Archive for the 'Government' Category

Legal Use of Marijuana Jeopardizes Parental Rights

Are you a parent who has a medical marijuana card? You might want to rethink before you get your marijuana treatment. Unbeknownst to you, you may be taking a risk of losing your child. That’s a warning parents who smoke pot should be aware of, but is nowhere in the statute to be found. There is no bright line rule on whether a legal use of marijuana makes a parent unfit. Nevertheless, your state can suddenly take your child away. Now, you must choose either your treatment or your child.

That’s the dilemma Raymond Schwab, an honorary veteran, is facing. Raymond suffers from PTSD and is a Colorado-registered medical marijuana user who resides in Kansas with his wife Amelia and their six children. Raymond and Amelia decided to move to Colorado so Raymond could continue his marijuana treatment. They were completely oblivious that they were going to lose custody of their children if they remained in Kansas.  Medical Cannabis

On the day they were packing to leave, Raymond’s mother-in-law took their five children to a police station and reported that the children had been abandoned, of which she now regrets, according to Denver Post. Since then, the Kansas law enforcement investigated the report of abuse but dismissed the case concluding as “unsubstantiated finding.” Simply put, they found no child abuse.

Nevertheless, Kansas child welfare agency did not return the kids to their parents and have been holding the custody of the children. According to Kansas Child Protective Services when CPS determines that a child is unsafe, CPS makes a recommendation to the court for removal of a child from the home. Presumably, CPS must have determined that those five children were unsafe and removal was necessary because CPS has been holding onto the custody of the five children over nine months. The Kansas court is now demanding Raymond to give up cannabis, to comply with four months of drug free urinalysis tests including a drug legal in Colorado for therapeutic uses.

Kansas Law Empowers Child Protective Services to Take Kids Away From Home

Kansas’s decision to remove Raymond’s children from their home seems overreaching and drastic. Overreaching, because Raymond’s marijuana use did not occur in Kansas, the home state, but in Colorado, where such use is legal. Taking families apart because of his simple use of marijuana as a medication is drastic and traumatic for both children and parents. It just seems unfair for someone like Raymond, who did not violate Kansas marijuana law.

One reason for such extreme consequences may be the mixed standards of marijuana laws among the states. Currently, 23 states and D.C. have legalized medical marijuana. In Colorado, possession of marijuana for medical and recreational use is legal whereas Kansas prohibits marijuana for any reasons. These mixed standards create a case such as Raymond’s. Does out-of-state medical marijuana use by a parent make the parent unfit in a state that absolutely prohibits marijuana?

Not only does Kansas law prohibit marijuana for any reason, but it also treats

marijuana as one of the most dangerous and addictive drugs. The federal government and many states classify drugs as Schedule I, most dangerous level, to Schedule V, the least dangerous drugs. In Kansas, marijuana is classified as a Schedule I substance with such drugs as heroin and meth, which means that it has a high potential for abuse and no recognized medical value. This limits how it can be studied or used medically. The strict prohibition and overgeneralization of marijuana treatment of Kansas law seem to empower the state’s child welfare agency’s decision to take families apart based on a mere speculative and obscure danger.

Raymond did not violate the Kansas marijuana prohibition statute. The state, however, claims that Raymond’s retroactive or prospective legal use of marijuana in Colorado was or is going to be unsafe to his children.

The CPS’s balancing test underestimates the degree of harm that the children might experience when they are taken away from their natural home. Removal from the home and replacement in the home can lead to feelings of instability, loss of status, and a loss of control as children may always expect and fear that they can be removed and replaced at any time without explanation. Lack of understanding of the foster care system and the process may lead to feelings of loss and/or rejection for children grappling to understand the separation from their biological families.

Instability in foster care is a serious problem for child development. We hear more and more problems in foster care system. In 2014, a two-year-old Alex Hill was taken away from her home because her parents used marijuana. After placed in a foster home, the toddler girl was physically abused and eventually killed by her foster mother. The Texas child welfare agency took the child away from her home simply because her parents smoked pot while their baby was sleeping in bed upstairs. The child was then placed in a “safe environment,” namely, foster care. That safe environment is where she died.

