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Never Again: Florida Gun Laws After the Parkland Shooting

Of all the states expected to act, Florida has certainly seen the most scrutiny seeing as the actual shooting took place there. However, despite protests and support from the Florida governor, Florida lawmakers recently rejected a law to ban assault rifles. To be more accurate, Florida passed the law for 15 minutes before calling for a roll call vote in which several representatives got cold feet when they realized they would be recorded as supporting the law. This led to a reversal of position on the banned. However, Florida’s newly passed laws do take several steps in changing how guns can be owned and sold in Florida.

New Florida law has extended the usual waiting periods on handguns to all firearms and required a complete background check before the waiting period can end regardless of how long it takes. There is an exception to this rule for law enforcement officers, members of the military, those with concealed carry permits, and those who have completed a 16-hour hunter safety course.

The new law also raised the minimum ownership age for rifles and shotguns to 21 years old as well as bans use, possession, and sale of bump stocks (an accessory which can turn a gun from semi-automatic to fully automatic).

The law also makes a Public Safety Commission to make recommendations on school safety, creates a safety officer for each district and school, provides funds for mental health treatment, and a few other logistic steps to help with safety.

parklandThe most publicized of these steps has likely been Florida’s new marshal program, which allows teachers to undergo training to carry a gun and apparently respond to active shooter situations. This approach has been a common suggestion recently, but frankly has many issues that make implementation problematic.

There are logistical problems such as the increased insurance costs that will certainly be associated with having armed teachers. What’s more, it is likely a matter of time before a teacher makes a judgment call to shoot a student and the school will be left to decide whether they made the right decision or overreacted.

This is even more problematic in Florida as the stand your ground laws would allow an armed teacher to avoid liability for shooting any student they believe poses a serious threat to cause death or grievous bodily harm–active shooter or no.

Even beyond these complications, the idea of arming teachers and requiring them to fight off an active shooter is questionable at its core. The armed deputy sheriff on duty during Parkland chose not to go in and confront Cruz, is it reasonable to ask that of a teacher we already don’t give enough funding for school supplies?

Not only have some of the laws that were passed by Florida enough to raise an eyebrow or two, the things they chose not to pass also bear mentioning. The Florida Senate rejected dozens of proposed changes including: allowing police to seize weapons from somebody under a domestic violence injunction, gun registry rules, allowing local governments to pass stronger gun laws than the state, background checks for out of state gun purchases, banning large capacity magazines, requiring trigger locks and lockboxes for guns, mental health examinations for a concealed carry permit, assault rifle bans around schools, and many more.

What Have Other States Done in Response to Parkland?

While Florida’s changes have certainly received the most media attention, Parkland has inspired changes in gun law across the nation. Here are just some of the moves made in the last month.

In Michigan, lawmakers have been considering provisions such as arming teachers and confiscating guns from people suffering from mental illness. California has proposed 10 different gun control laws including background checks on parts used to assemble assault rifles, create an Armed Prohibited Persons list for those who may be a danger to themselves or others, a law which takes guns from those hospitalized for suicide attempts twice in one year, and more.

Oregon is one of the few states who have already taken concrete action by barring those convicted of stalking and domestic violence (as well as those under restraining orders) from buying or owning guns or ammunition. Rhode Island’s Governor signed an executive order taking guns from those who pose a danger to themselves or others.

In Vermont, Gov. Phil Scott changed positions on gun laws after initially saying that he felt there was no need for change after Parkland. A recent near miss where a student was caught planning a school shooting has led the Republican governor to start considering new legislation.

Vermont is considering several new measures and their Senate Judiciary Committee has already passed a bill allowing law enforcement to remove guns from people considered at extreme risk of harming themselves or others. Illinois and a few other states are considering similar moves.

Other states, such as Ohio, are still considering how to move forward. Indiana has made moves in the opposite direction since Parkland, removing restrictions on gun ownership in the last few weeks. Kansas is thinking about lowering the age restriction on concealed carry permits from 21 to 18, a measure which would have allowed the Parkland shooter himself to get a concealed carry permit.

