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Teen Sexting May Land Parents in Hot Water

Quick show of hands, how many people have sent or received from a boyfriend or girlfriend sexually explicit text when they were teenagers? In the age of iPhones, the answer is probably “most young people.” Sexting is so prevalent, it probably cost Hillary Clinton the presidency. The House has recently passed the “Protecting Against Child Exploitation Act of 2017,” (PACEA) a bill which mandates a 15 year prison sentence for anyone who shares sexually explicit material of minors, including the minors themselves. Additionally, PACEA mandates the same 15 year sentence for the parents or legal guardians of the minors who “knowingly permits” the minor to send such text messages.

The proposed bill is noble in its intentions, but the methods are extreme. First, the bill would potentially send minors to prison for more than a decade. A 15 year old girl could find herself in prison until she is 30 years old for the crime of sending a nude photo of herself to her boyfriend. Similarly, her parents could also be spending 15 years in prison if they knew she was sending those photos, but didn’t stop her. Since the prison time is a mandatory minimum, there is nothing the judge or jury can do to change the sentence if any of them are found guilty.

sextingThis bill should draw ire from both the left and the right sides of the political spectrum. For liberals, this bill represents yet another example of why criminal justice reform is necessary. These types of bills are likely to target and affect people who make less income than their wealthier counterparts. Although the bill says nothing about income, the wealthy can probably pay a private criminal defense attorney to fight off bogus charges like these. Poorer citizens can only rely on public defenders, who may become overwhelmed with cases like these. For conservatives, this bill should represent a nanny state attempting to dictate to parents how they raise their children. If the parents can’t discipline the children the way the state wants them to, then the whole family will be thrown in prison.

As stated earlier though, the PACEA does have noble intentions. Child pornography among human traffickers and pedophiles is a serious problem. Catching traffickers would certainly be easier if law enforcement could download the traffickers’ outbox and show the jury everything being sent. Since the PACEA does have a legitimate purpose, a few changes could probably fix a lot of the problems described.

How Can Congress Approve this Bill?

First, letting a judge or jury determine the sentence would help our courts separate childish teens from actual predators. If a 17 year old minor is sending nude videos to her 20 year old boyfriend, the parties should be receiving a fine or community service, at most. On the other hand, if a fifty year old man is expecting a 12 year old girl to send pictures of her chest, 15 years in prison might be too light. Mandatory minimums are usually built into law because citizens don’t trust their legal system to give correct verdicts. Although there might be some cases where the defendant gets off too easily, like Brock Turner, those types of injustices tend to be rarer than cases where the mandatory minimum gives too harsh a punishment.

Second, there is no need to charge the parents or legal guardians with sexting. The biggest reason to make parental neglect a crime in this instance would be to prevent guardians from exploiting their children.  Protecting children from their own parents is a potentially worthwhile goal, but the most serious crime would not be the minor sexting. If a guardian is exploiting a child, the government should be checking the parents’ text messages for incriminating evidence, not the kids.

I’ve been very critical of the PACEA so far, but there is one thing it gets right. Although 20 states have passed anti-sexting laws, there is currently no federal law against sexting despite the fact the technology allows sexting to cross state lines. Federal law covers child pornography, but sexting itself is not a federal offense, even if it can be used as evidence of a more serious crime. The PACEA would potentially fill this void, if it can avoid the more draconian methods currently in the bill.

Whole Foods Loses the Fight to Stop Employee’s NLRA Right to Record

As an employee, protecting your rights is incredibly important. However, even with full knowledge of the rights you possess it can be tricky to identify situations where rights are violated and gather the evidence to prove your case when you look to enforce those rights. Communicating with others and recording situations where your rights may have been violated can be critical in making a case or even just determining whether your rights have been violated in the first place. Thankfully, your right to record in the workplace was just given a major boost in a recent ruling against Whole Foods by the National Labor Relations Board (NLRB).

The NLRB is the federal agency in charge of enforcing labor laws related to unions, collective bargaining, and unfair labor practices-primarily as set forth in the National Labor Relations Act (NLRA). Just a few weeks ago, the Second Circuit upheld a decision of the NLRB deciding that Whole Foods had violated the NLRA through a policy barring recording conversations, phone calls or meetings in the workplace without manager approval.

