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Take Trump Tower

With President-Elect Trump using Trump Tower as his base of operations for his transition team, 5th Avenue in Manhattan is swamped by police, secret service, and security guards. If the rumors that Trump plans to spend weekends at Trump Tower are true, than New Yorkers could face diverted traffic, rerouted subways, and a no-fly zone over the city for the next four years. Security concerns are also abound, as having the President live in a skyscraper in the city will be a magnet for terrorists and madmen alike.

So far, New Yorkers have had to contend themselves with protests and taking the Trump name off some buildings. However, there may be a legal option that New York could pursue that would save them from this nightmare: Take Trump Tower.

Eminent Domain

Eminent Domain should be a familiar term to the President-Elect. Mr. Trump has spent years abusing eminent domain, a process whereby government can seize private property for public use if the property owner is given just compensation. New York may have the opportunity to turn the tides on the alleged billionaire. 

Eminent domain requires that the government seize property for public use, such as a highway. New York requires a determination that a property is necessary for construction of a public improvement. Although the state could come up with a feasible “public improvement,”  like a public park or charity, here the mere act of taking the tower could also be considered a public use. Trump’s mere presence is congesting traffic and disrupting the local economy. Having Trump in New York on a regular schedule for the next four years would destroy any public use around Trump tower and potentially endanger the lives of many Americans.

Trump’s lawyers would likely argue that Trump is putting his tower to public use, as he is the President-Elect and running the nation. However, America already has a location for that kind of use: the White House. It would be a huge waste of money to maintain both the White House and Trump Tower as headquarters for the nation’s Executive branch.

Civil Asset Forfeiture

Civil Asset Forfeiture allows the government to take property from alleged criminals. In order for the government to seize property under civil asset forfeiture, the property has to be associated with the crime. This definition allows the government to bypass traditional criminal due process – the defendant need not be found guilty for the government to seize the property. States have often abused civil asset forfeiture to seize all kinds of property, including cash, cars, and even real estate.

New York is probing the Trump Foundation for fraud. If New York were to bring criminal charges against Mr. Trump, they could assert civil forfeiture over Trump Tower if the state could show that Trump ran his foundation from his tower.

Conflicts of Interest

If New York were to seriously threaten Trump Tower, the President-Elect would almost certainly take to Twitter to insult everyone involved. Republicans would no doubt accuse New York of harassing the President-Elect through shady legal avenues.

Trump and his supporters should ask themselves though, how is it that Trump is the first President who could have his property taken from him ? Although Trump’s property is more prominent than most – Trump loves to put his name on buildings in big gold letters – there is another reason. Unlike prior Presidents, the President-Elect has neglected to place his businesses into a blind trust. Instead, he’s letting his kids run his businesses.

This presents serious conflicts of interest. If Trump had to choose between defending America and defending his property, which would Trump choose? Trump properties are in many locations around the country, including California and New York. It would not be difficult for the states most opposed to Donald Trump to threaten to seize his properties if Trump tries to push policies that those states do not want.

If blue states in America can threaten Trump’s properties, what about Trump’s real estate abroad? If Trump’s property in Scotland or Dubai were threatened, would Trump threaten military action to save his businesses, even if his businesses have nothing to do with America’s interests?

Why the ACLU’s Fight Against Catholic Hospitals Will Fail

Recently, Catholic hospitals have come under fire when former female patients came forward claiming that they were denied important reproductive treatments and procedures. The American Civil Liberties Union (“ACLU”) came forward on their behalf and sued the Catholic health system for refusing to provide the necessary treatments, such as abortions. us supreme court

Yet every suit brought forward by the ACLU was dismissed by the courts. At the moment, no law can force or coerce a medical officer to perform a procedure that goes against their faith and conscience. In this case, the procedures are abortions and sterilization.

Why does the law protect medical personnel like this? Is there anything we can do to make sure female patients get their necessary medical treatment?

Constitution 101: Negative Rights and Positive Rights

To best understand the situation, it will help to have a brief overview of a special aspect of the Constitution. It is important to know that the Constitution is made up of positive rights and negative rights.

A positive right is when the government owes its citizens a right or an action, such as a right to an attorney in a criminal trial. In contrast, a negative right is when the government owes its citizens the duty of not acting, such as not suppressing speech or religion. In this case, doctors have the negative right of freedom from the government forcing them to perform abortions against their conscience and/or religion.

Why are the Courts Dismissing the ACLU’s Claims?

In 2015, the 6th circuit court of appeals dismissed the ACLU’s claims against a hospital. The claim was that the “Religious and Ethical Directive” made a physician deny “appropriate medical care” to a woman suffering from a natural miscarriage. The court dismissed the case for several reasons, but mainly because the court did not think they had jurisdiction over the issue since it concerns “ecclesiastical matters.”

The courts refuse to step in because they believe that the Catholic hospital system should have complete control over their services and operations. But, what if Catholic hospitals refuse to perform heart surgery or dialysis, a necessary treatment for people with diabetes? What if Catholic hospitals refuse to give what is considered to be a necessary treatment?

Medical Abortions are Not Considered to be Necessary Treatment

At the moment, the law thinks a medical abortion is not a necessary treatment for women. Even though medical organizations and groups recommend that a medical abortion should be performed once the patient begins to show signs of infection or excessive blood loss.

But anti-abortion groups still maintain that advances in science have made abortions unnecessary to save a woman’s life. A large part of our nation thinks abortion is not a medical procedure, but a moral evil that violates a sincerely held religious belief. Since our nation cannot decide if abortion can ever be necessary, it is not surprising that our legal system refuses to force physicians to perform it against their conscience.

There is a Lot to Do Before We Try to Make Catholic Hospitals Perform Necessary Abortions.

Right now, the ACLU’s efforts might be in vain. The legal system refuses to hear or decide on any issues they deem to be about religion, and abortion seems to remain a question of morality and not medicine. Until there is a change, it is unlikely that any of the ACLU’s lawsuits and claims on behalf of patients will succeed.

Given the political climate, it seems unlikely our nation will stop using abortion as a political platform. Until then, the ACLU’s efforts will keep bringing Catholic hospitals’ Ethical and Religious Directive into the spotlight and remind us that we have a long way to go.

Hyperlink Hysteria: When is Posting a Hyperlink Breaking the Law?

It’s no understatement to say that hyperlinks are essential to a functioning internet. You clicked one to get here and you’ll probably click plenty more today. However, under a new Court of Justice of the European Union (CJEU) ruling, posting the wrong link in the wrong way can get you in legal hot water.

The case pitted Playboy magazine against a Dutch company whose business and website involved posting links to unauthorized replications of stills from Playboy magazine. Playboy took issue with this and sued, arguing that posting these links infringed their copyrights in the photos.

In their recent explanation of their initial opinion from a few months back, the CJEU sided with Playboy and created brand new rules describing the situations where posting a hyperlink can get you in trouble in the EU.

The EU’s New Ruling

First and foremost, where freely available content is posted to the internet with the copyright owner’s consent there is never copyright infringement. However, when the link posted is to unauthorized material, access to which would otherwise be restricted, the situation changes.

Under the new rules, a person posting such a link is liable for copyright infringement in two situations. First, where the link was posted “in pursuit of financial gain,” there is a presumption that the person posting knew they were not authorized to post the link and guilty of copyright infringement unless they produce evidence to rebut that presumption. Second, where the link is not posted for financial gain but the poster knew or should have known that the content they linked to was illegally published the poster is also guilty of copyright infringement.

The CJEU found that the Dutch company, GS Media, had posted both for profit and with knowledge they were linking to unauthorized content. However, the court was notably sparse as to the details of what counted as “for profit.” This means that the law, while certainly a boon to content creators seeking to protect the works they put on the internet, leaves many businesses in lurch.

The presumption of copyright infringement, barring any other legal defense, is something quite uncommon in law. Does a poster have to profit from the link itself? Is it enough that the website with the link makes profit from additional web traffic? As it stands, those who directly profit from links by putting them behind a pay wall and small bloggers posting links on articles earning ad revenue could both be in the same copyright infringement boat.

What’s more, the CJEU ruling makes it clear that when a post is “for profit” the onus is on the poster to ensure the legality of anything they chose to link. This puts a pretty hefty burden on small bloggers who may not have the money or legal expertise to ensure that every link they post is above board.

As for here in the U.S. of A, this ruling is unlikely to impact the links you post on social media. However, businesses that operate internationally will have to be especially careful about what and how they post. The ruling will have a substantial effect on companies offering internet search engines, such as Google, because these companies must take extra steps to determine if their listed sites contain unauthorized material so as to avoid the effects of the infringement presumption. They also will need to deal with increased instances of demands from companies wanting them to delist links to websites that include infringing material.

EU Law Compared to US Law

These new developments abroad probably have you asking, how does U.S. law treat hyperlinks? Well, rest easy, your usual posts on Facebook are unlikely to get in trouble.  It is long settled U.S. case law that the mere posting of a link does not give rise to a direct copyright infringement claim without more. This being said, you can still commit infringement where—as in the EU—a link is posted either for profit or with knowledge of it connecting to infringing material.  However, these facts don’t create a presumption against you as they do in the EU.  Instead, they are relevant evidence in an alternative cause of action to direct infringement—contributory infringement. While in the EU these facts could now leave you on the backfoot in a claim against you, they are the bare minimum to a plaintiff establishing a claim here in the states.

In practice, unless the posting is en masse and coming from a known company with deep pockets, most links to infringing material are dealt with through the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The DMCA provides protection for websites which host content so long as they have a statutorily compliant takedown policy in place and respond appropriately to takedown requests—requests to remove infringing content from a hosting site—from content owners. This obviously doesn’t apply where the website itself is posting the infringing links, but when it comes to links posted by private parties the expense of litigation and difficulty of identifying the person behind the computer make it preferable for content creators to focus on taking down the infringing links.

The CJEU ruling has pushed the potential for copyright infringement through posting hyperlinks to unprecedented levels. Unless these changes make the unlikely jump across the pond, they will only really impact internationally operating business within the U.S.  However, it is still important to be careful what links you post—especially if you make any sort of profit off those posts.

Healthcare Providers Face Liability Over Transgender Issues

Healthcare providers are faced with new liability issues as transgender rights continue to expand. Lawsuits involving healthcare providers and transgender patients are popping up all over the country. Besides the normal patient/provider liability issues, these new issues, among others,  stem from discrimination, lack of knowledge surrounding proper treatment, and professional liability issues as medical providers.

In San Diego, a grieving mother is suing Rady’s Children’s Hospital after her son’s suicide, claiming medical personnel discriminated against her transgender son and violated federal and state gender discrimination laws.  After an incident involving transphobic harassment, Kyler Prescott, a 14-year old boy suffering from gender dysphoria, inflicted serious injuries upon himself.  It was at that point Kyler’s mother, Katherine Prescott admitted him to Rady for treatment.

While being treated at Rady, Prescott claims hospital staff repeatedly referred to her son as a girl, despite being aware that he was a transgender boy. Continual requests to refer to Kyler as a boy did nothing and, in her complaint, Prescott says one Rady employee even said to Kyler, “Honey, I would call you ‘he,’ but you’re such a pretty girl.”

The young boy was dealing with a high level of distress and anxiety over his gender dysphoria issues. Prescott alleges this only further traumatized Kyler and caused him to go “into a spiral,” effectively making his state much worse than when he first arrived for treatment.

She can back up her claims, too. If you’re not familiar with the term, gender dysphoria is a strong feeling that your body doesn’t reflect your true gender.  According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, if left untreated, gender dysphoria can lead to debilitating depression, diminishment of self-esteem, serious incidents of self-harm, and suicide.

Despite the recognition of Kyler’s serious mental health issues, including his suicidal ideation, Rady’s psychiatrist determined Kyler should be discharged early from his 72-hour stay due to the discrimination he was receiving. About five-weeks later, after describing his stay at Rady as “horrible,” Kyler committed suicide.

Is This a Case of Sex Discrimination?

The issue seems to stem from the provider’s inability to properly treat a transgender patient suffering from gender dysphoria rather than intended discrimination. It further boils down to the fact that Rady advertised and held themselves out as experts in treating transgender and gender nonconforming children and adolescents through its Gender Management Clinic.

Nonetheless, the issue of an actual intention to discriminate doesn’t matter here. Title IX and Title VII have been interpreted in federal courts to prohibit discrimination of transgender people and the regulations of the Affordable Care Act (ACA) specifically mandate providers covered under the ACA must “treat individuals consistent with their gender identity…” Further, the ACA defines discrimination as including a refusal to use names and pronouns correctly.  It doesn’t get much clearer than that.

So, yes, Prescott has standing against Rady. Even if you take out the fact that the provider misused gender pronouns, if Kyler was in fact released from care early simply to avoid further mistreatment, he plainly was denied equal treatment based on his sexual identity.

It’s Not Just Gender Insensitivity Issues Either

What happens when a transgender patient identifies themselves in one manner, but has yet to take measures to be identified in that manner legally? It’s an issue providers are finding themselves facing.

Patient misidentification isn’t unheard of and, just to name a few concerns, can affect drug administration, blood transfusions, and surgical interventions. Medical malpractice anyone?  When healthcare providers treat patients, there’s a strong emphasis on the responsibility to check and follow protocols when identifying patients and match those patients with the correct care.  These protocols include identifying patients by their legal name and using the same name throughout care.

Take, for example, a hypothetical transgender patient who identifies as a man and goes by the name of Joe, however, legally Joe is still identified as a female named Jill.  Is it discrimination for a healthcare provider to refer to Joe as Jill?

I imagine using legal names is okay so long as providers are using the correct pronouns, but even then that could get confusing for identification purposes. Perhaps the solution is to make notes on patient files that a patient prefers to be called by a certain name, just like back in school when your teacher would ask if you preferred to be called Will over William.  Even then, if providers continue to ignore requests, such as alleged in Kyler’s case, there’s definitely a wider net to cast a discrimination case.  It’s a slippery slope that the healthcare industry is going to have to navigate carefully.

Marijuana in the Workplace: Employee Protection as Legalization Spreads

This election has seen a huge boom in marijuana legalization. There are now 26 different states with marijuana legalized in some form or another. Of these states, eight have legalized recreational and medical use while the rest have restricted legalization to medical use.  In all these states, the legislature will have to deal with the unanswered question: how should marijuana be dealt with in the workplace?

Cases on the issue have already begun in many different contexts. Just recently the Massachusetts Superior Court addressed the issue of whether an employer needs to make accommodations due to disability for an employee’s medical marijuana use.  Massachusetts rules that despite the fact that the marijuana was prescribed to treat the employees Crohn’s disease, an employer is still under no obligation to accommodate such use.

This ruling is in line with a trend across the nation.  States are legalizing marijuana, but having difficulty in deciding how or whether to protect its use in an employment context. The approach has been different state to state—as it must be with marijuana illegal at a federal level—and has seen states dealing with employment issues from disability to off duty use, leading to adverse action to employment benefits to workers’ compensation.

Employees Treating Disabilities with Medical Marijuana

Massachusetts’ take on disability is not surprising. While the outer limits of employee protection based on disability is often determined by state law, the minimum protection is governed by the American’s with Disabilities Act (ADA).  The ADA is a federal act protecting against disability discrimination.  However, it explicitly does not it does not cover employees or applicants who engage in illegal use of drugs.  Since marijuana is federally illegal, this means that marijuana use cannot be a protected disability under the ADA. wellness programs

As mentioned above, states can expand their disability protections beyond the floor set by the ADA.  However, many states have not exactly been in a rush to do so when it comes to marijuana use.  Just like Massachusetts, Oregon courts have ruled that an employer need not make accommodations for medical marijuana use so long as it is federally illegal.  In California, the California Supreme Court ruled that employers have no need to accommodate medical marijuana use even when that use is off duty.  Although, it should be noted that this was decided prior to recreational legalization.

This being said, there have been other states that have passed laws protecting medical marijuana users as disabled. Arizona, Connecticut, Delaware, Illinois, Manie, Minnesota, and Nevada all have laws protecting employees who use medical marijuana against adverse action (firing, failure to hire, refusal of promotions, etc.) due to their disability.  The exact nature and scope of these rules varies state to state, but they all have the ultimate effect of protecting employees who use medical marijuana by placing some type of duty to accommodate that use on employers.

Punishing Off-Duty Use?

While disability laws deal with how an employer must deal with prescribed marijuana use, some states have dealt with off duty marijuana use in more broad strokes—deciding how marijuana use factors into a wrongful termination lawsuit.  Wrongful termination is any sort of firing which is contrary to law.  Disability discrimination can give rise to a wrongful termination lawsuit, but the cause of action is much broader than discrimination and includes basically any type of illegal firing.

The most famous of these cases occurred in Colorado after Dish Network fired an employee for off duty medical marijuana use. The firing took place before marijuana was made recreationally legal in the state, but the ruling occurred after this change.

The court ruled in favor of Dish Network. They decided that, despite Colorado law forbidding employers from firing an employee based on their legal off duty activities, an employer could freely fire an employee for off duty marijuana use so long as marijuana is federally illegal.  Thus, the employee was not wrongfully terminated. Similar rulings have been also been reached in Michigan and Washington.

Medical Marijuana Disqualifying Employees From Unemployment Benefits

Very few states have actually dealt with the issue of medical marijuana use and how it affects unemployment benefits.  Only two states have really dealt with the issue and they were unhelpful enough to come to opposite conclusions.

In Colorado, an employee fired for marijuana use—even if it is off duty prescribed medical marijuana use—is disqualified from unemployment benefits. Michigan, on the other hand, has determined that an employee cannot be disqualified from unemployment benefits for their lawful off duty marijuana use.

Workers Compensation and Cannabis

Much like unemployment benefits, rulings have been unfortunately sparse when it comes to workers’ compensation and medical marijuana. Workers compensation laws protect employers from liability in exchange for an agreement to pay for any injuries that take place in the workplace, regardless of cause.

Once again, the rulings have been contrary to one another depending on the state. Maine has ruled that workers’ compensation can’t require an employer to pay for medical marijuana prescribed as a result of a workplace injury.  New Mexico, however, has held that employers must pay for such treatment when it is prescribed.

Marijuana in Federal Workplaces

Even where marijuana has been legalized at a state level, many state employers may still be regulated by the federal Drug Free Workplace Act. This law requires all federal contractors and employers receiving federal grants to maintain a zero-tolerance policy towards any federally illegal drug use.

These workplaces may find themselves in a conflict between state and federal law. In these cases, federal law will generally win out.  What’s more, where a position is safety sensitive, employers may also choose to implement a zero-tolerance policy.  Safety sensitive is a very broad classification and such a classification, coupled with a zero-tolerance policy, will likely alter an employee’s rights under state law.

Complicated Cannabis: Evolving Law

The interactions between marijuana use and employment law are far from fixed and will continue to grow more complicated as the federal standing of marijuana forces all these interactions to be a question of state law. The states have already shown that they are far from in agreement as to how the issues should be approached and most states where marijuana is legalized in some form have not even begun to address these issues.

There are arguments on both sides for how the law should evolve. An employer would certainly not be criticized for firing an employee who showed up to work drunk. However, it would be a different matter if they fired that employee for drinking in their own home while off duty. While this is obviously not a perfect analogy, just as marijuana is not completely analogous to alcohol, it does highlight the question of whether how marijuana is viewed and treated on a legal level will change as recreational use becomes more widespread. Marijuana is now legal in more states than it is not, the law will have to scramble to keep up with the appropriate rights and duties of employers and employees.