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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.

California Increases Anti-Discrimination Protections for Those with Military Service

With over a million men and women on active duty and many times that number in civilian veterans around the U.S., protecting the employment rights of those who have served is an incredibly important issue. In California, new laws have taken effect as of January 1st of this year which will help protect those with military service when it comes to employment.

As of September of last year, California had the most active military that called the state home of any state, beating out Texas by around 20,000 people at 180,000 active military. Perhaps it’s no surprise they’ve taken these extra steps with the newly effected Assembly Bill 1710.

Some level of employment protections against discrimination based on military service already exist in most states and at a federal level. However, the new rules in California take these protections even further than before and provide additional penalties for violations. Let’s take a look at the federal rules and the new California protections to understand what these rules mean for you or your business.

Federal Law and Existing California Law

The Uniformed Services Employment and Reemployment Rights Act, better known as USERRA, and the Veteran’s Employment and Training Services (VETS) Act are likely the two most substantial federal protections for veterans in the workforce. USERRA makes it illegal to discriminate in employment, firing, or promotions based on somebody’s military service.

The VETS act provides training and employment placement services to veterans. Additionally, the 2011, Veterans Opportunity to Work and Hire Heroes expanded training and placement and programs. USERRA, however, represents the main federal anti-discrimination provisions protecting civilian veterans in the workforce.

military serviceIn California, the law prohibits discrimination against an officer, warrant officer, or other enlisted member of the U.S. military or naval forces based on their membership or service. This protection includes, among other things, discrimination when it comes to employment. There are civil and criminal penalties for those who violate these provisions. AB 1710 takes these rules even further.

The Changes of AB 1710

The new bill expands the protections already in place, although it does not replace them, to include some more specific elements of the employment process beyond just hiring, firing, promotions, and general negative employment action. The new bill also expands the definitions of the discrimination rules to broaden the scope of those impacted by the law. Finally, the act makes it a criminal misdemeanor, as well as a civil cause of action for damages and attorney’s fees, to violate California military anti-discrimination provisions.

The new rules prevent prejudice or injury based on military service or membership from any person, employer, officer or agent of a corporation, company or firm. The new rules prevent discrimination in the terms, condition, and privileges of employment, position or status.

This is beyond the usual protections against being refused a job or promotion based on military status and ensures that veterans are not denied benefits compared to those in similar positions based on their military membership. Benefits which cannot be denied include, but are not limited to, health care (although it can be at the employee’s expense), life insurance, disability insurance, and seniority status. The new rules also extend these protections to employment actions taken by an officer or employee of the state, or any county, city, municipal corporation, or district based on military service status.

The rules also make it a misdemeanor and civil cause of action for a person to refuse entry to an active service member of any military branch access to any public entertainment or place of amusement–along with several other locations–based on the fact that they are wearing their military uniform.

Employers are also not allowed to fire somebody over their performance of any ordered military duty or training. They also may not hinder them from performing any military service or attending drills, instruction, or anything they are called on to perform. This includes acting prejudicing the employee’s terms of employment, threatening to fire them, etc.

Private employers are not allowed to fire or take negative employment action against an employee based on any temporary incapacity–taken out of commission for 52 weeks or less–due to duty in the National Guard or Naval Militia.

Finally, the new rules prevent discrimination in lending or financing based on a person’s membership in U.S. military or naval forces. This means that lenders cannot deny a loan to an otherwise covered borrower just because they serve or served in a branch of the military or in the National Guard.

Important Steps Towards Protecting Our Military and Veterans

AB 1710 is taking some substantial steps in expanding the anti-discrimination protections of those who chose to join the military or National Guard in service of the United States. These new rules expand not only the protections but also the enforcement mechanisms behind those protections.

As a former or current military member in California, it’s crucial to know the protections available to you. This new law has expanded your rights quite a bit and it’s important to know them, so you can protect yourself in the workplace. As an employer, it’s important that you keep your policies up to date to stay out criminal and civil legal hot water. Talk to your HR department and make sure you’re keeping everything compliant with these new rules.

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. 

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.

Massachusetts Will Bring New Laws Protecting Pregnant Workers in April

New bipartisan legislation known as the Pregnant Workers Fairness Act will be taking effect in Massachusetts on April 1st of this year–expanding protections to pregnant women and recent mothers in the workforce.

These sort of laws are incredibly important as pregnancy discrimination is an ongoing problem in this county, just between the years of 2010 and 2015 the Equal Employment Opportunity Commission dealt with over 30,000 charges of pregnancy discrimination. About a third of these charges were women who said they were outright fired for being pregnant, quite a few dealt with harassment issues, while many other charges dealt with being refused simple accommodations such as being allowed to go to the bathroom more often.

There are federal standards in place to protect the rights of pregnant women and recent mothers in the workplace. However, they are more limited than the new Massachusetts rules. There are also state by state laws on the issue. For example, every state except South Dakota, Indiana, Alabama and North Carolina have laws protecting against pregnancy discrimination.

