Archive for the 'Government' Category

BART Robbery: If CA Wants Change, then They Can Start By Trusting the Public

Since the middle of the year, the California Bay Area Rapid Transit system (BART) has been hit by a series of “flash mob” robberies. Between May and June, groups of 40-60 young people jumped fare gates and streamed onto trains, robbing and terrorizing passengers. The robberies usually took place in the Oakland stations and typically around 9:30pm. Cameras installed on the trains lead to the arrest of several of these individuals, but similar style robberies involving smaller groups have continued. Fortunately, one such robbery was foiled by Leonard Brown, a 62 year old off duty security officer.

BARTWhat was BART’s Response?

BART has responded to these robberies by installing additional cameras and placing more police officers around the targeted stations. Assistant General Manager Kerry Hamill has since come under fire for refusing to release the videos of these incidents to the media and the public at large, for fear that the media would display a “disproportionate elevation” of crimes that “unfairly affect and characterize riders of color.” Hamill has insisted that these words were only written in an internal memo that was not meant for public consumption. Nevertheless, public backlash has pushed BART to publicly comment that “Transparency trumps everything else. To not be willing to release information to the public because we think we know better what the public can handle is a mistake in my mind.”

Although Hamill’s concerns are grounded in good intentions, they will ultimately undermine not only BART, but the very racial communities she sought to protect. In a multiethnic country like the United States, the various racial groups will, at times, be jealous and resentful of each other. During times of racial tension, the government cannot be seen to favor one group or disfavor another, or it will only increase racial tension. That is the entire point of the Equal Protection Clause of the Constitution.

How Can We Move Past This?

In the past, certain minority groups, mostly African Americans, were completely disfavored by the state. However, we cannot write those wrongs by favoring, or even appearing to favor, African Americans now. If young people of color did indeed commit this violent crime, then not only should they be punished, but the public has a right to know who they are so that they can protect themselves or help the police in their search. Indeed, even “riders of color” would benefit from having the identities publically available; there is nothing in the reports to suggest that these robbers would not target people of their own racial group. And if the robbers are not African American, it would greatly benefit the African American community to have a video proving that.

If the videos are not released, many people will conclude that race relations – or even racial identity – is more important than protecting passengers, any passengers, regardless of skin color. This will fuel even more racial tension and will bring about the unfair characterization that Hamill feared. Indeed, the return of white supremacy and the rise of the “Alt-Right” have shown just how dangerous seemly innocent protection of otherwise criminal activity can become. Racism and disparate impact are real issues that minority groups face, but those minority groups can lobby on their own behalf without the assistance of government officials who are supposed to remain neutral.

If Hamill and others want to avoid wrongful “characterization of riders of color,” she should post examples of positive contributions that people of color have made rather than try and shield the bad apples from the consequences. Leonard Brown, the sixty-two year old security guard who stopped one of the robberies, is African-American himself. If Hamill wants to heal the racial divide and do her job, she can promote men like Brown who do the right thing. Every racial group has good people and bad people – the challenge should be to foster that understanding of duality instead of sweeping the bad people under the carpet.

SCOTUS Allows Wisconsin Fetal Protection Law to Continue

The line between the rights of an unborn fetus and the rights of the woman pregnant with that fetus is one of the most contentious legal issues in modern society. While it generally comes up in the context of a women’s right to choose to have an abortion, the same battle is fought on other fronts as well. In Wisconsin, one such situation dealt with the state’s ability to step in and take physical custody of a pregnant woman-force her to stay in a secure medical facility or prison-where she uses alcohol or drugs while pregnant.

Just a few months back, a Wisconsin District Court ruled that a 1997 law giving the state this power was unconstitutionally vague. This led to the case being appealed to the Supreme Court of the United States. Last week, the Supreme Court issued an order removing the Wisconsin District Court’s stay on the law-at least until the Supreme Court rules on the “fetal protection” law one way or another.

