Archive for the 'Lawsuit' Category

DAPL: Protest Camp Burned to the Ground, What’s Next?

A few weeks back, heavily armed and outfitted police took the final steps in clearing out the camp which has housed Dakota Access Pipeline (DAPL) protesters for over a year; carrying out a raid removing the last of the peaceful protesters from a burnt down camp

The protest has, from start to finish, been totally peaceful on the part of demonstrators, however the final raid is just one of many intense and heavily armed encounters between the protesters and police or DAPL security personnel.  While in the immediate wake of the raid many thought the police themselves burnt down the camps, it has surfaced that the reality of the situation is that the demonstrators themselves held a ceremony in which they burned down their tents in order to not see them destroyed by others.

North Dakota Gov. Doug Burgum had set a final date by which all protesters needed to leave the camp or face arrest.  Those who left prior to this cutoff date were told that they would not face arrest and would be provided with vouchers for buses and lodgings away from the camp.  While the camp had once housed as many as 10,000 people, when the Gov. set his cutoff date only that number had substantially diminished.  The majority of the remaining protesters had left the camp after the ceremonial fires the day of the cutoff, marching out arm in arm.  When the raid began, counts left those remaining between forty and a hundred demonstrators.  The police moved in on these remaining few the day after the cutoff, February 23rd, and arrested dozens of people with at least one recorded arrest appearing to seriously injure a peaceful protester.

DAPL

This raid has come less than a month after President Trump’s executive order reversing an Obama administration order to stop construction on the pipeline.  The Standing Rock Sioux had long argued that the pipeline violated their treaty rights by failing to properly consult them as to the construction of the DAPL through their ancestral lands–lands they had the right to protect under both previous court rulings and treaties between the tribe and the government.  They argued that the environmental impact of the pipeline would render much of the drinking water their tribe uses undrinkable.  There is some serious evidence to support their concerns, the original plan for the pipeline was changed to this new location through their lands after fears of pollution made the pipeline shift away from a populated city.  Just last December, there was big oil spill right by where the Standing Rock camp used to be with about 130,00 gallons of crude spilling into Ash Coulee Creek and yet more seeping into the surrounding hills to potentially contaminate ground water.  An investigation was unable to provide a reason why the spill occurred so no further action has been taken.

It was because of dangers like these that the Obama administration halted the construction for a much more thorough review of the potential environmental impact of the pipeline.  Trump’s order substantially truncated that review and ordered his agencies to approve the pipeline as quickly as possible.  So with Trump’s order and the camp burned to the ground, it is easy to look at the DAPL protests as a finished battle.  However, while the camp the protesters stayed at might lay empty the struggle of the DAPL still has a number of battles still ongoing in the courts.

The Ongoing Legal Battles of the DAPL Protesters

First and foremost, the order of the Trump administration pushing through the DAPL is itself facing legal challenges from organizations supporting the DAPL protestors.  This action seeks to enforce the treaty rights discussed above and argues that the truncated approval process continues to violate these treaty rights.  This lawsuit will be the forefront of the efforts to halt work on the DAPL.  However, it is far from the only ongoing legal battle stemming from the DAPL and the actions of the government.

Lawsuits have also cropped up, some months back over excessive force on the part of the police and DAPL security in how they’ve dealt with otherwise peaceful protesters.  Most have seen the videos of high-power hoses, dogs, and pepper spray used on non-resisting protesters.  As mentioned above, the most recent raid resulted in what appeared to be a serious hip injury to a protestor.  These ongoing lawsuits are based in a claim of excessive force, a cause of action which generally requires the plaintiff to show that the police used more force than was reasonably necessary.  A determination of how much force is necessary looks to many factors, such as the amount of force used, whether the force was used against an armed suspect, and whether the suspect was subdued prior to using the force.  Another element commonly looked to in these cases is whether the force was in line with police procedures for use of force.  Where it is, it can be very difficult to succeed in such a case.

