer or may be a terrible lawyer.

If Mr. Ramani wants to, he can always choose to not have a court-appointed attorney and either hire a private criminal defense attorney or represent himself in all court proceedings. However, if he chooses to go the self-representation route, Ahmad may still have to deal with court-appointed legal representation, just as Umar Farouk Abdulmutallab did when he chose to represent himself instead of continuing to be represented by the court-appointed lawyers that were assigned for him.

Mr. Abdulmutallab, a Nigerian who attempted to blow up an airplane at the Detroit Metropolitan Airport in 2009, decided that he would be better off with self-representation, but the federal court judge who was trying the case had a different opinion. As a result, even though Mr. Abdulmutallab was allowed to engage in self-representation through various pre-trial court proceedings until he decided to accept a plea deal, the federal judge appointed a stand-by counsel to answer any of his questions and provide assistance as requested. Thus, even if Ahmad were to reject his court-appointed criminal defense lawyer in favor or self-representation, he would likely still have access to some form of legal assistance to ensure that his rights are not violated.

Of course, the only reason Ahmad Khan Ramani is being given access to counsel during the whole criminal legal process is he is actually being tried in a court of law for violating laws. Instead of having the police go after Mr. Ramani, the president of the United States, as commander in chief, could have sent the military in pursuit of Ahmad Khan Ramani as a member of a terrorist organization that the United States is currently fighting against if there was proof that he had connections to ISIS, Al Qaeda or another terrorist organization that the US has committed to battling. If he been captured and detained by the military and not have been arrested as a standard criminal on American soil by the police, then, upon capture, Mr. Ramani could have been classified as an unlawful enemy combatant.

Enemy Combatant?

An unlawful enemy combatant is someone who has joined or substantially supported an enemy non-state armed group in the conduct of hostilities. Ahmad Khan Ramani associated himself with Al Qaeda and attempted to help Al Qaeda in the organization’s war with the United States by placing bombs in New York and New Jersey, which would qualify him as an unlawful enemy combatant. As an unlawful enemy combatant, Mr. Ramani would not have a right to free legal assistance right away, even if he wanted it, because the military is free to detain unlawful enemy combatants for an undetermined amount of time without bringing any charges against them as unlawful enemy combatants do not have a right to a speedy trial, nor do they have a right to a lawyer during pre-charge questioning.

However, if the military were to eventually bring charges against Mr. Ramani in either court or a military commission, which is the military’s version of a court trial, he would be assigned defense counsel for free. Thus, Mr. Ramani would still be able to have access to free legal counsel courtesy of the United States federal government, but he would not be able to receive access to that lawyer until it was time for the actual military commission because he would not have certain rights that he would otherwise enjoy in the normal civilian criminal process, such as the right to a lawyer during questioning and the right to a speedy trial.

Unless Mr. Trump finds a way to rewrite the Constitution and remove a criminal defendant’s right to legal representation, then he will have to accept the fact that Ahmad Khan Ramani is entitled to legal representation while he is going through the process of being charged with the crimes of bombing and attempting to bomb a number of places in both New Jersey and New York City. However, this does not mean that Mr. Ramani will receive the best legal representation out there. If, like Mr. Ramani, you are facing serious criminal charges, it would be in your best interests to contact a criminal lawyer to ensure that you obtain the best legal representation available to protect yourself from a severe criminal sentence.

Obesity Under the Americans With Disabilities Act

The U.S. has the dubious honor of being the on again off again world leader in obesity throughout the 21st century.  Mexico has only recently knocked us off our top spot. Obesity has grown from 13% of people in 1962 to 19.4% in 2003 to 35.7% in 2010.  The most recent figures show a slight decrease in obesity: only 34.9%, or 78.6 million U.S. adults, are obese.

Obesity-related illnesses have led to between 100,000 and 400,000 deaths per year in the U.S., depending on the statistics you read. Approximately $147B is spent on medical expenses for obesity-related diseases every year in the US—exceeding even the health care costs associated with smoking.