Best Interest of Child

The different standards of marijuana law among the states render a parent who is legally entitled to smoke pot in one state to become unfit parent in another. That is arbitrary. Furthermore, by taking the kids away, Kansas demands that Raymond forfeit his right to use medical marijuana as a patient in Colorado. The stigma against marijuana allows the state to dictate a decision without carefully considering whether it would be in the children’s’ best interests. As a result, the removal produces traumatic experiences for the children, rather than providing safe and temporary environment for the children’s well-being. According to the Denver Post, Raymond and Amelia have only seen their children three times since their separation in April 2015

The essence of child welfare decision should be made based on the best interest of child. Arguably, parents who abuse illegal drugs can put their children at incredible risk. Parents who use addictive drugs may be incapable of caring for children and the children would become susceptible to drug use themselves.

However, Raymond was in compliance with both Kansas and Colorado law. Also, marijuana is not addictive. Given the degree of resulting trauma the children may go through, compared to the degree of potential harm by having a father who uses marijuana for his illness, Kansas’s decision to take the kids away is erroneous. Holding onto the custody of the children over nine months based on overblown concerns is not for the best interests of the children.

Flint Water Crisis: Where Can They Go From Here?

Before 2016, a large part of America never heard of Flint, Michigan. The city was one of the largest manufacturers of cars. It was once the base for the company GM and made most of the company’s Buick and Chevrolet models. But eventually the factory closed, and soon Flint became better known for its high crime and poverty.

Now, Flint is the city where the water supply is contaminated from the old lead pipes directing water to the public. An estimated 6,000 to 12,000 citizens are severely poisoned with toxic levels of lead in their blood.

A simple financial choice to switch to a cheaper water supply left so many of its residents severely ill or disabled. What can the residents do now? Is there any legal action they can take?

Can the Citizens of Flint Take Legal Action?

Yes, they can, and they did. Twice.

A class action suit filed on November 13, 2015. It claims that 14 city officials are responsible for replacing the safe water with “dangerous…and…inadequately treated” water. They ask for injunctive and declaratory relief as well as monetary damages.

The November Class Action claims that the 14 city officials violated the citizen’s substantive due process by removing safe water while under authority from the law.  Lead Water

A second class action suit was filed on January 27, 2016 against city officials. It asks the court to order city officials to replace all lead pipes in the city and follow federal requirements for drinking water. They also ask for equitable relief to help with health and medical care due to the contaminated water.

There are now two class action suits filed because of the Flint Water Crisis. But will they succeed?

They May Win, But Filing A Class Action Is Only The Beginning And May Not Be Enough.

In order for a class action suit to go forward, the class must be certified, or approved, by the judge. The judge can refuse to certify the class for many reasons. It may take at least a year or more for a class to be certified, or the class may never be certified.

A class action may take years to resolve and cost hundreds of thousands of dollars. Most class actions end with a settlement. Attorney’s fees may reduce the amount the class will receive, depending on the nature of the settlement.

Despite the limits of a class action suit, it is the best option for the citizens of Flint. If the classes are certified, then the class action suits will probably settle. The class will receive whatever they requested for relief and any monetary relief must be spread among the entire class.

But the class may have upwards to 12,000 individuals. So each class member may receive a substantially smaller amount than if they pursued a claim individually. But even if they wanted to, the people of Flint cannot sue the state. Government officials are immune to torts stemming from negligence due to sovereign immunity.

If It Feels Unsatisfying, It’s Because It Is

Its good public policy to protect lawmakers and government officials from lawsuits arising from best intentions.

The decision to switch the city’s water supply was in good faith. But what unsettles the nation is how officials waited and ignored the lethal amount of lead. It was only addressed when its damaging effects were undeniable. Now, an estimated 6,000 to 12,000 children are affected by the contaminated water. They will need comprehensive treatment and may face a lifetime of behavioral and cognitive disorders.

For the people of Flint, whatever amount they receive does not change the fact that effects of the Water Crisis will live on in its children. Even after 20 years, the impact will be evident in its residents.

Monetary damages can be awarded based on loss of future earnings and the cost of living with a disability. They look at the victim’s age, extent of injuries, earning capacity, loss of income, and impact on the life of the victim. But for compensation in a class action, the court will not be able to examine each effected resident. Instead, each resident may be treated as more or less suffering the same amount of damages.

In the end, the residents of Flint will need to rely on the government that has failed them. They must wait and hope that the City of Flint, Genesee County, and the State of Michigan will help them recover from a fatal error.