The force used by police and DAPL security is often well documented through video evidence.  However, these type of cases hinge on the unreasonableness of the amount of force.  This can be very tricky to prove in court.  What’s more, while many criticize the arrests as a violation of the First Amendment right to assemble the legal reality is that, while the arrests certainly appear to use much more force than necessary for peaceful protestors, the right to assemble is not without some exceptions.  The government can put neutral restrictions (restrictions not targeting a specific group or viewpoint) on the time, place, and manner of assembly.  This often takes the form of permitting for protests.  Refusing to grant such a permit may be a violation of the right of free assembly, however the right does not grant as much protection to these unpermitted protesters as many seem to believe–regardless of how good their cause may be.

Finally, there are also lawsuits challenging the police use of warrants to seize and search the Facebook accounts of DAPL protest organizers.  These lawsuits hinge on the warrants violating constitutional protections by being too broad as to be permissible and chilling political speech.

Unforeseen Consequences of the Protests

While the legal battles in the court rages on, the protests will also have a lasting effect due to lawmakers around the country.  In an unfortunate turn of events the DAPL protests, along with the increasing number of protests around the country, have led to laws being passed making it harder to protest.

Just recently, we discussed a proposed Arizona law which would have allowed police to arrest peaceful protestors before any crimes were actually committed, target organizers specifically, and seize assets of those who had not even yet attended a protest.  Fortunately, this bill has since been discarded, but it is far from alone.  Ten different states have proposed legislation expanding the definition of protesting, making more elements of protesting illegal, and enforcing harsher punishments against protesters.  In North Dakota, where the DAPL protesters are based, bills have been passed making it illegal for a protestor to wear a mask (even to protect the face from the elements or pepper spray) and changing rioting from a misdemeanor to a serious felony carrying a penalty of a $20,000 fine and 10 years in prison.

There is very little more American than political protest, we owe the very seeds of our nation to it.  However, we unfortunately also owe our nation to lands taken unfairly from Native Americans.  This has led to the many court cases supporting the treaty rights and land rights of tribes such as the Standing Rock Sioux.  It is sad to see the response to their protests be so violent and end in flames.  They have many legal battles ahead of them, some with a better chance for success than others.  Hopefully, the results of these legal battles will be the ultimate legacy of the DAPL protests and not a perverse response to criminalize the very thing our country was founded on–political resistance.

Travel Ban 2.0: Trump’s Second Attempt to Ban Immigration

The initial executive order out of President Trump’s White House regarding limiting immigration to the U.S, widely known as the “Muslim Ban,” was an unmitigated disaster.  Rolled out overnight, the order caused chaos across the country as agencies tried to put the order’s new rule into force.  It also drew immediate legal challenges from numerous states, all challenging the order-in whole or in part-as unconstitutional.  Several of these legal challenges succeeded; most notably a challenge out of the state of Washington which culminated in a preliminary injunction–an order preventing the “Muslim Ban” from taking effect whatsoever until the Washington case is fully litigated.  In the face of court order saying that the order was most likely unconstitutional, and the fallout of the original implementation of the order, President Trump did something we perhaps should all have expected-he signed and put into force a nearly identical order.  On Monday, March 6th, President Trump issued an executive order titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into the United States.”

In the past we’ve already covered the effects of the ban, the constitutional problems intrinsic to the ban, the many lawsuits brought after the ban was passed, and the injunction which ultimately put an end to it.  So with that in mind, you’ve got to know that we’ve got some thoughts about Trump’s second iteration of the ban.  So without further ado, lets dive into it–the changes between this new order and the original order courts ruled to be likely unconstitutional, the chances that this order will stand, and the legal challenges the order already faces.

How is This Order Different From the One Courts Already Stopped?

travel banThe short answer, it isn’t very different.  The order still targets specific Muslim majority countries, barring immigration from those countries for 90 days. It also still cuts the number of refugees allowed to be admitted to the U.S. per year by more than half.  However, with this being said, there are some important changes in effect from the initial order–mostly designed to make the order appear more kosher to the courts.

The new version of the order has removed the indefinite ban on the U.S. taking in any refugees out of Syria.  Instead, the order includes a 120-day freeze on taking in those refugees.  However, the order also includes the ability to renew the ban for a longer period of time upon review.  It also doesn’t include any limits on the number of times the ban can be renewed, so in effect the ban could very well be indefinite.