At this point, there is no final say on what will happen to Wisconsin’s law. However, to get a better idea of what the future of this law means for you let’s look at the law itself, the facts behind this case, and the ruling of the district court from a few months ago.

fetal protection lawThe “Fetal Protection” Law and It’s History

Back in 1997, the Wisconsin Supreme Court made a ruling limiting the breadth of the Wisconsin Children’s Code-the code of laws allowing Wisconsin’s Department of Children and Families and other social services to take protective action in the interests of abused or neglected children. They determined that code did not give Wisconsin services jurisdiction over an adult pregnant woman just by reason that she is expecting.

But that same year they passed Wisconsin Act 292. The Act allowed juvenile courts and protective services to exert jurisdiction over an unborn fetus as if they were a child in need of protective services where the “expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk” of harm to the unborn child. So, Wisconsin Services can hold pregnant women in custody if there is probable cause to believe she is within the jurisdiction granted by this act and there is reason to believe the mother is or has refused alcohol or drug services offered to her or isn’t making a good faith effort to participate in such services. The state can also appoint a guardian ad litem for the fetus-basically somebody who’s job is to advocate for the best interests of the unborn fetus.

On its face, this law seems innocuous. Abusing alcohol or drugs can have a serious effect on the health of a child when it is born. The ability of the state to step in and make women seek medical help in ceasing their alcohol or drug abuse could certainly prevent damage to a fetus that would ultimately affect the child for their entire life. However, but the Act was worded so vaguely that it opened the door for Wisconsin to potentially trample on women’s rights.

Ms. Tamara Loertcher’s Case

The case brought before the district court dealt with one Ms. Tamara Loertcher. She became pregnant in 2014 after long believing herself incapable of becoming pregnant. She was using methamphetamine and marijuana prior to becoming pregnant allegedly to self-medicate serious depression. Stating that she still did not believe she was truly pregnant, she went to the hospital three months later to confirm the results of her at-home test. The hospital’s tests revealed both pregnancy and drug use. She checked into a rehab clinic the same day.

Once at the rehab clinic, staff at the clinic reported Ms. Loertcher to child protective services for her drug use. This led to a case against her which culminated in her being unrepresented at regarding her being taken into custody. With no one there supporting her interests, she lost the hearing and was required to stay at a secure medical facility. She refused, was held in contempt, and thrown in jail with no medical services for 30 days. 18 days after being put in jail, she was released. She has since ceased all drug use and given birth to a completely healthy baby boy.

Ultimately, Ms. Loertscher stated that she felt that her worst mistake was going to the hospital in the first place. This is the fear of laws like Wisconsin’s, that they serve to deter the women who most need medical services from seeking help. However, this was not the reason the law was struck down.

The District Court’s Vagueness Ruling

In their ruling from the end of April of this year, it was the vagueness of the statute that led to the district court ruling it unconstitutional.  A statute is unconstitutionally vague where it doesn’t give the public fair notice as to the exact boundaries of the law. It’s only fair that the public know when they are and when they aren’t violating the law. To pass muster, a law needs to give at least some guidelines for how it is enforced. This act was subjected to a high level of vagueness scrutiny due to the constitutional rights implicated by the acts potential to lead to either physical restraint or forced medical care.

When looking at the text of the statute, the found that many of its terms failed to rise to this simple standard. The act applies where there is habitual lack of self control when it comes to drug or alcohol use. However, how much is habitual? Daily? Multiple times a week? Multiple times a month? Experts in the case couldn’t really nail down what was habitual use, never mind that habitual use is likely different depending on what is being used.

Similarly, the act applies to severe lack of self-control when it comes to drugs or alcohol but provides no line whatsoever as to what is severe. Further, due to wording of “habitual lack of self-control,” the act could be applied to any woman who once had an alcohol or drug habit-even if she no longer uses any substance-because habitual deals with both past and present behavior.

The court raised one more rather odd concern. How would the act deal with a pregnant woman who simply didn’t believe that using drugs or alcohol would affect her fetus? This wouldn’t be a case of lack of self-control but rather a matter of misinformation.