Appeals Court Denies “Uber” for Planes

If you want to get from Dallas to Washington, D.C. fast, wouldn’t it be nice to contact a pilot in an Uber-like plane service? Well, keep dreaming. In December 2015, the U.S. Court of Appeals for the District of Columbia Circuit struck down the idea.

Flytenow, Inc. developed a web-based service allowing private pilots to offer their planned itineraries to passengers. The itineraries were only given to passengers willing to share in the pilot’s expenses to fly to their destination. The company contacted the Federal Aviation Administration, or FAA, regarding the legal interpretation of its compliance with the Federal Aviation Act of 1958 and other FFA regulations.

A dispute arose when the FFA concluded Flytenow’s pilots needed a commercial license. Normally, pilots are considered common carriers. A common carrier offers its services to the general public. The services are offered in compensation of goods, property or messages over a defined route. Typical types of common carriers include mass transit, such as airlines, taxis, cruises, and ferries.

This means private pilots can’t use Flytenow to offer their services.

Flytenow Wanted the Court to Set Aside the FAA’s Interpretations because of Inconsistency

The company filed a lawsuit based on objections like:

  • The FFA misinterpreted its regulations when it decided passengers would be compensating the participating pilots
  • The FFA erred when it concluded pilots using would be holding out an offer transportation to the public

The Court found both objections unpersuasive.

By sharing expenses, private pilots are being compensated for their trips. If a person called a private cab service, the amount of gas is probably calculated into the amount paid to the driver. The same would have been true of Flytenow’s pilots. By getting paid a portion or half of their expenses, consumers would save money. Essentially, there’s an exchange of value.

Thus, they aren’t private pilots, but commercial pilots.  Plane

Another problem with Flytenow’s argument is trying to redefine “holding out.” According to FAA Advisory Circular, pilots are barred from advertising their services to the public. The company tried to argue its’ pilots don’t advertise to the public. They submit their flight plans to the Flytenow.

However, the FFA argued that by giving their flight plans to the company, they are advertising their services to the public. For example, an individual wanting to fly to California from Missouri could look at a flight plan on the company’s website. He could then decide to “share” the expenses of the flight with a pilot flying to California.

The Right to Sue

The court got it right. The company holding itself out as a professional service to the public does create a risk to unsuspecting passengers when its pilots are not in fact held to professional standards. Passengers are under the impression the company and its pilots are common carriers. Common carriers have the experience and credential to fly commercially. If Flytenow and its pilots were allowed to present themselves as commercial and a plane crashes, passengers and/or their family would have difficulty suing under common carrier negligence.

Negligence is the failure to act with reasonable care as another in a similar or same situation would. When transporting passengers from one area to another, common carriers have the duty to:

  • Provide reasonably safe vehicles fit for an intended purpose
  • Provide careful drivers or pilot of reasonable skill and good habits
  • Exercise all standard precautions for the safety of all passengers
  • Comply with all safety laws
  • Use vigilance and utmost care in transporting all passengers
  • Warn passengers of any potential dangers the common carrier knows about

A private pilot doesn’t have to do those things. So making the pilots commercial instead of private gives passengers more legal protection.

Maybe the public won’t have to imagine an Uber-like plane service for very long. Maybe the right company will hire commercial pilots willing to fly planes to destinations for pay. For now though, we can only dream of avoiding the long waits at airline terminals and trying to book the best flight at the best price.

Lesson From Pharmaceutical CEO Shkreli’s Outrageous Drug Price Increase

Turing Pharmaceuticals CEO, Martin Shkreli, made headlines when he raised the price of Daraprim, a prescription drug for a life-threatening parasitic infection that mainly strikes pregnant women, cancer patients and AIDS patients. Overnight, Daraprim went from $13.50 to $750 per pill, a 5000% price increase. Outrage from the public followed, making Shkreli “the most hated man in America.” Pressed with demand to lower the price, Shkreli announced that he would lower the costs. However, the flamboyant self-promoter later stated that he should have increased the price even more.

Last month, Shkreli was arrested and charged with securities fraud and wire fraud. So, the federal government is now looking into his alleged ponzi scheme. But, what about the 5000 % price gauging?