The order also has removed Iraq from the original list of countries slapped with a 90-day immigration ban, leaving only the other 6 original countries.  The reason for this change is a request from the Defense Secretary, fearing that such a ban would injure the U.S.’ ongoing efforts to fight ISIS in Iraq.  The order doesn’t take a ban on immigration out of Iraq off the table though, threatening to put the country back on the list if Iraq’s  leaders don’t increase their amount of intelligence they share with the U.S.

The new crack at the ban also has eliminated language specifically offering preferential immigration status to “persecuted religious minorities.”  This was one of the most widely criticized elements of the order, both by the public and in legal challenges to the order.  The thought being that the provision was designed to favor other religious groups over Muslims.

As opposed to the frenetic same-day introduction of the last immigration ban, the Trump administration has allowed for a slower implementation and time to prepare for implementation.  The ban only goes into effect ten days after its signing–March 16.

The order has a number of other changes.  The order includes specific details about why the six countries hit with the 90-day ban were selected; presumably to strengthen the order against the many legal challenges saying the order was targeting countries based on their Muslim majority.  The order focuses its details sections on the statistics regarding terrorism for each country selected.  The order also no longer affects current visa holders or refugees already granted asylum.

So you’ve likely noticed that these changes are, intentionally, targeted at trying to make the order stand up to the scrutiny of the courts.  In order to determine whether it has succeeded, let’s look at why the last order got hit with an injunction.

Why Was the Last Order Blocked?

Since we’ve covered this issue in previous articles, we’ll keep the discussion of why the last order couldn’t pass constitutional muster on the short side.

A preliminary injunction is granted where the party seeking it can show that they are likely to succeed in their arguments, there would be irreparable harm if the thing they seek to stop isn’t stopped immediately, there isn’t a public interest against granting an injunction, and the party seeking the injunction will be more harmed by what they seek to stop than the party you’re bringing the injunction against will be harmed by the injunction itself.  In the case brought by Washington, the court ruled that they were likely to succeed in their arguments that the immigration ban unconstitutionally singled out targets based on religion or national origin–in other words the order discriminated likely discriminated against protected classes.

Will the New Order Stand Up in Court?

The White House certainly believes its changes, although extremely minor in practice, are enough to allow the order to pass muster.  In fact, the Department of Justice has already filed briefs saying that the revisions have rendered all the legal cases regarding the first order moot.  In other words, the injunction has no further effect and the new order must be challenged or not on its own merits.

However, as of March 9th, Washington state lawyers have taken the stance that the changes are so minor as to amount to essentially putting lipstick on a pig.  They argue that the prejudicial purpose behind the order remains and its most offensive portions are essentially untouched.  For this reason, they’ve asked the federal judge who placed the preliminary injunction on the original order to expand his order to cover the “Muslim Ban 2.0.”  A similar attempt to challenge the ban has been brought by Minnesota and Hawaii.  The Attorney Generals for Massachusetts, New York, and Oregon have all made it known that they intend to join in on the challenges brought by Hawaii, Minnesota and Washington.

So will the new and improved “Muslim Ban” stand up?  We’ll have to see how the courts rule.  However, the order has changed very little in actual effect.  It still targets specific nationalities in almost exactly the same manner and it still exclusively targets Muslim majority countries.  The same reasons it was likely unconstitutional before are all still there.  Even if the order itself has removed some of the language making obvious attempts to target Muslims and provided an alternate explanation, Trump’s own statements on immigration and the previous order still can be used as evidence of the discriminatory purpose to the new order.

Nothing in law is ever truly certain, but the definition of insanity is doing the same thing and expecting different results.  The new ban is very similar to the previous order, it seems unlikely that it will pass constitutional muster with such minimal changes.

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No Charges for Off-Duty Police Officer Who Fired Sidearm in Dispute with Teenager

An off-duty Los Angeles police officer fired his gun at the ground during an altercation with teenagers.

Off-Duty Police OfficerThe initial confrontation was part of an ongoing dispute with several juveniles who walked across the officer’s lawn. The dispute escalated one afternoon into a full blown confrontation between one teen in particular and the off-duty police officer.

