No, Sex Offenders Shouldn’t Get Marked Passports

The media has reported that the U.S. State Department has begun revoking the passports of certain sex offenders and requiring them to get new passports that will now conspicuously state:

The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).

Definitely not the endorsement I’d prefer to have on my passport. Diving a bit deeper into the law, the change seems mandated by Congress in a fairly bi-partisan bill in 2016, quickly signed by President Obama. It applies to all “covered sex offenders,” which in this case means you’re been “convicted of a sex offense against a minor” in any state and that you’re still subject to any state’s sex offender list registration requirement.

There are many reasons why this is a dumb idea (none of which are that sex offenders don’t deserve to be punished). Allow me to propound a few:

1. Our Current Sex Offender List System is Broken

I think we can all agree that once a sex offender has served his or her time in prison, our #1 goal should be to ensure that they do not re-offend upon release. So what do we do? We make it so that they can’t ever get a decent job, we make it so that they often cannot find affordable housing and live or even live with their families, we stigmatize them wherever they go, and if they slip up with often onerous registration requirements, it’s back to jail. All by putting them on “the list.”

Miami, for example, bans sex offenders from being within 2,500 feet of where children “congregate.” That’s half a mile. How many apartments in your community are not within half a mile of a school or a park? The result: dozens of sex offenders live under a bridge, because there is simply not enough housing outside of 2,500 feet to house them all.

To many, the above yields a response of, “Good, they deserve it.” But, lack of empathy notwithstanding, the problem is that someone with a job and a stable home is going to be far less likely to re-offend than someone who’s forced to live on the streets with a bunch of other sex offenders. You might not like the idea of helping a rapist get back in the workforce, but failing to do so increase the risk of a new victim.

Until we reform our current sex offender list systems, I’d oppose any attempt to expand them.

2. The Government Has Lied About Recidivism

“[T]he average member of the general public believes that 75 percent of sex offenders will reoffend,” according to a study on the matter. Indeed, the U.S. Supreme Court itself has quoted “80%” as being the recidivism rate. McKune v. Lile, 536 U.S. 24, 33 (2002).

But as the New York Times recently reported:

A few years ago, Ira Ellman, a legal scholar affiliated with the Center for the Study of Law and Society at the University of California, Berkeley, and the researcher Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him. As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.

Needless to say, the author of the Psychology Today article has recanted his number, and that most actual scientific studies put the actual 3-year recidivism rate at 3.5%. According to the Department of Justice, “Within 5 years of release, 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders.”

So, no, these lists are not justified by some special risk of recidivism inherent to this particular type of crime. All criminals released from prison have a risk of a repeat, but the number for sex offenders simply is not that high.

3. It’s a Lot More Than Child Molesters

Let’s say you’re a mid-20s guy and you head out to a bar in Venice Beach, CA. You meet a beautiful girl inside and end up taking her home with you. Just to be extra careful, you check her ID, which indicates that she’s 21. But after you have sex, you learn she’s not — she’s actually 17.

If you get caught, even though you met her in a bar and you checked her ID, you’re going to jail and you’re going to be on the sex offender list, and now you’re getting your passport revoked so that the government can add a scarlet letter to the new one. Even if you went through heroic efforts to ensure that she was of legal age, mistake is no defense in California (as in most states), and you’re… well… fucked, so to speak.

In some states, public urination is a sex offense. If you do it near a school, or a child happens to see you, does that qualify you for the new visa marking? It very well may. Same with the teenage couple where one is a little over the age of consent and one a little under. Same with the teen convicted of possessing child pornography of his or herself.

Frankly, our sex offense laws are inconsistent and often unjust (and that goes both ways — there are also many who should be punished that are not). Until the laws are fixed, we should not be adding to the problem with new punishments also to be implemented unjustly.

4. So Why Not Murderers? Drug Traffickers? Mafia Members?

If we’re going to release dangerous people from prison — and why we apparently do that is beyond the scope of this post — why treat a sex offender worse than a murderer? Why not add a label for people who smuggle drugs when they travel (something actually relevant at the border)? What about international mobsters?

Because this is just like the TSA — it’s security theater. These are measures that make people feel good, or at least feel like Congress is doing something, even when they’re not. The U.S. already sends sex offender information to many foreign countries as our citizens depart for them. This law just allows our legislators to go home to their constituents and pretend that they did something to protect the children.

