Archive for the 'Laws' CategoryPage 2 of 40

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.

How Is Sexual Orientation Becoming A Protected Class?

Before the Civil Rights Act (CRA) became law, individuals faced discrimination based on race, sex, religion, and national origin. At first, the word “sex” was added to focus on discrimination against women.

Yet over the years, sex discrimination extended to gender discrimination. However, with the recent progression in LGBT rights, some courts interpret the protection to cover discrimination based on sexual orientation. Now, the courts are beginning to place LGBT individuals in a protected class.

But what if the CRA is not amended to prohibit sexual orientation discrimination? What basis can the courts use to extend protection? Can the courts extend protections in a state that does not enact protections for sexual orientation?

Why Is It Important To Be Considered A Protected Class and How Do You Become Protected?

A protected class is a group of individuals that have stronger legal protection against discrimination or retaliation. The right was hard earned over many years with violence and discourse.   Supreme Court

In the beginning, race and color were the only protected classes. Over time, women, the elderly, individuals with disabilities, and a slew of other classes gained protected. But, they were not all protected through the CRA. Groups such veterans, pregnant individuals, and disability became protected through other types of legislation without amending the CRA.

So, do you really need to amend the CRA?

There Is No Need For An Explicit Law. But To Begin, the First Step Was Basis Extend the Protection for Transgender Individuals.

The Equal Employment Opportunity Commission (EEOC) established Title VII of the CRA. It prohibits discrimination because of the individual’s sex. To discriminate because someone identifies as a gender other than assigned at birth, is to discriminate because of their sex. Discrimination against a transgender is gender identity discrimination and so is prohibited under Title VII.

The EEOC focuses on the precise wording of Title VII. The law “prohibits employers from discriminating against employees on the basis of sex….”. The conditional words are what the EEOC and the courts focus on for the basis of extending protection.

The courts applied the same reasoning used in sex discrimination cases involving heterosexual women. The courts found a demand for a female employee to “dress more femininely” to be “sex stereotyping.” The act of stereotyping because of sex violates Title VII.

Extending protection to transgender individuals was a first step in protecting sexual orientation as a class. Soon the courts applied “because of” and “sex stereotyping” to their reasoning.

Applying “Sex Stereotype” And “Because Of” Reasoning to Sexual Orientation Discrimination.

Due to the evolving and growing understanding of sex and gender, the courts apply the concept of “non-conforming gender behavior.” Describing situations like a heterosexual female employee who dresses in a masculine way to a male employee who exclusively dates other men.

Our understanding of sex and gender are evolving. Now, some courts apply the concept of “non-conforming gender behavior.” Like situations like a heterosexual female employee who dresses in a masculine way.  A male employee who exclusively dates other men.

If the employee faced discrimination because of the sex stereotype that women should wear feminine clothing and men should only date women, then they were discriminated because of their sex. If the female employee was male, then she would not have faced discrimination. The same logic applies to the male employee.

The majority of cases deciding that sexual orientation discrimination violates Title VII came in recent years. It was a long awaited step towards equality for individuals who have lived as second class citizens based upon who they love or what they feel.

In the End, the Courts Applied the Same Logic To Sexual Orientation Discrimination.

In 2015, the Supreme Court held that same-sex marriage is a constitutional right. The legal system filled with cases of individuals seeking protection from sexual orientation discrimination.

Since the Supreme Court found legal and statutory basis for same-sex marriage, the lower courts could find a basis for sexual orientation discrimination in Title VII. However, there is no federal statutory law that explicitly states there is a protected right for same-sex marriage. Due to the slow legislative process in Congress, it will may take years, or decades, before it becomes law.

Many argue that the CRA must be amended to make sexual orientation a protected class. But many accepted protected classes only reached that level after social acceptance. In the end, it is only a matter of time before sexual orientation becomes a protected class.

Use of Religion in Deciding Secular Issues: Risk of Prejudice and Inequity

The role of religion in conflict situations can be powerful. The use of religion in alternative dispute resolutions may produce sensible resolutions for the disputes of the parties who share the same religious faith without having to go to a court. However, the norms of what is right and what is wrong in a particular religion set different rules from what is legal and illegal under the civil law. This leaves minority groups vulnerable and subjects similar cases to vastly different sets of arbitrary rules.

For instance, in family law, the use of religious doctrines to resolve issues such as divorce and marriage is problematic because the religious doctrines are often prejudiced against women. Furthermore, the proceeding of religious arbitration is quite different from legal procedure, foregoing many steps of investigation and discovery that are instrumental for fact finding. As a result, those individuals who agreed to religious arbitration do not get a day in court and have to accept the decision by the value-laid religious principles of which they may or may not believe in.

Judicial Preference to Uphold Religious Arbitration

One of the biggest controversies is that religious arbitration may shield religious organizations from liability. When religious arbitration is used to decide a secular issue, there is a concern that religious arbitration often results in outcomes favorable to the religious entity and unfair to the individuals who signed the religious arbitration contract.

With such skepticism religious arbitration brings to the table, you may believe that courts would intervene. Unfortunately, courts rarely do. The First Amendment’s Free Exercise and Establishment Clause preclude courts from meddling with religious exercises of faith and from favoring one religion over another. Consequently, courts have either upheld religious arbitration or refused to review these cases under the First Amendment.  I Do Solemnly Swear

This judicial preference to uphold religious arbitration sometimes leaves truth untold. Ms. Spivey, a mother, wanted to find out what occurred or led her gay son to death when her son was found dead while he was in the custody of Teen Challenge, a Christian based rehabilitation program. One day, she got a call from Teen Challenge that her son was intoxicated and was being taken to a hospital. When Ms. Spivey called the hospital, she was told that he was never admitted there. He was missing and later found dead.

Ms. Spivey attempted to find out what happened to her son. She tried to bring a wrongful death suit, but could not because she signed an agreement that contained a religious arbitration clause when she enrolled him in the program. Under the clause, any disputes had to go to Christian conciliation, the religious arbitration. The mother appealed, challenging that a court should decide the matter, not the religious arbitration. She argued that her First Amendment right also included the right not to exercise religion. While it is a correct statement and interpretation of the Free Exercise clause, the court found that there was no constitutional conflict.

In any case, she had signed the agreement to arbitrate and was suing on behalf of her dead son. Accordingly, the appeals court did not review the case and parties proceeded to religious arbitration. The facts show that many questions were unanswered. Why was her son intoxicated and why was he not admitted to the hospital? Did the pressure from Teen Challenge worsen his drug abuse? Why did he end up in a city with no money or cellphone?

Law of Contracts – Limitations and Safeguards

While the First Amendment prevents courts from reviewing religious arbitration awards, courts can review the awards based on contract law. Courts can review religious arbitration agreements just like any other contract.

Proponents of religious arbitration argue that you cannot challenge the arbitration agreement because you voluntarily enter into the agreement to arbitrate. Admittedly, in contracts that contain religious arbitration clauses, courts almost always order the arbitration, finding that there is a valid contract to arbitrate. Furthermore, in regard to whether the arbitration award should stand, courts almost always affirm the arbitration award.

Courts may vacate the award where the award is a product of fraud, corruption, or serious misconduct by an arbitrator. Courts seem to focus on the procedural aspect of arbitration. Judges often will not opine whether arbitration awards are substantively fair.

Admittedly, freedom of contract is a long-standing principle that deserves due respect. Contracts cannot void agreements just because the parties have unequal bargaining power. As consumers, we more and more encounter an agreement containing an arbitration clause that is take-it or leave-it situation without any room for negotiation. This one-sided contract has become a fact of modern life.

However, with expansion of practice of arbitration in consumer contracts, courts sometimes invalidate arbitration agreements if the contract is unconscionable. The contract is unconscionable if it was so extremely unfair to shock the consciousness. Perhaps, courts could use the same doctrine to void the religious arbitration clause when the contract was entered into under extremely unfair circumstances. Perhaps, for public policy grounds, courts should gradually review more cases decided by religious arbitration to identify particular secular issues that are unfit for decision making based on religious principles.

Accommodating the Wave of Obesity In Medical Care

The United States Obesity Epidemic’s impact on children is on every news outlet. But the battle against obesity for older Americans is a quiet battle that the nation is losing. Obese individuals require the most medical care in our nation.

Hospitals and nursing homes are facing an influx of an older population plagued by obesity. But the cost of medical care for obese patients is rising dramatically to the point where many facilities cannot cope.

Should medical accommodations for obesity be legally protected under the Americans with Disabilities Act (ADA)? If an obese patient is denied treatment at a hospital or a hospice, will the facility have to adhere to the ADA? If the patient brings suit against the facility, should they win?

What Does the ADA Say About Obesity?

Obesity alone is not considered a disability. The individual with obesity must prove that their disability is disabling or perceived to be disabling to others. But “morbid obesity” is a disability under the ADA.

Obesity is a Body Mass Index (BMI) of over 30. Morbid obesity is a BMI of over 40. So if the individual has a BMI under 40, then their situation is judged on a case by case basis.

If the individual’s ADA claim is approved, then they have a legally enforced right to accommodation. In this case, accommodation to access a public place: a medical facility.

How Would a Facility Accommodate?

A standard hospital bed can hold up to 350 pounds. A bariatric hospital bed that can accommodate a morbidly obese patient is extra wide and some models can hold up to 1,000 pounds. But they can cost at least $2,000 and up with an average of around $4,000. Essential medical equipment large enough to scan and x-ray obese patients can cost up to $650,000.

Medical staff face higher rates of work injuries when moving and lifting obese patients. So patient lifts are necessary and can cost as much as $4,000 depending on the weight capacity.  Obesity

The doors of the facility may need to be widened to accommodate a bariatric bed. A bariatric bed can be 54 inches wide, but an average hospital door is 30 to 44 inches.

These are some of the few additions and expansions a medical facility would need to make to accommodate an obese and/or morbidly obese person. The cost is enormous and the basic building structure of many facilities would need to be drastically altered to accommodate.

Even ambulances are starting to change to accommodate larger patients. A standard ambulance costs $70,000, but a bariatric ambulance costs $110,000. This does not include a bariatric gurney, which costs an additional $4,000. In comparison, a standard gurney costs $1,000.

How can facilities afford these accommodations?

If An Obese Patient Files an ADA Claim, Should They Succeed? Short Answer: Probably Not.

The vast majority of ADA claims filed for obesity discrimination is work related. There are a few ADA claims filed against private institutions, like nursing homes. A nursing home may not need a $650,000 medical equipment. However, they will need widened doorways, bariatric beds, and other accommodations for morbidly obese patients.

If a patient is not admitted to a nursing home, it is most likely because the nursing home is not equipped to admit them. ADA claims are not the only legal claim a nursing home will face. Nursing homes vary in level of care and ability. If a nursing home is ill-equipped, they face wrongful death suits and negligence claims.

The process for deciding an ADA claim is not yet clear for obesity. For workplace discrimination, the ADA determines if the required accommodations would be reasonable. The ADA also considers if the work environment was too dangerous for an employee with a disability to continue working.

A patient has a right to preference of the location of a nursing home, hospital, or any medical facility where they get treatment. For their own safety though, patients with obesity should receive treatment at a facility that can give them the best possible care.

The American Medical Association considers obesity a disease. Like any other disease, they must be treated at facilities that can care for them. Obesity can make conditions like diabetes or heart failure even more difficult for the patient and staff.

A patient’s claim demanding admission into an ill-equipped facility should not succeed for safety reasons, including the patient’s own. The ADA will weigh many factors to determine a claim. However, obese patients seeking an ADA claim should realize a facility’s refusal can be for the patient’s benefit.

Can Donald Trump Actually Take Care of “the Muslim Problem” and Make America Great Again?

Donald Trump. A man so American that bald eagles attack him in fits of jealous rage. Lately, he has also become the political poster boy for the Islamophobia that seems to be gripping certain constituents in the United States. However, what exactly are his proposed plans to resolve “the Muslim problem” in the United States, and are these plans even legally feasible?

1. Shut Down Mosques

Trump declared that select mosques within the United States should be shut down. This alone appears to be a systematic denial of religious freedom, which is protected by the First Amendment. Many of the original colonists in this country came here to avoid religious persecution. The most popular secular holiday in the United States, Thanksgiving, involves a celebration of the religious freedom achieved by the Puritans by coming to the new world. That is not to say that there has never been any effort to suppress certain religious practices by the government.

However, laws designed to prohibit certain religious practices, even Hileah’s attempt to ban the Santeria practice of animal sacrifice, have been declared to be unconstitutional as a violation of religious freedom. Any ban on religious worship in buildings specifically designated for religious worship will likely be declared to be unconstitutional under the First Amendment because while the interest of keeping American safe from “homegrown” terrorists is a compelling government interest, any law that permits the shutting down of mosques could not possibly be deemed to be narrowly tailored enough to truly advance that interest.  Trump

Most likely, if such a law were enacted and then challenged in court, it would be seen as unconstitutional pursuant to Cutter v. Wilkinson, which was a challenge by prisoners in Ohio against the prison’s refusal provide them with an adequate space to worship within the confines of the prison. Just as the prison could not force the prisoners to restrict the practice of their religion to their cells, so the federal government cannot force Muslims to restrict the practice of Islam to their homes.

2. Bar All Non-Citizen Muslims from Entering the United States

If Donald Trump were to become president, he would not be able to actually enact his own ban on the immigration of Muslims, even under his power of commander in chief during wartime. Any ban by presidential order would be determined to be in violation of the United Nations’ International Covenant on Civil and Political Rights, which prohibits all participating countries, including the US, from banning immigration solely on religion.

Congress is the only government entity that can pass laws superseding any international treaties made through the United Nations, since Congress is responsible for the United States’ participation in that organization. Thus, Donald Trump would need to convince Congress to enact a ban on Muslim immigration. Although a mass ban on immigration based on religion is practically unheard of, Congress has enacted mass bans on ideological principles before, most notably against foreign Communists. These bans have been held as constitutional, despite the unconstitutionality of laws placing restrictions on Americans who hold the same views as the banned foreigners. Ergo, Congress could enact a ban on all Muslim immigration that may be held to be constitutional by the courts.

If Donald Trump wanted to avoid having to rely on Congress, he could ban all foreign Muslims on an individual basis. Congress has given the president the power to bar the immigration of anyone whose entry into the United States could have “potentially serious adverse foreign policy consequences” for the US under 8 U.S. Code § 1182. In the broadest sense, any president could make an argument that any foreign Muslim’s presence in this country could have adverse foreign policy consequences. Also, the president has the power to bar the immigration of anyone who fails to be “attached to the principles of the Constitution” in accordance with 8 U.S.C. § 1427(a). Thus, the president can deny immigration to anyone who professes to support Sharia law, or any other religion-based set of law, to the detriment of the enforcement of the Constitution. However, this would not necessarily work to bar all Muslims from immigrating to the United States.

3. Require All Muslim Americans to Carry Special Identification Cards and Be Registered on a National Database

Donald Trump has yet to clarify if his mandatory database for Muslims would involve self-registration or if it would be compiled in the same manner that the no-fly list is assembled, through the suggestion of others based on information gathered about the people on the list. The government has enacted self-registration policies before, where people register with the government for a certain purpose. The most infamous of these registrations have been the Communist registration during the “Red Scare” and the registration that preceded the American internment camps of the 1940s.

However, only mandatory self-registration policies based on race, national origin, familial status, and economic status have been held to be legal. Conversely, the Supreme Court of the United States held in United States v. Robel that mandatory self-registration for ideological purposes is a violation of freedom of association. Thus, mandatory self-registration for religion would likely also be found to be illegal.

Although the ACLU is currently challenging certain aspects of the no-fly list and other, similar databases, this type of surveillance database is legal. Thus, Donald Trump could choose to focus efforts on compiling a list of all Americans who attend Islamic religious services and/or profess to be a Muslim. However, there would not be any actual registration involved.

Requiring all Muslims to carry special identification cards would likely be unconstitutional under United States v. Robel. The issuance of such cards would likely require self-registration, which is unconstitutional.

4. Expand the New York Police Department’s Muslim Surveillance Program to the Whole Country, and Permit Warrantless Searches of Mosques

Donald Trump has expressed his desire to expand the surveillance tactics used by the New York Police Department (NYPD) on Muslims living in New York and New Jersey to be used on all Muslim Americans. These tactics included having plainclothes cops monitoring buildings at all hours of the day and infiltrating student organizations for the sole purpose of gathering information on all members of those organizations. The exact tactics appear to be perfectly legal, and even commonplace, on the surface. However, the legality of the NYPD’s extensive surveillance of people just based on their faith is currently being challenged in the federal courts. Until that case is determined, it is unknown whether or not Donald Trump would be able to legally expand their tactics to the whole of the United States.

Warrantless searches of buildings are only permitted in two instances: in the case of exigent circumstances and in order to secure the area in which the police are attempting to arrest a suspect. Exigent circumstances prompting a warrantless search only exist when evidence may be easily destroyed by the time a search warrant is issued. It is unforeseeable that exigent circumstances would be commonplace in mosques to allow for the warrantless searches that Donald Trump seems to want.

As for a search of the area while arresting someone, this is a very limited search that would not permit for a thorough search of a whole building, which is what Donald Trump appears to be after when he refers to searching a mosque. Any other kind of warrantless search is prohibited by the Fourth Amendment. That is not to say that such a search will never be permitted, as the ban on such searches may be ignored if the political climate is right. After all, Congress famously suspended habeas corpus, which is the right to challenge unlawful imprisonment, during the Civil War.

5. Deporting Syrian Refugees Who Have Entered under Obama’s Presidency

As president, Donald Trump may be able to seek the deportation of some of the Syrian refugees under the Smith Act, which permits the deportation of immigrants who are or have been affiliated with organizations that advocate the overthrow of the American government. Thus, so long as a Syrian refugee had actually belonged to Daesh, also known as IS or ISIS, or provided support to Daesh at some point prior to fleeing Syria, they could be deported in accordance with the Smith Act. However, such a deportation scheme would involve a lot of work, as the government would need to provide evidence showing that the involvement was more than just merely cooperating with Daesh in an effort just to survive or being sympathetic to Daesh’s cause.

Alternatively, Donald Trump’s administration could refuse to grant permanent resident status to Syrian refugees, deny renewal for any visas that were granted to the refugees, and then deport them for overstaying expired visas. However, as some Syrian refugees have been here for more than a year and are already able to apply for permanent residency, this plan may not work for all of the refugees.

As one can see, not all of Donald Trump’s presidential goals could actually be achieved. However, there are a surprising number of ways that some of his plans could actually be deemed to be completely legal, supported by both the Constitution and judicial decisions. It certainly serves as food for thought going into the 2016 presidential race.

 



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