According to the officer’s account of what happened, the teen said he would shoot the officer. While the juvenile tried to walk away, the officer physically detained the boy while the officer waited for police. At this point, several other teenagers joined in. Two juveniles knocked the officer to the ground, and when a group began surrounding the officer, he withdrew his gun and fired a shot at the ground. No one was injured but the altercation was caught on cell phone footage.

Criminal Charges against the Juveniles

The 13-year-old boy who had the initial confrontation with the off-duty police officer was arrested but released after being booked. He was charged with criminal threats and battery. His 15-year-old friend who engaged in the altercation was also arrested on suspicion of assault and battery but was released to his parents.

Criminal Charges Defined

In California, the crime of criminal threats is defined as putting someone in fear. In this case, the 13-year-old was charged for criminal threats because the officer and several eyewitnesses, many of whom were teenagers themselves, corroborated the officer’s story that the teen threatened to shoot the officer.

Assault is found when a person threatens bodily harm and creates a fear of harm in another person. It’s a common misconception that it must also be accompanied by some sort of touching. It does not, so words alone can constitute assault if it could reasonably create a fear of harm. However, in criminal law, it’s often coupled with battery.

Battery is offensive physical contact with another person, either with or without consent. You will notice that while battery has a touching element, assault does not.

Possible Charges against the Officer

A lot depends on what the officer said and did. From the camera footage and by his own account, we see that he was grabbing the 13-year-old teen. Based on the touching alone, he could have been charged with battery. If he also accompanied his touching with threats against the teen, he could have also been charged with assault.

False imprisonment occurs when a person is restricted in his or her movement without legal authority or justification. Here, the officer held the teenager down, but it appears he had valid justification – he was containing the boy until police arrived. He wouldn’t have been charged with false imprisonment.

Nor would he have been charged with excessive force by a police officer. An officer’s force is “excessive” if it results in serious injury or even death while arresting a suspect. Excessive force is only found when an officer is acting in his or her capacity as a law enforcer. The officer in this case was acting as an off-duty private citizen.

Why Wasn’t the Officer Charged?

To put it simply, there wasn’t enough evidence to charge him with a crime. After the fact, it is easy to say that he shouldn’t have drawn his gun, especially when he’s a grown man involved in a confrontation with a 13-year-old boy over something as inconsequential as crossing his lawn. The officer is bigger, stronger, and older. The juvenile did not appear to be armed. Nevertheless, eyewitness reports demonstrate the teenager said repeatedly he was going to shoot the officer. Camera footage also shows the officer being tackled by two teenage boys. The threats of violence coupled with being tackled to the ground reasonably made the officer feel threatened.

A person has a right to defend him or her self – known as self-defense – meaning they can use reasonable force to protect oneself. Not everyone carries a gun, and certainly it wouldn’t be the first mode of defense for most people, but the officer didn’t shoot at anyone and thankfully no one was hurt. Whether the force he used to protect himself was reasonable is really subjective.

Right or wrong, the officer wasn’t charged, but the potential reprimand from his job and fallout in his community may just be punishment enough.

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Uber is Under Fire, Again, for Sexual Harassment

Uber, the online transportation company whose app allows its users to hire private drivers, is making headlines again. About a month ago, angry customers began tweeting the #DeleteUber hashtag after Uber decided to suspend surge pricing during a taxi strike at JFK airport in protest of President Trump’s immigration ban. Customers accused Uber of strikebreaking and taking advantage of the immigration ban in order to promote itself.

The #DeleteUber hashtag has again appeared on social media following a claim of sexual harassment by a former employee.  Susan J. Fowler, a former Uber engineer, released an essay reflecting on her two year employment. She described it as “a strange, fascinating, and slightly horrifying story,” recounting a time when a manager propositioned her for sex.

Uber’s Response to Sexual Harassment Allegations

UberFowler claims that she complained to Human Resources about her manager’s request for a sexual relationship. In response, H.R. told Fowler that this was his first offense and that they were not going to reprimand him for his behavior. Instead, they made Fowler feel like she was in the wrong and encouraged her to transfer to a new team or risk getting a bad review from her manager. Feeling like she had no other choice, she ultimately transferred teams. Fowler later discovered the manager had propositioned several female Uber employees for sex and H.R. turned a blind eye to his behavior because he was a “top performer”.

