Archive for the 'Government' Category

Federal Judge Rules that Trauma Can Cause Disability

 A federal judge recently ruled that students who witness traumatic events while growing up in poor, violent neighborhoods could be described as disabled. The plaintiffs in the class action lawsuit against the Compton Unified School District (CUSD) contend that students who have been exposed to trauma deserve the same protections and services that schools are required to provide to traditionally disabled students.

The plaintiffs believe that approximately 25 percent of the 22,000 students in the CUSD have been exposed to a minimum of two or more serious traumatic events. Nevertheless, the judge wrote that the experience of trauma does not mean that the child will suffer disabilities that were caused by trauma, and will be denied the opportunity to have an education.  Compton Lawsuit

In his ruling, Judge Fitzgerald is making a significant distinction. He’s not disputing whether exposure to traumatic events can cause a student to become disabled. He’s stating that there is no guarantee that such exposure causes disability.

Additionally, the court denied a request to compel the CUSD to provide more compulsory trauma training for staff. The district offers some training, but plaintiffs contend that it is inadequate. This type of request usually involves a difficult legal battle. Plaintiffs are seeking a mandatory injunction, which is an order for someone to begin performing an action as opposed to an order for someone to cease engaging in an action.

The city of Compton, which is situated just south of Los Angeles, has had a reputation for violence for many years. In 2014, the murder rate in Compton was over five times the national average. Some students who attend schools in Compton say that they have suffered trauma as a result of having lived in Compton, and that the schools they attend have not given them the help that they need.

Not All Traumatized Students Are Disabled

According to the complaint, the students are dealing with physical and sexual abuse. Some have parents who have addiction problems; others are homeless, and many are living with a never-ending fear of violence. Such exposure to violence can adversely affect a student’s ability to learn, says Susan Ko of the National Center for Child Traumatic Stress. The suit contends that trauma is a disability, and that under federal law, schools are required to help students who are traumatized, and not expel them.

However, the district’s attorney, David Huff, argues that the lawsuit defines disability too broadly, and sends an incorrect message to students living in other violent areas. The message would be that they are handicapped under federal law.

I don’t think that children who are exposed to trauma should be labeled as disabled because of the message the label sends to them. Children in other neighborhoods marked by trauma would also begin to think of themselves as disabled, and such exposure to trauma does not make one physically or mentally disabled. There are also children who do not grow up in violent neighborhoods, but who experience violence and trauma in their own homes on a daily basis. Still, I believe that there could be more trauma training for staff, and programs in place to help students who experience trauma.

The Supreme Court To Examine Freedom of Speech in Boston’s Train Stations

In the upcoming case American Freedom Defense Initiative (AFDI) v. Massachusetts Bay Transportation Authority (MBTA), the Supreme Court will decide whether or not the MBTA has set proper restrictions on advertising in public transit stations. It will decide whether or not the MBTA is a public forum, and whether or not the MBTA curbed freedom of speech by engaging in unconstitutional viewpoint-based discrimination in disallowing certain advertising.

The Facts of the Case

Three years ago, the Massachusetts Bay Transportation Authority (MBTA) began capitalizing on the ability to accept advertisers in the transit system. The MBTA has always had some ground rules about the advertisements. For example, they must not demean or disparage individuals or groups.

MBTA accepted an advertisement from the Committee for Peace in Israel and Palestine which showed the Palestinian loss of land from 1946 to 2010 and claimed that 4.7 million Palestinians are refugees. The ad was taken down after several complaints, but then the MBTA released a decision to put it back up. Around the time the pro-Palestinian advertisement returned, the American Freedom Defense Initative (AFDI) asked that its own ad be published at 10 public transit stations. The advertisement read: “IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE, SUPPORT THE CIVILIZED MAN. SUPPORT ISRAEL DEFEAT JIHAD” Subway Islam

The MBTA rejected the ad because it broke the restriction against disparaging individuals or groups. AFDI changed the ad: “savages” was reworded to “those engaged in savage acts” and “jihad” to “violent jihad.” The ad also now said “defeat jihad support Israel.” With that change in tone, the MBTA accepted the second advertisement. Then, the AFDI pulled back the approved ad in favor of a third that again contained the word “savages.” This third advertisement was rejected. The AFDI sued, claiming that the MBTA violated their free speech rights.