South Dakota has decided to go the route of outright allowing guns on school grounds and churches as a so called “self-defense” measure. They are also considering doing away with the concealed carry permit altogether and just allowing any gun owner to carry a gun however they like.

Texas has taken an informational route, ordering that safety information be distributed to all schools as well as planning safety audits for Texas schools requiring clear emergency plans.

What Can We Do?

Parkland has led to a flurry of activity at all level of government when it comes to guns and gun control. The approach has been wildly different from state to state and even at a federal level. The truth is Parkland has shocked the nation, but it is one of many mass shootings just like it across the nation–with almost one mass shooting a day in the U.S. this year. The conversation on how to best deal with this will continue, however there is still a lot of discussion to be had if we want to find a true solution.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Union Weakening Right to Work Law Upheld in Kentucky

Right to work laws are a misleadingly named movement being pushed across the nation. While they may sound like efforts to ensure jobs, they are actually a push to pass laws which undermine the power of unions by allowing employees to opt out of union dues while still requiring unions to provide these opt out employees full rights and protections.

The laws are a product of a federal law from 1947 called the Taft-Hartley Act. The act prohibited employers from running closed shops—agreements where they only hire unionized workers.  However, it allowed union shops—agreements where employees are required to join a particular union within a certain period of time after being hired.  The act also has a section which allows states to ban union shops as well.

The laws based on this section are right to work laws and are, at this point, exclusively state law. While they vary state to state, they all do essentially the same thing—allow an employee to opt out of paying union dues while still benefitting from union representation. Due to the exclusive bargaining agreements unions provided by the National Labor Relations Board (NLRB), The laws do not apply to federal workers, railroad workers, and airline workers.

right to workThere’s obviously two sides to these laws, not everybody can afford union dues and required union fees can seem like a hefty blow to a person’s paycheck. There are certainly times where it can feel like you’re paying a union to do nothing for you. However, unions truly are the backbone to quite a bit of improvement in pay, working conditions, and more. These rules leave unions without funds to protect their members, putting them in a tough position.

A couple of interest groups have been making a particularly hard push for right to work laws, especially in middle America and the south, for the last several years. The laws have seen a hodgepodge of success. However, through repeated attempts to push these rules the state of the law has slowly ratcheted further and further towards right to work despite constitutional challenges to the laws in state and federal courts. As it is, you are already generally allowed to opt out of union political activities and only pay for representation as to your wages and rights in the workplace.

At this point, there are 28 states with some sort of right to work law in place. These states include: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri (passed in 2017 and postponed to this year), Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming, and-of course-Kentucky. This last state has seen its right to work law recently challenged in court. However, just around a week ago the court ruled to dismiss these challenges to the law.

What Does the Kentucky Ruling Say?

The Kentucky court case challenging the constitutionality of the law made an argument we’ve discussed before in the context of right to work laws–they challenged the law as an unconstitutional government taking. A little over a year ago, we talked about a similar Wisconsin case bringing this argument.

We also said it was unlikely argument to succeed. Takings deals with the government taking all or part of property from a private party, either through eminent domain (the government simply laying claim to the property) or through regulation removing all use for the property.  Not only does takings generally deal with real property (houses and land and such), making it fairly unsuited to an argument regarding  the potential profits from services provided by a union, the 7th Circuit has explicitly considered and rejected the argument of takings when it comes to the constitutionality of right to work laws.

The 7th Circuit ruling argued that unions are compensated for their representation by their government sanctioned exclusive bargaining position with employers. Since the article on the Wisconsin case, the unions have lost their takings based challenges.

The Kentucky argument, brought by Teamsters’ Local 89, made a similar argument to Wisconsin’s. They followed a common line of argument in these sort of cases that the government is taking their private property without compensation by legally forcing them to provide services to people who are not paying members of the union.

However, Kentucky’s arguments went about the same as the Wisconsin case. The Judge on the case ruled that there wasn’t a present property interest on the part of the unions that was being deprived by the government. Instead, the most the unions could argue was a speculative future loss of income. Thus, he dismissed the case. He further dismissed claims of arbitrary government action and equal protection arguments.

