On December 10, 1948, the General Assembly of the United Nations issued The Universal Declaration of Human Rights, declaring housing a basic human right. West Coast cities have experienced a surge in homelessness despite a… More
EIGHTH AMENDMENT PROTECTION IN THE 21ST CENTURY
In Timbs v. Indiana the Supreme Court considered whether the Eighth Amendment’s bar on “excessive fines” is incorporated against the states under the Fourteenth Amendment. Timbs v. Indiana addressed another persistent question that has appeared on bar exams for years: “What provisions in the Bill of Rights have not yet been ‘incorporated’ against the States?”
Tyson Timbs was convicted in Indiana for selling four grams of heroin. The state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The state trial court ruled that “[w]hile the negative impact of [drug] trafficking … is substantial … a forfeiture of approximately four times the maximum monetary fine is disproportional” under the Eighth Amendment (maximum permissible fine of $10,000). The Indiana Court of Appeals agreed that the excessive fines clause should be applied (incorporated) against the states. But the Indiana Supreme Court reversed— ruling that it would not “impose federal obligations on the State that the federal government itself has not mandated.” A persistent split on the question, involving at least 18 states’ courts and two federal courts of appeals, led the U.S. Supreme Court to grant certiorari. Until Timbs v. Indiana, the U.S. Supreme Court had never specifically ruled that the excessive fines clause applies to the states through incorporation.
“Incorporation” is the legal doctrine that holds certain protections found in the federal Bill of Rights may also be applied to conduct by the states, by “incorporating” those protections into the “[n]o State shall … deny due process” guarantee of the 14th Amendment. In McDonald v. Chicago, the court ruled that the Second Amendment applies against the states. Now only three provisions in the Bill of Rights have not been explicitly incorporated. Timbs addressed one of these: the “no excessive fines” provision in the Eighth Amendment. The other two are the grand jury clause and the Thirteenth Amendment’s rule against quartering troops in times of peace.
The Eighth Amendment encompasses three “parallel limitations” on government’s power to punish: the Cruel and Unusual Punishments Clause, the Excessive Bail Clause, and the Excessive Fines Clause. Together these clauses operate to secure a single, fundamental right to be free from excessive punishments. Timbs now eliminates any further ambiguity—the context is criminal asset forfeiture.
In the winter of 2012, after his father died, Tyson Timbs received around $73,000 in life-insurance proceeds. He used $41,558.30 to buy a car—the Land Rover LR2. He had recently moved to Marion, Indiana, intending to live with an aunt while he worked on rebuilding his life. Back home in St. Mary’s, Ohio, he became addicted to hydrocodone—an opioid medication— prescribed to him for an injury suffered at work. When he could no longer find the drug on the street, he began using heroin.
After his father’s death, he began using heroin heavily. With a new Land Rover and in excess of $31,000 left to spend, Timbs began driving the vehicle to Richmond, Indiana, and Ohio—sometimes on a daily basis—to buy heroin for his personal use. When his money ran out, he began looking for new ways to fund his addiction. With the help of a confidential informant, he arranged several drug transactions with undercover officers.
On the first occasion, Timbs drove across Marion in the Land Rover and sold officers two grams of heroin for $225. A few days later, he walked from his aunt’s house to a nearby gas station, where he sold officers another two grams for $160. While driving to a third transaction, Timbs was pulled over and arrested yet no drugs were found in the vehicle. The Land Rover was seized. The State of Indiana charged Timbs with two counts of dealing a Schedule I controlled substance and one count of felony conspiracy to commit theft. Timbs pleaded guilty to one count of dealing and to the count of conspiracy to commit theft. The trial court sentenced him to six years, with the first year to be served in home detention and the remaining five years on probation. The state court also ordered Timbs to forfeit his Land Rover on the theory that he had used the car to transport drugs.
In the Supreme Court, Timbs argued that protection from excessive fines has a long history in our legal tradition, dating as far back as the reign of King Henry II, who ruled England in the 12th century. When the Eighth Amendment was ratified in the 1790s, Timbs noted, “nine of the 13 states at the time had constitutional provisions guarding against excessive fines.” In 1868, when the 14th Amendment was ratified, all of the states included protection from excessive fines in their constitutions, and “all but two of the 37 states did so using language that mirrored the language of the federal constitution’s excessive fines clause.”
Timbs further argued that the 14th Amendment was ratified to “combat the tactics deployed by southern states in the years after the Civil War to oppress their African American citizens, including a variety of fines and forfeitures.” For example, Alabama law imposed a fine of “up to $1,000 and six months in jail for performing an interracial marriage,” while teaching at African American schools without a special license was “punishable by a fine of up to $500 in Florida.” The right to be free from excessive fines is still a fundamental right, Timbs proclaimed. Some states will go so far as to jail people who do not pay their fines on time. And, even if people do not lose their freedom as a result of fines, the fines can have serious repercussions— including the loss of driving privileges or the right to vote.
Timbs argued that states are likely to abuse the right to be free from excessive fines, because they can’t resist the temptation to use fines as an opportunity to raise revenue without raising taxes. In 2012, he told the justices, “agencies in 26 States and the District of Columbia took in more than $254 million through forfeiture under state laws alone.” Excessive fines are a particular problem in Indiana, he noted, “where state laws allow prosecutors to outsource forfeiture cases to private lawyers, who take the cases on contingent fees and pocket hundreds of thousands of dollars every year based on forfeitures.” The First Circuit has grappled with this problem and has required courts to consider an additional factor as well—would the contemplated fine or forfeiture be so severe as to destroy a defendant’s livelihood? This additional analysis of the excessiveness inquiry represents a major departure taken by the majority of courts.
The State of Indiana suggested that the excessive fines clause does not apply to Timbs’ case because he is complaining about the forfeiture of property used to violate the law, known as an “in rem” forfeiture, which was not traditionally regarded as a penalty. Indiana maintained the clause applies only to payments imposed as punishment. The state argued this is consistent with the problem that the excessive fines clause was intended to target, which was “to prevent judges from incarcerating individuals on the basis of unpayable discretionary fines.”
The State of Indiana advised that even if the excessive fines clause does extend to in rem forfeiture, there is no reason to interpret the clause to apply to the states. Indiana argued the Supreme Court should not look generally at whether there is a right to be free of excessive fines, but instead should look at the specific right that Timbs is asserting in the case at bar—“the right to be free of forfeitures of property whose value far outweighs the seriousness of the crime.” The state maintained there is no deeply rooted historical tradition supporting such a right. To the contrary, property forfeitures have been common, even when the consequences have been “draconian and even when the owner of the property is innocent.” For example, the Supreme Court upheld the forfeiture of nonobscene material in Alexander v. United States. The defendants owned several pornography stores and the conviction resulted from the possession of several magazines and videos. The defendant was sentenced to six years in prison, fined $100,000 and the entire enterprise was forfeited. The enterprise included nine million dollars he had received as proceeds from the enterprise.
The state further argued, despite the harsh results of forfeitures, courts did not apply the excessive fines clause to property forfeitures until 1992, which “strongly implies that no one understood the Excessive Fines Clause to impose a proportionality requirement on these forfeitures.” For example, property owners have challenged the constitutionality of forfeitures under other provisions in the Constitution, such as the right to a jury trial or due process, but not the excessive fines clause.
Timbs’ petition for review garnered support from a wide range of groups. The U.S. Chamber of Commerce argued in an amicus curiae brief that “state and local legislatures are authorizing—and executive officials are seeking—excessive fines and forfeitures for relatively modest violations of the law.” Although the Eighth Amendment’s excessive fines clause acts as a check on excessive fines imposed by the federal government, the Chamber explained, the “lack of a uniform, similar constraint on the governments in the 50 states is needlessly driving up costs for businesses, increasing prices for consumer goods and services, and undermining economic growth.”
The Southern Poverty Law Center added in a separate amicus curiae brief that state governments are using fines and forfeitures simply to generate revenue to fund a “burgeoning prison population” without needing to raise taxes. The SPLC argued this focus on revenue generation can lead to “unconstitutional and racially motivated behavior by law enforcement and municipal employees.” The center asserted, “fees and fines mean that even the most casual encounter with the criminal justice system can have catastrophic results.” This can ultimately have implications on everything, from ability to pay child support to credit ratings and even leading to incarceration for failing to pay the fines.
Ultimately, the U.S. Supreme Court held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the states. Justice Ruth Bader Ginsburg authored the opinion, agreeing with Timbs that the Excessive Fines Clause has a historic tradition dating back to the colonial era. Ginsburg reasoned that the clause is so “fundamental to our ordered liberty” and so “deeply rooted in this Nation’s history and tradition” that its incorporation is required.
Sanctuary Campuses: To Be or Not To Be, That is the Question
November 8, 2016 is a day that, for many, will live in infamy. While some celebrated the election of now President Donald Trump, others sat in tears, fearful of the road ahead. These fears were not unmerited. Throughout his bid for the presidency, President Trump boasted about his plans to defund Planned Parenthood, to rescind President Obama’s executive orders tightening restrictions on gun sales, and most frightening to millions of undocumented immigrants, to repeal President Obama’s executive orders regarding immigration. In an attempt to comfort those frightened and worried about the new President and his changes to the nation’s immigration policies, community leaders and mayors across the country released statements immediately following the 2016 election, noting their continued status as sanctuary cities. Sanctuary cities are cities that limit their local law enforcement’s cooperation with federal agencies enforcing immigration policies. Sanctuary cities were a target for President Trump throughout his campaign and continue to be a target to this day.
In addition to cities affirming their status as sanctuaries to undocumented immigrants, college campuses have also pressured their administrations to declare their campuses sanctuaries in order to combat the President’s attacks on the undocumented members of their student bodies. Despite this pressure, many campuses are reluctant to definitively state whether or not they will be considered a “sanctuary campus” given the potential consequences of such a declaration, namely having their vital federal funding stripped. Further, for institutions that are willing to deem themselves sanctuary campuses, it is unclear just what a sanctuary campus will look like and entail. While sanctuary cities, such as San Francisco, Los Angeles, New York, and Houston, have been around for decades, sanctuary campuses are likely to face different challenges and function differently than their city counterparts.