Obesity is clearly a serious health epidemic. However, it is a particularly divisive one.  While countless people struggle with obesity due to an underlying medical issue, it can also be caused by lifestyle and diet choices.  These diet choices can also be essentially forced on a person through food deserts, areas with little access to fresh food, limiting the availability and affordability of healthier food options.  This dichotomy has left the courts struggling to agree on an approach to obesity under the Americans With Disabilities Act (ADA)—the act which provides federal protection against discrimination based on a disability. Is obesity a disability?  How do we approach providing legal protection to people based on something that could be the product of potentially changeable behaviors?

Defining Obesity

In order to discuss obesity, we’ll first need to define exactly what it is. The American Medical Association (AMA)  has classified obesity and morbid obesity as diseases.  The AMA defines a disease as something which incorporates 1) an impairment of the normal functioning of some aspect of the body; 2) characteristic signs or symptoms; and 3) harm or morbidity.  While this isn’t a legally binding holding, it is persuasive and underscores how dangerous widespread obesity is as an epidemic. Obesity

Obesity is distinct from being overweight. While overweight is defined as simply being over a weight that is set for your height and bone structure, obesity requires having a body mass index (a comparison of your height to your weight) greater than 30.  To put that in context, the average healthy person has a BMI of 18.5-25.  Morbid obesity is defined as either having a body mass index of 40 or more, being greater than 100 pounds over the average weight for your height, or a body mass index of 35 or higher coupled with serious obesity-related medical complications.

A Changing Approach to Obesity Over Time

Up until 2008, the ADA did not cover obesity unless there was a proven underlying medical cause.  Some courts considered morbid obesity as a disability regardless of cause, but obesity without an associated medical condition basically never got the nod.  However, new amendments to the ADA in 2008 under the particularly hard to say ADAAA have changed the analysis of obesity by requiring that the term “disability” be provided a broader reading by the courts.

The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The amendments also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

These changes have made it much more likely that obesity, regardless of cause, is a protected disability under the ADA. The fact that mitigating measures that could be taken are not considered, coupled with the fact that obesity likely substantially limits many of the enumerated major life activities.  What’s more, a discrimination claim under the ADA now only requires a showing that a person’s been subject to adverse employment action (eg. fired or refused a promotion) because their employer perceives that they have a physical or mental impairment—regardless of whether they have an actual disability covered by the ADA or whether their impairment actually limits a major life activity. However, this type of discrimination can be awfully hard to prove without a smoking gun email or letter as it mostly concerns the mental state of an employer.

The Equal Employment Opportunity Commission (EEOC) certainly has decided that the changes mean that obesity is a disability, regardless of cause. After the ADAAA, the EEOC stated that, based on their guidelines, all obesity and morbid obesity are considered disabilities which can be subject to disability discrimination.

Since the changes, case law has been relatively sparse on the issue. However, recent cases are mixed in their approach.  A number of rulings since the ADAAA, including decisions as recent as 2010, 2012 and 2014 have held that obesity can be a disability, regardless of voluntariness. This being said, earlier this very year the 8th Circuit Appeals Court held that all obesity—including morbid obesity—can only be considered a disability if there is an underlying medical issue.

While some courts still seem reticent towards broad recognition of obesity as a disability, arguing the impracticality of declaring a third of the population disabled and that the actual disability of obesity is the underlying medical cause, the trend seems to be towards recognizing all obesity as a disability under the ADA. At the very least, it has reached the point where it would behoove employers to take steps to ensure they make reasonable accommodations—any accommodation that would not cause undue burden to the employer—for their obese employees.

Brock Turner’s Early Release Renews Mandatory Minimum Sentence Debate

Why do we have mandatory minimum sentences for certain drug offenses but not for crimes like rape? That’s the burning question in everyone’s mind in the wake of Brock Turner’s early release from prison.  I’m not sure anyone hasn’t heard the name Brock Turner. If you’re not familiar with the case though, Turner is the former Stanford student who was convicted for sexually assaulting an unconscious woman behind a dumpster.

Turner gained national attention because of the lenient sentence he received, presumably because of a biased notion that a Stanford athlete shouldn’t be punished as harshly as some every-day Joe. In his now infamous sentence, Judge Persky gave Turner such a light sentence because the judge felt, “A prison sentence would have a severe impact on him.”

