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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.

“Wonder Woman” Screening for Women Only Opens Theater to Lawsuit

The new Wonder Woman movie seems to be a big hit with crowds, but one theater in Austin is drawing sharp criticism.  Alamo Drafthouse unveiled “women only” screenings of the movie, to celebrate the “only woman superhero, directed by a woman, to hit theaters EVER.” Alamo Drafthouse also promised to staff only women at the event. The screenings were scheduled for June 6th and only women were admitted. The screenings sold out within hours of the announcement.

The announcement drew online criticism, mostly from men. One of those men, Stephen Clark, a law professor at Albany Law School and LGBT Rights Advocate, filed an administrative complaint with Austin’s Equal Employment and Fair Housing Office, alleging discrimination against male customers and male employees. The City has promised to investigate the complaints.

wonder womanWill the Complaints Be Successful?

There are two alleged complaints, discrimination against male customers and discrimination against male employees. The latter probably won’t get very far. In order to have a successful employment suit, there must be some injury or loss that the employee suffers, such as a pay cut, termination, or demotion. Although Alamo Drafthouse is only planning to have women serve the female only screenings, the men who would normally work at the Alamo Drafthouse were not removed. There are other movie screenings that the men can work at and they are still working at the same rate and for the same pay as their female counterparts at the women only Wonder Woman screenings. Without further evidence of injury on the part of the employees, the complaint on behalf of the men working at the theater probably won’t get too far.

The more controversial case would be the male customers who feel discriminated against. Alamo Drafthouse claims that there is no discrimination because there are other screenings going on at the same time in the same theater that do not have restrictions on gender. Men can see the same movie at the same time and it would be the same experience as the women only screening. The only difference is that they are held in separate locations.

The problem is that Alamo Drafthouse’s argument sounds too much like “separate but equal,” which was prohibited by the landmark Supreme Court case Brown vs. Board.  Of course, the difference is that the Court found that the segregated institutions of the south had discriminatory intent behind them; the purpose of that segregation was to exclude African Americans. Alamo Drafthouse can try to argue that their purpose is to celebrate and empower women, not to demean men. “This is a celebration of a character that has meant a lot to women since 1940.”

Where Do We Go from Here?

The biggest issue here is probably the marketing. Instead of “women-only” or “no men allowed,” the theater would be on better legal footing if this was sold as an event that celebrated women, but didn’t exclude men. We still live in a world where sex and gender are largely viewed as binary elements. An advantage for one group is often perceived as a disadvantage for the other. This is a big problem when each of the two groups make up half the human race. Like so many other discrimination issues, both sides have divergent understands of “equality and fairness.” One side strives for equality by treating both sides as equal from the present forward. The other believes that equality can be best achieved by acknowledging the past and trying best to correct those prior wrongs.

In this case, many of the men are willing to let women participate in events that once excluded women, but feel that women are not negotiating in good faith when some women demand events that exclude men. The women believe that the past cannot be over until women are not only allowed in to events that they were once excluded from, but also given a space where they feel they will not be discriminated against. Neither side is wrong, but the struggle will continue until both sides feel secure about everyone’s rights.

Bill Cosby’s Sexual Assault Trial Begins

The allegations of rape and sexual assault against famous comedian and actor Bill Cosby have been some of the most well publicized accusations in recent memory. With nearly 60 women coming forward with accusations of rape and sexual assault, usually involving situations where Mr. Cosby drugged them before sexual intercourse, the stories that came out were horrifying to say the least. However, despite all these accusations, the only civil case over the allegations was brought in 2004 and settled in 2006.

A large part of this is that a great deal of the accusations date back to the 70s and 80s, at least one goes all the way back to 1965. Unfortunately, rape and sexual assault often come along with statutes of limitations which limit the time period in which a claim can be brought. In California, where many of the attacks allegedly took place, this limitation was 10 years after the act occurs. Since the allegations against Mr. Cosby came to light, and many say in response to the allegations, California and many other states have removed the statutes of limitations for rape and sexual assault.

However, not all the accusations were based on actions from the 70s. One Ms. Andrea Constand alleges Mr. Cosby sexually assaulted her as recently as January of 2004. She went to the police with her accusations in 2005 but the local prosecutor decided not to press charges on her behalf against Mr. Cosby. However, as accusations outside of the statute of limitations continued to pile up in 2014 and onward, Ms. Constand’s criminal charges were brought in December of 2015-just a month before Pennsylvania’s 12-year statute of limitations was set to expire.

