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ICE in Hot Water For Arresting Oregon Man Without a Warrant

Federal immigration agents were filmed arresting a man working inside an Oregon home, even though the self-described agents admitted they didn’t have a warrant to be inside the house. George Cardenas and Carlos Bolanos were hired to remodel a home when two men and a woman claiming to be U.S. Immigration and Customs Enforcement knocked on the door. Cardenas opened the door to inquire who it was, then Cardenas claims he went back inside without inviting them in.

Nevertheless, the three of them stepped inside anyway and claimed they were there to arrest Carlos Bolanos for being in the country illegally. At that point, Cardenas pulled out his cell phone and started filming the agents inside the house. When asked to identify themselves, the self-proclaimed agents refused to give their names. Cardenas said the homeowner was on the way back and told the agents they were trespassing by entering the house without the owner’s permission.

ICEAfter seven minutes, the agents surrounded Bolanos while he is talking on a cellphone. They took the phone from one hand and a paintbrush from another as an agent warns him not to resist. Cardenas said Bolanos has four children in Oregon, and that they’re all US citizens. Nevertheless, the agents pulled him out of the house.

U.S. Senators Ron Wyden and Jeffrey Merkley said that the incident was “deeply troubling” and that they were inquiring with ICE about exactly what happened. Bolanos was set free after Cardenas’s video went viral. “I think the outcome would have definitely been different if I didn’t record (the incident) or if I wasn’t a U.S. citizen,” Cardenas said.

The “Agents” Should Not Have Entered the House

While ICE has legal authority to make arrests, they cannot ignore Fourth and Fifth Amendment protections while doing so. These amendments are not merely red tape. The Fourth Amendment keeps the federal government out of people’s homes unless the government has a warrant. This protection applies to all homes, regardless of the immigration status of the people inside.  The Fifth Amendment requires that all persons be given due process before any kind of government action can be taken against that person. These protections are especially important in deportation proceedings, otherwise the government can deport whoever they accuse of being here illegally, regardless of whether ICE is telling the truth or not.

In the video, the agents argued that they didn’t need a warrant because the house was a “business” and therefore the Fourth Amendment shouldn’t apply. The agents were absolutely wrong. The warrant requirement applies to commercial buildings. It didn’t matter if the house was being used for business or for residence, the agents either needed the homeowners consent or a warrant signed by a judge.

There was also a dispute as to whether Cardenas invited them inside. Law enforcement do not need a warrant if they have consent to enter. Cardenas might not be the owner, but his permission would likely suffice. The parties disagree as to whether leaving the door open means Cardenas gives his consent. Even if leaving the door open is a non-verbal method of communicating consent though, it’s quite obvious from the video that Cardenas did not intend to. Even if he did, Cardenas later revoked his consent, as he demanded the agents wait outside until the owner arrived.

One of the most troubling aspects of this story is that ICE agents are making arrests without properly identifying themselves. The agents were out of uniform, refused to give their names, and the only thing identifying them as agents was a keychain around one of the “agents” necks. This is extremely dangerous; if agents do not identify themselves, then anyone can claim to be an ICE agent. If purported ICE agents refuse to reveal their legal authority other than their word, they should subject to all criminal laws that citizens are usually subject to. If the men and woman were not federal agents or acted outside their authority as federal agents, then they should be charged with kidnapping under state law.

When Police Are Right, But Cannot Arrest Suspects Because the Suspects Got the Facts Wrong

Criminal law is based on the subjective intent of the defendants. In other words, did the defendant intend to do what the law considers a crime? Intent can be very important, as it separates accidents in personal injury from vehicular murders in criminal law. However, this reliance on intent can produce contradictory results, where a defendant is guilt because of action, but is not guilty because they lacked criminal intent. The most famous example is when former FBI Director James Comey announced that there was not enough evidence Secretary Clinton did not intend to circumvent government transparency laws by using a private email server. However, there are less prolific cases where criminal intent is also the deciding factor between innocence and guilt.

What Happened: Bachelor Strip Club Party in D.C.

On March 16, 2008, about 1:00 a.m., Washington D.C. police received a complaint from neighbors about a loud party and potentially illegal activities in a property that had supposedly been vacant for several months. As the officers knocked on the house, they heard music playing and smelled marijuana. When the officers opened the door, several people inside scattered around the building. The house itself was “in disarray” and unfurnished. Police eventually found 21 people inside, including a man hiding in a closet. Several women were “dressed only in their bra with money hanging out of their garter belts” like “strip clubs.”

