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Do Trump’s Poll Watchers Break the Law?

Donald Trump has been calling on his supporters to watch polling places for signs of fraud. His website offers sign-ups for “poll monitors” to observe polling in “other communities.”  Trump argues it is out of concern that the entire election is rigged.  For instance, he was quoted as saying “I am leading in Florida. The polls all show it. If I lose Florida, we will know that there’s voter fraud. If there’s voter fraud, this election will be illegitimate, the election of the winner will be illegitimate, we will have a constitutional crisis, widespread civil disobedience, and the government will no longer be the government.” When Trump made this statement, he was behind in the Florida polls by an average of 5 points.

The concern, “rigged election” aside, is that the “poll monitors” will be a thinly veiled excuse to target minorities in the polling place.  Beyond Trump’s not so ambiguous “other communities” comments, he has made it clear that he believes a wave of illegal immigrants will be let into the country in order to vote for Hillary.  Those signing up for the program have not alleviated concerns.  One Florida volunteer posted a picture of a truck festooned in American flags with a cage around the bed of the truck and a comment reading “Florida we gonna landslide TRUMP….wear’n red at polls… We gonna be watch’n fer shenanigans…& haul ya away..”  Another made concerning statements about his intent on election day, saying “ I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American,” he said. “I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”

Is Trump’s plan for these poll watchers doing legal? Unfortunately, it is to an extent.  The issue hinges on voter challenge and voter intimidation laws nationwide.

Voter Challenge Laws Across the Nation

Whether or not Trump’s tactics are legal, they are certainly not new. For example, in 2012, a Tea Party group recruited over a million poll watchers with the goal of making voting “like driving and seeing the police following you.”  The problems hinge on abuse of existing voter challenge laws.

46 states have laws which allow a private citizen to challenge a person’s status as an eligible voter up to and on election day. While the exact details of the statute vary slightly from state to state, only 15 of these states require the challenger to provide any sort of documentation to support their challenge with most laws placing the burden on the person challenged to establish that they are a legal voter.  In Wisconsin, Virginia, Oregon, and South Carolina the challenger needs only a suspicion that the person is not qualified. 

Trump’s primary target for his poll watchers, Pennsylvania, has seen abuse of their broad voter challenge statute in the past. As recently as 2004, hundreds of students had to wait hours to vote after attorneys from the republican party challenged every young person who came to vote pursuant to Pennsylvania’s voter challenge laws.  The law in Pennsylvania allows private citizens to challenge voter status of any person seeking to vote leading up to and on election day.  The challenger doesn’t have to provide any evidence for their challenge, but in 2004 through today, the challenged party must find a friend to sign an affidavit of their voter status and residence before they are allowed to vote.

Over the last decade, states such as Virginia, Colorado, Nevada, Iowa, and New Hampshire have enhanced the burden on those challenging a voter to avoid abuse. Just this year, the constitutionality of the voter challenge laws of Texas, North Carolina, Ohio and Wisconsin have all come up before the Supreme Court—although the court has been deadlocked 4-4 or failed to yet rule on each case. Florida requires challengers to state a valid reason for the challenge in writing; North Carolina requires “affirmative evidence” that the voter is ineligible.

Pennsylvania has taken a different approach to its history with its challenge law. While the law itself has not changed since 2004, Pennsylvania currently has a law dealing with voter challenge in their legislature…to allow poll watchers to be certified to go anywhere statewide as opposed to just their own county.

While the ability to challenge the voter registration where a person is not properly registered is not independently a bad thing, the vulnerability to abuse can make the laws dangerous.  Across the nation, sweeping challenges targeting students and minorities are shockingly common. The laws have led to anecdotes such as an older white man challenging every black person who entered a polling place, requiring them all to defend their registration and sign an affidavit.  In Ohio’s 2004 election, 97% of new voters in predominately black locations faced challenges.  This is in contrast to 14% in predominantly white locations.

Abuse of these laws, and the voting system has reached the highest levels. A series of cases through the eighties and nineties, brought by the Democratic National Committee (DNC) against the Republican National Committee (RNC), has forbidden the RNC from engaging in any kind of “ballot security program” other than “normal poll watch functions” after they targeted 150,000 voters in predominantly African-American precincts in the early eighties.

The consent decree binding the RNC was enforced and extended in 2009, with the judge finding that “[v]oter intimidation presents an ongoing threat to the participation of minority individuals in the political process, and continues to pose a far greater danger to the integrity of that process than the type of voter fraud the RNC is prevented from addressing by the Decree.” With the consent decree set to expire in January 2017, the DNC has sued the RNC a little over a week ago over their alleged support of Trump’s poll watching campaign.  They seek, among other things, to extend the consent decree.

Regardless of the legality of the RNC’s potential involvement, the broad nature of most voter challenge laws makes much of what Trump’s poll watchers are likely to do come election day legal. The exception to this is when their actions cross the line from challenge to voter intimidation—as mentioned in the renewal of the consent decree against the RNC.