Every state except Wyoming, Wisconsin, Indiana, North Carolina, Florida, and Georgia have laws which require employers to provide some level of accommodations to pregnant workers or recent mothers. There are even laws in about half the states on workplace breastfeeding rights.

pregnant workersThese rules are different from state to state, and it is important to know your rights based on where you live. However, no matter where you live the federal rules on the issue will impact you. To better understand your rights, let’s look at these federal rules, the new Massachusetts rules, and developments on this issue in Congress.

The Federal Rules and the Pregnancy Discrimination Act

The federal rules on the issue are primarily laid out in the 1978 Pregnancy Discrimination Act (PDA), although depending on the situation you may have some additional rights under the Americans With Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA). The EEOC treats the issue as an element of sex discrimination under the PDA. However, while the PDA can protect you, it has some limitations. First and foremost, it only applies if your employer has 15 or more employees.

If the PDA applies to your employer, than they are not allowed to discriminate against you because you are pregnant, you were pregnant, you could become pregnant, you intend to become pregnant, have a medical condition related to pregnancy, or have had or are considering having an abortion. This means they can’t fire you, refuse you a job or a promotion, force you to take leave, or give you less desirable work for any of these reasons.

There is an exception for employers if you are unable to do your job at all or would pose a significant safety risk to those you work with by continuing to work. However, they must attempt to accommodate anything less than this with things such as altered break or work schedules, ergonomic furniture, permission to work from home, etc.

Even if you cannot work at all, you are potentially entitled to an accommodation of unpaid leave. Accommodations under the PDA are required if your employer gives accommodations with similar situations to yours but that aren’t pregnant. Accommodations under the ADA are given due to pregnancy related medical conditions.

Either way, you need to ask your employer for an accommodation before they must give it to you. It also important to note that your employer cannot fire you or move you to a different position based on a belief that your work would be a threat to you or your pregnancy as opposed to your coworkers.

The PDA and the ADA also forbid harassment based on pregnancy or a pregnancy related medical condition. Employers are required to put a stop to any such harassment you report to them or they become aware of.

Massachusetts’ Pregnant Workers Fairness Act

The new Massachusetts act goes beyond the provisions of the ADA and the PDA. It targets a number of hole in the federal legislation and, above all else, targets the issue reported nearly 10,000 times in five years–it requires employers to hire women back after their maternity leave. It also has no limit on the size of the employers it applies to.

The details of the law are, as with all laws, a bit more complicated than this and covers a number of other issues. First, it forbids employers from denying a reasonable accommodation based on pregnancy or a related condition–explicitly including but limiting these accommodations to lactation and breastfeeding–unless they can demonstrate the high standard of an undue hardship caused by such an accommodation.

The law forbids retaliation for requesting accommodations by targeting their employment status, pay seniority, retirement, fringe benefits or–as discussed above–refusing to reinstate the employee in the same position with all their previous benefits. It also prevents denial of employment opportunities not just on the basis of pregnancy or pregnancy related conditions, but also denial based on the need for accommodations itself.

Employers are further not allowed to force an employee to accept an accommodation they do not desire, take a leave of absence (so long as another accommodation such as allowing breastfeeding in the workplace will do).

The act also includes a non-exclusive list of the types of accommodations Massachusetts employers will be required to provide an employee covered by the law. Accommodations under the rule can only be denied if the nature and cost of the accommodation based on the size of the business and financial resources of the employer would–taken together–show an undue burden to the employer.

The accommodation process under the new law must be a timely and interactive process. An employer cannot demand documentation for accommodations related to more frequent bathroom, food or water breaks, seating, limits on lifting over 20 lbs, or a private non-bathroom space for breast feeding.

The law requires employers to provide notice of the details of the law to employers in a handbook or similar form by April 1st of this year and give written notice of the laws to all employees hired after that date prior to or at the start of their employment. They also must give notice of the rules within 10 days of an employee notifying them of a pregnancy or related condition.

Any employer who violates any of these rules is liable for quite a bit in the way of punitive damages, attorney’s fees, back pay, front pay, and more. Suffice it to say, the new laws have quite a bit of bite behind their bark.

The Federal Pregnant Workers Fairness Act

The Massachusetts law fills in a lot of the gaps in protection at the federal level. However, it certainly looks to be inspired by a federal counterpart. In March of 2017, a New York Representative by the name of Jerrold Nadler introduced legislation with the exact same name–the Pregnant Workers Fairness Act–and very similar provisions.

Unfortunately, the federal counterpart did not receive as much traction as it did in Massachusetts. It has not yet left the house and the last action on the bill saw it referred to the House Subcommittee on the Constitution and Civil Justice in June of last year. With no other action on the bill since then, it’s fair to assume that any move on this issue at a federal level will not be here for a while–or at least take a different form.

This is unfortunate, the steps Massachusetts have taken will make a real difference for pregnant women in the workforce in that state. Even outside of Massachusetts, most of states have taken at least some steps to expand on the federal rules when it comes to pregnancy discrimination. Each state is different, and it’s important to know the rights your own state gives you. For now, they are likely the highest level of protection available to you.

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. 

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.