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Can the Police Shoot Your Dog For Barking?

A federal court recently issued a ruling that has got the media in a frenzy.  Can police officers now shoot an animal for moving or barking when entering a home?  While the court ruling did order a police shooting of 2 in-home pets as justified, it doesn’t give the police a sweeping authority to shoot your dog.

Let’s Break It Down

The facts of this case are important to the ruling because the decision is based on the totality of the circumstances.  A warrant was issued out of a Michigan court that gave the Battle Creek Police Department (BCPD) permission to search a local residence, the owner a known gang affiliate, for drugs.

According to court documents, as officers began to execute the search warrant, officers noticed dogs “…barking aggressively, ‘digging and pawing,’ and ‘jumping’ at the window.”  An officer testified that upon entering the home, a 97-pound pit bull lunged at him and it was then that the officer fired his gun at the dog, only injuring it.   The dog retreated to the basement.

Police Shoots Barking DogThe officer further testified that he could not safely clear the resident’s basement because the already injured pit bull was standing at the bottom of the steps.  It was then the officer fired two fatal shots into the already injured dog.

The same officer additionally testified that the second pit bull was standing across the room and barking at the officers, so he fired shots at the second dog.  The dog ran to the corner of the room and caught the eye of a second officer, who then fired shots at the second dog.  An officer then testified that because the dog had several wounds, he “…‘didn’t want to see it suffer’ so he put her out of her misery and fired the last shot”.

Killing a Pet Constitutes a Seizure under 4th Amendment

Many courts have widely agreed that deadly force against a household pet constitutes a seizure.  We know that seizures are unconstitutional under the 4th Amendment if they’re unreasonable.  It’s also been established that killing a pet is reasonable only if the pet poses an imminent danger and force is unavoidable.

Hindsight is 20/20

Ever heard the expression “hindsight is 20/20”?  It’s easy for a person to see things that seem obvious after-the-fact, but it’s the circumstances before-the-fact that matter most when answering these kinds of questions.  Courts focus on the perspective of the officer on the scene and not the perspective of the perfect vision that hindsight offers.  It all comes down to whether or not the pet poses an imminent threat from the perspective of the officer.

This is important because anyone reading those facts above after-the-fact could easily argue the officers acted unreasonably against the two dogs.  Shooting the first dog when the dog lunged at the officer is one thing, but shooting an injured animal that’s simply barking is another story.  But, again, the courts don’t get the pleasure of making those judgments based on hindsight and they must consider the perspective of the officers in the moment of the situation.

Court Says Fear of Imminent Threat from Dogs Was Reasonable

There’s no argument that executing a search warrant lends to stressed circumstances for police officers and those officers are often forced to make split-second judgements based on unknowns.  The court found that due to the already high nature of the threat against the officers executing the warrant in a home of known gang affiliates, the officers were understandably on high alert.

The shooting of the first dog, according to the court, was warranted because 1) it was aggressively barking, 2) it lunged at the officer, 3) even after the dog had already been shot by the officer, the dog continued to aggressively block the officers entrance into the basement, and 4) the officers could not safely clear the basement while the dog was preventing the officer to do so.  The court found the shooting of the second dog reasonable because both officers testified they could not safely clear the basement with the presence of the barking dog.

Conceptually, I agree with the standard used by the court—if an animal poses an imminent threat, then force is reasonable.  However, I’m not convinced, at least that the second dog, posed an imminent threat to the officers in this situation.  Although the court didn’t actually create a bright line rule giving police the power to shoot any moving or barking animal inside a house, actual application of this ruling could have potential repercussions for abuse.

Can Too Much Caffeine Lead to a DUI?

Has it come to this?  At least 68 million Americans drink coffee every single day.  If those staggering numbers are any indication of the number of people that are consuming caffeine on a daily basis, consider the fact that that number is for coffee consumption and doesn’t even include soda.  Does that mean all of us consuming caffeine need to worry about getting a DUI?

A California man, Joseph Schwab, was pulled over on suspicion of driving under the influence back in 2015.  Schwab was given a breathalyzer test, which he passed with flying colors.  Although the breathalyzer showed 0.00% blood alcohol level, Schwab had his blood taken for a toxicology test after being taken to county jail.  Results, again, came back 100% in favor of Schwab.