With this case upheld on appeal, let’s take a look at the rights the NLRA grants you, the case itself, and what the case means for you as an employee or an employer.

Your NLRA Rights

The NLRA itself provides you a fairly broad suite of rights related to your ability to organize and bargain collectively. Under the act you have the right to (or not to) self-organize, form, join, or assist labor organizations, bargain collectively through representatives of your own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. This basically means you have the right to choose whether or not to join with other employees in bargaining for employment terms. You also have the right to take the steps necessary to coordinate that group bargaining.

In order to protect these rights, the NLRA also makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise” of any of the rights discussed above.

The Case Against Whole Foods

Whole Foods had two policies on the books that got them into the legal trouble which led to this case. First, a policy forbidding any audio or visual recording of company meetings-with any recording device-without prior approval of a manager. The second policy applied a similar recording ban on any conversation held during business hours. These policies applied to any topic of conversation and all areas of every Whole Foods store.

The stated goal behind these policies was to encourage “open communication” and “spontaneous and honest dialogue.”  Whole Foods argued that, regardless of the policy, they strove to foster a culture where employees were free to speak up though open door policies and “town hall meetings.” They argued that recording meetings would damage the anonymity behind complaints and weaken employee rights.

However, the NLRB and the Second Circuit weren’t buying it. The test to see if rights have been violated isn’t whether an employer provides sufficient avenues for an employee to speak out, but rather whether the policy could inhibit an employee’s NLRA rights.

Whole FoodsWhen Does a Policy Violate the NLRA?

A policy inhibits rights where it would “reasonably tend to chill employees in the exercise or their” NLRA rights. This means that policies which tend to make it harder to exercise your rights are not ok. This can happen where a policy explicitly restricts you from doing something the NLRA guarantees. However, a policy also violates the NLRA when: 1) an employee would reasonably consider in to prohibit them from asserting NLRA rights; 2) the rule was made in response to union activity, or 3) the rule, despite how it is written, has been used to restrict employees’ NLRA rights. Where a rule is ambiguous, but could be interpreted to violate NLRA rights, it still violates the NLRA. This unacceptable overbreadth exists when an employee would reasonably interpret the policy to prevent exercise of NLRA rights. It is this rule against overbroad policies that worked against Whole Foods.

Ruling Against Whole Foods

The policies are a blanket ban on all recording. However, photography and video recording in the workplace have historically been guaranteed when it is done to document a potential violation of rights under the NLRA unless there is a particularly compelling reason for the employer to ban them such as the heightened privacy interests of patients within a hospital. The NLRA has even been interpreted to guarantee an employee’s ability to post these photographs and recordings on social media.

Despite Whole Foods stated purpose of maintaining open communication, the policies as written prevented employees from exercising these rights. Thus, the policies violated the NLRA by inappropriately curtailing protected employee actions.

However, the ruling didn’t hold Whole Foods’ feet to the fire too much. It only really required them to retract the policies, or at least reword them to provide exceptions for NLRA protected recording.

What Does This Mean For Employers and Employees?

One thing to keep in mind is that this is not the only time in recent memory that the Second Circuit has backed the NLRB in expanding the definitions of employee rights under the NLRA. It was just May of this year that they ruled that an employee had the right under the NLRA to post quite unflattering things about his manager in a social media post because the post also discussed an ongoing union election. This could be seen as a trend towards expanding the spheres in which an employee enjoys NLRA protection.

For employees, this ruling means that you enjoy greater NLRA protections on your right to organize and record the behavior of your employer. This is incredibly important because proving a violation of your NLRA rights will often require this sort of recorded evidence.

As an employer, this ruling can act as guidance for crafting policies on recording that avoid the mistakes of Whole Foods. Recording restrictions haven’t been banned altogether, rather recording restrictions without clearly defined exemptions for NLRA rights have. The lesson here is to make sure that your policies include these exemptions in order to avoid trouble with the NLRB.

So is this the beginning of a trend where NLRA rights catch up with tech? It’s simply too early to say. However, the trend is encouraging. Recording devices are more broadly available than ever before. It’s a safe wager that a large portion of those reading have one in their pocket or purse as we speak. With recording rights protected, it’ll be easier than ever before to gather the evidence necessary to protect your rights-and that’s encouraging.

Obstruction of Justice: What Does it Mean for President Trump?

