Archive for the 'Laws' CategoryPage 2 of 34

How Will the Germanwings Crash Change Airline Pilot Regulations?

Andreas Lubitz, 27, is suspected of deliberately crashing Flight 4U9525 into the French Alps on March 24th. He killed himself, along with the 149 crew members and passengers on board. The crash is suspected to be a suicide mission.

germanwings airlineWhat does this mean for the relationship between mental health confidentiality and the safety for airline passengers?

History of Pilot Suicide Attempts

Between 2003 and 2012, eight of the 2,759 fatal aircraft crashes were suicide driven.

In 1994, a FedEx cargo jet was deliberately crashed by a disgruntled pilot. And in 1987, a crew member shot two pilots dead on PSA Flight 1771 in an assumed suicide driven crash as well.

Both of these incidences resulted in new procedures for airline pilots. Because of these crashes, they are now required to go through the same security measures as passengers.

Current Protocol Concerning Pilots’ Mental Health

Currently in the U.S., pilots are required to renew their medical certificate once a year if they are under 40, and every six months if they are above. Psychological tests, however, are not required. Pilots are expected to disclose their mental health condition, or come to a doctor with concerns of mental health issues.

In Germany, psychological tests are part of the annual medical exam. But access to medical records are only available to aeromedical examiners, not airlines themselves.

Lufthansa, Germanwing’s parent company, requires psychological assessment of the pilots who work for the airline. Despite confidentiality laws, doctors and nurses are required under law to report any sign of behavior that can be deemed as threatening to public safety. But, it is very hard to diagnose a pilot with a mental illness when it is up to the pilot themselves to disclose this information.

Changes Being Made

German lawmaker Dirk Fischer, is demanding that airlines have access to pilots’ medical records.

In the U.S., it is required that two crew members be present in the cockpit at all times. Many other countries do not have this same requirement. Because of the Germanwings crash, airlines such as Norwegian Air Shuttle, Britain’s EasyJet, Air Canada, Air New Zealand, and Air Berlin all changed their policies to match the one of the U.S.

Who Will Be Held Liable for the Crash?

Most likely, a civil liability lawsuit with ensue, and Lufthansa will be held responsible. Article 21 of the Montreal Convention outlines that the airline is “strictly liable” for damages up to $113,100 Special Drawing Rights. Beyond this amount, Montreal also states that an airline is liable for any further damages as long as the plaintiff can prove they are responsible.

If the airline can prove that “the damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents” or that “such damage was solely due to the negligence or other wrongful act or omission of a third party” they may not be held liable. But in this case, the probability Lufthansa will not be held liable is extremely low.

California Uses Prisoners to Fight Its Wildfires

prisoners fight california wild fires

With California’s current drought problem, many residents and government officials are weary about the fire season to come. Last year’s water woes lead to the following results during the 2014 fire season:

  • There were 5,620 wildfires
  • Cost $184.02 million
  • Burned 631,434 acres of land
  • Injured 146 individuals
  • Caused 2 deaths

Californians may be used to stories about major wildfires, but they may not know a lot about the individuals battling the flames. Approximately half of those fighting the fires in California are prisoners. With budget cuts and dwindling resources, the Department of Forestry and Fire Protection have resorted to using inmates as laborers.

The Department of Corrections and Rehabilitation supervises and oversees inmates in its “fire camps” program. These programs have existed since World War II and California has the largest program in the nation. Here are a few facts about the program:

  • Over 4,400 prisoners are used to fight California wildfires
  • Inmates are housed at 42 fire camps across California
  • California saves $1 billion a year by using inmates as laborers

The inmates used in the program are convicted of misdemeanors, such as minor battery, robbery, or drug crimes. Usually, these “fire camps” are reserved for well-behaved inmates that have not committed violent acts, like sex crimes, or arson.

Corrections guards drop off the inmates at these camps and the supervising firefighters take over and are in charge the rest of the time. The prisoners are given the same clothing fire fighters wear and are allowed to carry and use chainsaws, axes, and rakes.

Many have criticized the use of prisoners in these programs and have likened the practice to modern day slavery. Prisoners earn $2 a day to fight fires and can get two days off of their sentence for every day they are out fighting fires.

In November of 2014, Proposition 47 was passed by voters and most likely will affect the “fire camp” program. Proposition 47 reduced certain felony crimes to misdemeanors. The reclassification included petty drug and theft crimes. The goal of the proposition is to reduce the crime classification as well as the prison population.