Charges weren’t initially filed against Schwab, but ten months later misdemeanor driving under the influence of a drug charges were filed.  A second set of test results sent from an outside testing facility showed caffeine was the sole substance in Schwab’s blood.

Chief Deputy District Attorney, Sharon Henry, for Solano County stated, “the charge of driving under the influence is not based upon the presence of caffeine in his system.”  Schwab’s attorney, Stacey Barrett, however, stated she was not provided with any evidence supporting a theory of any other substance within Schwab’s system.  Barrett subsequently filed a motion to dismiss the charges against Schwabb.

Can Caffeine Consumption Really Get You a DUI?

Maybe, but it’s probably not really very likely.  Under California law, a drug is any substance, illegal or legal, that isn’t alcohol that might “impair, to an appreciable degree” a driver’s capabilities behind the wheel to drive like a sober person.  Were you able to drive with caution?  Was your driving that of a sober person of ordinary prudence under similar circumstances?

Caffeine works by stimulating the central nervous system, the heart, muscles, and the centers that control blood pressure.  Theoretically, if enough caffeine is consumed, then it’s possible it could have effects that could impair a driver’s capabilities to drive safely.  Typically, though, side effects of consuming caffeine have much smaller effects such as stomach aches and insomnia.

How, Then, Can Schwab Be Charged?

According to the District Attorney’s office, the State decided to go ahead & charge Schwab because drug tests don’t catch every drug.  The State was convinced that because Schwab was driving so erratically, he must have been on something.  Remember, though, that since this was a criminal charge brought against Schwab, the State has to prove beyond a reasonable doubt that he was driving under the influence of drugs.

Even though caffeine is a substance that can affect the nervous system, brain, or muscles, all things that define a drug under the applicable law, a prosecutor would be hard-pressed to prove to a jury beyond a reasonable doubt that the consumption of caffeine, alone, inhibited Schwab’s abilities to drive enough to pose any danger.  Observations of an arresting officer can be relied upon heavily, but it’s not necessarily enough.

Under California law, driving erratically isn’t necessarily conclusive enough to prove driving under the influence—it’s only a factor a jury can take into consideration.  An arresting officer can testify to 1) the unsafe manner in which you drove, 2) your physical appearance, and 3) your performance on a field sobriety test.  According to the officer, Schwab cut her off and was driving erratically.  In Schwab’s case, this would have been the only evidence, at least that’s been made public, that the State had to go on since blood tests came back negative.

These are the likely reasons the District Attorney’s office conceded and just filed their own motion to dismiss the charges against Schwab, despite the fact they claimed forensic lab experts stated it was “highly likely the defendant was under the influence of a drug.”


Uber Puts the Brakes on Their Self-Driving Cars

A few months back, Uber announced it was going to test something potentially groundbreaking–they announced tests of self-driving rideshare services in San Francisco.  Unfortunately for Uber, the tests turned out to be more premature than groundbreaking.  The California DMV condemned the tests as illegal and demanded that Uber not roll out their self-driving cars.  In the face of the disapproval of the California DMV, Uber decided to totally ignore the DMV and move forward with the tests anyway–for a week.  After moving forward, the California DMV revoked the registrations on every single one of Uber’s self-driving cars and Uber was forced to abandon their tests.

What’s the Problem with Uber’s Self-Driving Cars?

The problem California had with Uber’s self-driving test cars was a simple one, Uber simply didn’t bother to get the permits necessary to use an autonomous car in California.  Uber objected to the requirement of permits in the first place, arguing that because their self-driving cars needed human supervision they were not actually autonomous under California’s definition as California currently defines an autonomous car as one that drives “without the active physical control or monitoring of a natural person.”  The vice-president of Uber’s advanced technologies division made an announcement stating that “this rule just doesn’t apply to us, you don’t need to wear a belt and suspenders and whatever else if you’re wearing a dress.”
Uber Puts Brakes on Self-Driving Cars

The California DMV, as you can tell from how they responded, didn’t agree.  They’ve already issued hundreds permits to test autonomous cars on the roads of California.  They consider this permitting necessary for public safety when it comes to such new technology, and they demanded that Uber follow their rules.  Perhaps this was a wise precaution, in the one week Uber’s cars were running one was caught on tape running a red light.

This isn’t the first time Uber has chosen to ignore state laws in testing automation or had trouble with the law.  In fact, their very business model has occasionally been challenged as illegal.  Earlier this year, Uber went forward with testing self-driving trucks in Nevada despite explicit warnings from the state’s DMV that doing so would violate Nevada law.  Luckily for Uber, while Nevada has similar permitting requirements to California, the laws were so new as to not yet have any penalties set up for failure to comply.

