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Trump Advisor Wants to Electronically Monitor Those on Terror Watch List

Rudy Giuliani wants to electronically monitor anyone on the terror watch list and, as an advisor to the Trump campaign, one can only assume Trump will soon take the same policy stance. Trump has faced scrutiny for wanting to ban all Muslims from the country and while his political stance has recently softened a bit from his original blanket ban, one can only wonder if this is masked as an attempt to specifically monitor Muslims.

The question came after news of an attack, claimed in the name of ISIS, on a French priest in northern France. One of the attackers was known as a jihadist sympathizer who was being electronically monitored by French officials after being caught twice trying to travel to Syria under a relative’s identification.

“I would think that’s an excellent idea,” said Giuliana. “If you’re on the terror watch list, I should you know you’re on the terror watch list.  You’re on there for a reason.” Monitor

This doesn’t come as much of a surprise, as Giuliani has a history of monitoring the Muslim community. In 1993, following the World Trade Center bombing, Giuliana put undercover agents inside mosques. Surveillance of the Muslim community only increased in New York after the 9/11 attacks, which included photo and video surveillance, police informants, and databases with personal information on innocent Muslims throughout the community.

Is This Type of Monitoring Even Legal?

Electronic monitoring isn’t a new concept. GPS tracking devices have been put on criminals when on house arrest, similar to the monitoring plan in France mentioned above. Sex offender registries are also electronically monitored. Although these type of registries don’t electronically monitor your every move and whereabouts, in depth personal information is included.

A major difference between those on house arrest and a sex offender registry versus those on the terror watch list is primarily a conviction—many on the terror watch list haven’t been convicted of anything and, even worse, many are put on there in error.

Today, approximately 680,000 people are included on the terror watch list. As with the no fly list, because of the number of errors and low standards of factual evidence required, there’s a lot of scrutiny surrounding the legality of these type of watch lists.  People can be listed even if they have no recognized terrorist group affiliation; it can even be something as simple as being associated with someone else the government deems a risk.

On top of that, the lists are notorious for ethnic and religious profiling, where American Muslims are disproportionately represented. Dearborn, Michigan, an area with the highest concentration of Arab Americans, has the second highest number of watch-listed individuals in the U.S.

So, Where Do We Draw the Line?

In 2012, the Supreme Court decided that GPS devices mounted to a vehicle qualified as a search within the meaning of the 4th Amendment, which called into question North Carolina’s law that requires convicted sex offenders to wear electronic GPS anklets for the rest of their life.  North Carolina needed to provide an explanation as to why the law did not violate the Constitution.  The 4th Amendment only prohibits unreasonable searches, so, if this is the direction Giuliani and the Trump campaign wants to take, they’ll have to come up with valid and reasonable explanation as to why it’s reasonable to electronically monitor those on the terror watch list.

Reasonableness depends on the totality of circumstances and the extent to which a search intrudes on privacy expectations.  Obviously, the government is typically given broad discretion when it comes to topics like national security.  There’s a heavy argument that national security trumps privacy expectations, at least to a point, so it’s possible this would fly.  But, is it really reasonable?

When you consider the fact that the monitors track a suspect’s whereabouts, at the end of the day, that’s probably not really going to prevent much. The attack in northern France happened while the suspect’s anklet was turned off during a time he was allowed to go to work.  He headed into a church and, just as with any other public place an individual is allowed to be, that doesn’t really do much to alert the authorities you’re up to no good.

Even though terror threats are a strong argument, an otherwise discriminatory rule requiring only certain persons to wear the electronic tags would no doubt be unconstitutional.

Texas Sues Austin For Banning Guns in City Hall

Texas Attorney General Ken Paxton, along with others, has filed a lawsuit against the city of Austin for banning guns in City Hall. This suit comes on the heels of recent events involving gun control and the Second Amendment. There are legal grounds by which the Attorney General may proceed with the lawsuit and he is using it to full effect.