The list of overly vague terms and unclarified ambiguities in the act went on: risk is included but how much risk is “substantial?” When will a child be seriously affected by drug or alcohol use? Studies tend to agree that such behavior can affect a pregnancy but the amount necessary to harm a fetus varies from study to study. The experts in the case certainly couldn’t present a scientific consensus as to any of these questions. Thus, the district court ruled the act unconstitutional for vagueness and issued an injunction preventing application of the law-the injunction the Supreme Court just lifted.

fetal protection lawThe Future of the Act

The Supreme Court’s ruling only lets Wisconsin’s act continue functioning for now, it doesn’t necessarily mean that the Supreme Court will ultimately rule that the act is constitutional. It may tilt the odds in that direction. However, it is not the last nail in the coffin.

These sort of laws, allowing the government control over a pregnant woman because of her pregnancy, are certainly problematic. Abortion laws have long struggled in establishing the proper balance in the push and pull between a woman’s right to bodily autonomy and the rights of a developing fetus. Should a fetus be treated as having rights superseding that of the mother? When should a fetus be considered to have rights at all? With a law like Wisconsin’s, it seems like it allows the state to invade the rights of a pregnant woman almost immediately.

Drug and alcohol use during pregnancy is certainly not something to be encouraged. However, how far are we willing to allow the government to step on a woman’s rights to achieve this end? There is likely a middle ground here where the proper legal standard should be, however we continue to struggle to find the right way to deal with these issues. When the Supreme Court fully addresses this case, it will be the first time new appointee Justice Gorsuch will weigh in on such an issue since he joined the Court. We’ll have to wait and see what the Court’s eventual ruling will mean for Wisconsin’s law and women’s rights in general.

9th Circuit Rules that Government Broke Agreement to Protect Non-Citizen Children

Flores v. Meese, now known as Flores v. Sessions in light of our new Attorney General, is a twenty year old case which resulted in a settlement agreement resulting from now defunct Immigration and Naturalization Services (INS) holding unaccompanied children of immigrants for long periods of time with no beds, little food, and unreliable access to clean water. The settlement dealt with improving the conditions, and-most importantly-duration of hold times on children. The main way the settlement did this was by requiring second bond hearings to allow for non-citizen children to be released in a manner that-barring a danger to society-fits the best interest of the child.

The Ninth Circuit Court of Appeals ruled last week, and not for the first time since the settlement, that Immigration and Customs Enforcement (ICE) is not living up to the terms of its agreement. The settlement, in part, requires the government to hold children no longer than reasonably necessary. Judges have previously ruled that the government has failed to live up to this requirement. They also had failed to keep records of minors held more than 3 days, another settlement requirement. While there is evidence of their violations already, this practice makes it very hard to know exactly how often they have mistreated minors.

jeff sessionsTo understand this most recent ruling, let’s take a look at the facts of the case, the history of the settlement, and the ruling itself.

The Government’s Mistreatment of Children

So we know that the gist of the settlement agreement requires holding unaccompanied non-citizen children in safe conditions and providing bond redetermination hearings, reassessing how and whether a child should be released, in order to best protect unrepresented children. With this in mind, the settlement generally requires agencies to lean towards just releasing these children-usually as quickly as reasonable. The facts in this case make it clear that this was not at all the case.

The facts before the judge in this case showed unaccompanied children (some as young as nine-years-old) held in prison-like conditions, often for over a year, with no bond redetermination hearings. The children were threatened with pepper-sprayed, kept in cells so cold they were referred to as “iceboxes” with only a sheet of aluminum foil for warmth. The cells had cement benches with mattresses on top as beds. The children sometimes went without working toilets or showers.

History of the Settlement

As horrifying as these facts are, they pale in comparison to the facts that led to the settlement in the first place. In the late 90s, the Flores v. Meese case dealt with a 15-year-old refugee out of El Salvador named Jenny Flores. During this time, INS had a practice of arresting children suspected of being undocumented and holding them in what were essentially prisons until their parents turned themselves in for potential deportation. Essentially holding children to coerce their parents into allowing themselves to be deported. These children were held in cells with as many as 100 people, given little food and water, and provided no education or recreation time.