Despite these setbacks, Uber’s self-driving plans have been making strides around the nation.  In Pittsburgh they have been given essentially free reign with a similar program testing autonomous ridesharing.  They have announced they will be moving the San Francisco test cars to Arizona and moving forward there.

Part of Uber’s problem, and how they caught a break in Nevada, is that self-driving cars are so new that very little law has actually sprung up to regulate how and when they can be used.  However, this has been slowly changing as states recognize that autonomous cars are here to stay.

Self-Driving Car Laws Around the Nation

Self-driving cars are coming and it’s not a matter of if, it’s a matter of when.  Just recently, Ohio announced it was investing $15M in self driving trucks going forward.  In the same week, Michigan became the first state to pass comprehensive laws on using, testing, developing and selling self-driving cars.

However, luckily for companies like Uber, Michigan’s laws have not focused on restricting the use and testing of self-driving cars–quite the opposite.  Michigans bills, 995 through 998, provide clear rules for how an autonomous car may be used on public roads and freeways.  The laws are set up to make clear rules for testing.  Once testing is complete, the new laws even allow for properly tested automated vehicles to be sold to the public.  The laws also require the Michigan Department of Transportation to recommend standards that will ultimately regulate the connected networks of autonomous cars and how the data collected from such a network–collisions, traffic data, etc.–will be allowed to shared with others.

What is less fortunate for Uber is that the laws also serve to outright lock them out of any self-driving rideshare services.  The new laws only allow specific most eligible automakers from creating a network of self-driving taxis.  While the law is very new, it certainly seems like this would keep Uber from spreading their new programs into Michigan.

Uber seems to think so, they’ve heartily condemned this part of the law in the media–calling the rules anti-tech and protectionist.  They have a point to a degree, creating a state made monopoly on a service or product does not seem like the best idea.   However, for the most part, Michigan’s rules will serve to open doors and ease the way as self-driving vehicles make their way into the marketplace.

While Michigan’s laws are the most sweeping, and likely the most lenient, laws passed on the subject they are far from the only laws regulating self-driving cars.  California, Arizona, Nevada, Utah, North Dakota, Louisiana, Tennessee, Florida, Massachusetts, Washington D.C., and Virginia all have laws in place regulating the use of autonomous vehicles.  In September of 2016, even the federal government–through the National Highway and Transportation Safety Administration–released an updated set of suggestions providing guidance for states in making laws.

It hasn’t all been forward progress, 16 states had self-driving car legislation that either stalled out or failed to pass in 2016.  However, Michigan–perhaps because it is a state so embroiled in car manufacturing–has taken the next steps in a trend towards fully preparing for self-driving vehicles to hit the market in earnest.  It’s only a matter of time until autonomous cars become as common as hybrids have become.  Uber may be flouting laws right now, but what they’re doing is going to become so common as to need clear regulation nationwide.

Trump Presidency Promise: Repeal Obamacare in 2017

One of the main platforms President-elect Donald Trump ran on during the election was healthcare reform. Repeal Obamacare. “Great health care at lower costs.” That’s what we’ve heard over and over again. Since the election, Trump seems to be singing a different tune now, saying there are parts of Obamacare he plans to keep.

Which parts though? Senate Majority leader Mitch McConnell asserts, “The Obamacare repeal resolution will be the first item up in the new year.” With a lot of determination coming from the GOP, we haven’t really seen any indication of what a new plan might look like and how it will affect healthcare for millions of Americans. 

How Do They Plan to Do It?

Repeal and delay through budget reconciliation. The GOP has been very public about their plans to repeal and delay the Affordable Care Act’s funding using this process. How does it work, though?

Budget reconciliation allows for expedited consideration of certain tax, spending, and debt limit legislation. The Senate could introduce new legislation regarding these tax, spending, and debt limits that relate to Obamacare without being subject to filibuster by the Democrats and, because the GOP controls the Senate, the new legislation would pass by a majority vote.

obamacare repeal 2017In other words, if it impacts federal spending, the GOP can pick and choose which parts of Obamacare they don’t like and thus block the spending. This is their way of repealing the parts they hate without throwing the whole thing out altogether.