Sanctuary Cities & President Trump’s Executive Order: “Enhancing Public Safety in the Interior of the United States”
While there is no specific legal definition of what a sanctuary city is, the term is often used to refer to those cities that protect undocumented immigrants by limiting their cooperation with federal agencies implementing immigration policy. This often equates to sanctuary cities refusing to allocate funds for the enforcement of federal immigration policy by local law enforcement, prohibiting local law enforcement officers from asking someone their immigration status, and generally refusing to comply with federal agencies attempting to enforce immigration policies within their cities. Some cities have gone as far as to make such practices law while others are content with merely implementing such practices as policy.
Shortly after taking office, President Trump signed an executive order entitled “Enhancing Public Safety in the Interior of the United States,” which strips federal funding from those cities that do not comply with federal law regarding immigration. Within a week of the order, cities across the nation filed suits challenging the order, with San Francisco being the first. In a 41-page complaint, San Francisco argues that President Trump’s executive order is a violation of the Tenth Amendment. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Essentially, the Tenth Amendment limits the power of the federal government and protects the states from what San Francisco deems as “the excessive accumulation of power in any single entity and . . . the risk of tyranny and abuse from any government office.” San Francisco argues that in writing the executive order, President Trump violated the Tenth Amendment and thus, the executive order must be struck down.
San Francisco contends that the new requirements to receive funding, namely the implementation of and cooperation with federal immigration laws, are unduly coercive. The Supreme Court recently reiterated that the Legislative or Executive Branch violates the Tenth Amendment when its conditions for a State’s receipt of federal funds move from mere encouragement to unduly coercive. The Legislative or Executive Branches may use its powers to “create incentives for States to act in accordance with federal policies,” but may not order or coerce the States to enact or enforce a federal program. Further, these incentives pose no issues when “a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds.” The issue, however, arises, when “the State has no choice.” Here, San Francisco stands to lose upwards of $1.2 billion in federal funding, a large part of its $9.6 billion budget. These funds go towards public health programs, transportation and infrastructure projects, supportive housing, and social welfare programs, with only a small percentage of those funds relating to immigration or law enforcement. Thus, San Francisco argues that the funding requirements are unduly coercive and violate the Tenth Amendment.
Currently, President Trump’s administration has not cut any funds to San Francisco. As the City awaits a resolution to its suit, City Attorney Dennis Herrera asked a federal judge to freeze the order until the lawsuit is resolved. The City argued that although President Trump’s administration has not yet cut any federal funding, the mere threat of cuts affects the City’s current budgeting. On April 25, 2017, the City’s request for a freeze on the order was granted by District Court Judge William H. Orrick.
Sanctuary Campuses & The Effect of the Executive Order
As cities await the fate of the executive order, university campuses around the nation are facing increased pressure to declare themselves sanctuary campuses, especially in light of President Trump’s repeal of the Deferred Action for Childhood Arrivals (DACA) Program, a program which protects from deportation nearly 800,000 undocumented people who were brought to the United States as children. Most administrations have resisted and have declined to categorize themselves as sanctuary campuses, fearing a similar executive order or Congressional legislation that would strip their institutions of vital federal funds. Still, while refusing to use the word “sanctuary” in describing their institutions, many still offer support to their undocumented students. This begs the question: what will sanctuary campuses look like in effect and what will be considered a sanctuary campus regardless of its own self categorization?
Sanctuary campuses thus far have declared that they will not allow any federal agencies such as U.S. Immigration and Customs Enforcement (ICE) onto their campuses “without permission or legal process,” such as a search warrant or subpoena. Further, information and records on undocumented students will continue to be protected by existing acts such as the Family Educational Rights and Privacy Act (FERPA), which prohibits institutions from disclosing personal information without the student’s consent. Public safety officers and other members of the school administration additionally will not inquire about the immigration status of students. Should they learn of a student’s immigration status, however, they will not disclose such information voluntarily to federal agencies seeking such information.
Unfortunately for undocumented students, the process for acquiring a search warrant or subpoena is not exceedingly difficult. Thus, the label “sanctuary campus” does not offer much more protection than a campus that merely abides by FERPA in keeping the status of their students confidential. Sanctuary campus designations by institutions are therefore seen as more symbolic than having any substantive effect.
The risk of losing federal funding for universities also promises to have a much more debilitating effect than if a city were to lose such funding. The University of California, for example, stands to lose $9 billion in federal funding for research, education, and healthcare. The University of California is the nation’s largest recipient of federal funding for research and related projects, with approximately 2,500 undocumented immigrants across their campuses. In addition to these federal funds that support research, education, and healthcare, students at these institutions stand to lose billions in loans and grants available to them in the upcoming school years. As a result of such threats, some institutions such as Arizona State University are seeking out donors to provide scholarships for undocumented students to allow them to continue to attend their institutions at the in-state rates.
Although a bill was introduced by Congressman Duncan Hunter earlier this year proposing to cut federal funding for sanctuary universities, there have been arguments against the bill similar to those brought by San Francisco in their suit against President Trump’s executive order. While universities question the legality of such a bill, the mere threat of losing federal funding seems to have had mixed reactions from universities, with some holding steadfast in their commitment to their undocumented students and others backing away from calling themselves sanctuary campuses. It is likely that universities across the nation will take more decisive stances once a ruling is handed down on the constitutionality of President Trump’s executive order. Whether undocumented students will be afforded the opportunity to continue to be contributing members of student bodies in the coming months remains to be seen.
Supreme Court to Rule on Police Shooting Case: Excessive Force and Qualified Immunity
Imagine waking up to your front door opening and being shot multiple times, then finding out the individuals who shot you are protected by qualified immunity. In October 2010, the Mendezes were taking an afternoon nap when they awoke to the sound of their front door opening, followed by the piercing blasts of fifteen gunshots. Five bullets punctured Mr. Mendez’s body, leading to the amputation of his lower left leg. His pregnant girlfriend, now wife, Jennifer, was shot once and a second bullet grazed her hand. On the other side of those bullets stood two Los Angeles County Sheriff’s Department deputies. The deputies were on the property aiding in the search of a wanted parolee.
In the darkness of the room, the deputy saw a silhouette of a man with what he believed to be a rifle, and yelled, “gun!” The “rifle” was actually a BB gun used to kill pests. This is not a completely novel occurrence, and such incidents usually result in officers being individually protected from suit by qualified immunity. Yet this case is different because the District Court for the Central District of California and the Ninth Circuit Court of Appeals held the two deputies individually liable under the Ninth Circuit’s “Provocation Rule.” On March 22, 2017, the Supreme Court heard oral arguments in County of Los Angeles v. Mendez, a case that has the potential to provide clarity on the issue of excessive force claims protected by qualified immunity.
“The Provocation Rule establishes that law enforcement officers are entitled to qualified immunity from damages, unless the officer intentionally or recklessly provokes a violent confrontation. If the provocation is an independent Fourth Amendment violation, officers may be held liable for their otherwise defensive use of deadly force.”
Although the home in this case might appear unconventional, it was where the Mendezes lived for ten months. Their home is referred to as a wooden “shack” in briefs, but even so, the Fourth Amendment protects “shacks.” The Mendezes filed suit against the deputies under 42 U.S.C. § 1983, alleging their Fourth Amendment rights had been violated by an unreasonable search and seizure. The district court held the deputies’ warrantless entry into the shack was a search within the Fourth Amendment and it was not justified by any exigent circumstances or any exceptions to the warrant requirement. The district court also held that the deputies violated the Fourth Amendment knock-and-announce rule by staying silent when they opened the door.
The district court decided that the deputies’ shooting was not excessive force under Graham v. Connor, however, the court awarded damages under the Ninth Circuit’s Provocation Rule. The Provocation Rule establishes that law enforcement officers are entitled to qualified immunity from damages, unless the officer intentionally or recklessly provokes a violent confrontation. If the provocation is an independent Fourth Amendment violation, officers may be held liable for their otherwise defensive use of deadly force. The district court concluded that the deputies’ shooting the Mendezes was not excessive force because their mistaken fear upon seeing the BB gun and reacting was objectively reasonable. However, the deputies were held individually liable because of the prior Fourth Amendment violation and awarded the Mendezes roughly $4 million in damages for the shooting, nominal damages of $1 each for the unreasonable search and the knock-and-announce violation, and attorneys’ fees.
The Ninth Circuit agreed and held the deputies violated clearly established Fourth Amendment law by entering the wooden shack without a warrant. The deputies argued that the reaction from Mr. Mendez with the BB gun was not a violent confrontation because he was simply moving it, thus the rule did not apply. The Ninth Circuit held the Provocation Rule only required that the deputies’ unconstitutional actions created the situation, which led to the shooting and required the deputies to use force that might have otherwise been reasonable.
The Supreme Court granted certiorari and heard oral arguments on two issues, one of those issues was whether the Ninth Circuit’s “Provocation Rule” should be barred because it potentially conflicts with current case law.
In Graham, the Supreme Court held an objectively reasonable standard applies when analyzing the facts and circumstances of excessive force claims such as this. The reasonableness standard is based on the perspective of a reasonable officer on the scene rather than applying 20/20 hindsight or looking at any underlying motivation. The Court reasoned that the “reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”
In a more recent case, Scott v. Harris, the Supreme Court applied the same objective reasonableness standard, but also looked at the series of events that lead to the force applied by the officer. The Court analyzed the actions of the injured party and held his behavior caused the officer to employ the high level of force, thus the Court found the officers’ actions were reasonable under the circumstances.
Currently, a circuit split exists regarding the Ninth Circuit’s Provocation Rule. The deputies argue that Graham applies and that officers need to be free to make split-second choices to respond to threats of force without stopping to replay their prior actions and evaluate whether someone might later accuse them of provoking the situation. Although this is true, some argue that officers should also be required to follow the Constitution in the first place and held liable if they cause the force to be used. The holding in Scott supports this type of analysis. While Graham allows for qualified immunity by looking to what an objectively reasonable officer would do in the situation, the Mendezes propose that Scott also be applied for a totality of the circumstances approach.