Ramifications of Second Amendment

A recently enacted law permits a party to initiate a lawsuit against local governments over their prohibition of gun laws. Paxton jumped on this and is planning to take the issue to court. City Hall has banned guns and this has led to outcry from both the National Rifle Association as well as other gun rights groups who want the full protection of the law in accordance with the Second Amendment.

Under the Second Amendment, every person is entitled the right to gun ownership. This sounds simple enough. However, the entire political spectrum has been upended because of this concept. In light of recent shootings that have been occurring nationwide and overseas, politicians and legislators are taking up a stand for or against these alleged weapons of destruction. Some will go as far as to ban even the most harmless of firearms, such as airsoft guns and the like. On the opposite side of the spectrum, there are hardline conservatives that will do whatever it takes to provide full access to guns and ammunition. Gun

There are strong arguments made on both ends. Texas has gained notoriety for being a rather staunch believer in gun rights, and has gone to great lengths, as shown here, to give the maximum gun rights to the people. Paxton is no newcomer to this issue. He has been fighting for gun rights in his home state of Texas and nationwide for a long time and hopes this new legislation will pave the way for further rulemaking that will enable full gun control across the nation. City Hall does not allow guns to be carried at their facility but with this lawsuit, Paxton hopes to curb gun control by giving people the right to carry firearms on their person even at sensitive locations such as government buildings and courthouses.

Discrepancies in the Law

As I mentioned earlier, the Second Amendment essentially grants the right to gun ownership; however, there are nuances to this very broad area of law. Case law, which acts as valuable precedent, has tweaked the framework when it comes to the Second Amendment ever since its conception. United States v. Miller did not give unlimited gun rights to a gun owner, but limited it accordingly.

For example, an AR-15 might be exempt because an AR-15 might not fulfill the intention of the Second Amendment, which was to equip individuals with a defense that was in line with a well-regulated militia (as required by the Second Amendment). This is but one case that has discussed the Second Amendment and built on it in some way. There are many more and it is still an ongoing debate.

Furthermore, every state has its own set of rules when it comes to gun control. For instance, in California, it is a conceal carry system, meaning that for someone to go around publicly holding a firearm on their person, they will need some form of permit. In other states such as Florida, it is an open carry system, and this permits the gun holder to publicly carry their firearm. Texas has a similar approach.

The point of all this is that the Second Amendment by itself does not govern the issue. It is an intertwined system that is controlled by many different judicial layers and there are political underpinnings to it that make it that much more difficult to understand. It will come down to the legislators to change the system into a more functioning and uniform entity that will not continue to polarize the major political parties and will hold true to the values embedded in the Constitution.

Old v. New

One of the inherent problems with this gun rights debate is interpretation. The U.S. Constitution was conceived during an era when the open landscape allowed for gun use. Today, we live in an entirely different era. How should the Constitution be altered to fit with this new way of life? The late Supreme Court Justice Scalia strictly adhered to the language of the Constitution and this left little room for interpretation.

On the other hand, there are others who will allow for more interpretation. And even further along the spectrum, there are jurists who will mold the interpretation so that it is reflective of the times. Zeitgeist, or the spirit of the times, is the real deal, and the Constitution needs to be interpreted according to the frame of mind that exists at the time. Today, we live in a world where terrorist attacks are rampant and security measures are not where they need to be. None of the founding fathers were plagued with an international threat such as this, so they couldn’t possible have had this in mind when they put together the Constitution.

There needs to be change. The text of the Constitution is important, but adjustments have to be made. The reason why the gun rights debate is so polarizing is because one side adheres so strongly to the Second Amendment while the other side wants to change the old by injecting a new model that does not necessarily change the old but places it in a new and relevant context. There is a reason why close to thirty constitutional amendments have been made over the last couple centuries.

Are Three-Strikes Laws Outdated and Unfair?

Donald J. Trump proclaimed himself the “law and order candidate” in his speech at the Republican national convention, announcing that violent crime is through the roof in major cities across America. Mr. Trump seemed to imply that criminals should face even harsher penalties for their wrongdoing. After all, shouldn’t we do whatever we can to keep “bad guys” off the streets? So why then are some states deciding to scale back on strict laws that send three-time offenders to jail for life?