In response to Fowler’s essay, Uber CEO Travis Kalanick has hired two attorneys to independently investigate the accusation.

What is Sexual Harassment?

Sexual harassment is a type of employment discrimination consisting of unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

There are two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when a supervisor or an authority figure requests sex, sexual favors or a sexual relationship in exchange for either not firing or punishing the employee or in exchange for favors, such as a promotion or raise.

Hostile work environment harassment occurs when there are frequent or pervasive unwanted sexual advances, comments or requests. It can also occur when there is other verbal or physical behavior, like sexual jokes, displaying inappropriate offensive material (such as watching porn on your computer screen in the workplace), or persistent unwanted interactions, such as asking for dates continually.

Other Allegations of Sexual Harassment

According to Fowler’s essay, there were several female employees who complained that the same manager propositioned them for sex and when these women reported the behavior to H.R., they were told it was the manager’s first offense, just like Fowler. Since Fowler’s essay surfaced, another female employee has come out and said her manager groped her breasts at a company retreat in Las Vegas. Other Uber female engineers have acknowledged that Uber has a systemic problem with sexism. There may be more stories of sexual harassment that have not been publicized due to fear of retaliation or non-disclosure clauses in their employment contracts.

Can Fowler Sue Uber for Sexual Harassment?

While Fowler certainly can sue Uber for sexual harassment, she is unlikely to prevail. Her essay recalls an instance where her superior requested she engage in a sexual relationship with him. The sexual conduct did not appear to be made a term or condition of her employment at Uber. Further, Fowler was neither promised a benefit if she acquiesced, nor threatened harm if she refused. For this reason, a claim of quid pro quo sexual harassment would not be found.

Neither would a court of law find Uber guilty of a hostile work environment. Fowler describes a single incident. One of the key elements of hostile work environment sexual harassment is that the conduct must be both severe and pervasive. In other words, the behavior must last over time, not just be a singular incident. It is important to note that the conduct must be pervasive with regard to a particular employee and continuous over time. Even though Fowler’s manager propositioned other women at Uber for sex, it is unclear whether he made sexual advances to any one employee more than once and over a long period of time. What we do know is Fowler was approached once. Without more evidence of continuous harassment, hostile work environment sexual harassment would not be found.

Transgender Rights are At Risk Under Trump

Through the Department of Justice, the Trump administration makes its priorities known by deciding what sort of cases to pursue and what cases, generally cases brought by states or private parties disputing the validity of federal laws or actions of the federal government, to defend against in court.  Up until about a week ago, the Department of Justice has been defending a case which had the potential to strengthen the protections against discrimination for transgender people–no more.

A few months before the end of his presidency, the Obama administration issued a statement to public schools that trans students were protected under federal civil rights law and that schools needed to let those students use bathrooms aligned with their gender identity.  Several states brought lawsuits over the statement, declaring it a misinterpretation of federal law.  Just recently, the Trump administration announced that the Department of Justice would be withdrawing from defending all these lawsuits.

Transgender Rights

This isn’t really a surprise, Trump called the Obama administration’s approach on trans rights overreach on the campaign trail and has certainly not made LGBT rights his priority.  However, the step certainly is a giant step backwards in terms of protecting the rights of trans people.  In order to understand the exact effect of the move, let’s look at exactly what the guidance from the Obama administration did and didn’t do, the effect these cases could of had if they had gone forward, and the effect of the Trump administration’s decision to withdraw altogether from

Effects of the Obama Administration’s Guidance

The Obama administration’s statements came a time when trans rights were squarely in the public eye–right on the tails of the Department of Justice and North Carolina initiating a lawsuit over a law out of North Dakota barring laws across the state protecting the LGBT community from discrimination.  This law was one of many along the same lines passed or moving forward through the country.  The Obama administrations goal was to combat laws allowing, or in North Carolina’s case enforcing, discrimination against the LGBT community

However, the guidance the Obama administration was just that-guidance.  It wasn’t a law, that would take an act of Congress.  It didn’t even have the legal force behind and executive order or presidential memorandum.  Instead, it was exclusively a change in policy on the part of the Department of Justice and the Department of Education.