The Proposed “Mendez Test”
The Mendezes propose that the Supreme Court not adopt the Ninth Circuit’s Provocation Rule, but instead adopt a new rule regarding excessive force and qualified immunity. The Mendezes propose that when courts are resolving excessive force claims, that “courts may entertain a claim that police action foreseeably created the need for the use of force against a claimant and should apply to the police action the general standard of reasonableness established by Graham and Scott.”
“The Mendezes argue that by applying both cases, consideration would also be given to the ‘relative culpability’ of the various actors involved and all issues would be evaluated from the perspective of ‘a reasonable officer on the scene.'”
Under Graham, to decide if the prior police action was reasonable “a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake” is required. The Mendezes argue that by applying both cases, consideration would also be given to the “relative culpability” of the various actors involved and all issues would be evaluated from the perspective of “a reasonable officer on the scene.” The proposed test differs from the Provocation Rule because it requires “objectively unreasonable conduct instead of an independent constitutional violation.”
Here, the lower courts recognized that when the deputies saw the BB gun, their use of force was reasonable and not excessive. However, the deputies being there without a warrant and not announcing their presence was not reasonable. The deputies ultimately caused the situation and its escalation, and they knew they did not have a search warrant. Furthermore, Mr. Mendez would have been justified and not liable for shooting the deputy under California Penal Code § 198.5, a California law that allows an individual to use force to protect his or her own home and which many states also have on their books.
How can both parties shoot one another and not be held liable? This is exactly what the Supreme Court can clear up by applying and implementing the proposed Mendez test. Police should not have to run through a checklist while dealing with an emergency situation, however that is why exceptions to the warrant requirement exist. This law would allow for innocent individuals to seek redress when officers so blatantly violate the Fourth Amendment and it leads to irreparable harm, and would hold officers individually liable for their actions.
The argument against the Provocation Rule is that officers will be held personally liable if they commit even the slightest Fourth Amendment violation and that officers won’t be able to make the quick decisions that are often necessary. Another argument originates from the reason that qualified immunity exists in the first place. Qualified immunity protects government actors from individual liability in lawsuits without having to go through trial. It holds officers accountable when they act irresponsibly, but it also protects officers from lawsuits while acting reasonably. The Provocation Rule is at odds with qualified immunity in this case because here the officers were acting reasonably when they opened fire, however they did not act reasonably when looking at all of the facts in their entirety. The deputies put themselves in the situation, which lead to the unnecessary shooting of two innocent individuals. The deputies caused the shooting by not having a warrant or announcing their presence. This should be taken into consideration and qualified immunity should not protect those who fall into this category.
If the Supreme Court does not adopt the Mendez test, or uphold the Provocation Rule, the deputies in this case and others in the future will not be held individually responsible for their violations of the Fourth Amendment. However, if the Court wants to change the way officers enforce the Constitution, it should adopt the Mendez test to deter police officers from violating the Constitution and hiding behind qualified immunity.
California Wine Industry Feels the Effect of Trump
“When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.” This was much of the tone about immigrants during Donald Trump’s speeches on his campaign trail. Since President Trump took office, it seems that immigration has propelled to the forefront of political debates and water cooler talk. Most of the headlines regarding immigration that have dominated our screens have been about children being separated at the border, Trump’s disapproval of sanctuary cities, or Trump’s incessant demand to build a wall along the southern border. Trump’s anti-immigrant policies and rhetoric have also affected an area less discussed by the media, an industry gravely threatened by Trump’s harsh dialogue: the California wine industry.
In 1976, California vineyards rose to international stardom after two Napa Valley wines received top honors at the Judgment of Paris. Since then, the United States now consumes more wine by volume than any other country. California generates $34 billion of the United States’ roughly $60 billion domestic wine sales, with Napa and Sonoma counties producing most of the state’s high-end grapes with their 1,000 plus wineries. In addition, California is the world’s 4th leading wine producer trailing behind France, Italy and Spain.
The agricultural industry in the United States has been on a steady decline since 1950. In the past, farming was considered a family business that employed more than 10 million workers, 77 percent of whom were classified as “family.” As of 2012, 3 million worked on farms, and about half were undocumented. Similar to the rest of California’s agriculture, the wine industry heavily relies on undocumented workers for its labor. According to a federal survey, 9 out of 10 California workers were born abroad, mostly in Mexico, and half are here without citizenship or legal work permits.
USCIS Policy Change
While President Trump is certainly outspoken about his “zero tolerance” policy for illegal immigration, recent policy changes have quietly gone under the radar to make it more difficult for those trying to legally enter the United States. Let me explain:
On July 13, 2018, United States Citizenship and Immigration Services (USCIS) issued a new policy memo that has the potential to drastically alter the government’s decision-making process on most immigration applications by limiting immigration officers discretion. The memo affects two types of notifications commonly sent to applicants for immigration benefits: Request for Evidence (RFE) and Notice of Intent to Deny (NOID).
RFEs are sent when an application is missing a piece of supporting evidence, the wrong evidence is sent, or there is insufficient evidence. NOIDs are sent when an applicant has provided sufficient initial evidence to satisfy the application requirements but, for some other reason, the USCIS officer does not believe that the applicant has established eligibility or that the case should be approved. The rules have always given adjudicators (the USCIS officer reviewing the application) the discretion to decide whether it is appropriate to deny a benefits application outright, or to instead issue an RFE or NOID to give the applicant an opportunity to fix the problem. What has changed is USCIS’ instructions to adjudicators about how to exercise that discretion.
In the past, adjudicators were encouraged to issue an RFE or NOID almost every time there was an issue with an application package, giving applicants a chance to fix any problems. Adjudicators were permitted to deny applications immediately only when there was no possibility that the issue could be cured through additional evidence. The new policy gives adjudicators the authority to deny applications at their discretion without first issuing an RFE or NOID. In other words, this new guidance allows adjudicators to deny any application that contains even the slightest of error.
Why the change?
The change is intended to streamline the USCIS decision-making process, discourage frivolous or incomplete filings, and encourage applicants to be diligent in collecting and submitting required evidence. In the interest of expediency, USCIS officers who used to issue REFs or NOIDs are now urged to decide a case based on the information received, instead of getting back in touch with applicants to request missing information.
However, immigration advocates are worried that this will lead to an increase in the abuse of discretion by individual USCIS officers. Without the routine notices, applicants will no longer have the opportunity to intervene before a decision is made, potentially adding months or years of extra paperwork and thousands of dollars in fees to the already lengthy process. For most immigration applications, the USCIS estimates that it takes anywhere from six months to two years to process applications. However, there is an understanding in the industry that processing times typically take much longer. Longer wait times typically increase costs as well.
Impact on Wine Industry
The California wine industry needs hundreds of migrant workers to get grapes off the vine and into the wineries come harvest season. President Trump has called for a crackdown on immigrants because they “compete directly against vulnerable American workers.” For those in the wine industry, this claim is laughable. Ironically, President Trump’s son, Eric Trump, applied to bring in dozens of immigrant workers for his Trump Vineyard Estates in Virginia because he couldn’t find Americans to apply for the job.
Grape picking is hard, grueling work and “nobody wants these jobs.” A 2014 American Farm Bureau study shows that unemployed Americans regularly shun farm work, even preferring to stay unemployed. Additionally, 76 percent of people believe undocumented immigrants are as honest and hardworking as U.S. citizens, while 71 percent said they mostly fill jobs that Americans aren’t willing to do.
The new USCIS policy change has the potential to make a bad problem, worse. Most wineries in California are family businesses, many with narrow profit margins. Labor shortages were a concern even before President Trump took office. Since 2007, vineyard owners have seen a decline in net migration from Mexico. Since Trump took office, the messages sent to undocumented workers has been unequivocal. “If you’re in this country illegally, and you committed a crime by entering this country, you should be uncomfortable, you should look over your shoulder, and you need to be worried,” the director of ICE recently said in a Congressional hearing. While most immigrant workers who are without papers take extra precautions so they won’t be picked up by federal authorities, others decide on the ultimate avoidance strategy – going home. Of the motivations for self-deportation, many find the American environment of hostility toward Hispanic immigrants just too stressful.
It’s not just the workers that are panicked. Winemakers are anxious for their businesses. Unlike other kinds of agricultural work, vineyard labor is highly specialized, requiring skills that come with years of experience. Much of vineyard work requires human hands that machines simply cannot perform. For example, “canopy management” is a process where workers remove leaves to allow the sun to ripen the grapes but not so many as to expose the grapes of sunburn. This process calls for the judgment of experienced workers that are becoming increasingly harder to find.
Trump’s immigration crackdown was intended to help U.S. citizens, but for California farmers, it’s only worsening an already desperate labor shortage. Labor shortages remain a constant concern in the wine industry and this new policy change has the potential to only exacerbate the problem. The next time you raise a glass of Napa County cabernet, toast the vineyard workers who made it possible. They are a scarce resource, and President Trump’s immigration policies threaten an already volatile industry.
A Victory for Labor Standards Overshadowed by Trumps Immigration Policies
On June 22, 2017, the Ninth Circuit Court of Appeals held that deportation cannot be used as retaliation against undocumented workers who exercise their labor rights. Despite this victory, recent immigration policies discourage undocumented workers from exercising their labor rights.
The last comprehensive immigration reform was passed in 1986. The Immigration Reform and Control Act (IRCA) gave roughly 2.7 million undocumented immigrants legal status. Enactment of IRCA was intended to stop illegal immigration into the United States. However, more than thirty years later the U.S. still faces an immigration issue of an estimated 11 million undocumented immigrants. Part of the failure of IRCA was that Congress did not anticipate the need of immigrant workers by future employers. According to the Migration Policy Institute, demand for undocumented immigrant workers continues to be a factor in undocumented immigration, with 90 percent of unauthorized males employed.
IRCA made it illegal for employers to hire undocumented workers. Since 1986, employers who knowingly hire undocumented workers face sanctions in the form of fines and even criminal penalties. Yet, enforcement of employer sanctions has remained minimal since employers are only required to verify that their workers’ paperwork “reasonably appears on its face to be genuine.”