This has been the trend in cases like this, there is certainly a property interest that will be lost and the law requires these unions to eat this loss if they want to keep their doors open. However, the common argument courts have made against this is that the unions have a clear recourse–pack up and go home. The unions are put in their position by their own choice, thus undermining the takings argument in the minds of many judges who have ruled on the matter. We’ve seen similar lines of reasoning in right to work cases such as one out of Indiana back in 2014.

Right to Work Across the Country

Right to work laws are an ongoing issue, they continue to be pushed nationwide. The spread of these laws is still ramping up–we may see challenges reach the Supreme Court before too long. The Supreme Court has already heard at least on case on the issue back in 2016. However, the death of Justice Scalia and the failure of conservatives in Congress to allow the appointment of a replacement left the issue in a 4-4 deadlock–as many cases ended during that period.

However, with Justice Gorsuch in place, the Supreme Court will have to address these laws eventually. As it is, the consensus seems to be growing among courts hearing these challenges that they are constitutional laws–despite how much they weaken the unions which protect employee rights. As it is, the makeup of the Supreme Court makes it likely that they will support this trend among the Circuit and state courts.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Parents Head to Court to Stop Transgender Teen from Receiving Hormone Treatment

A big assumption in family law is that the parents of a child will act in the child’s best interests. This is generally true, but there are corner cases that have grabbed national headlines. Parents that refuse to vaccinate their children, decline blood transfusions, and other medical decisions are controversial, especially if their child dies as a result of their decision. A new case in Ohio features another medical parental controversy, but with a culture war twist:

A 17 year old unnamed teen (unnamed for legal reasons) was hospitalized in 2016 for depression, anxiety disorder, and gender dysphoria. According to medical personal who examined the teen, he is suicidal because his father refuses to call him by his chosen name and his parent’s rejection of the teen’s gender identity. He is currently in the temporary legal custody of state family services and lives with his maternal grandparents, who are supportive of his gender identity. He has expressed a desire to stay with them.

transgender teen The medical team at the hospital recommends that the unnamed teen receive hormone therapy. His parents believe these hormone treatments would be pointless. The teen’s court appointed attorney and grandparents accept the recommendation of the hospital, which testifies that the hormone treatments are necessary to save the teen’s life.

Whose Best Interests?

There are two arguments in support of custody. Brinkman, the parent’s attorney, argued “it does not appear that this child is even close to being able to make such a life-altering decision at this time.” Brinkman has a point, since he is, according to the hospital, under severe medical distress. Making life-altering decisions while he is under such stress is not recommended. Calling him a child is disingenuous, since he is 17. However, given that he will soon be an adult anyway, it might be prudent to wait a year before making any major decisions. That year would also serve as a “cooling off” period so that he can think about his choice before making it.

There may be another reason the parents don’t want the teen to receive hormone treatment. The state alleges that the “Father testified that any kind of transition at all would go against his core beliefs and allowing the child to transition would be akin to him taking his heart out of his chest and placing it on the table.” The state is forbidden from restricting a person’s right to exercise their religion.

However, religious beliefs should not play a role when determining whether another person should receive medical treatment. The Father may have sincere religious beliefs, but if his almost adult child believes differently, the Father cannot justify his medical decisions based on his religious beliefs. This would effectively put the Father’s beliefs over the child’s best interests, a departure from the foundations of child custody.

How Will This Issue Play Out?

The parent’s attorney attempts to sidestep this issue by arguing about the rights of a parent. “If the maternal grandparents were to be given custody, it would simply be a way for the child to circumvent the necessity of parents’ consent.” This argument puts the cart before the horse. The parents act on behalf of the child because the child is not legally able to make his own decisions, but the child will be a person independent of his parents.

Parental consent is required only because the parent is the person who is able to make an informed decision for the child’s best interests. If the parent is not acting in the child’s best interests or is unable to make an informed decision, there’s no reason to obtain the parent’s consent.

Religious conservatives might see this case as a threat to the custody of their own children. The state can force them to inject their children with drugs and now it wants to change their genders. Even in this case though, there is plenty of due process. First, this was an extraordinary case where the child was diagnosed with depression, anxiety disorder, and gender dysphoria.