5. These People Have Already Served Their Time

I think there should be significant prison sentences for sex offenders — enough to strongly deter them and others from committing the crime and to rehabilitate the offender as much as possible.

But once a person has re-paid their debt to society, it’s simply unfair to add a new penalty. So-called “ex post facto” laws are forbidden by the Constitution, but we get around that by pretending that these registration requirements are not criminal laws but rather public safety laws. That distinction is certainly not comforting to those who can’t get jobs or find apartments as a result.

Again, many perhaps don’t care, or will frame this as being “sympathetic to sex offenders.” But as a civil libertarian, I know that the easiest way for our rights to be eroded is to blame terrorism or pedophiles. Nearly every privacy grab has been on one of those two bases, from secret FISA spying to warrantless searches of digital devices at the border. Let’s not put up with infringements of the rights of sex offenders just because we don’t like them, because once sex offenders lose those rights, the rest of us do too.

November 6, 2017 25

Should Universities Really Be in the Business of Adjudicating Rape Claims?

A few days ago, Secretary of Education Betsy DeVos rescinded informal guidance given by the Obama administration to universities as to how to apply “Title IX” — a law prohibiting discrimination based on sex in schools that accept federal funding. Despite the public outrage and my general feeling that Secretary DeVos is unqualified for her role, I think she may have gotten this one right.

Why would I say such a thing?!

The guidance that she cancelled, known as a “Dear Colleague Letter” (full letter) attempted to persuade universities in particular to step up and deal with sexual violence on-campus. This is, indeed, a laudable goal: no one should be subject to any kind of violence while pursuing their education, and sexual violence is a particularly pernicious and all-too-common strain of violence present in American colleges (…and it’s not just an American problem). The problem is that Title IX deals with sex discrimination, and has been interpreted expansively to cover sexual harassment, but expanding even further to sexual violence is something that Title IX simply lacks the basis and framework to do. The result: universities that attempted to implement the Obama-era guidance found themselves veering into the fields of law enforcement, prosecution, and the running of trials, when they were ill-prepared to do so.

Case-in-point: Doe v. University of Cincinnati, 2017 U.S. App. LEXIS 18458 (6th Cir., Sept. 15th, 2017). “John Doe” was accused by “Jane Roe,” both students at University of Cincinnati, of having sex with her without her consent (something the court puzzlingly fails to call “rape” at any point in its 19-page opinion), while John maintained that the sex was consensual. Jane made the accusation 3 weeks after the alleged incident. “UC’s Title IX Office waited a month to interview Roe, another four months to notify Doe of her allegations, and yet another four months to convene the … hearing.” Despite Jane failing to appear at the university hearing, John was found responsible for violating the code of conduct — in other words, the university alleged he was guilty of rape without any in-“court” testimony against him — and suspended him for 2 years.

Let’s be clear here where the university and even the courts were not: John isn’t accused of some kind of mere college code violation: he was accused of rape. He would never be able to honestly explain to a potential employer the gap in his education and would certainly be infamous on his campus as the local rapist any time he stepped foot near the school. And so, the U.S. Sixth Circuit Court of Appeals affirmed a lower court ruling enjoining the university from enforcing the suspension on due process grounds, ruling that the absence of any witnesses against him actually appearing and answering questions at a hearing, especially in combination with the school’s failure to promptly investigate and adjudicate the matter, did not constitute a fair hearing and thus was insufficient for the state (of which the public university is an arm) to take a life-ruining action against him.

It is certainly a good thing for colleges to have a mechanism to resolve petty disputes between fellow students, as well as to have programs to reduce sexual harassment and resources to support those who have been victims of any and all kinds of traumatic experiences. In the case of actual sexual violence, however, why would we not turn the case over to real authorities, who have real resources to investigate this real felony allegation, to be tried in a real court, and upon conviction result in a real prison term? It would seem to me that UC’s system is fair to neither the accuser nor the accused. If this woman was indeed raped, a 2-year suspension from college is hardly sufficient punishment for the man who violated her. And on the other side, anyone facing such a serious accusation deserves the rights we give to criminal defendants: to confront his witnesses, to gather and present evidence, to be represented by competent counsel, and to otherwise have the very fundamental things that we in this country take for granted as necessary before society will take away someone’s liberty.

Secretary DeVos probably could have accomplished the above by modifying, rather than rescinding the entirety of, the Dear Colleague Letter. But, to the extent that her point was that schools should be in the business of educating, not in the business of operating as a complete legal system, I think she may have a point.