No one among the 21 people claimed to be the owner of the house or knew who the owner was. Several people claimed they were there for a birthday or bachelor party, but none of them knew who the bachelor was or whose birthday they were celebrating. A few of them claimed a woman named “Peaches” had given them permission to be in the house, but when officers called “Peaches,” she admitted she didn’t have the owner’s permission.  Eventually police got in contact with the homeowner, who explained that the house had been vacant since the last resident had passed away and that he had not given “Peaches” a lease for the house. The officers arrested everyone inside for disorderly conduct and unlawful entry, but prosecutors decline to press charges.

arrestOddly, this was not the end of the story. Shortly after the incident, 16 of the partygoers sued the D.C. police department because the officers lacked probable cause at the time prior to arrest. Since police had no way of knowing prior to entering the house that the people inside were not invited, they had no reason to suspect that the partygoers were trespassing. The plaintiffs won a total of $1 million against the police department and the city. A divided appeals court affirmed the judgment, but the case is now on the Supreme Court docket.

Factually Wrong, But Without Intent Means Not Guilty

Police cannot arrest suspects for any reason or no reason. Police must always have a “reasonable ground for belief of guilt” based on the “totality of the circumstances.” In other words, police must have evidence, based on the information at the time of the arrest, that the suspects have committed a crime. Obviously, what evidence or information is sufficient depends on the exact charges. With unlawful entry or criminal trespass, there must be evidence that the defendants were 1. Unlawfully on the property, 2. Without the owner’s consent, 3. The defendants knew or should have known they did not have permission to be there. The big argument is over the third element; whether the defendants knew or should have known they did not have permission to be on the property.

The fundamental assumption the officers made is that if the homeowner did not give “Peaches” permission to be in the house,  then the homeowner did not give permission for the partygoers to be in the house either. The partygoers clearly relied on “Peaches” apparent authority to be in the house. Unless the partygoers had a way of directing contacting the homeowner, their reliance on “Peaches” word was reasonable. The partygoers would have both subjectively and objectively believe they were not trespassing. In contrast, the officers arrested them based on the fact that legally and factually they had no right to be there.

This is a case where the defendants are right because they reasonably thought they had permission while the officers are right because factually they actually did not have permission. Criminal law, however, is concerned with what the defendant’s intended, not with who is legally right. However, the fact that the officers were right about the legal facts of the case does give rise to probable cause that the law might have been broken. Prosecutors were correct in not bringing charges, but the lower judges were incorrect in punishing the officers for their mistake.

Preventing Rapists from Obtaining Child Custody

Many child custody cases are heart-breaking, but the most horrific cases involve children who were forcibly conceived. The law struggles with what appears to be the easiest of questions: do rapists have child custody rights?

The Horrific Case of Tiffany and Christopher Mirasolo

In September 2008, 12 year old Tiffany and her sister slipped out at night to meet a boy. The boy’s older friend, 18 year old Christopher Mirasolo, offered to take the girls on a car ride. Instead, Mirasolo held them captive in a vacant house for two days. After raping Tiffany, he released the girls, but threatened to kill them if the girls reported him.

When Tiffany became pregnant, Mirasolo was arrested. He was sentenced to a year in county jail, but only served half a year, to look after his sick mother. Mirasolo was arrested for a second sex assault on a teenage victim two years later. He only served 4 years in prison.

Meanwhile, Tiffany struggled to support the son she gave birth to as a pre-teen. She skipped high school and went straight to work to support her boy. Unfortunately, Tiffany did not make enough money to support her child, so she applied for welfare. Shockingly, state welfare services would not help her unless she named who the father was. When Tiffany named Christopher Mirasolo as the father, state support service filed a support claim on Tiffany’s behalf. The support claim resulted in Tiffany sharing joint child custody with her rapist.

child custodyWhy Would the Judge Grant Joint Legal Custody?

Many states have guidelines and/or laws limiting how welfare is distributed. When Tiffany applied for welfare as a single mother, the state likely has an automatic process whereby it attempts to obtain child support from the father before providing welfare. The goal of course is to save taxpayer money and to transfer the obligation of supporting the child to the responsible party, the other parent.

In order for the state to order a man to pay child support, he must be proven to be the father of the child. Ordinarily, this would be a reasonable policy. The state cannot force people to be couples, but it can try to force people to be responsible for the offspring they create. However, all these reasonable policies and assumptions break down when it is obvious that the mother and father should not be in the same room. Judges have discretion to determine custody arrangements, but judges are bound by state law. Unless there is a statute that prohibits a judge from granting joint custody, most judges will err on the side of joint custody.