Most children will not suffer from this level of mental health issues. Second, the child has been examined by medical experts from the hospital and by court appointed attorneys. These types of decisions will not come down solely to a judge – there will be due process and experts who have examined the child.

Finally, the parents have an opportunity to present their side of the story. They were allowed to testify to the court and their own attorney is advocating on their behalf. At least one party will walk away unhappy, but their voice will be heard.

NYC Bans Employers from Asking About Your Salary History

New York City has banned employers from inquiring about applicants’ salary history. This ban extends to advertisements, applications, and interviews. The City justifies this new policy on the basis that questions about salary history results in a “cycle of inequity and discrimination in the workplace, which perpetuates lower salaries specifically for women and people of color.”

A Reasonable Restriction

The City is potentially correct in its assessment that basing employment on salary history could lead to further inequity. If the only people who can obtain high paying jobs are people with high salaries, then people with lower salaries might be forever stuck in jobs that pay less. Of course, this policy does not affect applicants. Potential employees can still disclose his or her salary if they believe that revealing salary history would give him or her an advantage in the hiring process.

salary historyOn the other hand, this ban might unnecessarily restrict an employer’s right to free speech and press. Employers want to know if potential applicants can do a good job. Salary history can be a good indicator of progress if a previous employer gave the applicant salary raises during the applicant’s employment. In contrast, an applicant who worked in the same position but didn’t get any raises might have performed worse than the applicant who continually received raises.

Of course, there are other ways for employers to learn how well an applicant might before. The employer can give applicants tests to determine basic competency. The employer can ask about industry knowledge based questions during the interview. Or the employer can simply call the previous employers and ask how well the applicant did. There are plenty of ways for employers to obtain the information that a salary history could reveal. The new law would minimally affect employers and it might help a few employees.

A Discriminatory Anti-Discrimination Policy

Restricting economic class concerns to women and people of color only seems insensitive. Ironically, the webpage promoting this policy is itself potentially discriminatory.  There are plenty of white men, especially with the ongoing opioid crisis, who need help. Class and economic issues should not be limited to race and gender only. New York City is fortunate that the Civil Rights Act and the 14th Amendment have been interpreted so that only advertisements which harm groups of people are considered illegal.

However, economic class is not a protected class under the law. The City cannot justify its new rule on the basis of class discrimination. The language about specifically helping women and people of color was probably thrown in to help strengthen the City’s authority to pass such a law, since it does restrict employers’ free speech.

Parkland Shooting and Gun Control Leading Up to It

The February 14th school shooting in Parkland, Florida sent shockwaves around the nation as one of the most horrifying of the 52 mass shootings that have occurred in U.S. so far in 2018. The enormous attention the horrifying shooting has brought in the media, there has been an accompanying increased scrutiny on gun control laws and debate over how the tragedy might have been prevented.

The news has covered the actual events of the Parkland shooting in detail; most people already know the specifics of what occurred that day. However, for those who have not, the shooting was committed by a 19-year old Junior Reserve Officers Training Corps student by the name of Nikolas Jacob Cruz. He killed 17 people and wounded at least 15 more.

At the day of the shooting itself, Parkland came to school with an AR-15 semi-automatic rifle. He attempted to create a snipers nest, but after he was unable to shatter a hurricane proof window in a stairwell with 16 shots he changed his plans. His gun ultimately jammed while he still had 150 bullets in his possession, allowing his capture.

parklandHe was arrested alive after his shootings and has charged with 17 counts of premeditated murder. In the wake of the shooting, more information about Cruz has come forward, painting him as an individual with mental disabilities and social media accounts with extremely frequent posts containing anti-black, anti-immigrant, anti-Semitic and anti-Muslim slurs and comments.

His posts even go so far as to advocate the killing of Mexicans, blacks, and homosexuals. He is also seen with many firearms in his social media accounts–including posts accompanied  by threats to commit a mass shooting just like the one in Parkland.