Although he faced up to 10 years in prison, Turner was sentenced to only 6 months in jail and was released on good behavior after serving a mere 3 months. Many were appalled at the judge’s sentence but, because judges are given wide discretion when it comes to sentencing in the absence of a mandatory minimum law, he was within the boundaries of the law.

Mandatory Minimums Versus Judicial Discretion

California has since passed a bill, currently awaiting Governor Jerry Brown’s approval, that would institute a three-year mandatory minimum sentence for anyone convicted of penetrating an intoxicated or unconscious person, but that’s only in the wake of the Turner case. It doesn’t solve the issues surrounding other crimes that may warrant a similar minimum. Legislators have, in the past, expressed support for that very same judicial discretion they’re now wanting to take away.

While there’s pros and cons on each side, it’s hard for some to get past the inequities. Is it fair and just that some nonviolent drug offenders are serving more time than a sex offender?  Probably not. Brock Turner

Just to give some perspective, federal law mandates a minimum of a 5-year sentence for a conviction of selling 28 grams of crack cocaine. Here’s some more perspective—28 grams is equivalent to about an ounce.  There’s 16 ounces in a pound.  Certainly, we don’t want those drugs being sold on our streets, but I can’t fathom how that’s worse than rape.

Those against mandatory minimum sentences argue prison overcrowding is a huge problem. In California, for example, the average cost to incarcerate one person for a year is $64,000, which is more than what many Americans make in a year.  Further, opponents argue mandatory requirements lead to unfair and unjust prison sentences, as well as inequities in minimum sentencing compared to sentences that depend on judicial discretion.  The very same argument can be made, however, in favor of mandatory minimums because either option can create sentencing inequity.  This is easy to see in the cases of nonviolent drug offenders who are serving more time than a sexual offender.

While mass overcrowding is certainly an issue that should be addressed, it’s not a strong enough reason to forego mandatory minimums simply because it doesn’t outweigh letting potentially dangerous criminals out on the street. Personal bias, unfairly targeting minority groups, creating coercion, and unjust sentencing seem to be the better arguments from a moral standpoint.

At the same time, mandatory minimums may keep criminals off the street for lengthier periods, but recidivism rates are high and they do nothing to prevent other criminals from taking their place while they’re in jail.

Taking Away Judicial Discretion Only Puts Power into Another’s Hands

An important argument that often gets missed is that taking away a judge’s power to use discretion essentially puts sentencing power in the hands of someone else—the prosecutor, more specifically. It rings true that when mandatory minimum sentences are required, a prosecutor can essentially pick the sentence when they decide which charges to bring against a defendant. Sentencing isn’t a power that should belong in the hands of a partial charging party.  The state represents the people and they can always recommend a sentence, but a judge’s role is to be impartial, fair, unbiased and to ensure the laws are followed.

Then what do you do when the judge is biased and unfair? Some say the judge was most definitely unfair and biased in the Turner case.  Mandatory minimums could help eliminate any personal bias one may have, say, for example, towards a successful athlete from a prestigious school, but there’s pitfalls on both sides.

Again, it’s an ongoing debate that doesn’t seem to have an easy solution. Whether focusing efforts towards crime prevention all together is the answer is left to be decided, but it seems a change must come.

Melania Trump Sues For Defamation Over Alleged Prostitution

After embarrassing herself by giving a speech that plagiarized Michelle Obama’s speech, Melania Trump has found herself involved in another First Amendment matter. Only this time, Mrs. Trump is the complainant, rather than the perpetrator. Melania Trump is currently pursuing a defamation lawsuit against both a blogger based in Maryland and a British newspaper for claiming that she was a prostitute in the 1990s and has recently suffered a mental breakdown partially because of a risk of exposure of said alleged career.

Webster Tarpley, a political blogger based out of Maryland, wrote in a blog post on August 2 that Melania Trump was on the verge of a nervous breakdown in part due to a risk of exposing her alleged career as a high-end escort. Two weeks after Mr. Tarpley’s blog post was published, the Daily Mail, a British newspaper known for publishing salacious celebrity gossip alongside actual news, also ran an article about Melania Trump.