However, states vary in how they approach rape and child custody. In 20 states and the District of Columbia, a rape conviction is required before termination of parental rights is allowed.  Five states, Wyoming, North Dakota, Minnesota, Alabama and Maryland, do not have any laws prohibiting rapists from obtaining child custody. Since criminals are primarily state laws, the most the federal government can do is encourage states to enact laws barring child custody to rapists. The Rape Survivor Child Custody Act, signed by President Obama in 2015, gives states funds for passing laws that prevent convicted rapists from obtaining child custody. That’s the extent of the federal government’s involvement in custody and criminal cases though.

How Can We Change Course?

According to the American Journal of Obstetrics and Gynecology, about 5% of rape victims become pregnant as a result of rape; that’s about 32, 101 pregnancies per year. In percentages, the number is not high. However, each pregnancy because of rape brings out legal and ethical issues that impact both the mother and the child.

First, raising a child together is arguably a more intimate relationship than sex itself.  I have sat through custody hearings where the judge reminds young parents that “you will likely see each other at your child’s teacher-parent meeting, soccer games, college admission tours, wedding, and the birth of your grandchildren. The commitment you made when you decided to have a child together is not a commitment that ends in 18 years; it is a lifetime commitment.” Normally these are words of wisdom. Forcing a rape victim to forge this daily and emotional relationship with the rapist would only lead to more traumas and would likely reduce the victim’s ability to take care of herself, let alone her child.

Second, forcing the child to spend time with the rapist/father would endanger the child. If someone like Mirasolo was willing to kidnap and rape a 12 year old, there is no guarantee that he would not rape his child. Although the child in the Michigan case is a boy, rape is about power. Endangering the child’s life or threatening to do so would allow someone like Mirasolo to further control his victim. Even if professional supervised visitation is an option, it would not prevent the “father” from using the legal system to further exploit his control over the victim and the child.

If the father is convicted of raping the mother in a criminal court, it is imperative that the law extinguish the father’s custody rights. The risk to both mother and child are too great. Arguably, it might be in the best interests of the child to know where he or she came from. However, if the child wants to undertake that journey, they can do so when they are an older and independent adult, able to understand what rape is and why the man who conceived his or her existence is not a good person. If the judge does believe the child might have an interest in being raised by both the victim and the rapist, the judge should at least appoint an independent counsel for the child so that rapist’s arguments do not just outweigh the victim’s interests.

Attorney General Sessions Argues Civils Rights Act Doesn’t Bar Discrimination against Transgender Persons

Earlier this October, Attorney General Jefferson Beauregard Sessions III ordered the Justice Department to argue in court that transgender people are not protected by the Civil Rights Act. The Civil Rights Act protects employees from discrimination based on gender. The Obama Administration had argued, often successfully, that “gender” included gender identity. Under Sessions, “sex” and “gender” would mean biological sex and gender only.

Session’s new policy faces an uphill battle, and potentially a losing war. The Equal Employment Opportunity Commission (EEOC) has continued to support transgender employees, as recently as this summer. Additionally, there are a number of cases where the courts have ruled in favor of the Obama Administration’s position. Court precedents stretching back to the 1980’s support the argument that illegal discrimination against gender can include discrimination against gender stereotypes.

What is the Difference Between Gender Stereotypes and Gender Identity?

The greatest challenge Jeff Sessions will have is explaining how gender stereotypes and gender identity are different. If discrimination based on gender stereotypes is illegal, how is discrimination based on gender identity legal?

Under judicial precedent, employers cannot punish female employees for not being feminine enough. Employers cannot demand individual women to speak or dress more femininely to succeed in the business world. The general idea is that punishing a person for not conforming to a gender stereotype would mean penalizing a person for being the “right kind” of woman.

Session’s new policy will have to untie the Gordian knot that gender stereotypes are linked with gender identity. If a man behaves more femininely or if a woman is more masculine than her co-workers, employers have no right to punish that employee for not conforming to what the employer believes to be appropriate gender boundaries.

transgenderOf course, feminine men or masculine women are not always transgender. Transgender persons might not see themselves as feminine men or masculine women. However, employers and laypeople might see transgender men as masculine women or transgender women as feminine men. The two are inseparable and enforcing a policy that allows for discrimination against transgender while the law prohibits gender stereotyping will be virtually impossible.

