Author Archive for Jason Cheung

Is It Protected Speech: Can You Legally Flip Off a Cop?

On August 21, 2017 Indiana State Police trooper Matt Ames pursued a driver along U.S. 41. Ames cut off another driver, Mark May, in order to catch the driver. As Ames cut off May, May “gave the finger” to Ames. When Ames saw the gesture, Ames pursued May and ticketed him for “provocation.” Indiana Criminal Code charges an individual for $500 if the person “recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery commits provocation.”

Mark May challenged his ticket at Terre Haute City Court. The traffic judge found May guilty. May appealed his ticket and won, whereby the conviction was dismissed. The District Attorney’s office declined to proceed further with the case.

Mr. May is now suing the state of Indiana, with assistance from the ACLU, for violating his First and Fourth Amendment rights. The ACLU of Indiana alleges that May’s gesture was expressive conduct protected by the U.S. Constitution. The lawsuit also argues that the state trooper engaged in an unconstitutional search and seizure because Ames lacked probable cause to stop May. May seeks damages, including lost income for his two days from work for his court appearances.

protected speechConstitutional Speech or Provocative Conduct?

The ACLU has made two claims, but the Fourth Amendment claim is dependent on the First Amendment argument. If flipping off a police officer is constitutionally protected speech, then the officer would need another probable cause to stop the vehicle.  If it is not, then Trooper Ames would have witnessed a crime in progress (provocation) and would have probable cause to stop May.

The Supreme Court has ruled that speech can be more than mere words. Conduct can also be a means of communicating ideas. The Court is especially protective of political speech, especially speech meant to change government policy or to protest government conduct. Flag burnings are protected speech under these rules. If “giving the finger” to a government figure is a means of protesting the government, then it would also be protected speech. Suppose that a President of the United States walked down the street and everyone on the street gave him a middle finger salute as he passed by. The First Amendment would protect anyone who pointed their finger at the President.

On the other hand, there might be situations where engaging in provocative behavior would endanger not only the defendant, but the general public as well. Suppose that a gang member was driving down the highway when a member of a rival gang cut in front of him. When the gang member gave the other driver the finger, the rival gang member responds by shooting at him. The other driver misses his target and ends up shooting a nine-year old girl in another car.  Clearly, the middle finger would be a proximate cause for the murder in that case. This example is slightly exaggerated, but road rage in a gun happy culture is a bad idea.

Between these two extremes, we can derive a few ideas where this kind of law might be acceptable. First, government officials should not be able to abuse provocation to protect themselves from citizens. Second, the law should be narrowly tailored so that it protects the public from people who might injury others because of a fight.

How Will This Case Play Out?

The anti-provocation law, as written, is constitutional. Application to this case is a little harder. The fact that Trooper Ames was acting as a representative of the state at the time is central here. Normally, a court would ask whether giving another driver the figure would reasonably cause the other driver to commit battery. If we assume everyone is an adult capable of controlling their emotions, the answer is probably no. So we must ask if Trooper Ames gave the ticket because he was offended or because he thought other drivers would be offended if they were in his situation.

The state would lose if Ames pulled May over because he was personally offended by the gesture. Ames would be abusing his power by punishing a citizen for a personal grudge instead of enforcing the law as an agent of the state. Likewise, the state would lose if May gave Ames the finger because May thought that a police chase would be unsafe or that the person Ames was trying to catch should not have been targeted.

The only way that Ames could lawfully ticket May for giving him the finger is if May was angry that a car, regardless if it was a cop or not, had cut him off and if Ames thought May’s reaction would likely cause any other driver to react poorly. If this exact situation sounds too farfetched, then Mr. May should be able to legally flip off Trooper Ames.

Court Orders Amish to Use Electrical Sewer Pump

A Pennsylvania Appellate Court has ordered an Old Order Amish family to use an electrical sewer pump. The electrical sewer pump would connect the Amish home to the main municipal sewers of the county.

The Amish have often fought with local, state, and even the federal government about compliance with laws that govern the rest of society. The right to home school children exists because the Yoder Amish were successful in winning an exemption from Wisconsin’s compulsory education laws in the 1970s. The Amish are most famous for shunning the use of modern technology, including the use of electricity.