Given this background, an undocumented worker, Jose Arnulfo Arias, began to work as a dairy farm laborer for Angelo Diary in 1995. At the time Mr. Arias was hired, Angelo Dairy did not complete the Form I-9 as required by federal law to verify legal status in the United States. Two years later, Mr. Arias notified Luis Angelo from Angelo Dairy that he was offered employment at another dairy farm. Luis Angelo informed Mr. Arias that “if [Arias] left to work at the other dairy, [Angelo] would report the other dairy to federal immigration authorities as an employer of undocumented workers.” Mr. Arias continued to work for Angelo Diary until 2006, at which point, he filed a lawsuit against Angelo Dairy under the California Unfair Competition Law for workplace violations for failure to provide overtime pay, as well as, rest and meal periods.
Ten weeks prior to the state court trial, Anthony Raimondo, Angelo Dairy’s attorney, established communication with U.S. Immigration and Customs Enforcement (ICE) to initiate the detention of Mr. Arias at a scheduled deposition. Having learned that Raimondo had enlisted ICE, Mr. Arias, settled in lieu of going to trial for fear of being deported and separated from his family. This was not the first time Raimondo had used the threat of ICE. Raimondo had developed a reputation for using such tactics to intimidate and silence workers. While unethical, his tactics were permitted by the California Rules of Professional Conduct. Under rule 5-100, a lawyer, “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” Raimondo claimed that he did not “threaten” to present criminal charges, instead, he simply reported his client’s employees to ICE.
Risking being deported and being separated from his family, Mr. Arias filed a lawsuit in federal district court under the Fair Labor Standards Act (FLSA) against Angelo Dairy, and Raimondo. Under FLSA section 214(a)(3), an employer cannot retaliate against employees for asserting their rights under FLSA. Raimondo argued that since he was not Mr. Arias’ employer he could not be held liable under FLSA. In opposition, Mr. Arias argued that since Raimondo was acting on behalf of his employer, he was liable under FLSA for retaliation against him for filing the original case in state court.
The Ninth Circuit Court of Appeals reasoned that while the wage and hour provision of FLSA refers to an employer, the anti-retaliation provision relates to “any person” who retaliates. Further, Congress’ intent of FLSA section 215(a)(3) reached beyond actual employers. Ultimately, the court reversed the district court’s dismissal of Mr. Arias’ claims. The court held that section 215(a)(3) applied to Raimondo’s activities, and as such, Mr. Arias should be allowed to proceed against Raimondo for retaliation under FLSA section 215(a)(3).
Raimondo and his attorneys filed a petition for writ of certiorari to the U.S. Supreme Court, but it was denied in January 8, 2018. The Arias decision provides a strong protection to undocumented workers who are some of the most vulnerable to labor standards abuse. Nevertheless, the effects of this decision are practically negated by Trump’s approach towards immigration.
Looking back to Trump’s 2016 campaign, it was characterized by xenophobic rhetoric against immigrants. One of Trump’s main target was, and is, undocumented Mexicans. He claimed undocumented Mexicans were violent criminals, terrorists and rapists. Contrary to his rhetoric, multiple studies indicate that undocumented immigrants have a lower crime and incarceration rate than native born Americans. Once President Trump took office, he began to use his Executive Power to implement his anti-immigrant stance.
On January 25, 2017, Trump signed Executive Order “Enhancing Public Safety in the Interior of the United States” which forbids sanctuary cities from receiving federal funds and prioritizes deportation of criminal undocumented immigrants. In application, undocumented immigrants who have committed minor offenses, such as, jaywalking or who misrepresented their status to obtain work, are considered criminals and subject to deportation. Under the previous Obama administration, deportation was a priority only for those who were convicted of a serious crime such as a felony or multiple misdemeanors. Trump has rigorously implemented his policy to deport millions of undocumented immigrants. ICE sweeps that include courthouses sweeps have paralyzed the immigrant community with fear.
Trump’s harsh anti-immigrant policies and rhetoric has had significant effects on the behavior of undocumented immigrants. Out of fear, many immigrants try to stay “under the radar” so they refrain from reporting workplace violations. The U.S. Department of Labor (DOL) reports that undocumented workers are refusing to cooperate with them due to fear of deportation. The DOL is responsible for assuring work-related benefits and rights for all workers regardless of legal status. Under a “memorandum of understanding” (MOU), the Department of Homeland Security and Immigration and Customs Enforcement (ICE) agree not to engage in immigration enforcement while DOL is conducting their own worksite investigations, unless it is a matter of national security, protection of critical infrastructure, involves a federal crime or the enforcement activity is directed by the Secretary of Homeland Security.
Still, the MOU is of small to no comfort for undocumented workers who fear that enforcing their labor rights will result in deportation. While the DOL claims that undocumented workers will not risk deportation if they report wage and hour violations or other workplace violations, under the current administration they cannot guarantee that they will not be deported once they show up at the courthouse to enforce their labor rights. As evidently, under the Trump administration, ICE has apprehended undocumented immigrants at or near courthouses.
A community paralyzed by fear, consequently will not be as willing to stand up for themselves or others when it comes to labor injustices, crimes committed against them, and so forth. Undocumented immigrants, such as Arias, who Judge Trott characterized by quoting Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, as “not . . . dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others” are more willing to endure unsafe working conditions, wage and labor violations rather than risk being deported and separated from their families. The reality is that while attorneys like Raimondo can no longer use the threat of deportation as retaliation against undocumented workers, Trump’s immigration policy will discourage undocumented workers from exercising their labor rights.
Restoring the Establishment Clause to the states; Restoring Religious tolerance
In recent years, the Supreme Court has recognized the downturn of consistent and reliable Establishment Clause jurisprudence. The inconsistency of opinions and the often hostile outcomes have left the Establishment Clause in “shambles”. Justices have commented that there is no other area of law in more desperate need of repair than the Establishment Clause. One reason posited for the current state of confusion is that the Establishment Clause was never intended to be incorporated. Because of this, even the Supreme Court cannot agree on a single test or even consistently apply the many tests it currently employs.
Before 1947 when the Establishment Clause was incorporated, none of the very few Establishment Clause cases decided constituted a constitutional violation. However, all things changed in Establishment Clause jurisprudence when the court announced in Everson v. Board of Education that the Establishment Clause had been incorporated against the states under the Fourteenth Amendment. Everson is devoid of any analysis justifying the incorporation of the Establishment Clause but states that because the Free Exercise Clause had already been incorporated in Cantwell v. Connecticut, “there is every reason to give the same application and broad interpretation to the establishment of religion clause.”
The difference between the Free Exercise Clause and the Establishment Clause is that the Free exercise Clause protects individuals against congressional interference with the exercise of their religion. Because this clause protects an individual right, it can be incorporated under the liberty provision of the Fourteenth Amendment. The Establishment Clause on the other hand does not purport to protect individual rights, but puts a structural limit upon federal power and reserves authority to the states.
The Establishment Clause states “ Congress shall make no law respecting an establishment of religion.” On one level, the entire Bill of Rights was adopted to assuage the fear of centralized power in a national government and none of its provisions originally applied to the states. Upon closer analysis, structural differences between the various rights may be discerned. Although most of its provisions are meant to protect individual rights, such as the right to free speech, the Establishment Clause does not. The framers intended the Establishment Clause to embody a principle of federalism, that is, to prevent Congress from interfering with church-state relations and allowing states to preserve their sovereignty with respect to religion.
The Establishment Clause is a structural limitation, akin to the powers of Congress to regulate interstate commerce and to declare war. Structural limitations do not create a fundamental liberty interest but rather protects state power against the federal government by defining and limiting the powers of the federal government. Structural limitations defy incorporation and when incorporated achieve the opposite result- the elimination of such state authority. Incorporating the Establishment Clause is therefore analogous to trying to incorporate the Tenth Amendment. The Tenth Amendment reaffirms that the states possess all power not delegated to the federal government. Incorporation alters the meaning and would require that the states be stripped of all powers not specifically delegated to them, thereby inverting the Amendment’s purpose. As outrageous as this outcome would be, the same shocking result has occurred by the incorporation of the Establishment Clause. Over seventy years of inconsistent and confused Supreme Court decisions have demonstrated just how problematic the outcome really is.
After the decision to incorporate in 1947, states were stripped of their power to recognize religion as a part of public culture and make determinations about religion based on local values and desires. Symbols that have been woven into our history and culture have, in recent years, been deemed by the court to be violative of the Establishment Clause. For example, two Kentucky counties were prohibited from displaying the Ten Commandments in their courthouses as part of their “Foundations of American Law and Government Display.” In addition to the Ten Commandments, the display contained eight other documents that played a significant role in the foundation of our system of law and government. This case illustrates precisely how incorporation has robbed the states of their autonomy and how hostility toward religion has seeped into Establishment Clause jurisprudence, further separating our people from their history.
Another reason the incorporation of the Establishment Clause is improper is because the expansion of liberty that is triggered through the incorporation of other amendments is not similarly triggered with the incorporation of the Establishment Clause. Speaking of incorporation generally, Justice Clarence Thomas said, “[w]hen rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, the individual liberty.” Incorporation of the Establishment Clause has restrained religious liberty by taking away a right from the people, who reserved that power unto themselves, or to their state governments, and giving it to the federal government. From the Nation’s founding until 1947, states had the power to respect the needs and traditions of its citizens, allowing accommodation but never coercion of religion. Today, accommodation, acknowledgment and promotion of religion are stifled by the three-prong test outlined in Lemon v. Kurtzman, or in the not so rare occasions when Lemon is not followed, to the inclinations of the majority.
Understanding the Establishment Clause as a federalism provision accords with the range of church-state arrangements that existed at the time of the formation of the Bill of Rights. At least six states had established churches including Massachusetts, Connecticut, and New Hampshire. In the South, states such as Maryland, South Carolina, and Georgia permitted taxation in support of all Christian churches. Other states that had no history of formal religious establishments at all, maintained religious tests for office. In 1833, Massachusetts was the last state to disestablish. This decision, and all previous decisions to establish or disestablish religion, were reserved to the states.