What are Three-Strikes Laws?

28 states have laws in place that give alleged offenders harsh, mandatory penalties (generally a life sentence) for their third felony. Similarly, other states have what are known as habitual offender laws, in which an offender can face an enhanced penalty for a crime committed after a certain number of felonies. Three-strikes and habitual offender laws varies state by state and can depend on factors such as the seriousness of the felonies, the length of time between felonies, and the discretion of the judges.

Recently, New Mexico passed their own three-strikes legislation, adding 16 felonies to the list of crimes that make repeat offenders eligible for life sentences. The bill passed 47-15 in the House of Representatives, even after Democratic lawmakers protested, calling the law too broad and outdated.

Delaware Does Away with Its Three-Strikes Law

Some states have decided to take a very different attitude towards repeat offenders. Delaware decided to amend their three-strikes law after the House of Representatives approved a bill on June 21st. Delaware’s defeated Habitual Offender law mandated a life sentence for offenders who had committed three violent felonies. Additionally, people who were found guilty of three nonviolent felonies and one violent felony used to be required to serve the felony conviction’s maximum sentence. Prison

Under Delaware’s new sentencing law, there will be no mandatory life sentences handed down to habitual offenders— although judges will still be able to give life sentences at their discretion. Additionally, the new law permits offenders who are currently serving time under the old three-strikes law to enter into a review process to appeal their sentence.

The repeal of Delaware’s Habitual Offender law sparked outrage from some lawmakers, who argued that the new legislation ignored the victims of violent crime and posed a risk to public safety with dangerous criminals allowed back on the street. However, those in favor of the new law pointed out that the Habitual Offender law caused offenders to be saddled with disproportionate and unfair sentences. For example, under the Habitual Offender law, someone convicted of burglarizing a house could be given the same sentence as someone convicted of murder. Critics charged that the Habitual Offender law gave prosecutors all the power in sending offenders away for life, leaving judges with no discretion.

The Nationwide Fallout of Three Strikes Laws

The first three-strike law in the nation was passed in Washington State in 1993. The law categorizes a number of violent crimes as “strikes,” including second-degree robbery. Someone can be charged with second-degree robbery even if they weren’t armed at the time of the crime and didn’t physically harm anyone.

If that second-degree robbery is your third strike, you could get sent to prison for life in Washington. Skyrocketing prison populations, the failure of three-strikes laws to take offenders’ individual circumstances into account, and the lack of judicial discretion in three-strikes cases are common shortcomings of three-strikes laws.

Over the years, some have tried to modify the three-strikes law in Washington. Such efforts included requests to remove crimes like second-degree robbery from the list of strike offenses. Additionally, legislation has been proposed to allow certain three-strike offenders convicted of lesser felony crimes to have their sentences reviewed after 15 years of jail time by the Indeterminate Sentence Review Board.

However, there are still those who oppose changes to the law. These people argue that voters have made it very clear that they want habitual offenders off the streets, by whatever means necessary.

Transgender Teen Can’t Use Boys’ Bathroom Right Now, Supreme Court Rules

A transgender teens landmark win over his school’s refusal to let him use the bathroom he associates with has been blocked by the U.S. Supreme Court, at least temporarily.

Gavin Grimm, a transgender student who associates as a male, attends a Gloucester County School in Virginia. The school originally accommodated Grimm, allowing him to use the boys’ bathroom. After complaints from other parents though, the school board later barred the school from making any accommodations.

They allowed Grimm to use a unisex bathroom, but that only caused Grimm further stress; he became so distraught about not being allowed to use the boys’ restroom that he began avoiding it all together at school, which ultimately led to health concerns for the young teen. He ultimately filed suit against the school alleging civil rights violations. Gavin Grimm

In April earlier this year, a federal appeals court ruled in favor of Grimm declaring that schools must allow transgender students to use the bathrooms that match their gender identity. The decision was based on a regulation issued by the Department of Education, which declared that Title IX prohibits schools receiving federal funds from discriminating based on upon a student’s sex.