The majority opinion of the court is that the Yoders would not be burdened by the electrical pump. The Yoder Amish have incorporated other electrical devices into their lifestyle, including telephones, power tools, and even cars, without religious conflict. The electrical pump would connect the Amish family’s house to the main sewer line, thereby preventing a potential public health hazard.

amishJudge McCullough dissented, arguing that there less intrusive ways of disposing sewerage without the use of an electrical pump that would violate the Amish’s religious beliefs.

The Sanctuary of Hearth and Home

Although maintaining religious freedoms with public health standards usually requires a balancing act, very little balancing is required in this case.  Laws must not substantially burden religious practices without a compelling reason and without a better way of achieving that goal. If there is a way of disposing sewerage without the use an electrical pump, then the Amish should prevail.

Logically, there must be a way to dispose of sewerage without electricity. Removing human waste is a problem that has existed for as long as society has existed. Since mass consumption of electricity only began in the late 1800s, there must have been ways of disposing human waste before the modern era. If the Amish are willing to take on the burden of using pre-electrical methods of removing sewerage, there is no reason they should be compelled to use technology that is against their religious beliefs.

The majority’s focus on whether the Amish use technology is thus misplaced. Even if the use of an electrical device would not significantly burden the Yoders, Pennsylvania has yet to show that there isn’t a better way. The question is not whether the Amish can use modern technology, but whether the Amish have a way of addressing the public health issues without resorting to modern technology. If they do, then the Amish’s religious beliefs can be preserved without conflict.

What’s the Takeaway?

The most striking aspect of this case is that it involves such an intimate area of human living. The state seeks to regulate the bathroom of a private home. Most people don’t care about what happens after they flush their toilet, but this is government intrusion into a part of the house that most people prefer others not view. This is more intrusive than a bakery refusing to bake a wedding cake. Pennsylvania should work harder to accommodate the Amish’s religious beliefs than they have.

Woman Denied Emotional Support Peacock on United Flight

United Airlines barred a passenger named Dexter from flying. Dexter had a ticket and allegedly followed every required protocol, but spent six hours waiting in L.A. before being denied. Finally, Dexter’s owner, Ventiko, left the airport and drove cross-country.

Dexter is Ventiko’s emotional support peacock.

United Airlines confirmed that Dexter was barred from the plane on January 27, 201 because the peacock did not meet the airline’s guidelines, including weight and size. United claims that it had warned Ventiko three separate times before she arrived at the airport that Dexter would not be allowed onboard.

Airlines are tightening their restrictions after customers and airline attendants complained about some of the animals brought on board. United Airlines will require documentation confirming that an emotional support animal emotional supportis properly trained for public settings and is healthy. Delta Airlines will require the same documentation as United, but will also require the service animal’s veterinary records.

Federal guidelines compel airlines to permit passengers with disabilities to fly with trained service animals or emotional support animals, regardless of the animal’s potential to “offend or annoy” fellow passengers. However, airlines have the flexibility to deny boarding to “unusual” service animals, such as spiders, rodents, and snakes. The deciding factor is whether the animal would pose a threat to the safety of others.

Airlines and some disability-rights advocates believe that people are using federal law to fraudulently bring pets with them on their flights. The number of passenger requests for emotional support animals increased by 15% between 2016 and 2017. 76,000 support animals flew last year, nearly double the 43,000 animals that flew in 2016. The internet allows people to easily forge false papers for their pets, even if their animals are not actually service or support animals. The sudden increases in support animals lead many in the airline industry to suspect that some of the claims were fraudulent.

Civil Liberties or Community Safety

Disability laws generally require that private and public organizations make reasonable accommodations for those with disabilities. This has often included emotional support animals. Unlike service animals, a support animal does not require special training. However, the support animal must not be a nuisance to those around it.

Department of Transportation rules actually create a lower standard than the usual disability accommodation laws. Although support animals are usually prohibit from being public nuisances, DoT guidelines only require that the animal not pose a threat to others. Simply being annoying or offending is not enough to get a support animal thrown off.

Exotic emotional support animals have mixed records on public flights. In 2015, a support turkey successfully flew from Seattle. Daniel the Comfort Duck made a few headlines in 2016, but flew without incident. On the other hand, Hobie the Support Pig had to be kicked out of a flight in 2014 because it squealed and defecated before takeoff. Whether an exotic support animal would threaten passenger safety should ultimately be decided on a case by case basis.