What are Public Forums?

There are two main types of public forums. A “traditional” public forum, like a public park or sidewalk, is a place that has always been used to carry out speech activities. The government cannot totally restrict speech in traditional public forums. In “designated” public forums, the government intentionally creates an additional place where freedom of speech can exist. However, because the government creates the designated forum, it can further regulate speech there. In all public forums, the government is very, very limited in its ability to restrict the content of speech.

In this case, the MBTA likely did not create a “designated” public forum. The MBTA clearly states in its advertising rules that it does not intend to create a public forum. The MBTA has also always had a number of ground rules about advertisements. The AFDI may have a difficult time trying to show that the MBTA intentionally created a public “anything goes” forum for speech, especially after complying with the set of regulations that the MBTA created.

Is the Restriction on “Demeaning and Disparaging” Advertising Unconstitutional?

Even if there is no public forum, the government cannot easily restrict freedom of speech based on the viewpoint of the speaker. It has much more leeway to restrict the manner of speech. For example, even in a public park, a person cannot scream political speech through a bullhorn in the middle of the night.

As an older case regarding the MBTA’s “demeaning and disparaging” guideline pointed out, advertisers don’t have the right to use any terms they wish just because they are the most effective means of expressing a message. Thus, the MBTA’s restriction may well be on the manner of speech rather than the content. In this view, some terms (such as “savage” here) are the equivalent of the 3 a.m. bullhorn. They are inappropriate not because of the ideas they express, but because of the manner of expression.

The AFDI argues that the “demeaning and disparaging” standard is being used to discriminate against their viewpoint. They argue that MBTA decision-makers have too much leeway to employ their personal views about what is “demeaning and disparaging” to groups or individuals. They also argue that certain views might be considered “demeaning and disparaging” to some, and that those views are being discriminated against. However, the MBTA has created many guidelines to implement this standard that make it much less subjective and more likely to be applied fairly.

What May Be the Outcome?

In this case, there are a few factors that may hurt AFDI. The MBTA worked with their organization and accepted their second ad. This shows that MBTA hasn’t totally denied them a viewpoint. It also shows that AFDI knew it was dealing with a restricted forum rather than a completely public one. AFDI’s claim that the restriction on demeaning and disparaging individuals and groups is vague or discriminatory is also fairly weak, especially given the MBTA’s thorough guidelines and, again, their acceptance of the second ad through that process.

Hawaii’s Marijuana Dispensary Law Faces Legal Ethics Challenge

Last week, the Disciplinary Board of Hawaii’s Supreme Court issued an opinion that limits the role that lawyers can play in the bourgeoning medical marijuana dispensary industry. The opinion states that a lawyer can advise a client on the legality of marijuana production and distribution under state and federal law. A lawyer may also choose to advocate for changes in state and federal law on this subject. However, a lawyer may not provide legal services to help create or operate a medical marijuana business, as it is illegal under federal law. In other words, Hawaiians who wish to open a marijuana-related business cannot consult with a lawyer as part of the process.  Marijuana Scales

As states experiment with the legalization of marijuana, each will have to make a decision about how the legal profession will play a role, and how to navigate the conflict between state and federal law. Hawaii’s decision is the latest in a long line of marijuana-friendly states’ interpretations of professional ethics rules.

Marijuana in Hawaii

Hawaii legalized medical marijuana some 15 years ago, but only recently enacted a law that would license marijuana dispensaries for patients. The new law is fairly limited. It will set up a state-wide dispensary system with a total of up to 16 dispensaries. These dispensaries are not inexpensive ventures; the new law will require potential licensing candidates to have at least $1.2 million in the bank. The dispensaries will be resupplied with support from production centers around the state.