To make the lawsuit go away, the government agreed to sign a consent decree which essentially amounted to a settlement agreement to enforce standards for both the care and release of non-citizen children as we’ve discussed above.

What the Settlement Requires

The Flores settlement has several requirements to it. However, these requirements can essentially be broken down into three broader stipulations. First, the government needs to, unless the children are a danger to society, release children from their detention facilities with as little delay as possible to either their parents, guardians, or-as a last resort-to programs willing to take custody of the child in question. Second, if the government can’t release the children they need to keep them in a place suitable to their age and needs. Finally, the government has to implement standards relating to how these children must be cared for in immigration detention facilities–something the government has still not done twenty years after they agreed to the settlement.

These broad provisions cover most of the agreement. However, for this case, it’s important to understand at least one specific provision of the Flores settlement–paragraph 24A. Paragraph 24A is the section of the agreement which requires the government to give bond re-determination hearings to these children. This is not a bond hearing, federal law already sets release for an undocumented person at $1,500, this is a follow up hearing to reconsider whether a bond is necessary as many of these children’s parents simply can’t afford a bond. The government has been going years without providing these hearings to some children, and that was central to this most recent ruling.

HSAThe Government Loses Its Argument that the Settlement is Defunct

To say that the facts were stacked against the government in this case is an understatement. They had essentially been ignoring the terms of the Flores settlement for years on end–continuing to mistreat these children. However, the government took the position that they hadn’t been bound to the settlement for years-arguing that the Homeland Security Act (HSA) and the Trafficking Victims Protection Reauthorization Act (TVPRA) had overruled the settlement.

The judge in this case was quick to shoot them down. Generally, if you want to say you are bound by an agreement you are a party to you better have a dang good reason and the court simply wasn’t ready to bite on this one.  The HSA and the TVPRA do both deal with how the government should deal with unaccompanied non-citizen minors. However, they don’t mention overruling the Flores settlement or bond rehearings for non-citizen children. In fact, when it comes to these children both laws focus exclusively on making decisions in the children’s best interest. The laws include provisions seeking to investigate detention facilities to ensure proper care and placement on non-citizen children. To argue that holding them for years without a chance to reevaluate their bond status is laughable; the court found that the government’s arguments didn’t hold water.

To make matters even worse for the government, the same court had rejected the very same arguments only a year before when the government had argued that the provisions of the Flores settlement only applied to unaccompanied minors and they were under no constraints in how they treated accompanied minors. With that in mind, it was certainly no surprise to see the government shot down in flames on these arguments.

What Happens To the Children?

With the Flores settlement ruled to be in full force, the government will need to provide the bond reconsideration hearings they have been placing on the back burner. While the terms of the settlement favor release as quickly as reasonable to the minor’s family-it does not require it in all cases. At a minimum, the court’s ruling should at least offer these children a chance to escape years of prison-like detention when they likely want nothing else but to be receiving an education.

The Flores settlement is a fairly bare bones agreement. The truth is it was never intended to be a permanent solution. The settlement expires 45 days after the government put out final regulations on how detained non-citizen minors should be treated. The only reason this case is being litigated is because, as mentioned above, the government simply hasn’t bothered to do so in the last 20 years. While the HSA and TVPRA fill some gaps, the fact that our lack of legal regulation allows for situations such as the facts in this case to continue is a black eye on the United States as a whole.

Can’t Revoke Citizenship Due to “Immaterial Falsehoods,” SCOTUS Rules

What does it take to remove a person’s citizenship? With all the discussion today about crimes that illegal immigrants have committed, border walls, travel bans (but not a ban!), and tougher ICE enforcement, it might be helpful to get some clarity on some of the finer points of immigration law.

The Details of the Case

Divna Maslenjak was granted refugee status and became a U.S. citizen in 2007. Immigration officials later found out that Maslenjak had lied about her husband’s military status. Instead of fleeing Bosnian conscription, he had served as an officer in a Bosnian military unit, a unit that was later accused of war crimes. Federal prosecutors charged Maslenjak with obtaining her citizenship illegally by lying on her immigration papers.