The criminal case has just recently got underway, and just days ago the prosecution finished making their arguments against Mr. Cosby. The case, charging Mr. Cosby with criminal sexual assault as opposed to rape, has been the subject of extreme press scrutiny. In order to understand these charges, let’s take a look at what needs to be proven in a criminal sexual assault charge and the facts alleged against Mr. Cosby and in his defense.

Bill CosbyHow Does Criminal Sexual Assault Work?

Sexual assault, like all sexual crimes, are some of the most heinous our criminal justice system handles. Like almost all criminal law, exactly how sexual assault works varies depending on each state’s statute. It’s worth noting, however, that sexual assault and rape have some of the most substantial variations in how they are handled from state to state. In general, sexual assault is any nonconsensual touching of a sexual nature-in some cases statutes require that touching to be done by force, threat of force, or violence. Sexual touching is generally understood as the knowing and purposeful touching of an intimate or private part of another. Depending on the statute, this touching may include touching with objects, touching through the clothes, and may or may not require penetration. Often the touching need only be un-consented and offend a reasonable person. A lack of consent can generally exist where a person is unable to communicate consent due to physical helplessness including helplessness induced by alcohol or drugs.

In Pennsylvania, where the criminal charges are being brought, sexual assault is a class two felony defined as “sexual intercourse of deviate sexual intercourse with a compliant without the complainant’s consent.” Deviate sexual intercourse includes penetration, no matter how slight of the genitals or anus of another person with a foreign object for non-medical and non-law enforcement related procedures. Basically, this means that the charges require evidence of: 1) sexual intercourse or actual penetration of genitals or anus with a foreign object; 2) without consent. This is more strict than many other statutes in the nation, especially the requirement of actual penetration.

The charges carry an even higher penalty where they are committed either 1) when a victim is unconscious or the person charged knows the victim is unaware sexual intercourse is happening; or 2) where the person charged substantially impairs the victim, with drugs or otherwise, without their knowledge and for the purpose of preventing resistance.

The Charges Against Mr. Cosby

First and foremost, nobody is guilty until proven so by a jury of their peers. However, if true, the events told by Ms. Constand are gut-wrenching to say the least. One of the requirements of our legal system is that an accuser in a criminal case must testify. This is based on the premise that the accused has the right to confront their accuser. Often, victims of rape and sexual assault are hesitant to do this as confronting their rapist is, for obvious reasons, too mentally distressing. What’s more, while there are limitations on the type of questions that may be directed at a victim of rape or sexual assault known as rape-shield laws, consent is always at issue and the attorney for the defense will almost always bring up the sexual history of the victim to some extent in establishing whether the accuser consented. The defense’s attorney may, and usually will, make lines of questioning related to prior consensual sex between the defendant and the accuser, other potential sources of bodily fluids, evidence attacking the series of events the accuser describes, and situations that may show the rape was not committed by a defendant. These situations make sense, sexual assault and rape are very serious accusations. However, to say that testifying as a victim of a sex crime can be extremely difficult is a huge understatement. This was what Ms. Constand faced as she testified as part of the prosecution’s case this last week.

Ms. Constand’s testimony, nearly seven hours in length, described Mr. Cosby building a mentorship relationship with her while she worked as director of operations for the women’s basketball team at Mr. Cosby’s alma matter Temple University. She stated that Mr. Cosby never expressed clear interest in her, although she did rebuff his advances twice while she knew him. She describes considering him a mentor and not thinking twice about accepting his invitation to his house to discuss her future career. She also says that this trusting relationship led her to not question accepting and taking three pills he offered her for stress. This leads to the part Cosby has already admitted in a past deposition, that he gave Ms. Constand pills and had sexual contact with her while she was under their influence.

Mr. Cosby’s version of the story is a bit difference, and discusses the situation as a consensual sexual encounter. In his previous 2005 deposition, he had admitted giving Ms. Constand pills but had said that he still thought the encounter was consensual.  His defense attorney has pointed to 72 phone calls that occurred after Ms. Constand says Mr. Cosby assaulted her. Something that Constand describes as returning Mr. Cosby’s phone calls due to his position on Temple University’s board essentially necessitating due to her position with the school. While Mr. Cosby has previously admitted to giving woman quaaludes, a prescription sedative, he and his lawyers state that he instead gave Ms. Constand Benadryl-something Cosby says he considered a sleeping aid. They point to a15 minute session of “holding” in a casino hotel room, along with one or two alleged encounters of a more sexual nature, as proof that they had a previous romantic relationship. Ms. Constand says she rebuffed Mr. Cosby on all these occasions.