Under the latest Disciplinary Board opinion, individuals who wish to set up dispensaries or production centers are not entitled to legal advice or assistance beyond counseling on the validity, scope, and meaning of the new law.

Reasons for the Hawaii Disciplinary Board Decision

Hawaii’s Disciplinary Board cites two main reasons for its decision:

First, the Board is concerned by the fact that Congress has not amended federal law; nationally, marijuana is still illegal. The Ethics Board recognizes that the Department of Justice and Congress have both allowed the enforcement of marijuana-related laws to decline. However, the opinion also notes that this is not a permanent federal stance.

Second, the Board observes that the Hawaii Supreme Court has not amended the rule of professional conduct that applies to client conduct that is illegal under federal law. The rule currently states that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, and meaning of the law.” This type of rule exists in all states. However, the rule has been modified in some states to account for conflicts between state and federal law over marijuana.

Legal Ethics in Other Marijuana-Friendly States

Hawaii is not the only state in which medical marijuana laws have caused ethical conflicts. The Maine Professional Ethics Commission has also restricted the role of attorneys in marijuana law. In Maine, the Rules of Professional Conduct for attorneys distinguish between “presenting an analysis of the legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” Maine lawyers are thus prohibited from assisting clients in forming medical marijuana enterprises.

Other states have also wrestled with the conflict between the public need for good, reliable legal advice and the furtherance of illegal activities. The Colorado and Nevada Bars have amended their ethics rules with a comment that allows lawyers to provide advice and services so long as they also advise about federal laws (making it clear that marijuana is not completely legal). The Washington Bar has allowed lawyers to provide services “at least until” the federal enforcement policies change.

What Will Happen in Hawaii?

Unfortunately, the public suffers when legal assistance is not available on topics of state law. A lack of legal counseling will not prevent individuals from setting up marijuana dispensaries or grow houses. The absence of legal counsel, however, prevents marijuana dispensaries from making some educated legal decisions that conform to the letter of Hawaiian law. It may also make the process of applying for a state license more difficult and time-consuming than it would otherwise be.

It is also possible that the Hawaiian Supreme Court will take a hint from this opinion and change their legal ethics rule to allow more attorney participation in marijuana law. This would be following in the footsteps of most other states that have partially legalized marijuana.

Update on Proposed Fines for California Drought Water Usage

California Lawmakers Crack Down in the Face of a Monstrous Drought

For the past four years, the state of California has suffered through one of the worst droughts in history. A historic and unprecedented lack of rain has created the need for some very immediate and systemic changes regarding water usage.

As Governor Brown and state officials urge California residents to cut back, local county and city governments have begun passing ordinances that restrict water usage. These restrictions often ban residents from washing their cars and doing other activities involving water. Some neighborhoods are prohibited from watering their lawns while other neighborhoods have placed residents on a schedule, permitting sprinkler usage on only one day a week.  Droughtful

Thankfully, these restrictions, as well as awareness of the issue, have led to an impressive 35% cut in California’s water usage.

Celebrities Among the Most Egregious Offenders

Many California residents have allowed their lawns to go brown in order to conserve water while others have transformed their yards using zeroscaping. Unfortunately, many of Hollywood’s elite have eschewed the water restrictions and have continued to operate their sprinklers, enjoying lush, rolling lawns while their surrounding neighbors have dead grass.

Each individual water district is responsible for policing its residents. As such, uniform policies have failed to develop. For instance, Las Virgenes Municipal Water District is patrolling wealthy Calabasas neighborhoods for violators and has issued many violation letters to famous residents. Some of these individuals were fined.

However, it appears many water districts are not being vigilant about the issue. In Los Angeles, only 9 people were fined despite thousands of warning letters for violations. In Beverly Hills, where some of the more outrageous violations have occurred (and where the largest yards exist), no fines have been levied yet.