Irony hits even the most powerful among us. After spending months trying to persuade Director Comey to tell the public that he wasn’t personally under investigation, Donald Trump wakes up on his birthday to find that he is being investigated by Special Counsel Mueller for obstruction of justice. Since obstruction is the same crime that undid President Nixon and almost brought down President Clinton, Mr. Trump finds himself in hostile legal waters. What exactly is obstruction of justice? Is there another evidence for the investigation that Special Counsel Mueller is committing? And is there enough evidence for impeachment?

Obstruction of JusticeWhat Is Obstruction of Justice?

Congress has defined obstruction of justice under Title 18 Section 1519 of the U.S. Code as:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

To obtain a conviction, prosecutors must prove beyond a reasonable doubt that the defendant committed the act and that the defendant intended to commit the act. For instance, if a defendant killed someone with a car but didn’t intend to, then the defendant can’t be guilty of murder since one element, intent, is missing. Similarly, a defendant who intended to kill someone with his car, but didn’t actually kill the person, cannot be guilty of murder because the act of murder was not committed (although attempted murder or assault would be easier to prove in that instance).

To be sure, the key here would be intent. Since we are dealing with the Presidency here, many of the actions Trump could take to obstruct the investigation would usually be legal. Normally, a President has the power to decide which types of cases the Justice Department should prosecute or fire an FBI Director. Therefore, any investigation regarding obstruction would need to focus on intent. Checking abuse of power is not about whether the power was used, but whether the power was used for improper goals. If Trump fired Director Comey because he truly believed that was best for the nation, then it would not be obstruction. On the other hand, if Trump fired Directory Comey because he didn’t want to see Flynn imprisoned, then it would be obstruction unless the President could explain why preventing Flynn from being prosecuted was in the best interests of the nation.

Establishing intent is always a challenge for prosecutors, as intent deals with what a defendant is thinking rather than what a defendant is doing. Obviously, if there is a “smoking gun” like the Nixon tapes, then proving intent would be a lot easier. However, the law doesn’t always require a smoking gun. If the facts and circumstances of a case suggest a pattern and practice of corrupt intent, that may be enough to tip the balance. Republicans would be wise to avoid examining specific verbiage such as “I hope you can let this go” and focus on the overall picture forming – whether the President has a pattern of removing people who ask too many questions about the Russian investigation and the Trump campaign.

Is There Enough Evidence For An Investigation?

The standard for a criminal conviction is “beyond a reasonable doubt.” However, if we’re asking whether there is enough evidence for an investigation to ensure we’re not just perpetuating “a witch hunt,” the standard would likely be probable cause. For example, a police officer only needs probable cause to pull a car over. Only after the officer arrests the driver and the prosecutor charges the driver with a DUI will the “beyond a reasonable doubt” standard be applied.

With all the talking points about “fake news,” it’s important to create a base line of facts that reasonable people can agree on. After determining which facts are 100% true, we can determine whether they warrant an investigation. So far, the agreed upon timeline appears to be:

This is a long chain of events, so let’s parse through it. Prosecutors, i.e. Mueller and his team, would be looking to fit these events with the two elements for obstruction, the act of impending the investigation, and the intent to do so. In this list, terminating Comey, the tweet about releasing tapes should Comey “leak to the press,” and threatening to terminate Mueller might be considered acts of obstruction. Removing the leading investigators could derail the investigation, although White House Spokeswoman Sanders claims the investigation would continue even after Comey left.

The White House would argue that these actions, terminating an FBI Director and considering the termination of a Special Counselor, are completely legal actions. However, while the actions might normally be legitimate, case law does state that if otherwise legal actions are done for corrupt reasons, then those otherwise legal actions would themselves become illegal. For example, if a prosecutor brings charges against a political opponent and a court later finds that the prosecutor acted based on politics, not law, then the action would become illegitimate, even though it is normally a prosecutor’s job to bring charges.

This idea can also be found in employment law; an employer can fire an employee for any reason, except for illegal ones, such as racial discrimination. Looking through the justifications that the White House gave for firing James Comey, it is very likely that the President gave a bunch of pretexts to mask the fact that he terminated the FBI Director for not dropping the investigation into Michael Flynn.