Federal Voter Intimidation Statute

Federal law makes it a crime in all 50 states to intimidate, threaten, coerce, or attempts to intimidate, threaten, or coerce, a person trying to vote.

The actions of Trump supporters discussed above would clearly rise to the level of criminal voter intimidation. However, a person need not go to such extremes to be guilty of voter intimidation.  Courts have found intimidation where people gather in groups around, or even within 100 feet, of voting places as such gatherings could easily deter nervous voters.  Bringing a weapon of any type to a voting place and remaining there would also likely be voter intimidation—some states specifically ban the practice.

While voter intimidation is a fact specific crime, any voter who feels intimidated should immediately report the actions against them to authorities. Poll watching and voter challenges, depending on how confrontational they are, can easily cross the line from challenge to crime.  Legal threat (including threats of deportation) and economic threat both count as intimidation.  In many states, such as Ohio, misleading a person as to voting information is also a crime.

Trump’s poll watchers are acting in a way that flirts with criminal intimidation. Know your rights this election day; don’t allow poll watchers to criminally intimidate you.

Can a Wife Be Charged as an Accessory for Her Husband’s Sexual Assault?

At what point is someone an accessory to a crime? More specifically, does an attempt to cover up someone’s sexual assault make you an accessory to that crime.

There’s quite the controversy surrounding many of Donald Trump’s comments regarding women and claims of sexual assault, but Hillary Clinton is no exception to the scrutiny surrounding these issues. There’s been plenty of negative media following Hillary around regarding her alleged attempt to cover up her husband’s past sexual assault allegations.

Juanita Broaddrick has revived her allegations against the Clintons. If you aren’t familiar with that name, back in 1999 Broaddrick went on national television and alleged that in the 1970’s Bill Clinton raped her in a hotel room. Many doubt the truth of Broaddrick’s allegations, but the rape allegations have resurfaced right before the 2016 Presidential elections—along with some new claims. Broaddrick has expressed her support for Trump because she claims not only did Hillary know about the 1970’s rape, but that Hillary tried to threaten her into remaining silent about it.

This has of course caused an outrage and many are now accusing Hillary of being an accessory to a sexual assault. If the allegations were true, could simple knowledge of the crime be enough to warrant accessory charges? What about threats to remain silent about the crime?

What Exactly Constitutes an Accessory to a Crime?

A person can be considered a party to a crime for a number of different reasons; they can participate in the crime before, during, and/or after the crime is committed. The terms aiding and abetting and accessories are sometimes used interchangeably, but they can be quite different.

Parties to crimes are classified as either a principal or an accessory. The key distinction is what they do to participate in the crime and when they contribute to the crime. Generally, an accessory gets involved after the crime whereas aiding and abetting a crime would be assisting in the criminal act prior to or during the crime. Helping someone evade capture, prosecution, or simply helping to conceal the crime would all be actions that would warrant charges of an accessory after the fact.

Assistance can come in many different forms, though, and doesn’t have to just be actions of concealment or physical assistance. Financial assistance would be another obvious way a person could be an accessory to a crime, but many may not realize providing emotional assistance, depending on the circumstances, could also factor into a prosecution.

Prosecutors Need to Be Able to Prove Certain Elements First

Of course, every state is different, but there are general elements that need to be proven in order for a state to bring a case against someone as an accessory after the fact. The first is the actual commission of a felony, but probably the most important piece is knowledge. Not only must the person possess awareness of the crime, but they must also have knowledge of the assailant’s identity. A person cannot unwittingly help a felon avoid arrest if they had no knowledge of the crime or no knowledge of who the person was in the first place.

For example, housing a criminal wouldn’t warrant an accessory charge if the person had no knowledge of the crime ever taking place and no knowledge of who the person was they were housing. However, housing the criminal to evade police, despite having the knowledge they committed a crime, would warrant accessory charges even if the person took no part in the crime itself.

To sum it up, if a wife, or any person for that matter, helped a sexual assailant conceal their crime then, yes, that person could be charged as an accessory. Threatening a victim to keep them silent would warrant accessory charges because it’s active concealment. It gets trickier, though, when you start talking about simple knowledge of the crime without any active concealment or help to evade prosecution.

Blowing the Whistle: Former Illinois Police Officer’s Retaliation Lawsuit

The police are there to ensure that laws are neutrally enforced. However, when police start showing favoritism to those with political connections, it often must be the police themselves who bring it to the attention of the public.  This was the situation which, at least allegedly, faced former Village of Orland Hills police officer Mr. David Kristofek.

Mr. Kristofek has been embroiled in a lawsuit with both the Village and its police chief for several years, accusing them of firing him in retaliation for his reporting inappropriate police behavior to the FBI. After narrowly avoiding dismissal several times, his case has just recently  passed the summary judgement phase.