It’s not necessarily that simple, though. Budget reconciliation requires forming a budget resolution, which is typically a lengthy back-and-forth process that can take months to come up with a final product. Nonetheless, if the budget reconciliation is accomplished, money would likely continue to flow through for Obamacare for at least a few years, giving the GOP time to fill in the holes and craft a new system.

Will It Work?

A promise to reduce healthcare costs sounds great, but how is this going to be accomplished? At the end of the day, it doesn’t really matter how Congress plans to repeal the Affordable Care Act. What matters is how it’s going to impact the nation. Cost is important, but so is quality.

According to a report from the Urban Institute, under this reconciliation process, the change could eliminate Medicaid expansion, eliminate the federal financial assistance for Marketplace coverage, and eliminate the individual and employer mandates. The Urban Institute predicts this process will cause 4 million people to lose insurance in the first year alone and, by 2019, the already high number of 28.9 million Americans without insurance will increase to 58.7 million. This is a 103% increase. This is just the tip of the iceberg and will only get worse if Congress doesn’t come up with a replacement quickly.

Since it doesn’t appear the GOP has any agreed upon alternative plans for how they’re going to better Obamacare, the major concern floating around with this repeal and delay plan is that it will create a frenzy within the insurance market during the transition period.

Although a direct link is widely debated, some believe those with insurance are healthier and less likely to die prematurely. Does this mean less healthcare creates an unhealthier America? Will this create a spike in insurance rates? It’s definitely a likely outcome that could mean Americans won’t be looking at lower health care costs anytime soon. 

Obama Signs New Law That May Make It Harder to Repeal

President Obama recently signed the 21st Century Cures Act into law, which many are regarding as a last ditch effort to sway the opinions of some proponents in the hopes of keeping Obamacare in place.

Certainly not the primary target of the Act, as the majority of the bill is focused on medical research funding, improvements to mental health and substance abuse care, streamlined regulations for drugs and medical devices, and some changes to Medicare and Medicaid payments, but there’s a small portion of the bill that focuses on a positive change for small businesses.

The relevant portion of the Act essentially allows small businesses to use Health Reimbursement Arrangements (HRA) to compensate employees who buy their own insurance. Companies with fewer than 50 employees can reimburse those employees for purchasing individual health insurance as if the company were directly paying the premiums on a group health policy. Employees won’t have to pay taxes on the company’s premium contribution and the company won’t owe any payroll taxes on the reimbursements either.

Fake News, Real Damage

Fake news has been in the news—the real news—as the recent election saw both the number of fake news articles and how frequently these articles were spread skyrocket.  The problem was so bad that in the last months leading up to the election engagement (shares, likes, comments, etc.) with fake news on Facebook outstripped engagement with news from major news outlets.  This has led both Facebook and Google to announce that they’ll be taking affirmative steps to address the flood of fake news on their websites.

Entire fake news companies, such as National Report, Huzlers, World News Daily Report, and the News Nerds have sprung up over the last three years.  These companies all have the same basic business model, creating fake news to spread on Facebook with the goal of generating ad revenue.  The fake news business is booming too, with a single author can make over $10,000 a month.

The idea of fake news sites isn’t new, the Onion has been making satirical fake news stories since 1988.  However, while the new fake news companies mostly claim to be satire in the vein of the Onion their model has changed.  Fake news sites have realized that funny news satire pieces, such as those from the Onion, are less profitable than outright hoax news—no comedy, no message, just provocative lies.

These types of falsehoods can be dangerous, and not just because of misinformation.  Earlier this month a man from North Carolina assaulted a pizzeria in Washington D.C. with an assault rifle after reading a fake article saying that Hillary Clinton was running a child sex ring out of the shop.  The man currently faces criminal charges.

But there is more than the danger of people acting on these fake stories and believing them to be true.  There’s also the potential to ruin a person’s reputation with lies repeated frequently enough to be considered true by many.  This brings up the question, can the people who write these fake stories be sued for defamation by the people they write stories about?

How Does Written Defamation Work?

At the most basic level, a person can be liable for defamation where they communicate a false statement about somebody that damages their reputation, exposes them to ridicule, etc. This is a communication, so it has to be something that reaches the ears or eyes of at least one person who isn’t the person making the defamatory statement or the person the statement is about.  Those third parties must understand what the defamatory statement means and who or what group the statement is about.  Finally, the statement must be made with—at a minimum—disregard for the truth beyond that of a reasonable person.

