Archive for the 'Lawyers' Category

Tragedy Sparks Gun-Control Policy Change for Government’s No Fly List

It’s no surprise that the tragedy of the recent Orlando massacre sparks yet another heated political debate on our country’s gun-control policy. If you’ve been following recent news, presidential candidates have both introduced new gun-control measures they believe will solve this country’s mass casualty problem at the hands of gun use.

Presidential candidate Hillary Clinton plans to strengthen background checks for those trying to purchase a gun, while Presidential candidate Donald Trump is generally against any major gun control policy change. One thing both candidates have seemed to agree on since the news of the Orlando tragedy is that no one on the government’s “No Fly List” should not be allowed to purchase a gun.  This has sparked an even bigger debate about whether enforcing stricter gun-control measures against those on the no-fly lists is even constitutional to begin with.

The National Rifle Association (NRA) believes, “Restrictions like bans on gun purchases by people on ‘watch lists’ are ineffective, unconstitutional, or both.” The American Civil Liberties Union (ACLU) has expressed a similar position in that the current issues with the no-fly lists should be fixed before restricting gun rights.

According to the group’s National Security Project Director, “The standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error…” The group hopes to help implement change to allow those on the list a proper means to challenge their placement on the list because of the significant consequences it can have on an individual’s life.

If You’re On the List, You Won’t Be Getting In or Out of the Country

The No Fly List prohibits individuals on the list from boarding any commercial aircrafts for travel in or out of the United States; it was created after the attacks on 9/11 to prevent specific known or suspected terrorist threats. TSA Security

Obviously the easiest way to end up on the list is to be suspected of direct terrorist activity. How the government determines you to be a suspect of terrorist activity is unclear.  Reportedly anyone arrested or convicted for acts of terrorism, bombers, hostage takers, assassins, and associates of terror groups are among the list.  Frequent travel to certain countries will likely get you on the list as well.

Many critics argue non-violent political activists or social media users can get put on the list for things they say that the government deems worrisome. Others argue they were put on the list because they refused to be informants for the government.

Clerical errors are another way to get on the list; either by having a similar name or someone making a mistake when adding a name to the list. Those with warrants out for their arrest or suspicions of other criminal activity unrelated to terrorism have been known to be on the list as well.

Possible Due Process and Civil Liberties Violations

Scrutiny of the list began early on because no one really knows the exact process the government uses to add people to the list. The government maintains secrecy is necessary for national security. It definitely makes sense that a level of secrecy is needed, as you don’t want potential terrorists to be tipped off, but it’s a fine line to draw between national security and constitutional due process protections.

In 2005, TSA officials stated that at least 30,000 people had complained that their names were on the list and were only matched within the system because their names were an exact match to someone else. Passengers are not told when they book a ticket that their name has been flagged and don’t usually find out about it until they go to check in the day of their flight. Once they arrive and are told they can’t fly due to being on the list, they’re not going anywhere unless they can differentiate themselves and this leads to missed flights and a denial of boarding access all together.

Obviously that’s a problem when a person that isn’t supposed to be on the list has a name that matches someone else. With such secrecy about the list, it’s hard to determine whether due process rights are being protected and whether the government is providing the proper means to get off the list if wrongfully put on it.

Getting Off the List Isn’t Easy

Critics argue it’s nearly impossible to get off the list once you’re on it. There is a procedure available for travelers who are delayed or denied boarding an aircraft. Travelers can complete an online application at the Department of Homeland Security website, which requires several identifying documents. Once reviewed, the traveler will be notified via letter whether any corrections of data information have been changed, but it doesn’t typically take a traveler’s name off the list and doesn’t usually provide a wealth of information.

It’s a process and definitely not an easy one. It’s a major problem because travelers aren’t always told why they’re on the list, the reasons they’re barred from travel, or given a chance to challenge the findings that put them on the list in the first place.

Can You Be Fired for Being “Too Cute?”

It sounds like a plot to a bad TV show, but for one woman in New York City, it was the reason she was fired from her job. Dilek Edwards was a yoga instructor and massage therapist for a chiropractor. Edwards stated that her relationship with her former boss was completely professional. She met his wife, Adams, also the co-owner of his practice, after a year and a half in her position. Her boss mentioned that his wife thinks Edwards is “too cute” for the job.

Over a year later, Adams fired Edwards through text message. In the message, Adams added that Edwards should stay away from her husband and family. It is easy to argue that Edwards was fired due to her attractive appearance. Most people can agree that it is unfair to be fired from your job due to how attractive you are to your boss.