September 27, 2017 2

What Donald Trump Has Done to U.S. Department of Justice is Shameful

The U.S. Department of Justice is opposing counsel in about half of the cases I litigate; needless to say, I am no apologist for them. At the same time as being frustrated by their, for example, analogizing my legal arguments to those of a terrorist, doing their best to keep evidence out of the courts, and even obtaining a special gag order just for me, I respect that they serve an important role in seeing that justice is served in our country. Unlike the TSA, which should be disbanded rather than corrected, the DoJ should be an institution in which we continually place intelligent, loyal, and non-partisan civil servants.

Instead, Donald Trump has done the following:

Appointed then Deputy Attorney General Sally Yates as Acting Attorney General, and then fired her 10 days later. The Attorney General is the highest position in the DoJ, which encompasses not only the U.S. Attorney’s Office, which we usually associate with them, but also a host of sub-agencies, including the FBI, DEA, and many others. Why did he fire her? According to him, it was because she refused to defend his Muslim Ban on the grounds that the Executive Order was indefensible (virtually every federal judge to hear the matter has agreed). As the nation’s top attorney, she is obligated to uphold the law and cannot defend law that she believes is unconstitutional. But, it’s also interesting to note that she was fired on the same day that she, correctly, informed the President that his National Security Advisor Michael Flynn was compromised by Russia and Turkey.
Fired Legendary U.S. Attorney Preet Bharara. If there was one high official in the DoJ who deserved respect, it was Mr. Bharara, U.S. Attorney for the Southern District of New York. His district contained Wall Street, and he was well-known for aggressively prosecuting financial crimes including the likes of Bernie Madoff. But, he was also well-known for fighting public corruption and taking down many a politician in New York, and some speculated he “could be reviewing a range of potential improper activity emanating from Trump Tower and the Trump campaign.” Trump never offered a reason for firing Mr. Bharara.
Fired FBI Director James Comey. Being overseas at the moment, I was shocked to wake up this morning to read that Trump has fired the head of the FBI (which, as mentioned, is a sub-agency of the Dept. of Justice). Officially, Trump’s position was that Comey was fired for mis-handling the Clinton e-mail scandal by stating last July that she would not likely be prosecuted. This begs the question, though: why now? In a bizzare 1-page termination notice, Trump takes time time to note his “appreciation” that Comey has “informed” him repeatedly that he is not under investigation. But the fact remains, of course, that the FBI is actively investigating Russian influence on the election. It is also worthy of note that U.S. Attorney Jeff Sessions officially gave Trump the recommendation to fire Comey. Mr. Sessions, after public and Congressional outcry, had recused himself from the Russia investigation… yet now fired the person who was in charge of it.

To be perfectly blunt, it seems to me, based on this pattern of firings, to be far more plausible that Trump has fired these people for not just political reasons, but in order to prevent the exposure of anything from poor decision making (e.g., accidentally hiring a foreign agent to lead the country’s intelligence community) to lying to secretly working with foreign nations. And, were I Donald Trump and had I nothing to hide, I would certainly at least be aware of the public perception I would be creating by firing these career administrators.

To any extent that Donald Trump has “drained the swamp,” he has either replaced it with new swamp or failed to replace it at all, leaving a hole in our nation’s ability to function. People like Preet Bharara are not easily replaceable, and Trump should have been begging him to stay rather than asking him to leave.

What Trump has done to the DoJ is shameful. And, it should go without saying that a special prosecutor needs to be appointed to continue any investigation that Comey was up to before he was fired, because whether or not there’s anything to uncover, the administration of justice requires impartiality beyond what Trump’s team has afforded us so far.

May 10, 2017 15

United Airlines Fiasco: Was It “Legal?”

Most have heard by now of the blunder by United Airlines in forcibly removing a man who had paid for a ticket and already taken his seat on the airplane so that they could instead accommodate some of their own employees. The man was injured when airport police apparently dropped him in the process, and the video taken by other passengers went viral. To add some gasoline to the fire, the CEO of United tweeted to “apologize for having to re-accommodate” the man, proving that the company obviously misses the point. This all comes two weeks after the airline was lambasted in the media for its sexist dress code when they denied boarding to two young girls in leggings (this time before the passengers entered the aircraft).

But, the question that I’ve received at least a dozen times in the past 48 hours is: Was what United did legal? Relatedly, was the man doing something illegal? Will he win in a lawsuit?

Let’s find out…

Could United legally remove him from the flight?