Trial is Still Ongoing

Mr. Cosby is being tried by a jury of his peers. While his admitted actions are beyond inappropriate, it would also be premature to speculate on his guilt before testimony is complete in this case. That the act itself occurred is not contested, this case will certainly come down to a matter of whether the act was consensual. Consent especially is a historically unpredictable thing in courts, often coming down to the opinion of a specific jury. This can often take some particularly unfortunate forms as laws meant to prevent somebody from defending themselves are used to inappropriately attack a victim’s credibility.

We will know soon enough whether the evidence is there for a jury to treat his actions as criminal. What Mr. Cosby has already admitted to, as a man in a position of power taking advantage of a woman under that power, certainly seems at least morally reprehensible if not criminal. As to potential enhancements under the Pennsylvania statue, they seem unlikely at this time as Ms. Constand was both conscious for the act and knowingly took the medication Mr. Cosby provided her. If found guilty Cosby will go to jail for up to 10 years as felony sexual assault is a second degree felony in Pennsylvania. Were the charges enhanced, he would have faced up to 20 years.

On This Day: Loving v. Virginia Paves the Way to Our Future

On June 12th, 1967 the United States Supreme Court unanimously declared that the State of Virginia’s anti-miscegenation law, a law that prevents mixed race marriage, was unconstitutional. For Richard and Mildred Loving, and so many others, the Court declared that the law violated their right for Due Process and Equal Protection under the 14th Amendment.

To this day, many legal scholars and writers view this landmark decision as a turning point for civil rights in America. But what happened? What made the Court go against years of “tradition”? What happened to Richard and Mildred Loving, and why does this case affect us today?

Loving v. VirginiaThe Facts Behind Loving v. Virginia

In 1958, while asleep in their bed, Mildred and Richard Loving were raided by the police and then charged with violating Virginia’s Racial Integrity Act of 1924. Their marriage certificate was framed on the wall, but ignored by Virginia officials as they considered their marriage to be invalid within Virginia. Since they were violating the law, they pled guilty, and were offered a suspended sentence so long as they leave Virginia for at least 25 years.

Before they brought their case to the Supreme Court, interracial marriage was not viewed favorably. At the time, over 15 states had active laws against interracial marriage. In fact, interracial marriage was considered a felony and you can even sue successfully for an annulment if your spouse is determined to be of mixed-race. Every case that brought forward the question of whether the law can ban interracial marriage always found in favor of upholding the ban. The legal system only focused on whether an interracial marriage law equally applied and controlled whites and non-whites. So if there was an interracial couple, the legal system only wanted to make sure that the white person was also equally punished as the non-white person. If the white person was let off more leniently, then, and only then, would the Court think the law is unconstitutional.

The reality is that most of the nation moved past banning interracial marriage. But just 12 years earlier, in 1954, did public schools even begin to de-segregate their student population. It was such a slow march to equality, and it wasn’t until Richard and Mildred Loving entered the picture did civil rights leaders realize they had a chance to strike down laws that ban interracial marriage.

The Warren Court and Their Place in the Civil Rights Movement

When their case came before Justice Earl Warren and the other Justices of the United States Supreme Court, the Court once again shocked the nation by declaring Virginia’s interracial ban to be unconstitutional. Warren was famously quoted as saying that:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes…is to surely deprive all State’s citizens of liberty without due process of law… Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

They added that there was “no legitimate overriding purpose” to the law, except to maintain White Supremacy. As the Court could find no other reason for the law, except to limit the freedom of all citizens (including white citizens) they overturned Virginia’s decision and effectively made all interracial marriage bans unenforceable.

How the Story Ends, for the Lovings and for Us

While Richard and Mildred Loving were a legally married couple and their rights restored to them, Richard died in 1975 when a drunk driver struck his car. Mildred survived the crash, and lived until 2008 when she passed away at the age of 68.

Even though they may not have gotten to spend their golden years together, their stance against interracial marriage bans have helped so many other Americans. Many legal scholars and writers think that Loving v. Virginia is what paved the way for same-sex marriage, determined in the case Obergefell v. Hodges in 2015. The opinion of Justice Kennedy invokes the same language, emotion, and determination as the decision in Loving.

Many studies show that interracial marriages are at an all-time high in the U.S. with 1 in 6 married couples considered to be a mixed-race couple. The number of mixed-race children are also rising, giving the way to a future that is not divided by color or ethnicity.

While it is not an officially recognized holiday, Americans across the nation celebrate Loving Day on June 12th to remember how far our nation has come and to be hopeful for a bright future. Every American, even those who are not in a mixed-race relationship and/or not of mixed-race, can be grateful for Richard and Mildred Loving’s courage to stand up against those who tried to infringe and regulate their liberty.

On this day in history, the United States of America made a great step towards liberty and equality for all.