The Village of Orland Hills Turns a Blind Eye

The facts certainly don’t look good for the Orland Hills police. After a traffic stop revealed that that a young man named Alonzo Marshall was driving a car with a suspended registration due to lack of insurance, Mr. Kristofek—along with two other police officers—arrested the man per police department policy.

However, after a slew of phone calls between Mr. Marshall, his mother, the Mayor of Village of Orland Hills, and the police chief Thomas Scully, Mr. Marshall was released and all record of the arrest was confiscated from Mr. Kristofek and deleted from police computers.  When Mr. Kristofek complained to the deputy police chief about the situation, he was told ““Did you not understand what you were [expletive] told?”  The deputy later told Mr. Kristofek that the situation was “above you and me.” Body Cam

Several months later, Mr. Kristofek attended a training seminar on official police misconduct. Ironically, the seminar included a hypothetical with near identical facts to the incident with Mr. Marshall and described it as official misconduct.  Mr. Kristofek grew concerned that he may be criminally liable for his actions and sought legal advice on the issue.  He was advised to report the incident to the FBI and reached out to the other two police officers on the arrest to join him in reporting the misconduct.  The other two officers both declined and Mr. Kristofek reported the incident alone.  What the two officers did do, however, was inform the police chief—Mr. Scully—that Mr. Kristofek was speaking with the FBI.

After learning this, Mr. Scully called Mr. Kristofek to his office, had him confirm that he was speaking to the FBI, and offered him a choice to resign or be fired. Kristofek refused to tender his resignation and was fired.  Scully spoke with a Village Administrator who approved the firing.  The stated reason was that Kristofek “contacted several members of this agency, telling them that the Chief of Police was a criminal and was going to be indicted,” and had “accused the Village of being corrupt.”

Mr. Kristofek filed a retaliation lawsuit against both Police Chief Scully and the Village of Orland Hills itself shortly after this.

Retaliation Explained

Retaliation, at its most basic, is where an employer takes negative employment action (firing, demoting, etc.) against an employee for some sort of protected conduct. Most retaliation lawsuits deal with an employee being fired for reporting an employer’s illegal employment practices.  However, it can apply where an employer takes negative employment action for basically any action an employee takes that is protected by law.

Here, Mr. Kristofek is making a First Amendment retaliation claim, arguing that he—as an employee of the government—was fired for exercising his right to free speech. This a claim that only really applies to public employees as private employers have a great deal of leeway when it comes to firing you for speech they don’t agree with.

In order to succeed in a First Amendment retaliation claim, a public employee such as Mr. Kristofek must show three things:

  1. their speech was constitutionally protected,
  2. this protected speech was the cause of negative employment action taken against them by their employer, and
  3. the employee suffered a harm as a result of this negative employment action.

In this case, the last bit isn’t particularly controversial; if you lose your job, you have been harmed.  The evidence also seems to point towards Mr. Kristofek being fired over speaking to the FBI.  This means that the more complicated issue is whether his speech was protected.

It certainly seems like it should be. If police aren’t protected when they blow the whistle on the misconduct of their fellow officers, it sets a heck of a bad precedent.

Mr. Kristofek’s Case So Far

The district court has dismissed Mr. Kristofek’s case not once, but twice, ruling against him on essentially every factor from whether he was speaking pursuant to his duties to whether the speech was even of public concern. Fortunately, the 7th Circuit Appeals court has reversed the district court both times and salvaged Mr. Kristofek’s lawsuit. This most recent time, the 7th Circuit has even assigned a new district court judge to review the case.

Scully successfully argued to the district court that reporting police misconduct is part of a policeman’s duties and thus speech in this vein is not made as a private citizen. He also argued that the speech was not of public concern, the interest in efficient police duties outweighed the interest in reporting to the FBI, and that the allegations themselves were baseless.

The 7th Circuit Appeals Court was buying none of it. Not only did they point out that courts have always considered reporting corruption a matter of serious public concern, they rejected Sully’s argument that reporting corruption was part of Kristofek’s job. This argument seems particularly silly; it amounts to an argument that Kristofek was fired for doing his job. However, the court rejected it on the grounds that there was no evidence that Kristofek had a duty as an officer to report the incident. The truth of the statements was ruled to be irrelevant because Kristofek’s speech would be protected, regardless of truthfulness, unless he actually knew or was reckless in not knowing that his allegations were false.

While the court felt that the interests weighed in favor of Mr. Kristofek in this case, they made it clear that there could be some cases where the interest in reporting potential misconduct could be outweighed by the disruption it could cause. Misconduct, as a strong public concern, requires a particularly convincing reasons to outweigh the public’s interest. However, where there is little factual basis to the allegations, the court said that the public’s interest could be outweighed.

Preventing police corruption is extremely important, just like all government corruption. The people closest to that corruption are the public employees who work around it.  It’s important that we zealously protect their ability to report misconduct because these employees may be the only people who could report such conduct.  This case is far from over, but the 7th Circuit Appeals court has helped ensure that public employees are receiving the protection they need.

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.