But was it discriminatory? What was Edwards’ claim against her employer for wrongful termination?

“Attractive Females are Not a Protected Class Under Anti-Discrimination Laws.”

Discrimination laws tend to be controlled by the federal government. However, individual states may add state laws, so long as they do not conflict with federal regulation. New York State added protection for groups not protected under the federal law. Under both New York and the federal law, neither has specified protection for individuals due to an attractive appearance. In Edwards’ case, her claim went before the state court. Sexual Harassment

Edwards argued that her claim is based on gender discrimination. She claimed was fired due to her “gender identity, self-image, appearance, behavior or expression.” But the court disagreed. Instead, they found that gender discrimination protection only applies to individuals discriminated due to gender identity or transgender issues. Whether an employer found an employee appealing is not part of gender discrimination.

The court determined that attractive persons are not considered a protected class, so Edwards has no legal claim against her former employer.

Similar cases were brought to state courts across the nation. So far, every outcome has rejected the concept of creating a protected class for attractive persons. If there are some instances of discrimination, why shouldn’t they be protected?

A Class is Protected Due to Inherent and Persistent Disadvantages

The outcome of Edwards’ claim does not sit well with most people. The idea that a person can be fired or discriminated against due to something out of their control seems to be the very backbone of anti-discrimination laws. But at the same time, the idea that being too attractive means you deserve special protection does not sit well with many people.

We live in a world where being attractive is often an advantage. The logic behind anti-discrimination protection is that certain groups of people face regular discrimination due to belonging to that group. It does not seem like attractive people fit the need for class protection.

Also, the protected classes are protected due to an immutable characteristic (except for religion). A person born in a different country cannot change the fact they were born in that country. It’s also not something that can be debated or be something else. A woman born in Australia cannot be interpreted to be born elsewhere. In contrast, attractiveness is mostly subjective and whether one is attractive often differs from person to person. While society may have some sort of standard, it always falls to the perceiver to determine if the other person is attractive.

What will always set attractive persons apart from the protected classes is that it is tends to be a positive quality. Studies show that attractive people are paid more, are considered more persuasive, more trustworthy, and are more likable. While these may seem to be trivial qualities, these are qualities that almost none of the protected classes can share.

So Where Do We Go From Here?

At the moment, the legal system’s definition of gender discrimination is expanding. It has only been recently applied to individuals dealing with gender identity issues or are transsexual. Before, it was applied to heterosexual men or women who faced discriminated due to their gender.

However, for all of the above reasons, it is very unlikely that attractive persons will become a protected class. They faced discrimination due to the insecurities of a small number of people, not because their attraction limits their ability to enjoy and progress through life. Things may change over time, but due to the way society can overly favor an attractive individual, it is unlikely that attractive people can become a protected class.

Is It Necessary to Create User Friendly Websites for Americans with Disabilities?

When people think of Americans with Disabilities Act (ADA) compliance, they typically think of a building with ramps to make it easier for wheelchair-bound individuals to access a particular building, or widening doorways to accommodate wheelchairs. But now, real estate professionals are faced with the task of updating their websites to make them user friendly to those with disabilities.

In today’s market, so much commerce is being conducted online. An estimated 48.9 million Americans are disabled. Given the amount of disabled people in America, many courts are finding that websites must be accessible to those with visual disabilities and other impairments. These findings are requiring many real estate brokerages and association websites to completely revamp their websites.

What is the American with Disabilities Act?

The Americans with Disabilities Act (ADA) became law in 1990. It is a civil rights law that prohibits discrimination in employment, transportation, public accommodation, communications, and governmental activities of individuals with disabilities. The purpose of the Act is to ensure people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life. Laptop

One must have a recognized disability in order to be protected by the ADA. A disability is defined as a physical or mental impairment that substantially limits one or more major life activities. A person who has a history or record of impairment or one who is perceived by others to be impaired is also covered by the ADA. The ADA does not have an exhaustive list of disabilities that are covered. However, cerebral palsy, cancer, heart disease, mental retardation, and emotional illness are all considered disabilities covered by the ADA.

Does the ADA Have Any Regulations on Online Content?

The short answer is “no,” mainly because the ADA was passed in 1990, which predates the widespread use of the internet. Since there are no clear regulations requiring online accommodations for individuals with disabilities pursuant to the ADA, consumers and businesses look to the courts to determine the answer. In general, courts are split on the question of whether businesses are required to create an accessible website to individuals with disabilities. Nevertheless, there has been an accumulation of case law which asserts accommodations must be made.

Further, the U.S. Justice Department, which enforces the Act, has indicated it is only a matter of time before a clear mandate of web accessibility under the ADA will be issued.

How Do I Make My Website Accessible to People with Disabilities?

If you want to make sure your website is ADA accessible now, there are several things you can do. If you have someone developing the content of your website, contact your website provider and inquire about the accessibility of your website. Ask your website provider if they are doing anything to create or improve accessibility to disabled individuals.

If you operate your own website, consult a website technician who has experience creating or improving accessibility on websites. This would include creating more alternative texts accompanying images, transcripts for audiovisual content, descriptive links and resizable text, and voice-overs that read text aloud, among various other features. Such features would allow handicapped individuals to shop for absorb content like viewers without such handicaps.

Was Brock Turner’s Sentence a Slap on the Wrist?

On June 2nd, Santa Clara Superior Court Judge Aaron Persky sentenced former Stanford University athlete Brock Turner to six months in jail and three years of probation after Turner was convicted of sexually assaulting an unconscious woman behind a dumpster.

Turner’s seemingly light sentence sparked nationwide outrage, with a petition on change.org demanding Persky’s resignation getting more than 1 million signatures. Critics allege that Turner would have been punished more harshly if he hadn’t been a white, celebrated Stanford athlete from a relatively privileged background.

Many questions remain in the wake of Turner’s sentencing. For one thing, what could Judge Persky’s rationale have been for giving Turner what some have called a slap on the wrist? Also, what is the expected sentence in sexual assault cases like Turner’s? And did the judge make a horrible mistake in how he punished Turner?

The Rationale Behind Judge Perskys Sentence

Although Brock Turner has been labeled by many as a rapist, this is not, in California and in many other states, technically the case. Under California law, rape is defined as “an act of sexual intercourse” while a victim is unconscious or incapable of giving consent.

In other words, because Brock Turner did not penetrate the victim with his penis, he cannot legally be considered to have raped her. This legal distinction between rape and sexual assault caused the two most serious charges leveled against Turner—rape of an intoxicated person and rape of an unconscious person—to be dropped. This is a factor that (most likely) spared him a harsher sentence. Brock Turner

Instead of rape, a jury convicted Turner of assault with the intent to commit rape of an unconscious person; sexual penetration of an unconscious person; and sexual penetration of an unconscious person—all felonies. While Turner faced a maximum penalty of 14 years in prison, prosecutors recommended that Judge Persky impose a six-year prison term.

Judge Persky instead sentenced Turner to six months in county jail and three years’ probation, and required that Turner register as a sex offender. When announcing Turner’s sentence, Judge Persky cited the defendant’s youth as well as lack of a prior criminal history as mitigating factors. Persky also stated that he believed a prison sentence would have a “severe impact” on the defendant and that he did not believe Turner would be a danger to others.

Critics noted the similarities between Persky and the defendant’s backgrounds —like Turner, Persky attended Stanford, where he played lacrosse. However, it is important to keep in mind that Santa Clara County’s probation department also supported a “moderate” jail sentence for Turner. In their recommendation to the judge, the probation department mentioned Turner’s lack of a criminal history as well as their belief that his high intoxication level during the sexual assault reduced the seriousness of his crime.

What Penalties Have Others Charged With Sexual Assault Received?

Legal experts around America expressed disbelief at the sentence handed down to Brock Turner. Sex crimes prosecutor Dmitry Gorin told the Los Angeles Times that he could not think of a similar case in his area where a defendant convicted by a jury of a violent crime avoided prison. He stated that it is very unusual for someone convicted of such a crime to receive probation.

Information comparing how Turner’s sentence compares to the sentences of others convicted of sexual assault is hard to come by. Although a 1997 Bureau of Justice Statistics report said that the average sexual assault prison sentence was 6 1/2 years with three years served, Ohio State University Professor Douglas Berman said that a lack of data on sexual assault sentencing makes it hard to judge the relative severity of Turner’s sentence.

So Did Judge Persky Make The Wrong Decision?

Not everyone thinks the sentence Judge Persky imposed on Turner is too lenient. Santa Clara County public defender Sajid Khan told CBSNEWS.com that he doubts Turner’s race and affluence influenced Judge Persky’s sentence. Khan stated that no one has been able to give an example of a case in which a minority defendant received a harsher sentence than Brock Turner after being convicted of a similar crime. Khan pointed out that, regardless of the length of Turner’s time in custody, he will have to register as a sex offender and will be labeled a felon for life.

Although much of the public discourse surrounding Brock Turner’s sentence has failed to discuss how he must register as a sex offender, registration is not something to be taken lightly. Restrictive registration laws make it almost impossible for those on the sex offender registry to find or keep jobs and housing. It is almost certain that Brock Turner’s life will never reach its former potential just because he has to register as a sex offender.

However, any thought that a few months in jail, probation and having to register as a sex offender are punishment enough for Brock Turner disappears when you consider that he has not, to this day, acknowledged sexually assaulting his victim. During his sentencing, Turner told the court: “For anybody’s life to be impacted by my actions…makes me want to live the rest of my life to change it.” This vague statement about “anybody’s life” fails to make any mention of Turner’s victim and the irrevocable harm he has caused her.

Strangely, Judge Persky admitted in court that Turner may never acknowledge that he sexually assaulted his victim—“I don’t think that bridge will ever be crossed,” Persky said. It is troubling to think the judge believes someone as dishonest as Brock Turner is really not a danger to others. It seems that in the case of Brock Turner, the wrong sentence was indeed given.

Is a Parrot’s Testimony Admissible in Court?

Parrots are a lot more than just loyal companions. Relatives of Martin Duram, who was murdered in May 2015, are hoping that Martin’s African grey parrot can provide pivotal testimony. Martin’s wife, Glenna Duram, is a suspect in his murder.

The African grey parrot, named Bud, belonged to the deceased. In a chilling video taken several weeks after Martin’s murder, Bud was caught saying, “shut up,” then mimicking a female voice. Bud then exclaims, “don’t f*cking shoot.” Bird experts claim African grey parrots are known for mimicking voices, both male and female, and believe Bud was reciting an argument between a man and woman he heard recently. Could Bud be mimicking an argument between Martin and Glenna Duram moments before Martin died?

That’s what Martin’s parents believe. Glenna was found with a bullet wound to the head but still alive. The family believes Glenna murdered Martin and then attempted to commit suicide.

While the video does appear to be convincing evidence that Bud was “parroting” an argument he recently heard, is the bird’s recitation admissible evidence?

Animals as Witnesses in the United States

The United States legal system allows witnesses to testify in court during the trial of a suspected criminal. In general, a witness is someone who has, claims to have, or is believed to have, relevant knowledge to an event or other matter of interest. African Grey Parrot

There are several different types of witnesses. A percipient or eyewitness testifies as to what he or she perceived through the senses (i.e. seeing, hearing, smelling, or touching). Expert witnesses are people who have superior knowledge to the average person as to a specific topic for which he or she will testify. Doctors, for example, are considered expert witnesses. Character witnesses vouch under oath as to the good reputation of another person.

In addition, all witnesses must swear under oath that their testimony is true and accurate. Further, both the defense and prosecution must be given the opportunity to ask the witness questions relating to his or her statements.

In this case, Bud would be considered an eyewitness. However, he could not swear as to the veracity of his testimony. There is also no ability to cross-examine a parrot, or ask them any questions as to what they actually saw. Any testimony by an animal would call into question the truthfulness of the statements. When the words of Bud are weighed against Glenna Duram, who swears she didn’t kill her husband, a court of law would not allow Bud’s testimony.

Moreover, there is no case precedent allowing any animal, including parrots, to be witnesses in a trial. As such, any evidence they may provide would be inadmissible.

Animals as Witnesses in the United Kingdom

While it appears that the U.S. has a strict restriction on animals as witnesses, the U.K. is more open to the idea. In 2008, a dog named “Scooby” became the first animal in the world to appear as a witness in a murder trial. Scooby was believed to have been with his owner when she was found hanging from the ceilings in her home in Paris. Police thought it was a suicide, but the woman’s family demanded a murder investigation.

During a preliminary hearing, her faithful dog was led into the witness box by a veterinarian to see how it reacted to a specific suspect. When the dog saw a particular suspect, the dog barked furiously. The purpose of the preliminary hearing was to determine whether the dog’s “testimony” was sufficient evidence to launch a full murder investigation. Ultimately, the French judge concluded that Scooby’s barking was inconclusive.



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