Although the voters are in favor of Proposition 47, many state agencies and departments are not as enthusiastic because it means an end to a source of cheap labor. The program has been positive, and many inmates have thrived and been rehabilitated through these fire camps. With the passage of Proposition 47, many agencies will finally have to confront their money and workforce problems because the inmate population will eventually be reduced.

State agencies should not solely rely on prison populations when hiring laborers to fight these fires. There may not be a simple solution to their budget problems, but hopefully Proposition 47 will lead to an outcome that does not solely rely on prison labor.

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How Indiana’s Religious Freedom Act Will Backfire

I’m glad Governor Mike Pence signed Indiana’s Religious Freedom Act (RFA). The law is intended to allow businesses to discriminate against homosexuals. However, the RFA’s text is so broad the RFA could backfire on the conservatives passing the act.

Religious Objections-ProtestThe RFA actually doesn’t mention homosexuality or sexual orientation anywhere in its text. Instead, the RFA states that governments cannot impose any law that would substantially burden a person’s religious exercise without a compelling government interest. In English, the government cannot force a person to obey a law if that law would place a heavy burden on that person’s religious practice unless the government can show it has a very good reason for enforcing that law. Note that the RFA counts businesses as people.

Businesses that want to discriminate against homosexuals may do so if: 1) The business has a religious belief against homosexuals, 2) The government cannot give a very good reason for why it wants to force that business to violate its religious beliefs, and 3) The government cannot show that the violation of the business’s religious beliefs is the least restrict means of enforcing the law. The real twist is that the RFA can be invoked as a defense against a private lawsuit.

For example, a florist operates her flower shop as a sole proprietor. The florist refuses to sell flowers to two men who are getting married because the florist believes the Bible prohibits same-sex marriage. The couple sues the florist for discrimination. The florist can invoke the RFA and argue that the court cannot force her to serve the couple because it would be a violation of her religious beliefs.

The RFA Will Backfire Enormously

The RFA is written broadly so that a court wouldn’t void a law based on discrimination against homosexuals. Although the RFA avoids that problem, writing the law broadly means that other people can use the law for unintended purposes. After the Supreme Court ruled Hobby Lobby was exempt from Obamacare, Satanists attempted to exempt abortions from informed consent laws based on their religious beliefs. The same idea could be used to twist the RFA so that the conservatives who passed the RFA will come to despise the very law they enacted.

The ideas are endless. A restaurant could refuse to serve gun owners because the restaurant’s religious pacifism prevents it from serving gun owners. High school and university libraries could refuse to handout creationist textbooks because such textbooks violate the librarian’s belief in evolution (evolution is not based on religion, but creationists don’t recognize the distinction). Abortion clinics could serve women and ignore all criminal statutes against abortion by asserting the clinic has a religious belief that fetuses aren’t people.

Many people are currently protesting the enactment of the Religious Freedom Act. Governor Pence and state legislators probably won’t overturn the RFA, even if the law would cost the state millions of dollars from large organizations boycotting Indiana. However, the best way to protest the RFA is to use it in a way Governor Pence and other Republicans won’t expect the law to be used.

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California Lawyer Proposes to Kill All Homosexuals

Matt McLaughlin’s anti-gay ballot measure proposal is so extreme it almost seems like a parody of same-sex marriage proponents. At least, I hope it’s a parody. The idea that McLaughlin’s proposal might be serious is terrifying.

california lawyer proposes killing all gaysMcLaughlin‘s first decree is that homosexuals “be put to death by bullets to the head – or by any other convenient method.” Moreover, the “general public is empowered and deputized to execute all the provisions hereunder extra-judicially.” Murder of homosexuals, mass murder in fact, would be a public duty. The proposal would allow anyone to kill anyone else, provided that the victim was homosexual. Since the dead can’t talk, the proposal is a public license to kill.

As if legalized genocide wasn’t enough, McLaughlin’s proposal has two other outrageous provisions. The second provision is that it would be illegal to distribute information aimed at promoting acceptance of homosexual relations, a clear violation of the First Amendment’s free speech right. The third provision is that homosexuals can’t serve in public office, hold a government job, or receive public benefits.

The proposal is over the top, but there’s a subtlety in the design. The proposal also prohibits any court from hearing a case on the proposed law before the California Supreme Court hears the case.  This last provision is a response to Proposition 8, the California proposition that made same-sex marriage illegal, but was overturned by the courts. The California Supreme Court upheld Proposition 8 though, making the proposal’s choice of court logical (even if no judge would vote to uphold this). The limit on jurisdiction indicates that the proposal was written with more care than mere disdain of homosexuality.