Of course, it is also possible that Trump had other motivations for firing Comey. Perhaps all Trump wanted was for Comey to announce that the President was not personally under investigation. Or maybe Trump really wanted Comey to say he was “loyal” and not just “honest.” We don’t really know, but if there is a potential for improper and illegal intentions, then its worthy of investigation. If the investigation cannot eliminate these foolish-but-not-illegal intentions, then the investigation will likely be a bust. But if the investigation has evidence to show that the illegal intention was the actual cause of these terminations, then the case would move to Congress to consider impeachment.

Montana Congressman Gianforte Pleads Guilty to Assault, but Can He Face a Lawsuit?

Montana Congressman Greg Gianforte may have won election on May 25th, but his actions the previous night have already cast a shadow on his victory. Newly elected Congressman Gianforte was at a campaign rally/barbecue addressing a news crew from Fox News. Guardian Reporter Ben Jacobs entered the room and inquired Gianforte about his stance on the healthcare bill in the Senate after the Congressional Budget Office had given its score on the bill.

After Jacobs pressed Gianforte three times for an answer, Gianforte attacked Jacobs. Audio recording reveals shows signs of scuffing, Gianforte yelling “I’m sick and tired of you guys!” followed by Jacobs accusing Gianforte of body-slamming Jacobs and breaking the reporter’s glasses. The Fox News crew in the room testified that Gianforte grabbed Jacobs by the neck, slammed him into the ground, and then proceeded to punch the journalist a few times. Jacobs was taken to the hospital, although his injuries were not severe.

Gianforte’s campaign denied the allegations, instead accusing Jacobs of being a “liberal” who agitated Gianforte with his questions. However, the witnesses clearly stated that “at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.” After winning though, Gianforte apologized to Jacobs in his victory speech.

Gianforte was charged with misdemeanor assault a few hours after the attack. He has since pled guilty of assault and received 180-day deferred sentence, 40 hours of community service, 20 hours of anger management, $300 fine, and $85 court fee. The deferred sentence means that Gianforte will not be facing any time in jail. However, the victim himself, Jacobs, could also bring a civil suit against the Congressman to recover for his own injuries.

Can Jacobs Successfully Sue the Congressman?

Normally, a private citizen cannot sue a public official for decisions that the official makes while in office. However, the Constitution’s “speech and debate” clause would not apply to the Jacobs case because Gianforte was not yet a Congressman when he allegedly assaulted Jacob. Even if Gianforte had been elected at that point though, Gianforte would still be potentially liable because hitting reporters is not a function of Congress and not be constitutionally protected.

Proving assault (and battery) would actually be very simple in a case like this. Jacobs would have to prove that Gianforte intended to cause reasonable fear of imminent harm. The audio shows that that attack was very intention on Gianforte’s part, as the Congressman declared “I’m sick and tired of you guys!” while hitting the reporter.

It’s questionable whether Jacobs felt any fear before the attack, as the attack seems to have happened so quickly that Jacobs had little time to react other than comment on his injuries – “Did you body slam me?” and “You broke my glasses.” Nevertheless, these types of remarks would likely be used as a means of showing that Jacobs did fear for his safety. Witness testimony also points that Gianforte grabbed his victim by the neck, which would cause most people to be afraid for their lives. However, it’s important to note that Gianforte doesn’t have to actually touch Jacob’s person to involve fear. Simply grabbing an object close to Jacob, such as his clothing or the recorder in Jacob’s hand, would be enough to satisfy this element.

Many online commenters have attempted to defend Gianforte by claiming that Jacobs entered the room uninvited or that Jacobs “deserved” it because Jacobs is a “liberal journalist.” Neither of those defenses would hold up in a court of law. The former is excessive force that the law doesn’t allow. Gianforte could have simply answered or ignored the question. Gianforte could have threatened to call security or the police. Instead, a Congressman chose to use violence against a man who was simply doing his job.

The latter is commentary about political beliefs, but has zero relevance as to whether or not the reporter was assaulted. The law is the law regardless of whether a person is liberal or conservative. The fact that line of thought – “liberal journalist” was even used to justify the assault is appalling beyond words, as it dehumanizes a man merely for having opinions.

If Jacobs is successful in court, and assuming Gianforte doesn’t want to settle before trial, Jacobs would be owed his compensatory damages, including medical expenses, repair or replacement for his glasses, and compensation for time off or emotional trauma. The judge might also consider adding punitive damages, as this case must serve as an example that physical violence is not acceptable in the public discourse, not even from a sitting Congressman.

ICE Faces Criticism for “Sensitive Locations Policy”

Out in New Jersey, the Chief Justice of the New Jersey Supreme Court Stuart Rabner has come out hard against the exception in the Immigration and Custom Enforcement (ICE) Sensitive Locations Policy. In a letter asking for an end to the practice, the high ranking judge criticizes ICE’s practice of waiting in courthouses for undocumented immigrants who are victims of a crime, defendants in a case, or simply there to testify in proceedings. He argues that the practice not only denies access to the courts to people who are undocumented by making them fear arrest and deportation, it also torpedoes the legal process by guaranteeing a lack of cooperation in ongoing cases where somebody might get grabbed by ICE on the way out of testifying against a criminal.

He’s not criticizing the practice for no reason. Just in the last couple months ICE agents have arrested several undocumented immigrants in courthouses. Just recently they have arrested a woman  seeking a protection order  to keep her safe from an abusive spouse. Another man was arrested as he left a proceeding, otherwise free to go after a civil case.

ICE agents have responded to Rabner with a resounding no. As written, the Sensitive Locations Policy places no restrictions on arrests made at courthouses. Even if it did, the actual protections of the policy are far from absolute even where they do apply.

ICEICE’s Sensitive Locations Policy

The Sensitive Locations Policy is very much what it sounds like-a policy of ICE limiting enforcement actions at sensitive locations. These locations include schools (either at the school or when a parent is picking up or dropping off a child), medical treatment facilities, places of worship, ceremonies like weddings and funerals, or during public demonstrations such as a march or rally for a cause. You’ll notice courthouses are nowhere on that list.

Courthouses not only don’t make the cut in this policy as written, they are explicitly not included. Even if they were, the policy isn’t a blanket ban on arrests in sensitive locations but rather more of a strong suggestion. First, it only limits enforcement actions. This includes actual apprehensions, arrests, searches, or surveillance. However, it doesn’t include them entering a sensitive location to get records or documents to later use against undocumented immigrants, serving subpoenas or notice of proceedings, and other more administrative actions.

Although it suggests that arrests at sensitive locations be avoided, the policy doesn’t stop ICE from making arrests.  Agents just need permission from a supervisor before proceeding. Even without permission, they can make an arrest-so long as they do so as discreetly as possible-where there are circumstances related to national security, terrorism,  public safety, or destruction of evidence.

The policy is in place to ensure that everybody is free to utilize crucial services without fear of repercussion. Education, health care, worship-all incredibly important. Doesn’t it seem odd that legal services aren’t on that list? Don’t we want everybody to enjoy the protections of the law and help others when they witness crimes? The protection of our laws-both for undocumented immigrants and citizens whose cases they might testify in-are a similarly crucial service to education of health care. However, the sad truth is that even were courthouses included in the policy the protections might still not be enough.

Sensitive Locations Policy Not as Strong a Protection as it Was

To say that the attitude towards immigration has changed after the Obama administration passed the torch to President Trump. Besides Trump’s failed immigration ban orders, he has also issued an executive order which drastically changes the approach of ICE agents.

Under the Obama administration, ICE agents were told to prioritize targeting gang members and violent criminals for deportation. For the most part, they were not going after anybody else. Trump’s order substantially expands those ICE is meant to target. Under Trump the agency is to target, in no particular order, undocumented immigrants who “have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” If that sounds extremely broad, that’s because it is. Gone are the days of prioritization, every illegal immigrant is equally targeted.

What Trump’s order notably does not do is change the Sensitive Locations Policy, he has given ICE agents much wider leeway in how they act. This has led to much less strict consideration of the policy than in previous years. Just in the last few months ICE agents have raided a pre-school in San Francisco (apparently mistakenly), arrested a California man right after he dropped off his daughter at school and while he drove his other daughter to her classes. In Virginia, two men were arrested as they left the homeless shelter offered by their church.

Judge Rabner has a good point, access to the courts is crucial for our justice system to operate properly. However, as it stands it looks like the protection the Sensitive Location Policy would offer to undocumented immigrants seeking the protection of the law would be middling at best.