California Spring Usage Limited During Drought

California is home to many natural springs. Water bottle companies like Nestle and Sugar Pine contract with the California government to pump water from the springs for bottling and resale. In January of 2014, the governor announced a state of emergency. In response, the California Water Resources Control Board ordered Sugar Pine Spring Water Company to stop diverting water from the Sierra Nevada spring to its bottling facility. Despite this order and numerous warnings, Sugar Pine continued to divert water and was recently slapped with a whopping $225,000 fine.

A Murder Victim’s Facebook is Off-Limits Before Trial

In the age of technology, social media has become the new frontier for evidence gathering in criminal cases. Especially amongst the younger population, the majority of communication is not simply verbal anymore—it’s written through Facebook messages, tweets, and pings, or even conveyed through pictures via Instagram, Twitpic, and Snapchat. To some, this may seem like a gold mine of information with any potential incriminating evidence entirely recorded somewhere in the Internet ether.

However, the Constitution has long protected the right to privacy. Thus, when it comes to online communications, especially those intended to be private, lawmakers and judges alike have been extraordinarily cautious in balancing one party’s need for information against another party’s right to privacy.  Facebook Killing

A recent decision rendered by the California Court of Appeals for San Francisco County rightly explained why the careful preservation of privacy in criminal cases is so important in an increasingly digital generation. Specifically, the Court held criminal defendants may not compel social media platforms like Facebook and Twitter to disclose a victim’s private online communications before trial begins.

Can Criminal Defendants Use Victim’s Internet Profiles as Evidence?

The case involved a gang-related drive-by shooting in the Bayview District of San Francisco that resulted in the death of Jaquan Rice, Jr. and serious injuries to his girlfriend. The shooters were identified as Lee Sullivan and Derrick Hunter, both members of a gang called “Big Block.” In its case to the grand jury, the prosecution maintained Rice was a member of rival gang “West Mob,” and this gang rivalry was the driving force behind the drive-by and murder. San Francisco Police Department Gang Task Force expert Inspector Leonard Broberg testified to the grand jury that “gangsters are now in the 21st century and they … do something called cyberbanging. They will actually be gangsters on the Internet. They will issue challenges; will show signs of disrespect, whether it’s via images or whether it’s via the written word.”

Defendants Sullivan sought to obtain all public and private social media records from Facebook, Instagram, and Twitter of Rice and purported witness Renesha Lee, the former girlfriend of Sullivan, to help build his defense case prior to trial. Sullivan believed such records would expose Rice as “a violent criminal who routinely posted rap videos and other posts threatening [Hunter] and other individuals.” The defense further argued that obtaining the records before trial was necessary to ensure Sullivan’s constitutional right to present a complete defense to the charges against them for a fair trial and their rights to effective legal assistance and confrontation of adverse witnesses.

Although the lower court bought defendant Sullivan’s arguments for the records, the Court of Appeals quickly and rightly reversed the decision and denied him access. However, the Court of Appeals did not deny access to such records indefinitely. The Court emphasized that pretrial access to confidential information by the defense was off limits, but the defense could potentially access such information during trial. The Court of Appeals reasoned that if it were to allow pretrial access, a trial court might be forced to weigh the defense’s need for information against a victim or witness’ right to privacy without enough information from either side to make a truly balanced decision. Such a process would be far too risky and the price could potentially be a breach of victims or witnesses’ constitutional right to privacy. The Court further maintained that enforcing this decision would not breach Sullivan’s constitutional rights to fair trial or effective assistance, because it was limited to pretrial access and any evidence required to afford him a full and fair trial could eventually play out once trial actually began. Thus, Sullivan was denied access to Rice and Lee’s social media records until trial.

This Court of Appeals decision sheds important light on how new mediums of evidence might fit into the frameworks of evidence law and criminal procedure without disrupting constitutional individual rights.