Maslenjak argued that the lie was immaterial, but the judge instructed the jury that any false statement on her application was sufficient for a guilty verdict. The jury found her guilty and Maslenjak was stripped of her American citizenship. Maslenjak appealed to the Sixth Circuit and then to the Supreme Court, arguing that putting false statements on immigration documents should only result in revocation of citizenship if the lie was material to the application process. The Supreme Court ruled in favor of Maslenajk.

Justice Kagan provided an example that illustrates this point: Suppose that a man takes a painting illegally. One would assume that meant the man had stolen the painting from the art house, or used a fraudulent credit card to obtain the painting. Both of those would be material and would most likely result in the painting being returned to the art house from where it came. However, if the man ran a stop sign on his way to the art house to legally purchase the painting, then the crime, running a stop sign, would not be considered material to obtaining the painting.

citizenshipIs This Good or Bad For Immigrants?

Obviously, the purpose of this ruling is to make it more difficult for the federal government to take a person’s citizenship. It is legally impossible to remove a natural born citizen’s status unless the citizen voluntarily renounces citizenship. Similarly, there is currently only one way for a naturalized citizenship to lose citizenship after being granted citizenship status: if he or she was discovered to have lied during the application process. The Court’s ruling raises the bar slightly, as it requires at least a casual connection between the application process and the applicant’s false statement before citizenship can be removed.

The idea of a relationship between the offending behavior and the crime itself is not a new idea in the law. Most criminal laws require at least a causation between criminal intent and the physical act itself. In a murder case, it is not enough for the prosecution that the defendant intended for the victim to die and that the victim be dead. Instead, the defendant’s intentions must cause the defendant to take some action to harm the victim. For example, an employee could wish an employer to die and the employer could die of a heart attack the next morning. The employee would not be guilty because the wish for the employer to die never caused the employee to take an action against his boss. Without that causation, there is no crime.

The Court’s unanimous ruling extends this basic principle of criminal law to cover false statements made by naturalized citizens. This is not a high bar to clear though, and it’s likely that Maslenjak will still lose her second trial – claiming that your husband was fleeing a military that committed war crimes when in fact the husband was in the military that was allegedly committing war crimes is a very big lie to tell. This might be a small comfort to those afraid of losing their citizenship, but in an era where xenophobia might be at an all-time high, a small comfort is better than nothing.

Sanctuary Cities Face Sanctions Under a New Bill

Since even before Trump’s election, immigration has been one of the most contentious topics of law in the public eye. Since the election of Trump, that contentiousness has spilled out into a battle between the Federal government and state and local governments as these governments resist allowing the hand of the fed into their own approach to immigration. Certain cities have drawn Trump’s ire more than any others. These so-called sanctuary cities such as San Francisco and Los Angeles have been on the receiving end of particularly vicious tweets and public commentary from Trump for their comparatively lax approach to immigration law and refusal to cooperate with the expanded powers of Immigration and Customs Enforcement (ICE) Agents under the Trump administration. This ire has also included an executive order from back in April pulling federal funding which was subsequently blocked in the courts until both the definition of “sanctuary city” and the amount of funding to be withdrawn was substantially limited.

The deadline for cities to respond to the terms of this order has come and past last week, so we can expect more action on this order in the near future-likely in the courts. However, in the last few days, conservative disapproval of “sanctuary citizens” has manifested itself in an entirely new form—a bill that has passed the House called the “No Sanctuary for Criminals Act.” (NSCA)

sanctuary citiesThe bill has yet to pass through the Senate, although the Republican majority there makes its passage very likely.  However, it’s important to note that it is still a bill and not yet a law. But the act itself is so likely to pass that it’s worth preparing for its implications and near certain legal backlash.

The primary effect of the “No Sanctuary for Criminals Act,” despite the name’s implication that it impacts specific criminals, is to target “sanctuary cities” with substantial funding hits. The law essentially sanctions any city who refuses to turn over people to ICE or jail people on behalf of federal authorities. It similarly sanctions cities that won’t comply with ICE actions of any type—requests to hold suspected undocumented immigrants and the like.