Being Transgender is Covered by ADA, PA Court Decides

When we think of disabilities, being transgender-hopefully-is not something that comes to mind. This is for a simple reason, gender identity is state of being rather than a disorder. However, out in Pennsylvania, Judge Joseph Leeson was recently saddled with the unenviable position of parsing how gender identity should be handled under the Americans With Disabilities (ADA)—the act which provides federal protection against discrimination based on a disability.

This ruling is the first of its type and had some serious hurdles to overcome to include gender identity as a disability under the ADA. When the ADA was first passed gender identity was specifically excluded from being classified as a disability. It wasn’t in particularly good company, other specific exclusions include kleptomania, pyromania, and pedophilia. The unfortunate truth is that the exclusion was a bit of a product of the times when the ADA was passed. At the time, congress specifically railed against the inclusion of so-called “immoral” medical conditions. Thus, gender identity was unfairly lumped in to ADA exceptions. However, the exception remains as part of the law. Truthfully, despite it’s unfortunate conception, being transgender is not a disorder or disability in and of itself. Including it under the ADA seems out of place for that reason. However, like most things in law, the question before Judge Leeson was one of definition. In order to understand the Judge’s ruling, ultimately including gender dysphoria as a disability, let’s look at how a disability is defined and the ruling itself.

What is a Disability Under The ADA?

In 2008, the ADA updated their definitions of what exactly constitutes a disability.  The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The changes also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

transgenderUnderstanding Judge Leeson’s Ruling

So does gender identity constitute a disability? Absolutely not. However, Judge Leeson’s ruling recognized a clear distinction between gender identity and gender dysphoria-the distress created by the differences between a transgender person’s gender and the gender they were assigned at birth. Let’s take a look at the facts of the case to figure out how he got there.

The case involves one Kate Lynn Blatt suing Cabela’s Retail, her former employer, for firing her based on her diagnosed gender dysphoria. Ms. Blatt was not allowed to dress and act as woman while working for Cabela’s. This became a point of contention between her and her employer. Under the ADA, an employer is required to provide reasonable accommodations to a disabled employee. However, Cabela’s refused to let Ms. Blatt dress as a woman and allegedly eventually fired her over it. This led to Ms. Blatt’s ADA retaliation claim. A retaliation claim requires her to show that she engaged in protected activity under the ADA and that adverse employment action was taken against her based on this action.

The ruling in question was on a motion to dismiss the case entirely. Thus, Judge Leeson needed only to find that the facts and law were sufficient to show that Ms. Blatt had a plausible claim under the ADA. The facts were there, Blatt had diagnosed gender dysphoria and it is at least plausible she was fired over her desire to dress as a woman-a very reasonable accommodation to require. The question came down to whether gender dysphoria was a disability under the ADA.

The ADA specifically excludes gender identity. However, Blatt argued that her gender dysphoria substantially limited major life activities for her including how she interacted with other and social and occupational functioning. Ms. Blatt further argued that the outright exclusion of gender identity from the ADA was either not meant to be interpreted as a blanket ban on any element of gender identity or the existence of such a ban violated her equal protection rights.

Judge Leeson agreed to a certain extent. Where the constitutionality of a law is called into question, judges are advised to look for an interpretation of the statute that reads in a constitutional manner. The Judge found this middle ground-the distinction between gender identity and gender dysphoria-a condition clearly associated in the medical community with stress and other disabling impairments. He determined that if the exclusion of gender identity disorders in the ADA excludes gender dysphoria it would undermine the statute itself. Instead, he chose to construe the exclusion of gender identity very narrowly and preserve the intent of the statute.

In a motion to dismiss, this was enough. If gender dysphoria can be a disability then Blatt had given enough facts to get past this initial threshold.

What Does This Ruling Mean?

Gender identity disorders, as opposed to gender identity itself, has had an unfortunate position in the ADA since the law was first passed. This ruling is a huge step for the transgender community. These protections are something that have been unfairly placed out of reach for decades.

However, it is important to recognize what this ruling is and what this ruling is not. First and foremost, it is a ruling on a motion to dismiss. While the analysis of the law from this judge will not change as the lawsuit progresses, a big victory for the LGBT community, this ruling may well be appealed and the lower standard of these type of motions mean that Ms. Blatt is far from a guaranteed victory. Also important to keep in mind, Judge Leeseon’s analysis allows the ruling to bypass a larger issue. By reinterpreting the law in a way that avoids potential constitutional issues, Leeson made it unnecessary to decide whether the exclusion for gender identity disorders violates Blatt’s equal protection rights. This ruling is a big step, but it must be recognized as a step and not a leap. The full implications of this ruling, and whether it will stand up in the long term, still remain to be seen.