Although the Founders were men of different religious backgrounds, they were virtually unanimous in their belief that the republic could not survive without religion’s moral influence. In Washington’s farewell address, he counseled the people for the last time, writing “of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” The separation of religion from the public square has greater implications than just the displeasure of citizens who treasure religious history. We are warned by those who wrote the Constitution that if later generations did not value and safeguard religion, the free republic, as we know it, would crumble.
By reviewing the textual and historical facts concerning the creation of the Establishment Clause, it is not difficult to arrive at the conclusion that it was the founder’s intent to limit the federal government and give power to the states when it came to religious matters. Even for those who understand this, it is difficult to conceive of the United States as a place which allows individual states to establish a state religion. It is important to remember that at the time the Establishment Clause was incorporated in Everson, there were no established religions and there had not been for over one hundred years. Each state that at one time had an established religion, voluntarily disestablished in the early nineteenth century. Therefore, there is no reason to believe that the fifty states would rush to adopt religious establishments.
The abandonment of Everson would return the power to the states to determine government involvement with religion. Returning this power will not only secure religious liberty, but will allow it to flourish as citizens of each state voice their desires with local and state leaders. Currently there are states that have already written into their constitution a clause that prohibits an establishment of religion. Other states may do the same and each will be free to set the limits of their involvement.
The Free Exercise Clause will continue to be a potent defense of religious liberty as it restricts state and local government from compelling citizens to attend or worship in church services. It also forbids the punishment or penalization of individuals because of their religious beliefs. The Free Exercise Clause would continue to allow any citizen to opt out of any state-sponsored activities such as a prayer at a school graduation or viewing a creche at Christmastime but at the same time, allow those who want to participate to do so.
Even if the Supreme Court could find a fair and consistent test, the states would still be without the powers given them by the founding fathers. Government involvement with religion would continue to be evaluated on a federal level and likely with the same confusion and inconsistency as we see today. Just as with our Founders, religion’s importance and influence continues to be a defining characteristic of the citizens of the United States. We deserve to not only be free from punishment and restraint when practicing our religion, but more, we should be free to join with our government in acknowledging and giving thanks to God for the great blessing which is this Nation.
The California Consumer Privacy Act of 2018: Are your interests at stake?
In 2018, news reports condemning Facebook’s privacy policies, Cambridge Analytica’s data management, and the effects of Cambridge Analytica’s misdeeds on the 2016 United States Presidential election swept the nightly headlines.
In response to growing privacy concerns throughout the nation, Alastair Mactaggart, a prominent real estate attorney in the Bay Area, invested over $3 million to place a consumer-focused privacy initiative on the November ballot for voters in California. Eventually, Mactaggart agreed to withdraw the initiative from the ballot and, in exchange, California lawmakers adopted the California Consumer Privacy Act of 2018 (CCPA).
The CCPA declares the state of California to be “one of the world’s leader in the development of new technologies” and acknowledges that, given the current state of affairs, “[p]eople desire privacy and more control over their information.” Interestingly, the legislature specifically cites the March 2018 incident in which “tens of millions of people had their personal data misused by a data mining firm called Cambridge Analytica.” However, mention of Cambridge Analytica’s dealing partner, Facebook, is nowhere to be found in the text of the act. The legislature goes on to state that the legislative purpose behind the act is to “give consumers an effective way to control their personal information” in a series of rights assigned by the CCPA.
Although the CCPA was adopted in June of 2018, it does not go into effect until January 1, 2020. The eighteen-month delay in the CCPA’s operative function allots time for potential changes in the bill’s text or federal law pre-emption. Despite potential legislative changes to the act, several CCPA-oriented compliance guides and articles have already surfaced on the web. For example, Lothar Determann, partner of Baker & McKenzie and renowned privacy law author, urges businesses to take immediate action regarding CCPA compliance. Also, Software Development Times suggests that CCPA compliance will start with a business’s IT department. At the core of all CCPA compliance guides lies one universal truth: tell people what the CCPA means to them.
Before all California businesses scramble to develop new, compliant infrastructure and enthusiastic California consumers fill the streets with compliance celebrations, it is important to analyze the text of the CCPA to determine whose interests are really at stake.
PARTIES AFFECTED BY THE CCPA
In true legislative fashion, several of the key terms of the CCPA do not carry their colloquial meaning. At first glance, it would be reasonable to assume that the CCPA protects a consumer, or “one that utilizes economic goods,” in California. Deceptively, the CCPA defines a “consumer” through a lens of residency theory under California Code of Regulations, Title 18 § 17014. In order to enjoy the benefits of the CCPA, the consumer must be a natural person in the State of California for a purpose that is neither temporary nor transitory, even if the individual is out of state for a temporary or transitory purpose. In practice, the consumer-facing benefits derived from the CCPA will protect a California resident, even while the California resident vacations in Hawaii.
In the same vein, the CCPA seeks to regulate business activities. Again, the legislature places a few not-so-instinctive modifiers on the term “business” for the purposes of the CCPA, which raise an important contrast between how the CCPA defines “consumers” and “businesses.” Although the CCPA’s consumer is defined based on a theory of residency, all businesses that qualify under the definition of the CCPA—regardless of the business’s actual, physical location—must comply with the CCPA.
To determine if a business is considered a “business” in the eyes of the CCPA, two initial questions must be raised: (1) Does the business collect personal information? and (2) Is business conducted in the state of California? If the answer to those two questions is yes and yes, the analysis must continue down a murky path. If a business generates $25 million annual gross revenues, the business is subject to the CCPA. However, as the text of the act reads today, it is unclear if the threshold is based on revenues generated from business in California or global sales in totality. Ideally, the text of the act will be revised for clarity before this ambiguity makes its first appearance in case law. Even if the business does not generate $25 million in revenue, the business must comply with the CCPA if the business has the personal information of 50,000 consumers, household, or devices. As Lothar Determann points out, small business located outside of California can easily and unintentionally capture the IP addresses of 50,000 Californians. Even if the business does not generate $25 million in revenue or collect the personal information of 50,000 Californian consumers, the business is still subject to the CCPA if the business derives more than 50 percent of its profit from selling California consumers personal information.
RESPONSIBILITIES AND RIGHTS UNDER THE CCPA
The CCPA charges businesses with several new responsibilities when handling personal information to give new rights to the consumer.
Most notably, the CCPA requires businesses to allow consumers to opt out of the sale of personal information in a series of methodical steps. First, the business must have a link that reads, “Do Not Sell My Personal Information” on the website homepage, in the privacy policy, and accompanying any mention of consumer privacy rights. However, if the business has actual knowledge that the consumer is under 16 years of age, the business must obtain consent from a child between 13 and 16 years old to collect personal information. If the child is less than 13 years old, parental consent is required to obtain personal information about the child. Considering that more than half of 11 to 16 year olds visit Facebook, YouTube, and Snapchat at least once a week, the CCPA is likely to change the landscape of social media.
Also, under the CCPA, the consumer has the right to request, by phone, that a business disclose: the types of information collected about the consumer, the purposes for collecting such information, and the type of third parties that receive information about the consumer. The business must provide a free disclosure of such information—that is in a “readily usable format”—within 45 days of the request. However, this is a restricted right; a business is only required to disclose such information to the consumer two times in a twelve month period. To fulfill disclosure requests, businesses will have to create inventories of all personal information of California residents and fund new systems that manage such requests. Eric Goldman, a professor of law at Santa Clara University School of Law, notes that the costs incurred by a business’s compliance with CCPA will undoubtedly be passed along to consumers.
Minus a few exceptions, the consumer is granted the right to be forgotten: the consumer may request that the business delete the personal information which the business has collected from the consumer. However, as Tonya Forsheit, partner of Frankfurt Kurnit Klein & Selz P.C. and one of the top 20 cyber attorneys in California, points out, the right to be forgotten only applies to personal data that the business has collected from the consumer. The right to be forgotten does not apply to data that the business has obtained from other sources than the consumer. Whether this distinction between data collected from the consumer and data collected by another means was intentional or accidental, legislative clarification is needed to provide guidance to businesses and consumers alike.
FUTURE DIRECTIONS
Before the CCPA is implemented in January of 2020, it is important to determine if your rights as a consumer, based on your residency, or the interests of your business, based on the revenue and data collection practices, are at stake. Although preparing for the effects of the CCPA may seem like a sound investment of time and energy, be wary; the text of the CCPA is subject to change.
It is mutually agreed, from both consumer advocates and business analysts, that the CCPA in its current state is unsatisfactory. For example, Justin Brookman, director of privacy and technology policy for the Consumer’s Union, considers the CCPA to be “modest” in regard to consumers rights and should be expanded. Brookman predicts that companies throughout the nation will adopt the standards of the CCPA for practical concerns. Contrastingly, Robert Callahan, Vice President of State Government Affairs for the Internet Association, criticizes the CCPA and claims it was written by a consumer privacy advocate without proper public vetting. Callahan argues that the CCPA and its imposition of fines for violation is a major threat to those who wish to do business in California.
California residents and those who do business in California are advised to stay abreast of the California Consumer Privacy Act, as there may be major textual revisions – or Federal pre-emption – before the act goes into effect on January 1, 2020.
THE DEBATE OVER BEARS EARS NATIONAL MONUMENT
After my first year of law school, my wife and I went on a road trip through parts of Utah and Arizona. We visited Zion National Park, and my time there reinvigorated me and reminded me that life exists beyond law school.
While I was discovering the beauty of our Nation’s protected lands, President Trump was reconsidering the existence of another, Bears Ears National Monument. I was unaware at the time, but two weeks before my trip, on April 26, 2017, President Trump issued an Executive Order (E/O) that called for a review of national monument designations made after 1996, which were over 100,000 acres in size. The Secretary of the Interior, Ryan Zinke, reviewed President Obama’s E/O that established Bears Ears National Monument and found the national monument to be too large. Trump subsequently signed an E/O that decreased the total size of Bears Ears National Monument by 80%
The Antiquities Act
The Antiquities Act of 1906, gives the President the power to designate historically or scientifically significant land, owned or controlled by the federal government, as a national monument. The designation must be kept to the “smallest area compatible with proper care and management” of the federal land upon which they are located. The Antiquities Act was designed in response to an urgent need to protect the Nation’s historic landmarks and objects of scientific importance. On September 24, 1999, Congress amended the Antiquities Act; the President is now required to seek feedback from government officials and citizens who reside in the state where the monument designation would be located, before moving forward with the designation.