Profit-Making U.S. Health Care Industry

Shkreli’s unethical price gauging reflects the bleak truth of American health care system, so deeply rooted in capitalism. Let’s be honest. In the U.S., health is not a guaranteed right. Our country’s healthcare does not cover everybody. In most other developed countries, health care is a guaranteed right and everyone is covered. In the United States, health is a commodity for-profit private system with only limited control from the government. Martin Shkreli 2

T.R. Reid, in his comprehensive examination of the health care systems of France, Germany, Japan, the UK, and Canada comparing with the U.S. health care system, diagnosed the differences: “The United States is the only developed country that relies on profit-making health insurance companies to pay for essential and elective care. All other developed countries have decided that basic health insurance must be a nonprofit operation. In those countries, the insurance plans – sometimes run by government, sometimes private entities – exist only to pay people’s medical bills, not to provide dividends for investors.” The OECD statistics show that the U.S. is by far the world’s biggest spender on health care.

Shkreli’s action presents an example of manipulating the legal loopholes of the U.S. health care system. By charging an enormous price on a drug his company did not invent and unscrupulously profiting at the cost of those who need the drug, his gigantic price hike harms the public, providers, and the overall U.S. health care industry.

Unethical Drug Pricing

Surprisingly, Shkreli’s price gauging was legal. Shkreli defends himself, stating that he has a sworn duty to make profits for his shareholders and tells New York Times, “It really doesn’t make sense to get any criticism for this.” Granted, as a CEO for a for-profit corporation, he owes a fiduciary duty of care to his company and shareholders.

However, his fiduciary duty alone does not justify his outrageous actions. It’s because he shamelessly maximized profits while failing to uphold his ethical obligations. We are not talking about some price increase on a latest model of a smart phone. We are talking about treating sick patients and preventing life threatening diseases.

It’s disturbing to learn that his action is not an isolated incident. Other pharmaceutical companies have been engaging in the same type of hundred fold price hike. A news analysis by Hedge Clippers shows that at least 19 other drugs have experienced stunning price hikes of between 300% and 1,200% in the past two years. Rising cost of medicines raises insurance costs, medical bills, and the government expenditure that ultimately impact every one of us.

Why Isn’t a Price Increase from $13.50 to $750 Not Illegal?

People wonder how such gigantic price increase was possible without violating any laws or free of regulations. That’s because for profit U.S. health care industry has limited the government’s regulation over the industry. Unlike most of other developed countries, the U.S. government can neither set a standard fee schedule for medical care nor tightly regulates prices of drugs and medical devices. However, to ensure safe drugs on the market, FDA restricts its approval process and then only allows the approved manufacturers make the drugs.

Shkreli knew how to get around FDA rules. Usually, once the drug is approved, the drug price increases until the drug’s patent expires. After the expiration of the patent, the drug becomes generic drugs and any companies can make the drug leading the price to drop. But the government has placed restrictions on distributing some drugs that are dangerous if abused. Federal regulators approve only if the drugmaker agrees to tightly control their distribution — providing them only for hospital use, for instance.

As an old drug, Daraprim’s patent had expired decades ago. Shkreli’s strategy was to buy old neglected drugs and turn them into high-priced “specialty drugs.” There was hardly any R&D cost because Turing did not invent Daraprim. Turing bought rights to sell Daraprim and secured controlled distribution. Although anybody could conceivably make generic copies since the patent expired, Shkreli effectively foreclosed competition through controlled distribution. His controlled distribution prevented other manufacturers from obtaining sufficient supplies of samples for required testing to make copies. This allowed Turing to practically monopolize the market, discouraging other companies from manufacturing and going through FDA approval process.

His business maneuver of exploiting the loophole of the system legitimized his 5000% price increase without violating any antitrust law.

Government Should Regulate Drug Pricing

Americans seem to believe that the private sector can manage any type of business better than government can. For health care though, the government has an important role to watch for the common good thereby the public do not become the victims of capitalism. While allowing free competitions among insurers, health providers, and pharmaceutical companies, the government should be able to negotiate the cost and enforce cost control measures.  Shkreli’s case shows that a for-profit entity can raise prices of health care without limits. The recent debate over prescription drug pricing and pharmaceutical’s unethical price increase prompt the need for appropriate regulation. Had there been the government’s oversight over the price of prescription drug, Shkreli would not have been able to increase prices in the manner he did.