The school requested to stay the preliminary injunction requiring the school to accommodate Grimm as they prepared for an appeal to the U.S. Supreme Court. The high court granted the schools’ request, staying the decision. Grimm, in the meantime, will not be allowed to use the boys’ bathroom while the appeal is pending.

Is This Discrimination?

That’s obviously the hot topic issue right now. Title IX states:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

According to the U.S. Department of Education, this includes 16,500 local school districts, 7,000 postsecondary institutions, charter schools, for-profit schools, libraries, and museums. So, if you want their money, you need to comply with their rules.

Refusing to allow a child to go in the bathroom designated for the gender in which they associate is in itself discriminating based on sex. Forcing a transgender student to go into a separate designated bathroom is also a no go.  The Supreme Court decided long ago in Plessy v. Ferguson “separate but equal is inherently unequal.”  The school has privacy interests to protect, but it also has to protect the rights of transgender as well.

One major issue that seems impossible to overcome is the fact that if schools want to enforce the rule that you have to use the bathroom corresponding with the sex you were born with, someone has to be policing and actually enforcing these rules. Put another way, schools cannot practically check what a student’s gender is before letting them use the bathroom. What policies could the school possible put in place to monitor compliance with their rules that wouldn’t violate students’ privacy on another level? Under Title IX, the school cannot require a student to provide legal or medical evidence in order to have their gender respected.

So, What’s Next?

The school is in the process of appealing the decision to the Supreme Court. In the meantime, Grimm will be required, according to the school’s policy, to use the girls’ bathroom.  If the Supreme Court refuses to hear the case, the 4th Circuit decision will stand.  Because the 4th Circuit decision is a federal appeals court, the original decision is binding on all five states within the Fourth Circuit—Maryland, North and South Carolina, Virginia, and West Virginia.

California, Colorado, Connecticut, Massachusetts, New York, and Washington have all already enacted policies requiring schools to permit transgender students to use the bathrooms of the gender they associate with. Others are not so keen on the idea and a Supreme Court ruling on the matter could mean law changes.

While North Carolina has passed legislation requiring students to use the bathroom corresponding with the sex they were born with, whether the 4th Circuit decision is upheld will have a huge impact on that legislation and any other state wanting to ban transgender from using the bathroom they associate their identity with.

With such a controversy on the topic, just like they did with gay marriage and most recently workplace discrimination based upon sex, the Supreme Court will likely hear the case, if not now, than at some point in the near future.

Pokémon Go Away: Property Owners Suing Pokémon GO

The phenomenon that is Pokémon GO has swept the nation and the world. However, as this blog has addressed in the past, the way the game works has the potential to draw many different kinds of legal liability.  Less than a month after its release our predictions have come true, the companies behind Pokémon GO—Niantic, the Pokémon Company, and the Nintendo Company—have been slapped with a class action lawsuit.

Pokémon GO is an augmented reality game. Players walk through the real world and find Pokémon that appear in random locations throughout the world.  In order to catch Pokémon, the players must walk within a 40-meter radius of the Pokémon’s GPS location.  The game also includes “PokéStops” and “Pokémon Gyms” which allows players to gather resources or asymmetrically battle other players so long as they are within that 40-meter radius of its location.  Players can even use resources earned in the game to apply a “Lure” to a Pokestop—making Pokémon (and eager players) come to that location.

The lawsuit, brought on behalf of New Jersey personal injury lawyer Jeffrey Marder, alleges that Pokémon GO creates a nuisance and unjustly enriches itself through its use of private property as locations for PokéStops, gyms, and Pokémon without permission from the owners.

The world of augmented reality games is a very new one, and full of new issues of law and fact. Both of the charges of this lawsuit raise new and interesting issues.

A Poké-Nuisance

A nuisance claim requires a showing of an unreasonable, non-physically invasive use of their property where the use substantially interferes with the quiet use and enjoyment of that property.