The answer to this question is “certainly yes.” Here’s why.

When you are given permission to enter upon the property of another, legally you are given what is called a “license.” The biggest difference between a “license” to use property and having, say, a lease giving you the right to exclusive possession of the property for a period of time, is that the license is freely revocable at all times, regardless of whether the licensee and licensor have a contract that says otherwise.

Why? Because we are dealing with two different areas of law here. Property law governs the ownership of property and the rights and responsibilities of property owners. The above rule about revocability of licenses comes from property law. Contract law, on the other hand, generally allows any party to breach their contract duties at any time, under penalty of having to pay damages to the non-breaching party (see also: “efficient breach” theory).

So, the question of whether the contract of carriage allowed United to remove this man is entirely irrelevant as to whether they had the power to do so. Either way, United could legally oblige him to leave the aircraft because they are “allowed” to breach any contract they may have had with him, but if he had a contract allowing him to stay, he gets to ask for money.

Was the man doing something illegal?

A friend of mine, who is usually quite on top of things, pointed out that federal law requires compliance with crewmember instructions. Or, at least, that’s what that pre-flight announcement says, if you aren’t busy blasting music through your headphones during the process.

Yes, but, no…

14 C.F.R. § 91.11 – Prohibition on interference with crewmembers.

No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.

While some kinds of defiance may qualify as interference, the duty only attaches while the aircraft is “being operated.” Before the doors close, not so much.

It is possible he could be charged under some state law for trespassing or resisting the officers, since as discussed above, legally he was obligated to leave, and therefore the officers had the lawful right to use reasonable force to remove him. It is also possible that he lacked the intent required to be charged, since he believed he had the right to be here — a review of the law of the relevant state would be required and is outside of the scope of things that I care about, and thus this blog. But, these would be petty misdemeanors, rather than a federal felony, and I do believe the police are now sufficiently embarrassed as to their inability to safely move one man 20 feet without sending him to the hospital that he will face no charges.

Will he win in a lawsuit?

Against whom? For what?

The police?

In order to win against the police, since the officers were lawfully entitled to remove him, he would need to prove that the force they used was unreasonable. That is, there was a safer way to do it, and a reasonable police officer under these circumstances would have done so. This is regardless of whether he sues in battery (where “reasonableness” will be a defense) or in negligence (where lack of reasonableness will be an element of the tort).

This is a question for the jury, so I’ll leave it to you guys. Watch the video with the fact that the police did have the right to eject him in the back of your mind. Your verdict of liable or not liable depends on whether the police did the best they could given a non-compliant passenger, or whether the means by which they ejected him was unreasonable.

The airline?

The more interesting one. The “for what” part of the question definitely matters.

For breach of contract? Well, he paid for them to take him to another city, and they didn’t do so; therefore, United certainly owes him for the flight. However, how much they owe him turns on whether he was “denied boarding” or not. The reason is that federal law directly covers “denied boarding,” allows an airline to do it regardless of contract law, and provides a fixed payment schedule for how much the airline will owe the passenger for having done so. Four hundred percent of the fare, to a maximum of $1,350, to be exact. The question is whether asking someone already on the plane to leave is “denying them boarding.” I fear the answer will probably be that it is, as the intent of the law was to cover refused transport without any reason to think that the Federal Aviation Administration intended to distinguish between refusal issued before or after the person passes the gate agent. But, if not, United Airlines will be liable in contract for all foreseeable damages. This includes not just the cost of the ticket, but a missed hotel reservation in his destination, missed work in the morning, alternate transportation (to the extent that it is more expensive), etc. It does not include the police breaking his face — it is not “foreseeable” (although not really surprising either).
For his physical injuries? United won’t be liable in contract for his physical injuries, but how about in tort under battery or negligence theories? Were the people who took the man off the plane United employees or even contractors, yes, they might be liable for the battery or any negligence. But, reports are that these were airport police, and as United does not have any control of how the police do their job, they do not have any liability.
For anything else? It’s time to get creative here. I think this man’s best chance of tort recovery is negligent infliction of emotional distress. NIED requires two elements that are fairly obvious: 1) negligence, and 2) emotional distress. Let’s assume he can prove the second, as his face was broken on video that was now seen around the world, and he can probably show that he was traumatized by the event. Was United in any way negligent? Well, would a reasonable airline have made sure that they were not oversold before boarding passengers? Would a reasonable airline have found another way to deal with the situation? Was emotional distress a foreseeable possibility? These are the tough questions that any lawyer for this man will have to prove in court. Luckily, United will be anxious to settle with this man after watching their stock value plummet $800,000,000 on Monday, and so this case will probably never make it to the clerk’s office, let alone a judge and jury.