Tips on Getting Your Support Animal through the Airport

Anyone looking to get their support animal onto a plane should follow Daniel’s example and avoid Dexter’s controversy.  So what can we learn from each?

  • Call the airline as soon as possible regarding your animal. You might need to speak with several managers to get approval and that will take time.
  • Describe your disability and how your support animal helps you with your disability. If the law requires accommodation of a disability, you must prove that you qualify for such accommodation.
  • Make sure your animal is either well-trained or you have an excellent method to dispose of its waste. Daniel the Duck wore a diaper at all times and was allowed to fly. Hobie the Pig was kicked out partly because it used the restroom everywhere.
  • Have all your paperwork done prior to the flight. Different airlines have different requirements. You should know what paperwork your airline requires and submit all of the documents prior to the day of boarding.

City of El Cajon Charges Group for Feeding Homeless in Park

Last October, the city of El Cajon banned food sharing events in public spaces. The city justifies the ban on the basis that it prevents the spread of Hepatitis A. An outbreak of Hepatitis A began in November 2016. Since the beginning of 2018, 577 cases of Hepatitis A have been reported. Symptoms include nausea, fever, fatigue, loss of appetite, stomach pain, vomiting, yellowing of the eyes, dark urine, and diarrhea. There have been 20 fatalities so far.

A group called Break the Ban has been holding food sharing events to feed the homeless at these parks in protest of the ban. They have held four such gatherings so far. Organizers claim that each gathering has drawn more people in need. The group believes that the ban’s actual purpose is to prevent homeless people from coming to the parks, since the ban excludes birthday parties, sporting events, and other social gatherings.

Nevertheless, the city has chosen to crack down on the activists. Police have cited nine people on misdemeanor charges for violating the food ban.

The city argues that the ban is necessary because Hepatitis A is usually transmitted by sharing food or having sex with an infected person. Break the Ban counters that Hepatitis A is being spread by human feces and refusal to wash hands after using the restroom.

At first glance, Break the Ban has a decent equal protection claim against the city. Although the city has a reasonable purpose in passing the food ban, the law doesn’t seem like it’s designed to actually address the problem. If preventing the spread of Hepatitis A through food is really the goal, it makes no sense for the city to exempt sports events and birthday parties. Hepatitis A can just as easily spread by giving food to sports players and little children as giving food to homeless people.

el cajonEqual Protection Not Applied Equally

However, Break the Ban would likely lose any lawsuit against the city if they sued for violation of equal protection. Courts give greater protection if the law discriminates based on certain characteristics, such as race or national origin. Laws that discriminate based on race must serve a compelling state interest and the means must narrowly fit that interest. For example, a law that requires all persons of a certain race to wear a badge would likely fail because there is no good purpose that such a law would serve.

The problem Break the Ban has is that being homeless is not a trait that courts give greater protection to. Instead of strict scrutiny, courts will defer to the government as long as the legislature can provide a genuine reason for passing such a law. In this instance, a judge would most likely look at the food ban as a reasonable method of preventing Hepatitis A since infection rates have dropped since the ban was passed.

What Will Happen, Going Forward?

This is not the first case where activists accused city and state governments of banning people from feeding the homeless. Three years ago, Arnold Abbott was arrested for violating a Lauderdale Beach City, Florida ordinance prohibiting the feeding of homeless people. The city dropped its charges last year after the negative publicity became too much.

In fact, it’s the negative publicity which often causes cities to dress up their anti-homeless laws in pretext. Pretext is a false reason given for adverse laws that cover up the government’s true motives. In cases involving protected traits, courts are vigilante against pretext. However, since anti-homeless laws would likely survive a lawsuit even if cities were completely honest about their intent to expel homeless people from city limits, the pretext is not for the courts’ benefit. Pretext such as city health is for public consumption.

Veterans Affairs Faces Lawsuit From Veteran Over Scalpel Left in Body After Surgery

How much is a scalpel in the abdomen worth? Glenford Turner of Birdgeport is suing the Veterans Affairs Administration after a scalpel was discovered in his abdomen after a critical surgery for prostate cancer. Turner went into the VA hospital in West Haven, Connecticut in 2013 for surgery.