Non-physical invasions can include things like loud noises, pollution, vibrations, or excessive light. Here, the lawsuit argues that the invasion is the additional foot traffic of players coming to catch Pokémon and use PokéStops, the noise they make, and the occasional gamer walking up to your door and asking if they can come in and catch a Pokémon. Due to the fact that nuisance does not require a physical invasion, the fact that PokéStops only require people to come within a 40-meter radius does not prevent liability.  A PokéStops on or near your property would still suffice, so long as it created an invasion that could be called a nuisance.  So the question is, does this rise to the level of a nuisance? Pokemon Go 3

An invasion needs to fulfill several requirements before it is considered to be a nuisance. First, the invasion must be a foreseeable result of the actions of the person accused of nuisance. In this case, the goal of the PokéStops is to draw as many players as possible into the game.  Thus, it seems clear that people using the PokéStops that you place is foreseeable.  It also seems foreseeable that where a large group gathers around private property, their presence could be noisy and disruptive—although there is some argument as to how much disruption could be predicted.

The invasion must also be substantial—more than the usual noise off the street. This is a tough standard to break down, as it highly fact specific. Whether a specific PokéStop has actually created a nuisance might depend on exactly how many people were drawn to the PokéStop and what they did while they were there.

Finally, the invasion must be unreasonable. In order to determine this, the court looks at several factors—how bad the harm was, how long the harm went on, how hard it would be for the defendant to prevent the harm, and the value of the defendant’s conduct to society.  The balance of harms here would, once again, depend on the exact extent of what happened.  However, it probably wouldn’t take a great deal to outweigh the difficulty of not using these locations and the social benefit of a mobile game.

As it is, the actual harm that has been shown by Mr. Marder is pretty tame—maybe not rising to the level of a true nuisance.  However, augmented reality is new.  There is no case addressing whether placing digital landmarks on or around your property could be—by itself—a non-physical invasion of your property just like smoke or excessive light.

This nuisance case has some question marks moving forward, especially considering it contains never before addressed issues. However, it’s also notable that the lawsuit doesn’t bring a claim for trespass—a similar claim to nuisance but with a physical invasion of the property.  This is probably because any trespass that has taken place was done on the initiative of the players, not Pokémon GO.  Pokémon GO has a trainer guide which advises players to always respect the community and adhere to the rules of the real world.  Their terms of service require players to not violate the legal rights of others.  It’s unlikely that Pokémon GO would be liable for the trespass of their players.

Unjust Enrichment

The lawsuits second charge, unjust enrichment, is one of oldest concepts of law—people shouldn’t be able to unfairly get ahead at the expense of another without compensating the other person.  In order to establish a case for unjust enrichment you need to show just that, along with the fact that equity demands you be repaid for what was taken from you.  This issue is especially important in this lawsuit because it represents the majority of the potential for damages in this case.

The lawsuit argues that by using the private property for their games, they have increased the value of their game. They argue that, because they did not pay or even ask permission for this use, they have been unjustly enriched.

Whether this gives rise to a case for unjust enrichment hinges on one very important question.  A question that has not been addressed by the courts before and will change the future of augmented reality gaming.  Does owning property in “the real world” extend property rights to any digital, location specific, intellectual property elements that may be put on it?  If so, not only does the lawsuit have a strong case for unjust enrichment, it would make augmented reality gaming incredibly expensive to implement.  It would essentially force game developers would limit their games to public areas.

The Pokémon GO Lawsuit Going Forward

The lawsuit has already led to action by Niantic, they’ve issued an update with specific warnings not to trespass built into the game. They’ve also promised to be more transparent with the process of removing PokéStops, a function which has always been available.

It’s not surprising that they’re taking the lawsuit so seriously; the lawsuit seeks damages in excess of $5M—although it is not specific about what, if any, damages Mr. Marder has suffered—and an order preventing Pokémon GO from using private property without permission. An order like that would make it much harder for an augmented reality game to function, especially where nuisance law prevents you from even bringing players into the immediate vicinity of private property.

Augmented reality is new and it’s huge. This isn’t the last case we will see dealing with these issues.  For now, we’ll have to wait and see whether this case will change the landscape of these games forever.