The tl;dr version is that United was probably, mostly, in the legal right. But, something need not be legally wrong to be morally wrong, or to be a good reason not to do business with someone, or to make you the butt of every joke on the Internet. United cost itself a lot of money for doing something that its customers don’t like and then pretending that it was no big deal, and this loss will be far greater than anything the man can hope to win in court.

April 13, 2017 22

What a President Can Do With an Executive Order — And Why Trump’s Muslim Ban is Illegal

On Sunday I published a post about Trump’s “Muslim ban,” a decision to exclude green card holders and refugees from 7 Muslim countries. The post was the most shared on this blog ever (over 10,000 shares on Facebook alone!), and attracted a lot of comments. Some people felt that Trump’s decision, which he made by “executive order,” was perfectly legal.

Is it?

Well, let’s start with what a President does. We know he runs the executive branch, but what does that mean? The President’s authority comes from the U.S. Constitution (either directly or from Congress giving him some of their authority), and we can mostly divide what a President does into two categories:

“Foreign stuff” – The President is our chief diplomat, the commander of our military, and the person with whom other countries must negotiate when they want something from the United States. These powers are granted in Article II, Section 2, of the Constitution.
“Domestic stuff” – Some of this we’re familiar with: things like signing and vetoing laws, appointing U.S. Supreme Court justices, granting pardons, and the like. These powers are also granted by Article II, Section 2. Then there are the powers granted by Congress to run more day-to-day affairs. Through the use of agencies, such as the FCC, FDA, FBI, and hundreds of others, the executive branch accomplishes its work, and the President is the head of those agencies. And, sometimes Congress gives power specifically to the President rather than to an agency.

With this background, an executive order is a direction that an agency of the government enforce the law in a certain way, or to make a formal use of a power specifically granted to the President by Congress. Since 1907, the Office of the Federal Register has cataloged and numbered each executive order — the Muslim ban order was #13769.

When it comes to agencies, the President gets to fill in the blanks. So, a President could order the FBI to step up their enforcement of marijuana laws because Congress allows the FBI to enforce the laws, but didn’t specify how much emphasis should be placed on marijuana. A President could also order the IRS to send bills to taxpayers only in gold-foil envelopes, because Congress authorized the IRS to send bills, but did not say what the envelopes in which they are sent must look like.

But, the President may not order something contrary to the law, nor fill in the blanks where there are no blanks to fill. For example, Obama couldn’t order the FCC to confiscate the cell phones of those who text-and-drive, because that doesn’t fit into any grant of power by Congress to the FCC.

So, did the President issue the Muslim ban order pursuant to a legitimate grant of power by Congress?

No. Here’s why. Trump could try to defend his actions on the basis of a law passed by Congress numbered as 8 U.S.C. § 1182(f), which states in part: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

At first glance, it does seem like Congress authorized the President to discriminate against anyone as long as he deems it necessary or appropriate. But, if you scroll back up to the top of the page and read one sentence a little more carefully, you may see Trump’s problem: “The President’s authority comes from the U.S. Constitution (either directly or from Congress giving him some of their authority)…”

Congress cannot give the President authority which it does not have to give. The U.S. Constitution does grant Congress the authority to deal with immigration, but that authority is restrained by limits set by other parts of the Constitution. Specifically, the 14th Amendment reads in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This is the “Equal Protection Clause” you’ve surely heard of, and the U.S. Supreme Court has broadly interpreted it to prevent the government from discriminating against any race, religion, or national origin (among others), unless the government has an extraordinarily strong reason for doing so and cannot do so in another way which would be less discriminatory. (It has also applied the 14th Amendment to the federal government even though the text of the law uses the word “states.”)

This is, in my opinion and the opinion of every federal judge to consider the matter so far, where Trump must fail. Congress does not have the authority to give Trump a power that violates the Equal Protection Clause, and therefore to the extent that 8 U.S.C. § 1182(f) may purport to do so, it is void. People may argue about whether the government has a compelling reason to discriminate here, but there is little argument that there is not a way to secure our country in a less discriminatory manner. Trump’s order is, therefore, illegal.