What we are not exactly aware, but is well known to the rest of the world, is that the U.S. health care is behind in many levels such as coverage, quality, and cost. The U.S. health care system is too complex and too fragmented. There is no price transparency and added administrative costs. We do not have a standard fee for a certain procedure or medicine where everyone pays the same price for the same treatment and same drug. Germany and Japan provide one of the world’s best health care. Their system resembles ours in that it is a multi-payer system where a number of providers compete for services and individuals are insured through private insurers. The difference is that, while private insurers freely compete against each other, the government tightly regulates cost.

The burden of health expenditure is on everyone in one way or the other, as patients, employers, hospitals, insurance companies, Medicaid (the government) and Medicare. Drug companies should continue to compete for business and should be held publicly accountable when prices increase a hundredfold with minimal R&D. To sustain a health care industry that is based on capitalism and motivated by greed, competition and control must coexist. Otherwise, our health care spending will continue to produce millionaires with no ethical principles while sick patients become sicker because they can’t afford the drug any more.

California Requires Warrants to Search Emails

There’s no denying that we live in a digital era, a time where people prefer email and text messaging to telephone and in-person communication.

In the past, government agents were able to search people’s text messages, emails, and GPS data without a warrant. That all changed on October 8, 2015, when Governor Jerry Brown signed the Electronic Communications Privacy Act (S.B. 178), which requires law enforcement to obtain a search warrant before looking at private emails, text messages and GPS data stored in smartphones, laptops and the cloud. It also requires that whenever a warrant is executed, notice must be served upon the targets of the warrant.

California is the only state in the nation that requires warrants to access this type of information.

What is the Basis of Search Warrants?

The Fourth Amendment guarantees people’s right to be free from unreasonable searches and seizures. This often means that government agents must have a warrant to search and seize your person and property. Search warrants may be issued where a person has a reasonable expectation of privacy.

So where does one have a reasonable expectation of privacy? The Supreme Court established that law enforcement must obtain a search warrant to search a suspect’s home where one has the greatest and most reasonable expectation of privacy. Conversely, one does not have an expectation of privacy over things left out in public, like trash in the garbage. Email

The California Constitution gives each citizen an “inalienable right” to pursue and obtain privacy. A judge can only issue a search warrant if there is probable cause.

Is Requiring Search Warrants a Good Idea?

People depend on technology like they never did before. A recent study showed that 86% of people aged 18 to 29 and 84% of individuals between the ages of 30 and 49 have a smartphone. Smartphones equip consumers with access to emails and text messages at all hours of the day with just the click of a button. People nowadays prefer to email or text personal, private messages to one another because of the convenience. With the invention of the smartphone, people believe all their emails, text messages, and GPS data will remain private so long as their phone remains in their possession. Most businesses also use emails and text messages to sustain their business.

Because so much private information is transmitted electronically and people reasonably believe such information will remain private, law enforcement should not be able a search it without first obtaining a warrant. With the accessibility of emails and text messaging to the average person and its increased use over the past several years, search warrants for such information is necessary to protect Californian’s heightened right to privacy.

Will Search Warrants Make it Harder to Combat Child Exploitation and Human Trafficking?

The Electronic Communications Privacy Act has its fair share of critics. The National Association to Protect Children contends that requiring government agents to notify targets of criminal investigation when they obtain warrants could put children in danger or result in destruction of evidence. Their main concern is child sexual exploitation and human trafficking.

Their fears are well founded. S.B. 178 requires that notice must be served upon or delivered to the targets of the warrant whenever a warrant is issued. The notice must be provided to the target at the same time the warrant is issued. For example, police must notify child pornography suspects they are coming and will conduct a search. The notification requirement may be delayed if law enforcement proves destruction of evidence is likely, but it is not assumed and must be demonstrated through additional court proceedings.

In special emergency cases, notice can be postponed until three days after the data is collected. A situation is considered an emergency if law enforcement can prove a child is in danger of death or “serious physical injury.” The problem is that California distinguishes between rape or sexual abuse and serious physical injury, as rape or sexual abuse rarely cause “serious physical injury.” If law enforcement cannot prove the child was in danger of serious physical injury after obtaining digital data without first notifying the target, all evidence obtained therefrom may be destroyed, essentially ending the case.

Although S.B. 178 is a major advance for privacy, it must be amended to help California combat child sexual exploitation.

Seeking Legal Help

If you believe you been searched illegally, a qualified criminal lawyer can help evaluate the legality of the search.