Comparable Evils

Jeff Sessions’s biggest defense for his reversal in transgender protections is that he is merely enforcing the law. It was the Obama administration that violated the Civil Rights Act by expanding the meaning of “gender” beyond what Congress intended.

There are two problems with this argument. First, Congress has never stated that gender only means biological sex of the person. Congress has largely been silent on the matter. Republicans have had control of Congress for the last several years and have yet to even hold hearings on the interpretation of gender in the Civil Rights Act (in contrast with 56+ attempts to repeal Obamacare while President Obama was in office). If Congress really had an issue with the President Obama’s interpretation of gender, one assumes Congress would have at least passed a bill objecting to it.

Second, the Supreme Court has ruled on whether the Civil Rights Act can be interpreted beyond the original intent of Congress. In 1998, the late Justice Scalia wrote, in a unanimous ruling about male and male sexual harassment:

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

When even the father of Originalism says that the Civil Rights can reach beyond the original understanding of the Congress that enacted it, Attorney General Sessions is clearly in the wrong.

Alternative Means

Of course, it is unlikely that Jeff Sessions will change his mind. It might be best for transgender persons to use other legal provisions to protect themselves from discrimination. This might require some creative lawyering:

These arguments are probably trending on thin ice. With an administration that seems hell-bent on demolishing LGBT protections though, desperate times might require creative measures.

Child Pleads to Save Toys R Us from Bankruptcy

Growing up, my family would often spend Saturday mornings just visiting our local Toys R Us. If we couldn’t convince our parents to buy the latest Transformers or Game Boys, we’d hide them in the back shelves until we could return for them. Twenty years later though, Toys R Us has filed for Chapter 11 bankruptcy to resolve its $5 billion debt.

I wasn’t the only one who was unhappy to hear the bad news. One young boy, Andrew, went so far as to file a pleading with the bankruptcy court.

Andrew gives three persuasive reasons:

  1. It would be bad for kids
  2. They would be very unhappy
  3. And they would be rather promised a trip toys r us than any other store

Andrew’s pleadings were entered into the docket like all other documents.

bankruptcyAndrew may get his wish. Chapter 7 is liquidation bankruptcy, whereby the company is dissolved and its assets sold. Chapter 7 will likely be death for most companies. In contrast, Chapter 11, while a severe wound, is not fatal. Chapter 11 is akin to cutting off one’s infected arm to save the rest of the body.

Understanding Chapter 11 and Chapter 7 Bankruptcy

Gruesome metaphors aside, Chapter 11 can be a great tool for struggling businesses. In Chapter 11, the business is reorganized, hopefully into a stronger entity. Like Chapter 13 for individuals, businesses going through Chapter 11 are required to come up with a plan for restructuring. This may require repaying some creditors, selling off unprofitable portions of the company, and investing in parts of the company that are making money. In rare instances, the Chapter 11 may be converted into a Chapter 7 bankruptcy if the company cannot be salvaged through the restructuring plan.

Toys R Us owes $7.5 billion total to almost every major toymaker in the country: Crayola ($2.6 million), Hasbro ($59 million), Lego ($32 million), Mattel (owed $136 million), Radio Flyer ($12 million), and Spin Master ($33 million). Toys R Us is determined to keep its doors open as it goes through bankruptcy, but the decision may ultimately be out of the retail’s hands. If suppliers lose confidence in Toys R Us’s ability to repay them, they might decide not to ship their products to Toys R Us. With Black Friday and Christmas approaching, that would almost certainly put Toys R Us out of business for good.

Fortunately, Chapter 11 bankruptcy itself provides a way for Toys R Us to stabilize itself. When a business is under Chapter 11 bankruptcy, the business has the power to assume or reject executory contracts. An executory contract is a contract where both parties have yet to fulfill the material terms of the contract. For example, suppose that Toys R Us and Hasbro have a contract whereby Toys R Us agrees to buy 500 units of beanie babies for $1 million. Due to Toys R Us’s debt problems, the retail has yet to pay the order and Hasbro has yet to deliver the beanie babies. Since neither company has fulfilled its end of the bargain, Toys R Us can choose to assume or reject the agreement.

If the contract is assumed, then the parties will maintain the deal and the debtor can seek a court order to enforce it, if necessary. If the contract is rejected, then the contract will be null and void. For a struggling debtor like Toys R Us, the power to bind its creditors to contracts previously made can be a lifesaver. Young children like Andrew may have a few more years to enjoy their favorite toy store.