The events of the shooting have led to nationwide boycotts, companies cutting ties with the NRA, and more. Dick’s Sporting Goods recently announced that they would stop selling assault rifles after they realized they had sold Cruz himself a gun just a few months before the Parkland shooting occurred. They determined it wasn’t the same weapon used, but still decided to take the step.

The Parkland has also given rise to enormous scrutiny to gun control laws; scrutiny which has led both the federal government and the states to take a close look at their current gun laws and decide how they want to move forward. With this in mind, let’s take a look at the moves on gun laws out of White House–before and after the shooting. We’ll also examine the moves Florida, along with other states, have made since the shooting.

White House Action on Gun Control Before and After Parkland

After Parkland, it is safe to say that gun laws have become the most discussed topic out of the White House and Congress for the last few weeks. Similarly, President Trump’s actions on gun law–before and after Parkland–have become a frequent topic of media discussion.

For instance, there has been media critiquing President Trump for signing legislation which repealed Obama era rules which made it harder for a person with mental disabilities–such as the Parkland shooter–to get access to a gun. This is true, if a bit of an incomplete story.

The regulation the media is referring to is a rule, passed in the last several months of Obama’s presidency which would have given the National Instant Criminal Background Check System–the commonly used background check system for gun sales–access to Social Security Administration data.

This includes a substantial amount of information on federal mental health benefits which could have limited sales of firearms to those with mental health issues. In fact it is estimated that it would have blocked the sales of upwards of 75,000 weapons to people with documented mental health issues.

However, while Trump did sign the repeal of the rule, the rule itself never actually managed to take effect. Instead, it was repealed under the Congressional Review Act (CRA). The CRA, not particularly commonly used prior to the Trump administration, allows Congress to repeal regulations from the end of the previous administration by a majority vote during the first 60 days of a new administration. Congress did so and Trump signed the repeal nearly a year to a day before the Parkland shooting on February 28th, 2017.

Regardless of the action taken before Parkland, the White House’s position on gun law since the shooting has been inconsistent. First, President Trump came out in a position in line with his highly pro-gun stance during his campaign–calling for arming teachers in the classroom and making little to no comment on any gun control methods besides expressing the need to make sure those with mental health issues are not allowed to own guns–comments which led the media to discuss the record on that topic mentioned above.

However, more recently, President Trump has come out with comments which appear more supportive of gun control laws. Suggesting strengthened background checks at gun shows and, on the internet, restricting sales to younger people, allowing police to take guns away from those with mental illness without a court order and even a potential assault rifle ban. He’s gone so far as to say, “I like taking the guns early…take the guns first, go through due process second.”

This is quite an extreme turnaround, so it is unclear where the White House will settle on this issue. At the very least, this change has certainly not led to a change in positions in Congress.

Federal Law on Gun Sales to Those with Mental Illness

Without changes in Congress, no matter what the President says, there is unlikely to be much movement at a federal level on this issue. When asked about making moves on gun law, Speaker of the House Paul Ryan was recently quoted saying that federal law already prevented sales to those with mental health issues. This is true to an extent, but mostly a substantial exaggeration of the state of the law.

The law Ryan was referring to was the 1968 Federal Gun Control Act. The law does indeed include provisions regarding mental health issues. However, they are extremely narrow and only prevent possession of a firearm by people who have been adjudicated as a mental defective or have been committed to any mental institution. This is a very small portion of those with mental illnesses, even more so because of how narrow these definitions are under the law.

A person is only adjudicated mentally defective if a court or other authority determines their mental illness renders them a danger to themselves or others, or they lack the capacity to manage their own affairs. It can also include situations where somebody is ruled insane in a criminal court case. Committed to a mental institution includes situations where a court or other authority involuntarily commits a person to a mental institution.

This is a quite narrow definition, it’s certainly too narrow to have applied to the Parkland shooter. Cruz himself was not even diagnosed with mental illness, although it’s being argued in his court case. Even had he been diagnosed, it is extremely unlikely that diagnosis would have led to a situation that would have qualified under federal law. The truth is that the federal law covers only a very limited number of situations. This means that it’s down to the states to pass laws if they want laws to help avoid situations such as Parkland.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure.