Archive for the 'Government' Category

Why is it Legal to Pay Intellectually Disabled Workers as Little as Two Dollars a Day?

Elizabeth Warren has recently been on a warpath against the subminimum wage. Earlier last week, Elizabeth Warren and Congress held hearings in which the state of minimum wage for the intellectually disabled was discussed.

These hearings discussed a disabled Rhode Island button packer who was paid $0.48/hour, New York workers packaging pharmaceuticals who were paid $0.30/hour while the CEO of the non-profit made over $400,000 a year, and dozens of intellectually disabled workers at an Iowa turkey processing plant who were paid a whopping $2/day.

This last example is a single quarter per hour presuming an 8-hour work day and nearly enough to run both a washer and dryer once at most Laundromats as a total day’s earnings. This is wrong, and you’re probably asking yourself why something hasn’t been done about these exploited workers. The reason for that is that the actions of these employers, under federal law, are perfectly legal.

Section 14(c) of the Fair Labor Standards Act (FLSA) contains provisions regarding payment of a “subminimum wage.” To put the rules simply, this allows employers who first receive a license to do so to pay workers substantially less than minimum wage in a proportion ostensibly equivalent to the proportion of productivity they are capable of when compared to a non-disabled worker.

This law, originally passed in the 1930’s, is still on the books after several amendments to the FLSA and continues to allow the kind of pay we see in Warren’s hearings on the issue. To understand this situation, let’s discuss section 14(c) as well as the few steps to reduce the effects of 14(c) that have been taken at a federal and state level.

subminimum wageUnderstanding 14(c) and the Subminimum Wage

The Americans With Disabilities Act (ADA) protects generally protects disabled individuals from employment discrimination including pay discrimination. However, 14(c) of the FLSA, introduced in 1933 in the National Industrial Recovery Act, represents an exception to this general rule.

As discussed above, section 14(c) allows employers to pay workers with a disability below minimum wage when their work is affected by an intellectual or physical disability. The section also allows, in some circumstances, reduction for lowered productivity due to age or injury.

Initially, this reduction had no real floor to it. However, since a 1986 amendment, this reduction is theoretically a one to one relationship with the reduction in productivity due to the disability. This percentage must be based off a wage that is the same as others around them make for a similar position.

This means that if the job is usually paid $15/hr, the percentage is based on that $15/hr benchmark. If the job is minimum wage, then that’s the basis. However, as we saw in Elizabeth Warren’s hearings, the section is sometimes used to reduce pay as low as $0.25/hr–this is a 96.6% reduction from the $7.75/hr federally mandated minimum wage. This implies a 96.6% reduced capacity to work, which seems extremely drastic to say the least.

Employers can’t just decide how much to reduce a wage and go forward with it. There are licensing requirements before an employer can pay a subminimum wage. The employer must seek a certificate from the Wage and Hour Division of the U.S. Department of Labor. As of now employers have sought certificates impacted nearly half a million people with disabilities.

To receive one of these certificates, the employer must provide written assurances to the Secretary of Labor that the percentages used in the wage reductions will be reviewed at least every six months and updated at least once a year to match the basis wage paid to those around the person with the disability. These certificates generally outline the exact percentages the employer can lower wages by.

Those affected by the subminimum wage are not completely without recourse under the law. A person affected by a wage reduction or their guardian may petition the Secretary of Labor for a review of their situation. The employer cannot be involved in this review whatsoever unless the employee or their guardian consents in writing.

The Secretary then gives the case to an administrative law judge and the employer must provide evidence proving their wage reductions are proper by looking at the productivity and work quality of the employee as compared to those around them who are not disabled. Once the judge reaches a decision, it is final unless the Secretary of Labor decides to grant a review.

Federal and State Action Affecting the Subminimum Wage

What’s been discussed above is all still the state of the law. However, the last four years have seen some very limited carve outs to this general rule which are worth discussing.

First, former-President Barack Obama put forth Executive Order 13658 back in 2014. This order, part of a group of orders known as the Fair Pay and Safe Workplaces Orders, required workers working under contract with the federal government to be paid a minimum of $10.15/hour.

Unfortunately, this did not prevent the use of subminimum wage certificates for these workers. It did, however, set a floor of $10.15/hour for these employees after any subminimum wage percentage reductions. In other words, for this narrow group of federal government contractor employees, no subminimum wage reduction can bring their overall wage below the minimum set in EO 13658.

Another moderate change to the subminimum wage provisions of the FLSA also came in 2014 in the form of the Workforce Innovation and Opportunity Act. This was an enormous bit of legislation, over 300 pages, however the changes it made to the subminimum wage were fairly limited in the scheme of the act’s total scope.

Section 511 of the act, taking effect in July of 2016, placed additional requirements on employers who receive a certification to pay subminimum wage. In the first year of a subminimum wage arrangement, an employer is required to provide career counseling and referral services to help the employee find a non-subminimum wage job once every six months. After that first year, the career counseling and referral services must be provided at least once a year.

For youth with disabilities, section 511 requires employers to provide documents proving they are certified to use subminimum wage and have completed the requirements discussed above before putting a minor with a disability on a subminimum wage. It also requires employers to work with their state’s educational agency to make sure the youth with a disability is completing required educational activities.

Finally, it is worth noting that some very few states have banned the practice of the subminimum wage completely. For example, Vermont and New Hampshire are among the handful of states that have laws specifically banning employers from paying a subminimum wage–certificate or no.

The Subminimum Wage is a Relic

This is the current state of the law as of the writing of this article–in most of the states it is perfectly legal to pay people with disabilities drastically less than minimum wage so long as you first get a certificate from the Department of Labor and conform to a fairly minimal set of requirements. This is frankly an embarrassment to the U.S., a relic of the past.

The idea that the U.S. government at one point issued a certificate suggesting that dozens of people with varying disabilities were all 96.6% less capable than a person without a disability standing next to them is a ludicrous concept. The idea that we continue to allow this practice, with so little in the way of checks on potential abuse of a particularly vulnerable group of people, should not be business as usual in the United States of America. Some states have taken the steps to forbid this practice, it’s time the rest of the nation and the federal government follow suit.

Understanding the 25th Amendment, a Constitutional Succession Mechanism

Recently the headlines have been full of discussion revolving around the 25th Amendment. Most of this is focused on the idea that the Amendment could be a tool to remove President Trump from office due to mental health issues. Since the 25th Amendment was adopted in July of 1965, this portion of the Amendment has never been exercised. This is no accident.

The section of the 25th Amendment in question here, the fourth of four sections, has an extremely rare and difficult implementation mechanism, similarly extreme standards before a president can be removed under the Amendment, and a very simple mechanism by which a President can assert they have been improperly removed.

The 25th Amendment allegations relating to Trump hinge on mental health allegations stemming from posts out of the President related to conspiracy theories and other aggressive behavior. At this point we have not seen much action on these allegations beyond a petition to require President Trump to undergo a psychiatric evaluation. However, we won’t really be addressing the substance of the mental health allegations against Trump too much in this article.

We’ll instead be focusing on the 25th Amendment itself, its history, its purpose, and exactly how it works. This a crucially important Constitutional Amendment, it’s important to understand exactly why it was adopted and how it works.

The Origins and History of the 25th Amendment

As mentioned, the 25th Amendment was ratified in July of 1965. This is notably only two years after JFK’s assassination in November of 1963. This is not a random correlation, the actual assassination of a sitting president led those in the Government to realize that the Constitution left the U.S. ill-prepared for the potential of a president suddenly being unable to perform their duties.

Before the 25th Amendment was adopted there was very little in the Constitution regarding the actual process of succession should a president die or be unable to perform their duties. There was an established precedent that the Vice-President would take over the duties of the president, but it was still unclear whether the VP was an acting president or actually the president. The first time the issue was raised, back in 1841, President William Henry Harrison had just died, and his VP John Tyler rushed to Washington to be sworn in. It was generally accepted that he was taking over the role of the president. However, he still received letters addressed to the Vice-President-Acting-President for his entire stint as President, much to his displeasure.

This was the accepted means of handling the matter up until the 25th Amendment was adopted. However, it created a clear issue. In 1881, the government essentially stopped all function after President Garfield was wounded in the assassination attempt that would ultimately lead to his death. The Vice President at the time refused to act in any way as president or take steps towards acting as president until Garfield had passed out of fears it would be unconstitutional. This meant there was no action in the government for months.

These were the fears in the minds of Congress when they voted to adopt the 25th Amendment, what if the assassination attempt on JFK had not instantly killed him? What if the government had ground to a halt to wait on his death or survival and there were no agreed upon constitutional means of replacing the president–temporary or otherwise. So, the 25th Amendment was born with the goal of avoiding situations where something suddenly changes, or a situation unexpectedly develops where the president is so unwell or so unfit that he is rendered incapable of performing his duties.

25th amendmentSince its adoption over half a century ago, the 25th Amendment has been invoked only six times, most notably by President Richard Nixon to replace the recently resigned Vice President Spiro Agnew. However, as we’ll see in the discussion of the exact provisions of the 25th Amendment, none of these six invocations deal with the section discussed in the media discussion regarding President Trump’s mental fitness.

How the 25th Amendment Works

While an incredibly important change, the actual function of the first three parts of the 25th Amendment are facially very simple–if not well legally explored in the courts. There are four sections, each addressing one element of the common questions about presidential and vice-presidential succession that existed prior to the Amendment.

First, section one addresses the long-held confusion that haunted Tyler for his whole presidency after the death of Harrison. Under the first section of the 25th Amendment, the vice-president officially becomes the president when a president is removed from office. This meant that Gerald Ford became president when Nixon was removed from office and in the unlikely event Trump was removed from office Mike Pence would take his place.

The second section, as discussed in the context of Nixon and Spiro Agnew above, places a requirement on the current president to nominate a replacement vice-president should the position become vacant through death, illness, or any other removal. This appointment is confirmed by a majority of the House and Senate.

Section 3 of the 25th Amendment deals with the temporary transfer of power made by the President. It allows the President to submit a written declaration declaring themselves temporarily unable to discharge their presidential duties. This declaration can later be reversed by a second written declaration which essentially says the opposite of the first.

This section of the Amendment has been used a few times, once by Ronald Reagan and twice by George W. Bush. Every time the section has been used it has transferred power to the respective Vice President while the President in question underwent surgery that had been planned.

This takes us to the section at hand, section 4, the ability of the Vice President to take steps to remove a President who is unable to fulfill his duties but cannot (for instance a situation where a President is in a coma) or will not step aside. This section has never been used, the fact that it must be initiated by a Vice President makes it a unappealing option for both political and appearance purposes.

The way it works is that the Vice President, accompanied in his message by a majority of the department secretaries such as the Department of Justice, Department of Labor and the Department of Defense, must send a message to the Speaker of the House and the President Pro Tempore of the Senate. This message must say that the President is currently incapable of fulfilling their duties.

The sending of this letter requires the support of both the Vice President and quite a few high ranking political officials appointed by the President to be removed, so you can see how unlikely this is to occur barring extreme circumstances just based on the political realities of the situation. Should the Vice President and this majority come together however, the sending of this letter immediately makes the Vice President the acting President.

This is not the end of the process. If the President doesn’t agree that he is unable to perform his duties and isn’t incapable of responding due to health issues, he can simply send his own letter to the House and Senate saying that he’s capable and this immediately reverses the whole process and restores his powers as President.

After this letter from the President, the Vice President and his majority have four days to again declare the President unfit. If they do this, Congress has 48 hours to convene and then must decide by a two-thirds majority that the President must step aside within the next 21 days. If Congress agrees with the Vice President, the Vice President once again becomes acting President. If they don’t agree, get the necessary supermajority, or fail to act within the 21 day timeline, the President stays the President.

Even after all this hullabaloo, the Vice President does not become the President–only acting President. This has very little practical difference in terms of the powers the acting President would hold. However, while the situation has never occurred, so the issue has never been legally disputed in the courts, this heavily implies that the power could be taken back for the former President if the Vice President lost his support with the majority of department secretaries or chose to simply give the power back.

When is a President Unable to Fulfill Their Duties?

You can already see how convoluted and unlikely section 4 of the 25th Amendment is to be used as a mechanism to remove any sitting President. However, the fact that it has never been used has left quite a few legal questions without a settled conclusion. Specifically, no court has ever clarified when a president ceases to be able to perform their duties.

The goal behind the Amendment would likely require something drastic and, at a minimum unexpected. The Amendment was designed to make sure the U.S. isn’t up a creek if something suddenly happens to the capabilities of a President. The most obvious example that would meet the criteria of the Amendment would be if a President was left in a coma. Anything less than that would leave the situation unclear. When it comes to mental health, it would likely require a serious mental break before it would rise to the level required for invocation of the Amendment.

What’s more, while the issue isn’t directly addressed in the Amendment itself, the goals behind the Amendment on its creation at least imply that the disability requires a certain amount of suddenness and unexpectedness. This means that any behavior that existed prior to election is unlikely to rise to the level of inability to perform duties. Despite how you may feel about the situation, the President is elected by most of the people and the ability to remove a President for traits that existed prior to election would raise some concerning implications–it could frankly set a dangerous legal precedent for the future.

This is not a blanket rule, there are certainly some things which could come to light that were unknown prior to election that could call a President’s capacity into question. However, in general the evidentiary bar to establish that a President is incapable of performing their duties is quite high and generally requires literal incapacity–either mental or physical.

Does Section 4 of the 25th Amendment Apply Here?

Section 4, quite appropriately given its topic, is incredibly difficult to invoke. The political reality is the Mike Pence is extremely unlikely–pushing the bounds of impossibility–to gather most department heads and take the actions discussed in section 4 of the 25th Amendment.  Even were this incredibly unlikely event to transpire, there is still the question of whether anything President Trump has done can rise to the level required to make him incapable of performing his duties.

This is an incredibly high bar. However, it is not a well defined legal area. Have Trump’s actions risen to the level where discussion of 25th Amendment action is warranted? I’ll leave it you to decide.

Understanding California’s New Gun Control Laws

Last year was the deadliest year for mass shootings in the history of the United States. The shootings in Las Vegas, the Texas Church shooting, the Fort-Lauderdale-Hollywood International Airport shooting and more contributed to a year with 345 mass shootings–nearly one a day. 14,000 were killed in these mass shootings this year and over 29,000 injured.

The U.S. far and away has the dubious distinction of the most gun deaths in general and most gun deaths per capita–nearly triple the next highest high income country. To put the above numbers in perspective, Japan expressed concern in 2016 as the yearly gun death total had risen from 8 to 27. With this in mind, effective gun control measures have been a hot topic of political discussion. The issue is obviously an extremely contentious one. However, it’s crucially important to find a way to eliminate the sheer number of these horrific shootings.

With this in mind, many states have introduced new gun control laws this year and others have updated existing laws. As an ongoing issue, many states such as California have laws that have been phasing in over the years. As the new year starts, California has had many of the elements of their newest gun control law–Proposition 63–take effect. Let’s look at the new provisions, the provisions that have already taken effect, the provisions that will take effect in the future, and the legal challenges the California laws already face.

gun controlCalifornia’s Gun Control Changes in the New Year

As of January 1st, California’s Proposition 63 has had two big changes take effect–one limiting the sale of ammunition (especially important in light of the special tracer rounds ordered remotely in the Las Vegas mass shooting) and another requiring criminals to give up their firearms.

The ammunition changes require sales of ammunition to be processed through licensed vendors and conducted in person. This means you can’t purchase ammunition over the internet or from a catalogue–even if you buy it from out of state. Any ammunition purchased in this manner in California will have to be shipped to a licensed ammunition vendor and picked up at the store. This particular provision is aimed, as mentioned above, squarely at the ability of a mass shooter to remotely stockpile enormous amounts of ammunition–over 1,500 rounds in the case of the Las Vegas shooter– without arousing suspicion. These rules are on top of other California laws forbidding direct mailing of ammunition.

The license requirement for ammunition sales only applies to vendors who sell more than 500 rounds of ammunition per month. These licenses are location specific and are obtained through the California Department of Justice after a background check on the licensee.

The second substantial change that began with the year puts a new mandatory rule in place under Proposition 63, requiring criminals convicted of certain types of crimes must turn over their firearms to the authorities. The rule also includes enforcement mechanisms to ensure this takes place. The biggest change here is the new enforcement mechanisms allowing law enforcement officers to make sure these criminals turn over their firearms.

Right now officers just have to go door to door to get these weapons, these newly adopted provisions of Proposition 63 changes this. The crimes that can trigger the law include most violent crimes, felonies, misdemeanors involving domestic violence, and illegal weapon use for example. As of January 1st, those convicted of one of these crimes are given a certain time period to provide proof that they sold or gave away their firearms. It is the job of probation officers and the courts to ensure compliance and act if they do not.

Elements Of Prop 63 Already Implemented

These two changes are newly implemented. However, several Proposition 63’s elements have been in effect for over a year. For example, in November of 2016 Proposition 63 made it illegal to sell or give ammunition to somebody to somebody when you have the knowledge that that person will give that ammunition to somebody otherwise not allowed to own a gun–a concept generally known in the law as selling to a straw purchaser. Proposition 63 also made it so that gun dealers were required to report the theft of ammunition to law enforcement in addition to the firearm theft reporting previously required. Finally, it made the theft of a firearm a felony in all circumstances–regardless of the value of the weapon.

July of 2017 brought several additional elements of Proposition 63 into effect. Firearm owners are themselves required to report the theft of one of their weapons within five days of discovering, or when they should have discovered, the theft or loss of the weapon.  The California Department of Justice was required to share with the FBI the personal information of anybody forbidden to own a firearm and continue state-run background checks t build a more comprehensive database of gun ownership. Finally, vendors who sell firearms need background checks from employees who handle ammunition or firearms.

Upcoming Provisions Next Year

Proposition 63 still has a few more provisions left to take effect. However, these last elements won’t take effect until 2019. First, the law will require ammunition vendors to track and record sales of ammunition and provide this information to the California DOJ just like they do with firearms sales. The vendors will also have to perform a background check before selling or transferring ammunition.

Finally, the law is scheduled to require those in possession of large capacity magazines (magazines with capacity for 10 or more rounds) to dispose of their magazines. While large capacity magazines (LCMs) have been illegal for some time, there was previously a loophole for those who already owned the magazines. This restriction, along with this loophole, has been the center of a serious legal case challenging the validity of Proposition 63 itself.

Prop 63 Currently in a Lawsuit Over Validity

Last June, Federal court judges were looking at a different part of Proposition 63’s LCM ban which was set to take effect in July of last year. These two judges came to two opposing conclusions–one ruling in favor of a temporary delay until a final decision was in place and the other allowing the ban to go forward under the premise that allowing a grandfathered loophole for LCMs made no sense as nobody could tell the difference between an LCM owned from before the ban and one that was illegally modified to hold 10 or more rounds. The judges noted the sheer number of mass shootings over the last several years but, ultimately, the LCM ban was slightly delayed.

The case is still ongoing, with filings made just a few months ago. However, similar efforts with the 9th Circuit–the Circuit governing California–have upheld similar LCM bans. This trend toward allowing this sort of ban has been upheld in many other cases across the country. Realistically, the LCM ban is likely to be upheld. What’s more it’s worth noting that California has banned the sale and manufacture of LCMs since the year 2000, Proposition 63 is exclusively closing the grandfathering loophole.

Regardless of the outcome of the case, it’s important to know both the law and your rights when it comes to firearm ownership wherever you live. What’s more, it’s important we enact laws that are effective in preventing mass shootings such as the many tragedies that have occurred over the last year. Proposition 63 is helping ensure responsible firearm ownership to do just that.

Pennsylvania Wants to Expand Grandparent Rights

The opioid epidemic in Pennsylvania has resulted in families without mothers and fathers to raise the children. Grandparents are often the only family members who can watch the children while their parents are in rehabilitation or in prison. However, most state laws make it difficult for anyone other than the other parent to obtain custody, even temporarily, of a child. Pennsylvania is no exception – but a new bill might change that.

Why Does PA Want to Change the Law?

Current Pennsylvania guardianship law assumes that both the mother and father are capable of taking care of the children. In order to establish even a temporary guardianship, both parents, if alive, must consent. Few parents want to admit they are incapable of taking care of their children, so obtaining consent from both parents is often a challenge. A court can order a guardianship in lieu of parental consent, but most judges are very hesitant to take such drastic action without clear and convincing evidence. As a result, the current grandchild custody process in Pennsylvania is very expensive and many grandparents cannot afford the legal fees necessary to obtain guardianship of their grandchildren. Still, approximately 90,000 grandparents are raising more than 195,000 grandchildren in Pennsylvania.

Rep. Eddie Pashinski and Wilkes Barre have proposed a state bill that would facilitate temporary guardianship of grandchildren while the parents are in a patient institution or having a medical emergency. The bill would give grandparents legal standing to bring a petition for guardianship, whereas previously only the other parent had standing to do so. The bill would also allow the court to waive filing fees if such fees would be a financial burden on the petitioner.

grandparentsRep. Pashinski has stressed that background checks and a court hearing would still be part of the process. The court would still be required to consider the child’s best interests. Guardianships would be for sixty (60) days unless a court approved an extension for up to a year. The grandparent could then access the child’s medical information or enroll the child in a school while the parent is recovering or rehabilitating. The bill is still in committee and would likely be voted on next year.

Can Custody Really Be Temporary?

Pashinski’s bill is commendable, but its structure leaves some questions. Opioid treatment can take up to a year, but some people who go through drug addiction can take a long time to recover. 91% who go through treatment relapse into old habits, prolonging the time it may take to completely treat the addiction.

If opioid addiction is potentially a long-term issue, it makes little sense to restrict guardianship to a year. Children would be endangered if custody were given back a parent who relapses into opioid usage. In those cases, it would advantageous if the grandparent were outright given custody with visitation rights to the addicted parent until the court is satisfied that the threat of addiction is over. Instead of a temporary guardianship, or a series of temporary guardianships because of relapse, a grandparent should be able to fight for custody if necessary.

Giving grandparents custody would potentially make it difficult for a parent to recover custody. If the grandparents agree, that would make it easier, but a protracted legal battle would be difficult for all involved. Young children need household stability and a custody dispute would endanger that. As with custody disputes between parents, a custody fight between a parent and grandparents might lead a child to believe that he or she needs to pick a “side.”

What is Better for the Children?

Although custody battles would lead to emotional stress for many children, that stress would be omnipresent in any family law case. A seven year old doesn’t see the distinction between a temporary guardianship and custody. The child will only see that he or she is spending more time with Grandma and Grandpa instead of Mom or Dad. If the side effects are the same, we should at least prescribe a legal procedure that gives Grandma and Grandpa the best chance to succeed when Mom or Dad are having issues.

Swatting: Murder by Prank Call is Still Murder

The law is clear that if a defendant hires a hit man to kill a victim, that defendant would also be guilty of murder. If a defendant prank calls the police instead, the legal outcome should be the same for the defendant.

“Swatting” is an internet prank where the prankster calls in a false crime to lure a large number of police officers to a house. The prank usually involves a false call about a murder or hostage situation. Tyler Barriss was playing a game of Call of Duty on December 30 when he got into an argument with another gamer. Another player suggested to Barriss that he “swat” the offending gamer.

Barriss called police in Wichita, Kansas and reported a domestic shooting and hostage situation. According to police, Barriss falsely claimed that he had accidentally shot his father and threatened to set the house on fire. Wichita police descended on Andrew Finch’s home, the address that Barriss had given the police department. When police surrounded the house, Andrew Finch went outside to find out what the commotion was about. Police yelled at him to put his hands up. One officer fired when he believed Finch was reaching for his waistband.

Police officers searched the house and found Finch’s mother, niece, and two young children, but no hostages, injured persons or weapons. Andrew Finch died at the hospital. He was unarmed. Finch was not the other gamer involved in the internet game with Barriss.

swattingLos Angeles police arrested Tyler Barriss on January 3rd on a felony false police report. Kansas is expected to pick Barriss up from the Los Angeles County jail by mid-February. Barriss has a history of prank calling or threatening to make such calls. Barriss had previously made a call regarding a bomb threat to a television station and joked about “swatting” FBI headquarters on Twitter.

Is Barriss Liable for Murder?

Murder requires at least two elements: the defendant must intend to kill the victim and must take action to kill the victim. If the defendant is unsuccessful in his attempt to kill the other person, the defendant is guilty of attempted murder instead.

Barriss’s prank call is akin to hiring a hit man to kill another person. Instead of hiring someone to do the killing, Barriss acted through an unwitting police department. Barriss deliberately acted with malice aforethought – he made the call with the specific intention of escalating tensions between police officers and a random person. Barriss had been warned by authorities before not to make such prank calls, but Barriss continued. The result is that an innocent person was murdered and two young girls must live without their father.

Barriss might argue that he didn’t intend to get anyone killed. It was a just a prank that got out of control. However, his actions still count as felony murder. In a felony murder case, a person convicted of a felony is liable for any murder that occurred during the felony. For example, a robber might only attend to steal money from a bank, but if anyone dies during the robbery, the robber would liable for the victim’s death. Since knowingly making a false police report is a felony and a person died during the felony, Barriss would be potentially guilty of felony murder.

Of course, Barriss is not the only cause of Finch’s death. People are beginning to question why police are always trigger happy. If the office hadn’t open fire, Finch would still be alive today. However, just because Barriss wasn’t the direct cause of Finch’s murder, doesn’t mean he’s off the hook. If a defendant is a proximate cause of a victim’s death during a crime, that’s enough to trigger felony murder. As long as it was reasonably foreseeable that a person might be killed during the crime, the defendant would be liable as a cause of the murder. Barriss cannot escape his culpability by blaming anyone else but himself.

Is Barriss Liable for Wrongful Death?

As mentioned, Andrew Finch leaves behind two young girls, ages 2 and 7. The girls will need money to support them as they grow up, now that they have been deprived of their father. One of the features of the American legal system is that a person can be charged with a crime in the criminal system and sued for wrongful death in civil court.

To win a wrongful death lawsuit, the plaintiff needs to prove that the defendant caused the victim’s death by acting intentionally or recklessly. If Kansas state prosecutors can convict Barriss of felony murder, it would greatly help prove the wrongful death case against Barriss. Barriss intentionally made the call or that he acted in reckless disregard of the consequences. Barriss was warned multiple times that his prank calls were tying up police resources when they could be used on serious matters – matters of life and death. He clearly doesn’t care how his “swatting” affected others, even if it put them at risk.

The biggest issue with a wrongful death suit against Barriss is that he doesn’t have a lot of money. Tyler Barriss is a twenty-five year old gamer living in his parent’s basement. He’s facing potential prison time for felony murder.

Even if Barriss lost a wrongful death suit, he doesn’t have the money to pay Finch’s family. The sad truth is, many people can be liable for terrible acts, but will not compensate the victims because they are unable to pay them. Finch’s estate will likely have to pursue other avenues for compensation. The City of Wichita and the Police Department would also be liable in this instance. The Kansas Victim Compensation or Kansas Victim Services could also provide relief.