Specifically, the bill makes it so that jurisdictions which fall out of line become ineligible to receive any funds under the Immigration and Nationality Act, the “Cops on the Beat” program, the Omnibus Crime Control and Safe Streets Act and any other grant from the Department of Justice or Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization.

This is a potentially enormous amount of money to pull from these jurisdictions. Under the bill, this money would be redistributed to jurisdictions in compliance with the Act.  However, just like the executive order before it, the bill has received substantial criticism as to its constitutionality which will likely culminate in a lawsuit should it pass the Senate.

The 10th Amendment and Spending Restrictions

The majority of the concerns voiced over the NSCA are in regard to the 10th Amendment. The text of the10th Amendment reserves all rights not given to the Federal government under the constitution for the states. However, as part of the implications of this, it also prevents the Federal government from compelling the states or their agents to action unless they specifically have the power to do so under the Constitution.

This rarely comes up in a modern context and the Supreme Court have become more and more reticent about limiting federal action on 10th Amendment grounds. However, they have done so several times in the past several decades. For instance, in 1998 they ruled a law unconstitutional where it required state and local law enforcement to conduct background checks on those trying to buy handguns. The law amounted to the federal government forcing state participation in a program and was thus ruled unconstitutional.

This isn’t much of an issue for the “No Sanctuary for Criminals Act.” It doesn’t so much command the states or their jurisdictions to act so much as pull the funding rug out from underneath them if they don’t. This can cause its own constitutional problems however in terms of how the federal government may handle funding.

The federal government generally has the power to distribute funds as it sees fit. However, when funding provisions are so draconian as to be coercive they are unconstitutional. This has most recently come up in the context of the Affordable Care Act in 2012 with the Supreme Court ruling that the funds pulled from states refusing to participate represented a “gun to the head” of the states.

To be constitutional, funding provisions and restrictions must meet five requirements:

  1. The spending must promote the general welfare;
  2. The conditions on the funds must be clear and easy to understand;
  3. The conditions must be related to the goal of the program it is associated with;
  4. The condition must not itself require the states to act unconstitutionally; and
  5. The funding conditions must not be coercive.

The first three elements aren’t really an issue here. The clarity of the act isn’t really an issue and they’ve made a clear point of trying to limit the funding cuts to areas that could be considered related to immigration and national security. But the breadth of the cuts themselves will likely become contentious if the bill becomes a law as states seek to limit the bill to only strictly related funding sources.

The fourth element is interesting and will likely be a source of a great deal of future litigation. The ACLU has voiced concerns that the bill could demand cities to act in violation of the 4th Amendment by requiring local law enforcement to hold people without due process or probable cause when directed to by the federal government.

However, it is the last element, coerciveness, which has been the target of most of the conversation when it comes to the constitutionality of the NSCA. This is partially because what exactly makes a spending provision coercive under the law is a bit hard to nail down. The most obvious element of coerciveness is just how much money is in question. The exact amount necessary has ranged substantially from case to case. In some cases, the amount to be pulled by the NSCA might qualify, in others far more is necessary. The ACA case has implied that the amount is not the only consideration however. Where a state or jurisdiction has grown to rely on a source of funding, that likely factors into whether pulling that funding is coercive. It also makes a funding provision more coercive if a new program is put in place and funding from a more established federal program requires involvement in this new program. The NSCA may run afoul of this somewhat due to the many older programs it denies funding from where jurisdictions fail to follow the provisions of their new program.

The Future of the NSCA

So, are the funding provisions of the NSCA unconstitutionally coercive? Unfortunately, the answer is an unhelpful maybe. There are certainly some elements that point in that direction and a large portion of the determination will come down to exactly how much money a given jurisdiction stands to lose. However, coerciveness is a poorly defined, heavily fact-specific legal concept. It’s just impossible to reasonably say one way or another. However, will there be lawsuits challenging the constitutionality of the NSCA if it passes the Senate? Yes, absolutely. However, for now the NSCA is just a bill. Until it becomes a true law, we can expect that the many critics of the spending provisions will stick to making themselves heard in the public and not yet in the court.