McLaughlin Should Be Suspended from the Bar for This Stunt

Why am I taking the time to dissect a proposal that probably wouldn’t even get enough signatures to get on the ballot? Some people are calling for McLaughlin’s disbarment. I wouldn’t go that far, but I think the state bar should suspend McLaughlin for this stunt.

It’s obvious that McLaughlin applied his knowledge of the law when he drafted this excuse for a proposal. A lay person who wanted to kill homosexuals wouldn’t take the time to limit the courts’ ability to hear the case or select the court which upheld the previous proposition that prohibited same-sex marriage. McLaughlin actually did research on this and it’s research on the type of questions that most non-lawyers wouldn’t even think about. This proposal is only possible because McLaughlin is a lawyer.

Since McLaughlin’s legal knowledge and skills were used to advance this farce, McLaughlin was acting as a lawyer when he submitted his bogus proposal. Lawyers cannot file frivolous papers to the courts. A proposal that advocates for a license to murder is frivolous because the proposal has no chance of passing and has no chance of being upheld even if the public lost its collective minds.

Granted, submitting a ballot submission is not the same as filing a paper with a court. However, the ballot initiative system is still a public forum and lawyers like McLaughlin should not be wasting taxpayer money on jokes like this. McLaughlin should be suspended for abusing a state resource by filing a frivolous document.

Despite what the homosexual community and its advocates think, I don’t think McLaughlin should be disbarred. In addition to all the typical concerns about free speech, McLaughlin is a lawyer. Lawyers have the ability – the power- to advocate for a change in the law. The public and the state bar expect that the changes advocated will be positive changes, like desegregation, rather than advocating for murder. The fact is though there is no rule that the changes lawyers propose have to be positive changes in the law.

The problem is that McLaughlin’s proposed legal change would destroy the very law it would be changing. The proposal would throw people in jail for promoting acceptance of homosexual relations. It’s obvious that would be unconstitutional even to the most legally illiterate among us. The proposal advocates for murder. It’s obvious that’s immoral even to the most depraved persons. McLaughlin wouldn’t be changing course in the ship of state; he would be sinking the ship entirely.

I’ve treated McLaughlin’s proposal like he’s 100 percent serious about this scheme, when in fact this is probably just a crazy parody (I hope). I appreciate that he could be making a point by parodying the other side, or that he’s advocating for a change in the state initiative system by showing that even the craziest of propositions could make it to the ballot. However, McLaughlin could do that without abusing his profession, a profession that many already see as amoral at best.

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Did the Execution of Cecil Clayton Violate the 8th Amendment?

Cecil Clayton, 74, was killed by lethal injection Tuesday night at a Missouri prison. He was convicted of murdering a police officer in 1996, and was given the death penalty by the jury. This case may seem like a typical “murderer gets put on death row” scenario, but Clayton is an exception. It’s possible the Missouri Supreme Court violated his fundamental right of protection from cruel and unusual punishment due to his mental condition.

Cecil Clayton ExecutedIn 1972, when Clayton was 32, he suffered from an extremely serious work accident. He was working on a sawmill when a piece of wood shot out and impaled him in his skull. In order for the doctors to remove the piece of wood, they also had to remove 20% of his brain. The part they extracted was from the frontal lobe, which controls impulse control, basic judgment, memory, social behavior, and other important function.

Before the accident, Clayton was a happy, sober, married man, who was a hard worker with a clean record. After the accident, he was diagnosed with chronic brain syndrome, paranoia, schizophrenia, and depression.

Last month, a psychiatrist evaluated Clayton and deemed him incompetent to be eligible for execution due to his mental state. His lawyers made many attempts to halt the execution, even bringing the case to the Supreme Court. But in a 4 to 3 vote, the Missouri Supreme Court ruled that Clayton did not meet the requirements to be considered incompetent and therefore an execution was lawful.

According to the Eighth Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. In 2002, the case Atkins v Virginia determined that death to a mentally disabled person was unconstitutional. Executing an inmate who is intellectually disabled directly violates the Eighth Amendment. An inmate must be aware of their impending death, and fully understand why they are being executed.

Clayton was neither aware nor understood. He not only suffers from the mental illnesses described above, but he is also intellectually disabled; having an IQ of only 71. This qualifies Clayton as mentally disabled and he should not have been executed due to his fundamental protection from cruel and unusual punishment.

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