However, calling it just a policy change belies the full effect of the statement.  The statement determined that it was the view of President Obama, and the agencies under his purview, that schools, sports teams, housing, school fraternities or sororities, and the like were all legally required to allow a transgender person to use a bathroom–or locker room–that aligned with their gender identity.  The statement based this conclusion on Title IX of the Education Amendments of 1972.  Title IX forbids schools from discriminating based on a student’s sex.  The statement determined that a student’s gender identity was their sex for purposes of sex discrimination.  Thus, it further argued that bans revolving around gender identity spring forth from expectations and stereotype of how somebody assigned a specific birth gender should behave and appear.

So basically, the statement said that, while schools could include things allowing additional privacy where transgender students were using a bathroom or changing room, outright denying them access to bathrooms or locker rooms of their actual gender identity was a violation of federal law.

So this wasn’t a law or an executive order, but it had a very definite legal effect.  By determining that such actions violated federal law, it would mean an end to federal funding to schools–and even states–which refused to follow the Obama administration’s guidance.  As you might imagine, the response in the courts from schools who refused to change their rules to follow the statement was basically immediate.  Lawsuits cropped up quickly, and a federal court in Texas even put a temporary injunction on the rule–preventing it from taking effect across the nation.

The Department of Justice has been defending these lawsuits, and their outcomes could have had serious, far-reaching results as legal precedent.  The same arguments made for how to approach gender in sex discrimination could have been extended to more housing rules, rights in the workplace, and other situations involving discrimination against transgender people.  However, with the Trump administration withdrawing from the defense of these lawsuits there is no real chance of this now.  Instead, the guidance itself will almost certainly–barring action by Congress or a future President–never take effect.  Any possible ripple effect, benefiting trans people throughout the United States of America, is put on hold at a minimum.

The Trump Administration’s Withdrawal and Similar Litigation Around the Country

As mentioned above, this withdrawal is not particularly surprising.  However, it is disappointing to the nearly one and half million transgender people in the U.S. who have seen a light of hope, with the potential of protecting their right to their gender identity, snuffed out.  Fortunately, these lawsuits weren’t the only litigation of their type going on around the country.  Unfortunately, it’s uncertain how long those lawsuits and policy changes will stay in play.

In the last few years, the Equal Employment Opportunity Commission (EEOC) has been hard at work trying to ensure the rights of the LGBT community in the workplace.  Using similar arguments to those in the Obama administrations statements, the EEOC has been involved in a few lawsuits asserting that sex discrimination protections incorporate protections based on sexual orientation and gender identity.

The EEOC announced just last week that they would continue to appeal a case of sex discrimination where a transgender funeral director was fired for refusing to comply with their employer’s sex specific dress code.  The EEOC asserted the arguments we’ve discussed above in support of the funeral director’s right to their gender identity, in response the funeral home based their defense on the Title VII exemption in the Religious Freedom Restoration Act (RFRA)–essentially arguing that they have genuinely held religious belief and Title VII anti-discrimination rules are substantially interfering  with their practice of that religion.  While the RFRA is, in much of the country, not allowed in cases brought by non-government entities, in an odd twist the fact that this case was brought by the EEOC allowed the defense.  The case itself includes some complicated and contentious areas of evolving law, from sex-based dress codes to the proper application of the RFRA in Title VII cases.  All of this could lead to huge strides when it comes to LGBT rights and clarifying the interaction of rights and workplace discrimination.  However, even this litigation may be short lived.   The EEOC have recently released a statement that their position on the case may change given the stances of AG Jeff Sessions and once General Counsel for the EEOC is confirmed.

The rights and protection of the LGBT community, and specifically transgender people, are more at risk then ever.  The courts are often where the most substantial changes in rights and protections come from and the Trump administration has shown that they will not stand up for the rights of LGBT citizens.  The sad truth is, if they continue as they have been, much of strides this country has taken in protecting right will have been for naught.