While no phrase in the Antiquities Act allows the President to decrease or rescind a previous national monument designation, it has still been done. President Wilson decreased the size of Mount Olympus in 1915, citing a need for timber during World War I. President Wilson’s E/O was never reviewed by the courts, and Congress later restored the monument to its original size. In 1962, President Kennedy relied on the powers granted to him by the Antiquities Act, when he reduced the total size of the Natural Bridges Monument after it was determined that parts of the site had no archaeological value.
Now, Trump is arguing that Obama’s E/O did not comply with the Antiquities Act. While it is possible that Obama’s E/O did not comply with the language of the Antiquities Act, the appropriate remedy would be a preliminary review by the Secretary of the Interior, an injunction by the Supreme Court, or legislative action that increases or restricts presidential power to modify national monuments. Simply put, there is no provision in the Antiquities Act that says a President can use his or her authority to revise or rescind a prior President’s national monument designation. Obama’s E/O detailed why the total acreage of Bears Ears National Monument is necessary to protect the scientific and historical significance of the area. Obama’s E/O considered numerous factors and welcomed public feedback during the drafting process; now, only a year removed from when Obama signed his E/O, do Trump’s findings really justify an 80% decrease of the monument’s total acreage?
A Tale of Two Executive Orders and the Bears Ears National Monument Designation.
On December 28, 2016, President Obama signed an E/O that established the Bears Ears National Monument, located in South-Eastern Utah. Before the boundaries of the monument were established, Obama considered “the uniqueness and nature of the objects, the nature of the needed protection, and [the] protection provided by other laws.” President Obama asserted that the new 1.35-million-acre monument was confined to the smallest area compatible with the proper care and management of the objects to be protected.
In keeping with the 1999 amendment to the Antiquities Act, President Obama welcomed the input and involvement of local: government officials, Native American tribes and recreational users in the construction and management of the Bears Ears National Monument. Obama created a commission that would provide guidance and recommendations for how the monument should be managed. The commission was comprised of one officer from each of the Hopi Nation, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah Ouray, and Zuni Tribe; each tribe would elect its officer. The Secretary of the Interior and the Secretary of Agriculture were directed to work closely with the commission to manage the land. Obama’s E/O was met with mixed reviews; environmentalist groups and local Native American tribes applauded the President’s action, but Republican politicians and conservative groups in Utah chastised the President’s action.
While campaigning in 2016, President Trump promised crowds in Utah that once elected he would modify the size of Bears Ears National Monument. Once Trump took office, the Utah state legislature looked to hold Trump to his campaign promises and passed H.C.R. 11; a bill that directly asked the President to rescind Obama’s E/O that established Bears Ears National Monument. Trump did not immediately rescind the designation; instead, he signed E/O 13792, which called for the Secretary of the Interior to review specific national monument sites, including Bears Ears. After the review, Zinke determined that “rather than designating an area encompassing almost 1.5 million acres . . . it would have been more appropriate to identify and separate the areas that have significant objects to be protected.” Zinke also concluded that some of the areas were better suited for a different type of federal protection, and some of the sites were already adequately protected by federal statutes. Zinke recommended that the current boundary lines of the Bears Ears National Monument be modified in order to meet the requirements of the Antiquities Act. Zinke also suggested that Congress should pass legislation that would require the input of local Native American tribes to be considered.
On December 4, 2017, less than a year after President Obama signed the E/O that established Bears Ears National Monument, President Trump signed an E/O that shrunk its size by 1,150,860 acres. In a speech accompanying the signing of the E/O, President Trump announced that he was “putting the states back in charge,” adding that “the previous administration [had] bypassed the states to place over 265 million acres [of] . . . land and water under federal control through the abuse of the monuments designation.” President Trump, through his own proclamation, modified the monument to better fit within the guidelines of the Antiquities Act, and removed some of the monuments protected areas because they were already “adequately protected by existing law.”
Three days after Trump signed the E/O, nine-conservationist groups filed a joint lawsuit that challenged the constitutionality of Trump’s action. In the complaint, the plaintiffs alleged that the President exceeded the scope of his authority under the Antiquities Act. The lawsuit is still pending but given the lack of judicial involvement in E/O historically, the outcome is nearly impossible to determine based on the previous precedent.
What Can be Done Going Forward?
Since President Trump reduced the size of Bears Ears National Monument there have been several bills proposed in the Senate. The proposed bills have been aimed at establishing lasting protections for Bears Ears. Most recently, in January 2018, proposed bill S. 2354 was put before the Senate for a vote. The proposed bill would establish that “national monuments may only be reduced, diminished or revoked by an Act of Congress,” and would establish a National Treasury fund to ensure the proper upkeep of national monuments in the future. The proposed bill would also restore the boundaries of the monument back to the original acreage laid out in Obama’s unrevised E/O, approximately 1,931,997 acres. Other proposed legislation has sought to expand the total acreage of Bears Ears National Monument site or to establish it as the first-ever “tribally managed national monument.”
Unfortunately, there has been little progress in getting any of the proposed legislation passed. Congress seems unwilling to implement any legislation that would supersede or contradict Trump’s E/O. But going forward, Congress should try to pass legislation that would establish long-lasting protections for the Bears Ears National Monument, in a manner that cannot be modified by a subsequent E/O. A bipartisan committee should be established to weigh all the public input, and any legislative action should consider the importance of the land for all interested parties.
SECOND AMENDMENT CHALLENGES: WHAT LEVEL OF CONSTITUTIONAL SCRUTINY APPLIES?
Las Vegas, Parkland, Santa Fe, these three places and many more bring up a variety of emotions in people because of the tragic mass shooting events that have occurred over the last year. Lately it seems every other day we get a notification of something gun related. Whether it’s news of another fatal shooting spree or a new law being passed, guns and people’s rights under the Second Amendment are being talked about on a near daily basis. Additionally, incidences of gun violence increase and guns negatively affect more people every year. Proponents of the Second Amendment stand firm in their belief that there should be little to no restrictions on a person’s ability to obtain and maintain ownership of a gun. Others believe there should be some limitations on the right to “keep and bear arms.” In District of Columbia v. Heller, the Supreme Court upheld a person’s individual right to bear arms for lawful purposes. In Heller, the Court also refused to apply rational basis review to challenges of laws that impact a person’s enumerated rights such as the guarantee against double jeopardy, right to counsel and right to bear arms.
The question still remains as to what level of constitutional scrutiny is appropriate when a person’s right to sell, rather than bear, arms is limited. This question was most recently addressed in Teixeira v. County of Alameda. In Teixeira, an Alameda County ordinance required any business selling firearms to be at least five-hundred feet from: schools, day cares, any business selling liquor, other gun stores, and residential districts. Petitioners, John Teixeria, Steve Nobriga, and Gary Gamaza (collectively “Teixeira” or “Petitioners”) sought to open a firearms store that was four-hundred fifty feet from the nearest residential property. Petitioners challenged the county zoning ordinance as a violation of their Second Amendment rights. Teixeira was ultimately granted a variance from the Alameda County zoning ordinance and his application for a Conditional Use Permit for his firearms store was approved. In granting Teixeira’s application, the Zoning Board concluded that a gun shop at the proposed location would not be detrimental to the public welfare and warranted a variance in light of the physical buffer created by a major highway between the proposed site and the nearest residential district. The Zoning Board also determined that there was a public need for a licensed firearms retailer in the neighborhood.
Unfortunately, after the board granted Teixeira his permit, the San Lorenzo Village Homes Association challenged the ruling and the county revoked Teixeira’s permit. Petitioners were unable to find another suitable property in the County of Alameda and could not open their full-service firearms store. Teixeira challenged the board’s revocation in federal court claiming violations of “due process, equal protection and Second Amendment” rights of him and “his prospective customers.” A motion to dismiss for failure to state a claim was granted in favor of Alameda County without prejudice on the original complaint; and again denied but with prejudice on the amended complaint.
The Ninth Circuit issued a three-judge panel opinion affirming the dismissal of the equal protection claim, but reversed the Second Amendment claim dismissal. On review en banc, the Ninth Circuit upheld the District Court’s dismissal of all claims. In its opinion the Ninth Circuit ultimately held that Teixiera’s Second Amendment rights were not infringed. Further, the Ninth Circuit held, among other things, that the Second Amendment does not protect a person’s right to sell guns. In coming to this conclusion, the Ninth Circuit relied on the two-step approach in U.S. v Chovan. Under this two-step approach, the court must ask “’whether the challenged law burdens conduct protected by the Second Amendment,’ and if so, we then determine the ‘appropriate level of scrutiny.’” Here, the Ninth Circuit concluded that the Second Amendment “does not independently protect a proprietor’s right to sell firearms” and therefore by concluding the ordinance did not burden a protected Second Amendment right, the court avoided determining which level of scrutiny applied in this case. Circuit Judge Tallman generally concurred in the majority opinion, but faulted the majority in his dissent for “dismiss[ing] the constitutional challenge as applied to Teixeira.” Similarly, Circuit Judge Bea dissented from the majority in all respects, including their “short-circuit” analysis of the constitutional challenge. Both Tallman and Bea’s dissents highlight that the Second Amendment challenge brought by Teixeira is at the very least subject to rebuttal and should not have been simply dismissed outright. The two dissenting judges fault the majority because the majority avoided Teixeira’s constitutional claim by stating the Second Amendment does not protect a party’s right to sell arms, only a right to keep and bear arms and thus avoiding whether or not the ordinance’s constitutionality is subject to heightened constitutional scrutiny.
The Supreme Court has not explicitly stated which level of constitutional scrutiny applies to Second Amendment challenges. On January 8, 2018, after the Ninth Circuit denied Teixeira’s claim, Teixeira filed a Petition for Certiorari. Teixeira argued in his petition that despite Heller’s clear ruling that rational basis should not apply in cases regarding the Second Amendment, there are at least two circuits that are still ready and willing to employ rational basis analysis: the Second and Ninth Circuits. Under the Second and Ninth Circuits’ reasoning, rational basis review is appropriate as long as the law being challenged does not “substantially burden” Second Amendment rights. The remaining Circuits, Teixeira argues, have all accepted that Second Amendment challenges are subject to some form of “heightened” scrutiny, although the Circuits do not all agree on what level of heightened scrutiny applies. The Circuits are also conflicted on whether the level of heightened scrutiny should depend on the nature of the Second Amendment challenge. This split among the circuits necessitates a clear ruling by the Supreme Court so the circuits have better guidance on how to approach Second Amendment challenges. Unfortunately, better guidance for Second Amendment challenges will not be given through Teixeira. The Supreme Court denied Teixeira’s petition on May 14, 2018.
What level of scrutiny applies is important in Second Amendment challenges, especially in light of the increase in gun violence. If the Court were to decide rational basis is the appropriate level of scrutiny, then virtually all laws passed would be upheld because rational basis is such a low standard to meet. This would allow less access to guns across the board because laws limiting the rights of people to sell firearms would likely be upheld. Further, if the Court decided that a heightened level of scrutiny such as intermediate or strict scrutiny applies, then laws would be struck down more often and individual’s access to firearms would increase.
Whether or not the Supreme Court agrees that Second Amendment challenges outside the scope of merely bearing arms are subject to rational basis review, intermediate scrutiny or some other form of heightened scrutiny is something we will have to wait for. Since the Supreme Court denied certiorari in Teixeira, we will have to wait to get a clear decision from the Supreme Court on what level of scrutiny the circuits should apply to Second Amendment challenges. Due to the recent increase in gun violence throughout the country, state and local governments, as well as many individuals and groups, are all trying to determine what measures can be taken to protect the lives of innocent people from the mass shooting tragedies that have affected far too many families. If the Supreme Court does not establish a better precedent for courts to use going forward, courts of all levels will be bogged down with cases involving the Second Amendment. With this seemingly imminent and without a clear precedent, each court will rule in its own manner, and in turn will lead to more cases attempting to get on the Supreme Court docket for clarification. In any event, there is so much conflicting case law throughout the circuit courts that it would likely benefit everyone if the Supreme Court were to set, once and for all, a clearer standard to follow when it comes to Second Amendment challenges. The next time a case challenging the Second Amendment arises the Supreme Court should use that opportunity to set a clear precedent for Second Amendment challenges going forward.
Fourth Amendment Protection in the Digital Age
During the course of an investigation into a series of armed robberies in Michigan and Ohio in 2010 and 2011, the FBI submitted applications to three different magistrate judges for orders to access more than five months of historical cell phone location records for Timothy Carpenter. “But the data asked for and received weren’t limited to the days and times of the known robberies—they included months of records that could reveal everywhere Carpenter was every time he made or received a phone call.” And the FBI obtained all of this information without a warrant.
The Supreme Court granted certiorari in Carpenter v United States, a case that offers the Court another opportunity to address how far Fourth Amendment protections against warrantless searches and seizures extend. Specifically, the issue before the Court was “whether the warrantless seizure and search of historical cell phone records revealing the locations and movement of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”
On appeal before the Sixth Circuit, a divided three-judge panel held that “no search occurred under the Fourth Amendment because Carpenter had no reasonable expectation of privacy in cell phone location records held by his service provider.” The prosecution contended that cell-phone users “presumably understand that their phones convey data to their service providers as a necessary incident of making or receiving calls.”
Carpenter took a contrary position, arguing “magistrate judges have discretion to require a warrant for historical data sought if they determine the location information will implicate the suspect’s Fourth Amendment privacy rights.” Carpenter cited a dissenting argument from the Third Circuit, which proposed:
A cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way. . . . [I]t is unlikely that cell phone customers are aware that cell phone providers collect and store historical location information. Therefore when a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.
Carpenter further relied on Justice Sotomayor’s explanation that “electronic location tracking implicates the Fourth Amendment because it generates a precise, comprehensive record of a person’s public movements that reflect a wealth of detail about his/her familial, political, professional, religious, and sexual associations.”
Nonetheless, the Sixth Circuit majority agreed with the prosecution and held that the fact the government obtained the cell site date from Carpenter’s service provider, rather than from Carpenter himself, defeated his Fourth Amendment claim. On appeal to the Supreme Court, Carpenter asserted the weight of authority relied on by the Sixth Circuit, which elucidated the third-party doctrine, never treated “third party access to the records as dispositive.” “The mere fact that another person or entity had access or control over private records does not in itself—and without regard to any other circumstance—destroy an otherwise reasonable expectation of privacy.” Carpenter acknowledged that third-party access to records might indeed be “one factor weighing on the reasonable-expectation-of-privacy standard.” But Carpenter alleges Miller and Smith, which predominantly outlined the basis of the third-party doctrine, did not intend for it to be treated as “an on-off switch.”
In concluding that the Fourth Amendment does not protect people’s cell site location records from warrantless searches, the Sixth Circuit relied on the Stored Communications Act. The court believed that the elected representatives in Congress had already struck a reasonable balance between privacy protection and public safety. Carpenter further alleged that the legislation was decades old and was passed before the “proliferation of cell phones and the availability of increasingly precise cell site location information.”
Carpenter requests that the Supreme Court define the scope of Fourth Amendment protection for newer forms of sensitive digital data or, at least in part, address the expansive application of the “third-party doctrine beyond the kinds of records at issue in Miller and Smith.” He claims the Sixth Circuit erred in not relying on a totality of the circumstances approach in their deliberation and that the Supreme Court should find his cell site location data be protected by the Fourth Amendment’s warrant requirement.
Oral arguments were heard before the Supreme Court on November 29, 2017. Opinion by the Supreme Court has not yet been filed. The Supreme Court’s decision on this case could potentially mean a substantial increase in warrant applications—“in 2016 Verizon and AT&T alone received about 125,000 cell site location requests.” How the Supreme Court decides this case will have important implications, especially where “sensors and devices in our homes, cars, and throughout our world will constantly collect, generate, and share data about us with little to no willingness on our part.”
The Electronic Frontier Foundation and many others have argued it is time for the Supreme Court to revisit this outdated doctrine. A few of the considerations offered in support of this argument include the idea that “patients have a reasonable expectation of privacy in diagnostic test results, even when the hospital maintains the records, … and hotel guests are entitled to protections even though they provide implied or expression permission for third parties to access their rooms.” Similarly, the Sixth Circuit has ruled in the past that people have an “expectation of privacy in email content even if they use a third-party service provider to transmit that email.” Thus, the primary hurdle for the Supreme Court in Carpenter will be to determine how to reset the boundaries of the third-party doctrine in an age where people rely on technology.
Mandatory Agency Dues: Beneficial or a First Amendment Violation?
Unions have long been recognized as a major cornerstone to American culture – they have helped ensure fair wages, hours, and benefits for American workers for over a century. However, the question has continuously come up in legal discourse of whether unions modernly maintain their importance and effectiveness as exclusive bargaining representatives. This question raises an array of issues – one of those being whether public employees should be required to pay union dues when they are not members and do not support the union.
A case recently before the Supreme Court could end laws in 22 states that requires public employees to pay “agency fees” to a union regardless of whether they are members of the union or wish to support it. The case raised the question of whether unions are adequately and accurately representing the real interests of the public employees they are meant to represent.
Janus v. American Federation of State, County, and Municipal Employees is an Illinois case that was affirmed by the United States Court of Appeals for the Seventh Circuit. The specific question before the Supreme Court was whether Abood v. Detroit Board of Education should be overruled and public sector “agency shop” arrangements invalidated under the First Amendment. An “agency shop” arrangement is a union security clause that requires all members of a bargaining unit, union members and non-members alike, to pay a service fee that is equivalent to union dues.
In Abood, a Michigan law was challenged under the First Amendment but the Supreme Court ultimately upheld the law. The Michigan law allowed a public employer whose employees were represented by a union, to require those of its employees who did not join the union to nevertheless pay fees to it because they benefited from the union’s collective bargaining agreement with the employer.
In Abood v. Detroit Board of Education, the First Amendment challenge by plaintiffs, (public school teachers in Detroit, Michigan) against defendants (the Detroit Board of Education and the exclusive union representative of public teachers in Detroit) was premised on the allegation that the union was engaged in various ideological activities of which plaintiffs did not approve and argued that the agency-shop clause was a deprivation of their freedom of association. Ultimately, the Supreme Court upheld the law but ruled that the fees could only be great enough to cover the cost of the union’s activities that benefited the non-members. Although the Court held that a public employer could enforce mandatory agency fees to non-members, the Court held that such fees could not be expanded to enable the union to use a portion of them “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective-bargaining representative.”
The case recently before the Supreme Court challenged Illinois’s agency-fee law, claiming that it is unconstitutional under the First Amendment because it requires non-union members who disapprove of the union to nevertheless pay dues proportional to the costs of the activities that benefit them. Janus is now the fourth case since 2012 to challenge the Supreme Court’s holding in Abood.
Similar to the Michigan law that was challenged in Abood, the Illinois Public Labor Relations Act, 5 ILCS 315/1 et seq., is a law in which a union representing public employees is authorized to collect dues, not only from its members, but also from non-members. This Act is a comprehensive statute designed to govern labor relations for a significant number of public employees; it establishes a duty for a public employer to bargain collectively with the exclusive representative of a unit of public employees and provides employers of public employees to require non-members to pay agency fees that equate to their “fair share.”
“Fair share” fees are a proportionate share of the costs of collective bargaining and contract administration for non-member employees, on whose behalf the union also negotiates. The Act provides that “[o]nly the exclusive representative may negotiate provisions in a collective bargaining agreement providing for the payroll deduction of labor organization dues, fair share payment, initiation fees and assessments” and allows for public employers to require non-member employees to pay their proportionate share of those costs.
In 2015 the governor of Illinois, Bruce Rauner, filed suit in federal district court to halt the unions’ collecting these fees, his ground being that the statute violates the First Amendment by compelling employees who disapprove of the union to contribute money to it. The governor’s complaint was dismissed by the district court for lack of standing because the governor had nothing to gain from the relief sought (i.e. the elimination of the compulsory agency fees). However, two public employees – Mark Janus and Brian Trygg – had already moved to intervene as plaintiffs in the case. For the sake of judicial efficiency, the district court granted Janus and Trygg’s motion, ruling that there would be no material difference between intervening in the governor’s suit and bringing their own suit in the same court.
The district court nonetheless dismissed Janus’ and Trygg’s complaint – but on different grounds. Plaintiff Brian Trygg was found to be precluded from litigating this claim in the present case due to previous litigation he was involved in that entailed the same set of facts and parties, and where he failed to raise the First Amendment issue in his appeal of that case. In contrast, Plaintiff Mark Janus has never before challenged the requirement that he pay the union “fair share” fees and he was thereby not precluded from litigating this issue in the present case.
However, as the plaintiffs acknowledged from the beginning, only the Supreme Court can overrule Abood and the case must first travel through the lower courts (i.e. the district court and court of appeals) before Supreme Court review can be sought. Thereby, Janus’ complaint was dismissed by the district court, and affirmed by the Seventh Circuit, on the grounds that he failed to state a valid claim.
On appeal to the Supreme Court, Janus argued that the Illinois Statute unconstitutionally “empowers an exclusive representative not only to speak and contract for unconsenting employees in their relations with the government, but also to force those employees to pay for its advocacy.” Janus asserted that such a requirement is an infringement on an individual’s First Amendment rights because it deprives employees of his or her fundamental right to choose which speech is worthy of his or her support and wrongly requires non-member employees to “subsidize the union’s advocacy.”
Implications of Supreme Court’s Decision
There is a split in opinion on whether invalidating mandatory agency fees for nonmembers would be beneficial or detrimental. Those against mandatory agency fees argue that unions can still adequately and effectively function as exclusive bargaining representatives without requiring those who do not support the union to pay fees and that unions “cannot claim that loss of those fees will compromise their viability.” Thereby, the First Amendment rights of millions of employees should be honored and the “unconstitutional imposition of fees should not be allowed to persist.”
Those against mandatory agency fees argue that because unions do not depend on compulsory dues to carry out their duties as exclusive bargaining agents, the states “do not have a compelling interest in suppressing the free speech rights of public employees who choose not to support the union.” Moreover, asserting that invalidating compulsory dues would take the question of the value of collective bargaining away from the courts and the legislature and put it back in the hands of the “individuals best situated to discuss that question intelligently and arrive at their own, informed answer.”
On the other hand, those who want to keep mandatory agency fees argue that union representation is beneficial for all – including employers, employees, members and nonmembers alike. Those in favor of keeping mandatory agency fees argue that unions are effective voices for promoting the day-to-day concerns of employees in the bargaining unit, including wages, health and safety, paid sick days, and health-care benefits; and that agency fees are necessary and integral to the successful execution of this system which provides states with an important strategy for managing large and complex public workforces. In addition, proponents have argued that agency fees are imperative to ensure and promote workplace equality and economic security for working women, people of color, LGBT workers and our nation as a whole.
Conclusion
The Supreme Court heard oral arguments on February 26, 2018. A decision to overturn Abood would create newly recognized First Amendment rights for employees in mandatory bargaining units. The Court’s decision on this issue will not only determine whether mandatory agency fees are constitutional, but may also elicit broad implications for employees in mandatory bargaining units if the Court does decide to overturn Abood.
Katrina to Maria: Pet Evacuation in the Eye of the Storm
Erin, a mother of three children under the age of five, considered her options as Hurricane Irma approached her town of Naples, Florida in September 2017. The local arena would be the safest evacuation shelter for her family, but the arena would not permit Erin to bring the family’s golden retriever, Stella. A local church allowed pets, but it would not be much safer than their home. Evacuating the state was concerning because hotels were booked throughout the entire southern United States and gas was scarce. Luckily, she managed to secure a hotel, about four hours away, which would shelter her family, including Stella, from the storm. Fortunately, they could spare $500 to cover the hotel.
This was a common situation for Irma victims. Some families in Naples were unable to evacuate, but fortunately the storm surge never hit, and those who stayed made it through the storm. Hurricane Irma is not the first storm to cause concern for pet families. When New Orleans was hit hard by Hurricane Katrina in 2005, the city was unprepared. Although 80 percent of New Orleans’ population evacuated before the storm hit, nearly 100,000 people remained trapped, many without cars, in the storm that flooded 80 percent of the city. Over 30 percent of the city was living in poverty; a segment of the population which was left particularly vulnerable. Tens of thousands of people, locked out of overfilled shelters, were left stranded with no food and water. Forty-four percent of individuals who did not evacuate stayed because there was no plan for pets, and they would not abandon their pets. Not all citizens were rescued, and many did not survive the storm. Over 1800 people died, directly or indirectly from Hurricane Katrina. Some families left their companion animals behind with the belief that they would return in a few days. Instead, families were trapped outside of the city for weeks, which left over 100,000 animals to fend for themselves, 70,000 of which died. Individuals were not prosecuted for leaving their pets behind, leaving pets behind was the city’s plan, or lack thereof. “Pets were not allowed on the bus, and when a police officer confiscated a little boy’s dog, Snow Ball, the child cried until he vomited.” Snowball was never found.
In 2006, Congress passed the Pet Evacuation and Transportation Standards (PETS) Act, a landmark act for emergency preparedness. PETS requires a community’s emergency plan account for the needs of families with companion or service animals. PETS provided protection to pets and their families during Hurricane Sandy, Harvey, Irma, and Maria. The image of evacuation has changed a lot from Katrina to Harvey. Eicher, an evacuee during Hurricane Harvey, shouted to first responders, “We have two kids with down syndrome, a pig and a three-legged dog.” The first responder’s reply: “Sounds good, (let’s) do this.” During preparation for Hurricane Irma, hotels along the evacuation route accepted pets and waived pet fees to accommodate families. One hotel raved that they took in over 900 dogs during the storm and reduced their pet cleaning fee from $150 to $50. But what about the families without a car, that cannot afford a hotel or the $50 pet cleaning fee?
Twelve years after Hurricane Katrina, the evacuation of pets during natural disasters has improved. There are several factors that all evacuees must consider regardless of socio-economic status: transportation, gas, shelter, special needs of family members, pets or other domesticated animals, time and cost. PETS merely requires states to consider pets in their evacuation plans, not to solve the various issues which hinder families from evacuating with their pets. Without addressing such issues, many families are in the same position as Hurricane Katrina victims. The awareness of pet evacuation concerns from Hurricane Katrina to Maria has increased, but the coverage of the 2017 storms neglected to address the ongoing issues that plague underserved communities.
Like Katrina, if you live paycheck to paycheck without a savings to fall back on, you have to stay and work for as long as possible. When you are ready to leave, it may be too late. Pet owners without a car may struggle to find public transportation to the nearest pet-friendly shelter. PETS does not require that all emergency shelters be pet-friendly. “There is a class issue involved here, (while) Marriott hotels welcomed the pets of Katrina evacuees as ‘part of the family,’ people who had to rely on the Red Cross for shelter were forced to abandon that part of the family or attempt to ride out the storm. It cannot be denied that many poor people are dead as a result of ‘no pets’ policies.” For the population that is most desperate for an improved policy, PETS falls short of their needs. Communication is a major barrier to meeting the needs of underserved communities and their pets during evacuation. While information and tips for families are available, access to these resources is not guaranteed. There are barriers to serving underserved communities and implementing plans to meet the needs of all families.
Pets For Life (PFL), a Humane Society of the United States (HSUS) program, has bridged the gap between municipalities and underserved communities by utilizing grassroots outreach to build partnerships with families. PFL is designed specifically to “empower communities that—because of economic, social, linguistic, or cultural factors—do not have access to pet-care information, resources, (and) related services.” The disparity in services for these communities transcends to emergency evacuation. Emergency plans need to address these issues with a grassroots approach.
More than 30 states have passed legislation or adopted a plan to address pet evacuation in emergencies. States that have multi-billion dollar agriculture industries, like South Carolina, have more detailed plans for the evacuation of animals than states without an agricultural focus. Although the purpose of PETS is to ensure that all citizens are willing and able to evacuate to safety, the concern in developing plans is more centered on protecting business than saving lives. PETS requirements are broad, and the implementation at the state and local level differs greatly from community to community. In the midst of emergencies, the public focus tends to be on punishment and shame, instead of solutions.
Today, unlike a Katrina society, where pets were pulled from their families and thrown off buses to die alone, society is quick to threaten prosecution for pets abandoned before a storm. During Hurricane Irma, residents were threatened to face felony charges after their dogs were found abandoned in backyards. One Animal Control Director said, “There is absolutely no excuse for doing that.” But the pet owners did not face animal cruelty charges because the animals were not abandoned, they were actually in the process of being evacuated.
In the chaos of the storm, animals can be misplaced or presumed to be forgotten. The typical response from the public is, “I would never leave my pets,” but this is disconnected from the actual experience of an emergency evacuation. One California fire evacuee, Christina, suddenly woke at 3 a.m. to a sky engulfed in flames. She grabbed her dogs and made it out of the neighborhood within four minutes. Minutes later, several homes in her neighborhood were burned to the ground. Some neighboring cats and dogs hid or ran in the chaos, leaving families with no option but to leave the doors open and hope their pets made it out.
PETS, a break-through act for families and their pets in emergencies, has not solved the problems that initiated its conception. PETS was crucial in recognizing the power of the human-animal bond and the critical need for pet evacuation plans. States need to take a step back and re-evaluate their focus on pet policies. Implementation of grassroots outreach programs is essential to bridge the gap between the agenda of local and state evacuation plans and the vulnerable populations that the plans were meant to protect. “There is no power for change greater than a community discovering what it cares about.”