The article alluded to Mrs. Trump working as a prostitute instead of strictly as a model during the ‘90s, as her modeling agency supposedly was a front for a call-girl agency. The Daily Mail cited a Slovenian magazine and an unauthorized biographer as its credible sources. When a number of news outlets began picking up and running both the blog post and the article, Mrs. Trump filed a libel lawsuit against both the Daily Mail and Mr. Tarpley.

Liable for Libel?

In order to be successful in her lawsuit, Melania Trump will need to prove the different elements, or parts, of a libel case.

First, Mrs. Trump must prove that the statements made about her career and mental health are false. This can be easily proven by providing evidence to the contrary, such as doctors’ reports about Melania’s mental state, copies of her resume to illustrate the work she actually did during the 1990s, and testimony provided by witnesses who knew Mrs. Trump during the time that she is accused of having been a prostitute or period during which she is said to have had a mental breakdown. Melania Trump

Second, Melania will need to prove that the statements were actually published to a third party. The “to a third party” portion of the element simply means that the publication must be done with the intent of sharing a libelous statement with a person other than the subject of the statement and the party making the statement. This is the easiest element to prove for Mrs. Trump, as she can simply show that Webster Tarpley’s blog post and the Daily Mail’s article were both made available to the general public with the intent of having a number of different people read the post and the article.

Third, Mrs. Trump will need to prove that the Daily Mail and Mr. Tarpley acted with actual malice when making the statements about her current state of mental health and her past employment. Mrs. Trump is required to prove actual malice because, as the wife of the Republican candidate running for president and a model, she is a public figure.

In order to prove actual malice in a libel case, one must show that the defendant published the statement while either knowing that the statement was not true or without caring at all as to whether it was false or not. While it may be easy for Melania Trump to show that Mr. Tarpley acted with malice, as the blogger only vaguely references Twitter posts and a comment allegedly made by the rapper 50 Cent as the evidence upon which he has chosen to base his assertions of Mrs. Trump’s prostitute past and recent mental breakdown.

The Daily Mail, on the other hand, relied upon both an unauthorized biographer and a Slovenian magazine as its sources. One would assume that a biographer, even an unauthorized one, would likely have done substantial research on their chosen subject, including possibly digging up some unsavory details about the subject’s past. Also, the magazine is based out of Mrs. Trump’s home country, meaning that it probably has access to sources and information that Mrs. Trump may not have considered. Thus, the Daily Mail, especially as it is an internationally-known publication, likely did engage in some effort to determine the veracity of the allegations it made with regard to Melania Trump working as an escort prior to marrying Donald Trump.

Any claims that the publication was unable to verify were labeled as unsubstantiated and all claims were assigned to their respective sources without the Daily Mail overtly asserting that all of these claims are absolutely true in an apparent attempt to avoid committing libel. Since it appears that the Daily Mail did make an effort to avoid posting anything that it knew was a lie, Melania Trump may not be able to successfully prove that the Daily Mail engaged in actual malice. However, it will be up to the judge in charge of trying the case to determine if the Daily Mail’s efforts were enough to avoid committing actual malice.

Fourth, Melania Trump needs to prove that the publication of Mr. Tarpley’s blog and the Daily Mail’s publication caused her to suffer actual damage. It is not always enough to simply state that one is hurt by false statements if it cannot be inferred as to how these statements could have harmed the person.

Indeed, what with the different scandalous items about Melania Trump that have come to light recently, it may not be entirely clear as to just how these statements have seriously harmed her in a manner that would have not happened if these statements had never been made. Thus, it is not surprising that Mrs. Trump’s lawyers have already alluded to the statements affecting Melania’s efforts to license her name and likeness in the complaint as a way to show that she is harmed by the publication of the statements. However, Melania may need to go a step further to provide actual examples of licensing attempts that have been negatively impacted by the statements.

Any case involving defamation is difficult and complicated, as proven by Melania Trump’s attempt to bring one of her own. This type of case often requires the assistance of a lawyer who knows how to protect a client’s public image while not being seen as trying to stifle free speech. If you feel that, like Mrs. Trump, you have recently been harmed by a false statement or other form of defamation and are interested in protecting your reputation or receiving financial compensation for that harm, contact a personal injury attorney right away.

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