February 6, 2017 34

Federal Judge Sends U.S. Marshals to Prevent Trump from Enforcing Muslim Ban

On Friday, our new President signed an executive order banning those from 7 Muslim countries from entering the United States, even if they had been granted refugee status, and even if they were green card or visa holders. This blatant discrimination based on national origin (and, let’s be honest, it’s really based on religion, given that all 7 countries are Muslim-majority and Trump had flat-out said he would ban Muslims during his campaign) guaranteed a legal showdown which began yesterday after at least a dozen people with passports from those 7 nations were detained at JFK airport in New York.

Yesterday, attorneys for Hameed Khalid Darweesh filed a class action lawsuit requesting a writ of habaes corpus (court order to free a person) on behalf of Mr. Darweesh, who apparently was detained under this new order, and anyone similarly situated to him. It’s worthy of note that this man is a refugee from Iraq who cannot return to his home country because he assisted the U.S. military during our operations there. Filed with his petition was a motion for an emergency temporary restraining order, asking the court to prohibit U.S. Customs & Border Patrol from enforcing Trump’s order, and U.S. District Judge Ann Donnelly, after conducting an astoundingly prompt hearing, granted that request, ordering all officers of the United States be:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.

This is widely reported by the media (CNN, The Guardian, New York Times), but perhaps because of the late hour and lack of legal analysts on hand, they missed the significance of the next paragraph of Judge Donnelly’s order:

IT IS FURTHER ORDERED that to assure compliance with the Court’s order, the Court directs service of this Order upon the United States Marshal for the Eastern District of New York, and further directs the United States Marshal Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.

I’ve never seen an order like that directed against the U.S. government in my life. What the judge just did is sent federal law enforcement affiliated with the court to JFK airport to make sure other federal law enforcement obeys the order. In other words, Judge Donnelly does not trust that the Trump administration will follow the law and pre-emptively sent muscle to carry out her order.

If you’re to believe the Daily Kos, a source that I don’t necessarily consider reliable due to political bias on par with Fox News, but in the other direction, the U.S. Marshals were sent with good reason: they report that in other airports, U.S. Customs & Border patrol has ignored the order. [Update: The Guardian also reporting non-compliance by CBP.]

If Trump chooses to direct his agencies to ignore court orders, this could be a very rapid beginning and end to his administration, as I cannot imagine Congress not impeaching a president who does so. This situation may come to a head quite soon… stay tuned…

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January 29, 2017 56

Should You Agree to “Arbitration Clauses?”

It is increasingly common to find consumer contracts (the things you agree to when you buy stuff or services, like a rental car, Netflix subscription, or anything that contains a written warranty) containing “arbitration clauses.” They’re usually in capital letters or bold print, most often buried many clauses deep in the contract, and say something to the effect of this:

…IN THE EVENT A DISPUTE SHALL ARISE BETWEEN THE PARTIES TO THIS CONTRACT, IT IS HEREBY AGREED THAT THE DISPUTE SHALL BE REFERRED FOR BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. THE ARBITRATOR’S DECISION SHALL BE FINAL AND BINDING AND JUDGMENT MAY BE ENTERED THEREON…

What this language means is that if you and the company have a dispute, you both agree that you won’t take it to court, but will instead hire a “neutral” “arbitrator” to resolve the issue. The arbitrator can award any amount of money he or she sees fit, based upon the contract and the law.

Here’s why this sucks for the consumer:

Your right to proceed class action is cancelled. A “class action” is a lawsuit where lots of people claim that a company wronged them in the same way. Generally, it is for small amounts (maybe only a few dollars) that wouldn’t make sense for 1 person to waste their time going to court for, but if there are 10,000 people just like you and you can all sue in one joint lawsuit, the company can be held accountable. You generally can’t “contract away” the right to proceed as a class under most states’ laws, but by requiring arbitration, the Federal Arbitration Act (FAA) takes over the terms of dispute resolution, and the FAA allows for class rights to be signed away. You should therefore take an arbitration clause as a sign that the company is afraid that it has, or may, piss off a large consumer base, and wants to protect itself from any damages that can come from that. It’s a bad sign.
Your right to an appeal is cancelled. An arbitrator’s award, in general, cannot be appealed. Did your arbitrator turn out to be biased, or literally fall asleep during proceedings? Too bad, according to the FAA. With exceptions too narrow to be worth pursuing, a court cannot overturn an arbitrator’s award, no matter how unfair.
Your right to a cheap, quick resolution of small claims might be cancelled. Some arbitration clauses allow small claims to be heard by a small claims court — and some arbitrators refuse to hear cases based on contracts without such an allowance. This is a good thing: small claims can generally be resolved in less than 3 court appearances, for nominal court fees, without the need for an attorney, and within a few months. But, some arbitration clauses do not allow for this, and therefore even a claim for $5 comes with a hefty arbitration fee and longer, and more difficult, proceedings than in small claims court. The text of the arbitration clause will tell you if you can resort to a small claims court, but even this is not guaranteed, as some states will allow any party in small claims court to move a case to a regular civil court, at which point the company can argue that arbitration is now required. (Not the first time I’ve written about Citibank being sneaky and abusive!)
No case law is created. “Case law” is the decisions of courts in the past that influence decisions of courts in the future. For courts of the same jurisdiction and same level or lower, a decision on an issue is usually binding. For example, if the U.S. Supreme Court decides that TSA body scanners are unconstitutional and Plaintiff X, who was forced to go through one, gets $100 in damages, every other court in the country must follow suit and award similar damages to anyone who presents a similar case. When an arbitrator makes a ruling, it may or may not be public, but either way, it is binding on no one. Therefore, if the company has wronged 10 people in the same way, but has an arbitration agreement, even if the 1st to arbitrate wins, people 2 – 10 still need to argue the issue anew.
Oh, you thought the arbitrator was neutral? There’s a pretty big conflict of interest here. The companies are the ones including arbitration agreements in their contracts and sending work to the arbitrators. If one of the two parties sends all the work and the other does not, where does loyalty lie? Even if an individual arbitrator is conscientious enough to remain neutral, what effect does the conflict of interest have on the rules that the arbitrator has to follow?

For balance, I’ll note that arbitration can have some benefits for the consumer. For example, if the claim is for a large amount of money, it will be a shorter “trial,” and therefore you’ll be paying your attorneys less money. Arbitrators are also more likely to award attorney’s fees to you if you win. Also, in non-consumer contracts, you may sometime have an edge. A friend of mine involved in an employment contract dispute against a major corporation recently lamented to me that the attorney’s fees to take the major corporation — which could afford to prolong litigation to gain an advantage — may be unsustainable, forcing this friend to consider settlements beneath what his or her claim was worth. But in consumer contracts, the overall balance is clearly in favor of the company (which, of course, is why they put the clause in there in the first place).

But what can you really do about it? Well, to start, many arbitration clauses have an “opt-out” option, whereby you notify the company that you disagree, and the clause no longer applies. If this is an option in your contract, follow the instructions carefully to make an effective opt-out (before the TSA bans those opt-outs too :)). If it doesn’t, you can try negotiating the contract, even if the company is large. If it’s a paper contract, you may “negotiate” simply by crossing out the provision and initialing the change before signing. You’d be shocked as to how many times I’ve crossed out arbitration agreements and simply said, “I don’t arbitrate,” and they’ve said “Um, ok I guess.” If all else fails, tell them you’re heading to a competitor. Lost sales are, in the end, the greatest motivator to companies to create fair agreements with their customers.

January 25, 2016 6

My 10 Year Civil Law Anniversary

“How did you get into filing lawsuits? Like, if I wanted to sue the government, I wouldn’t even know where to start.”

When I first filed suit against the TSA, almost 5 years ago now, I had a little bit of experience. Ten years ago this month, a collection agency ignored me when I told them I didn’t owe any money, proceeding instead to put a disputed account on my credit report. So, I looked into what my options were, and found out that there are a lot of federal laws surrounding third-party collection of debts. Collection agencies have to provide some very specific dispute resolution procedures, represent things honestly, and avoid abusive practices. These laws, found mostly in the Fair Debt Collection Practices Act, 15 USC § 1692 prohibit things like:

Threatening to take an action that it can’t, or doesn’t plan to, take (even “we’ll take you to court if you don’t pay” is illegal if they don’t have any plans to actually sue)
Pretending to be an attorney
Communicating false information (e.g., to a credit reporting agency)
Failing to communicate that a debt is disputed when it is
Calling before 8 AM or after 9 PM
Repeatedly calling with intent to annoy
Sending letters with markings on the outside (e.g., “DEADBEAT”) to embarass you into paying

15 USC § 1692(c) – (f). They also require notice to be sent in writing with a disclosure of the right to dispute and receive verification of the debt from the original creditor. § 1692(g).