Where defamation is spoken, it is called slander, where it is written it is called libel.  So if somebody was suing one of these fake news companies over news they produced, they’d be suing for libel.  Looking at the initial elements, a person off the street who had defamatory statements written about them would have a pretty dang strong case.  The companies are literally making up news, so they have actual knowledge of the falsehood of what they write and publish.  The news is also seen by millions and, unlike more clearly satirical articles like those from the Onion, is designed to look as much as possible like real news communicating a true message that those reading it would believe.

Satire vs. Defamation

Speaking of satire, most fake news companies would take issue with distinguishing them from satirical news such as the Onion.  Instead, they would argue that they are taking the idea of satirical news to the absolute edge by juxtaposing how ridiculous reality is—or by fooling people into believing their news.  There’s certainly a legal advantage to drive fake news companies to seek such classification—true satire cannot be defamatory as a matter of law.

This was determined in a case between well-known pornographic magazine Hustler and Jerry Faldwell after Hustler wrote about Faldwell in some particularly unflattering and salacious situations.  The courts felt that the words were satire and as satire were so outrageous that no reasonable reader could consider them to be an assertion of true facts.  Thus, true satire can’t be defamation because it doesn’t damage reputation because readers don’t believe it to be true.

This leaves the obvious question, what exactly constitutes satire?  To call this a complicated query would be an understatement.  Courts have struggled with this very question for years, many coming to different conclusions as to where the line is drawn.  However, it is generally agreed that satire is a work targeting an entity or entities—often but not always a government figure—for exaggerated commentary blurring the line between truth and the ridiculous.  The ultimate definition is a bit circular to the reason why satire is protected.  A true satire, for legal purposes, must blur the lines between truth and the outrageous in such a way as to make a reasonable person recognize that the satire does not express actual facts.

In determining this a number of factors come into play.  With something like the Onion, the history of the site as a source of exclusively satirical news would be considered in determining whether a reasonable person would consider them to be expressing actual facts.  Onion stories also aim to be over the top and include particularly ridiculous titles; both of which contribute to them being considered satire.  On the other hand, the new fake news sites that have cropped up have none or little of the reputation garnered by the Onion over its decades of existence.  What’s more, while their content is often ridiculous to a degree, their aim to appear as close as possible to real news makes them less likely to be true satire.

While each article would have to be considered on its own merits, these new fake news companies certainly don’t seem to be producing satire.  While they would certainly strenuously object to the opinion, they seem more interested in deception for profit than entertainment and commentary.

Public Figures and Privileged Defamatory Statements

Without the protections of satire, an article expressing false defamatory statements about a private person would almost certainly leave these fake news companies vulnerable to a lawsuit.  However, their most common choice of targets isn’t a person off the street—indeed when a person off the street is mentioned the person themselves is generally made up.  Instead, these fake news sources choose public figures as their primary targets.  This is likely mostly driven by the fact that these types of articles are the most profitable.  However, as a fringe benefit, it renders the fake news articles much less vulnerable to a defamation lawsuit.

As opposed to private parties, public officials and figures can only sue for defamation when they can show that the person making the defamatory statements actually knew or should have known that their statements were false.  Where this is the case, the statements are considered to be made with something called “actual malice.”

The reason for this requirement is simple, people should be free to criticize public officials and parties.  We are especially conscious of protecting the First Amendment rights of speech criticizing those in power.  For these reason, new outlets also are protected when they publish inaccurate events where those events are of public interest—once again so long as they do not do so with actual malice.

This means that when a fake news site publishes a made a story about a politician, such as their most frequent targets Hillary Clinton and Donald Trump, in order to sue them there would have to be a showing of actual malice.  This is generally quite hard to produce actual evidence of, generally requiring either a smoking gun email or evidence of a near total lack of fact checking.  However, these fake news sites are intentionally making up stories so they absolutely know their articles have no basis.

While fake news can be incredibly dangerous, their ultimate protection from defamation lawsuits is the same as what tabloids have employed for years.  First, actual malice can be difficult to prove even when it seems intellectually obvious.  Second, public figures often conclude that the exposure from a lawsuit will do far more damage than a one-off story.  However, fake news is achieving a reach that it has rarely had before.  As these stories become more widespread, or make the mistake of targeting an informed private party, fake news companies may well find themselves on their heels in a courtroom.