Over the next four years, he felt dizziness and severe pain where the scalpel was located. Turner finally went back to the VA in March of 2017 and an X-Ray showed there was a scalpel inside his body. Turner underwent another surgery in April to remove the tool. Doctors confirmed it was the same blade used in his previous surgery four years earlier.

In June of 2017, Turner filed a claim with the Department of Veterans Affairs under the Federal Torts Claims Act. Turner and the VA couldn’t settle Turner’s claim, so Turner’s attorney filed a medical malpractice lawsuit against the federal government after the New Year.

Turner’s Medical Malpractice Claim

The patient must prove the following to win a medical malpractice case:

  • Duty – The defendant must have a legal responsibility to the plaintiff
  • Breach – The defendant failed to carry out his or her responsibility in some manner
  • Causation – The defendant’s failure caused the plaintiff’s injury
  • Damages – The plaintiff was injured in such a way that the defendant should pay some kind of restitution to the plaintiff.

If Turner’s case relied solely on proving these elements, he would prevail, especially if there was a jury involved.

veteran affairsThe surgeon who operated on Turner had a doctor-patient relationship with Turner. Turner relied on the doctor’s expertise, skill, and care to ensure that he made it through the operation safely.  There is no doubt that the law would not only require the doctor liable for anything that happened while Turner was being operated on, but that the doctor also had a duty to exercise care and due diligence since Turner’s life was entirely in the surgeon’s hands while Turner was unconscious. The VA is vicariously liable for the surgeon’s mistakes since the VA was employing the surgeon for the operation.

Breach and causation are often harder to prove, but the nature of the accident all but confirms that there was some kind of malpractice. The doctors who removed the scalpel have confirmed that it was the same scalpel used to remove Turner’s prostate cancer. Even without that testimony though, Turner can rely on “Res Ipsa Loquitur.”

Res Ipsa Loquitur” is a legal doctrine that means “the thing speaks for itself.” Generally, judges and juries require evidence of breach and causation before they will believe a claim. However, there are some injuries that are clearly the result of negligence. In cases involving such self-evident injuries, the injured party does not need to prove breach or causation.

Turner has a very strong “res ipsa loquitur” case. Scalpels do not usually turn up in abdomens unless a surgeon left it inside after an operation. Even if Turner cannot name the specific surgeon or exactly when it was left behind, the scalpel inside him is obviously the result of malpractice.

Turner was very fortunate that the knife didn’t penetrate any internal organs. As it is, Turner suffered four years of pain and discomfort because of the scalpel that had been left inside. The VA owes Turner for those years of pain and suffering, as well as the cost of the x-rays, doctor visits, and the second operation to remove the blade.

Government Immunity

Although Turner would have a very high chance of prevailing if he were suing a private hospital, Turner’s case is trickier because the defendant is the United States government. Governments are typically immune to lawsuits, unless the legislature permits it. Fortunately, the Federal Torts Claims Act (FTCA) gives federal courts the power to hear cases involving torts between private citizens and the federal government if the plaintiff notifies the federal agency within two years of the injury.

The FTCA only gives the patient two years to file his or her lawsuit. There is a little grey area in Turner’s case, since the scalpel was left inside in 2013, more than two years ago. However, Turner would have no reason to suspect that his surgeon left the instrument inside him until he could get an x-ray. When Turner discovered the blade mid-2017, he immediately had it removed before the end of the summer. The statute of limitations should not start running until Turner realized he had been injured by his doctor’s malpractice.

The second barrier behind the FTCA is that only certain federal employees can be sued under it. If the doctor who operated on Turner was an independent contractor, then Turner would have to bring his case in state court against the hospital and the doctor. This is only desirable if Connecticut would pay out more money for malpractice. Turner is lucky since Connecticut does not impose any damage caps.

However, Connecticut does not enforce vicarious liability between the hospital and the physician. This means that just because the hospital employs the negligent doctor, does not mean that the hospital is responsible. The only pool of money that Turner could access in Connecticut courts would be the doctors who were careless. Although the doctor might be wealthy, it is a far smaller claim than successfully suing the federal government.