And so, I filed Corbett v. GC Services, Inc., 05-CV-7680 [PACER subscription required] (S.D.N.Y., Aug. 31, 2005), alleging violations of the Fair Debt Collection Practices Act for not complying with a bunch of the rules above. I looked up what other lawsuits looked like and wrote my own styled in the same way. I reviewed the rules of the court. Then I went down and paid a $250 filing fee (a bargain, as the fee is now $400), and I was in.

Justice was truly blind, as the late U.S. District Judge Richard C. Casey entered the courtroom for our first (and only) status conference with a seeing eye dog. He seemed irritated at everyone, but denied an oral motion by the defendant to change venue and ordered the case to proceed. G.C. Services ended up settling for an amount that I’m prohibited from disclosing, thus marking my first victory in civil court.

With that experience and a few other similar ones, when 2010 came around and the TSA was demanding to see us naked in order to fly, I was familiar with the federal courts. Screwing around with asshole debt collectors was fun and profitable, but civil rights advocacy is fulfilling on a whole new level. My first year of law school is almost complete, and I look forward to all the difference I can make over the decade to come.

August 16, 2015 3

New York Tragedy: The Death of Kalief Browder

I wish I were writing this week about how the TSA misses 95% of weapons when screeners are covertly tested, how they “reassigned” the TSA acting director as a result, or how the TSA hired people on its own terror watch list as screeners. But since apparently no one actually is targeting our skies anymore (as clearly the TSA is not stopping anyone), the TSA is now merely a joke.

What’s not a joke is that a 22-year-old man is dead in New York, a suicide spurred by a systematic violation of his rights by the courts, “New York’s Boldest” (The NYC Department of Corrections), and the Bronx District Attorney’s Office. Kalief Browder was arrested when he was just 16 years old, accused of stealing a backpack. He plead not guilty and asked for a speedy trial, but because of delays by the NYC DA’s office, he was held for 3 years without trial before a judge told the city they had to let him go. A total of 31 court dates were scheduled, most resulting in an adjournment at the DA’s office’s request.

If that’s not bad enough, he experienced significant abuse and neglect on Rikers Island, the notorious NYC jail. Video taped beatings by guards, absurdly long stints in seclusion in solitary confinement, and abuse by his fellow inmates were this man’s life for more than 1,000 days without being convicted of a crime. While there is evidence that he may not have committed the crime in the first place, he likely would have served months — or less — had he merely plead guilty. Traumatized by his experience and struggling to integrate back into society after having those pivotal years taken from him, he took his own life last Saturday.

What does it say about our justice system that asking for a trial can result in spending more time in jail than pleading guilty, even if the result of the trial is a not guilty finding? What kind of judge refuses to release this man on a reasonable bail (or on his own recognizance) once they realize, “Hey! He’s already been in jail longer than we’d keep him if he were tried and convicted?!” What kind of DA postpones a man’s fate dozens of times because he can’t manage to prepare for a simple trial over 36 months? And where did our constitutional right to a speedy trial go??

Amendment VI – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

I hope there will be protests — I will be there. In the meantime, if you’d like to express your thoughts on the matter: Robert T. Johnson, Bronx District Attorney, 198 East 161st Street, Bronx, NY 10451, ph: 718-590-2312, fax: 718-590-2198, angueirl@bronxda.nyc.gov

June 9, 2015 6

Federal Judge: No, you can’t search people’s laptops at the border for no reason.

At least as far as a forensic search (more than just turning it on and having a quick look) goes. In 2012, Homeland Security was conducting an investigation based on a jailhouse informant who said that Jae Shik Kim was involved in a 2008 crime. So, they did some investigating, found incriminating details, and applied for a search warrant. No, of course not, that would be too much work. Instead, they waited until Mr. Kim was crossing the border on an international flight and seized his laptop with no warrant an no more evidence than the tip, under the Obama administration’s “I do what I want!” policy regarding searching electronic devices at the border (scroll down to item 5.1.2 for what CBP thinks is lawful).

U.S. District Judge Amy B. Jackson has finally issued the government a long overdue smack-down in this regard. While her ruling is based on the particularly egregious circumstances of this case (waiting for someone to leave in order to get around a warrant, seizing the laptop without searching it and transporting it to be imaged and forensically analyzed, the flimsy tip, and the lack of any allegation of a current crime), she resoundingly rejects CBP’s assertion that it needs no suspicion to do whatever it wants at the border regarding digital devices.

Good on you, Ms. Jackson.

May 9, 2015 5

Category: Legal Rants