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.


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

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Photo Photo by Dave Saville – Sep 22, 1999 – Location: Princeville, NC

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.

Stella and Kids Irma
Erin’s family on route to their hotel in preparation for Hurricane Irma.

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.

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Photo by: Liz Roll Photo by Liz Roll – Sep 07, 2005 – Location: New Orleans, LA

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.

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Photo by: Liz Roll Photo by Liz Roll – Sep 07, 2005 – Location: New Orleans, LA

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.”


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.

Image by Twitter user Occupy Oakland. @OccupyOakland Image Source

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 Supreme Court May Allow The Censoring Of Consumers’ Online Reviews

Forums such as Yelp, TripAdvisor, Amazon, Facebook, and Twitter, provide consumers with the opportunity to voice their opinions by detailing their experiences as patrons of various restaurants and other local businesses.  The reviews of prior consumers can weigh heavily when potential consumers decide whether they want to support a particular business or not.

The use of social media to leave reviews creates a medium in which “word of mouth” can reach many more individuals who are in search of a specific product or service that can meet their needs.  The accessibility of these forums reaching vast numbers of consumers lead to both positive and negative effects.  For consumers, the ability to read about others’ good, bad, and neutral experiences can help them determine if the particular business is a right fit for them.  For business owners, both positive and negative reviews can indicate to a business what consumers appreciate and also what the business should be doing in order to improve its interactions with consumers.

However, one of the main problems with online reviews occurs when consumers share false negative reviews of a business.  Recently, California Courts have been presented with legal issues arising from the use of online forums, specifically, whether courts have the power to force any specific forum to take down a defamatory review.  Furthermore, courts must address whether any infringement on a consumer’s First Amendment right to free speech arises if a negative review is declared defamatory.

For instance, recently, a California law firm alleged that a past client fraudulently posted false negative Yelp reviews about her experience with their law firm.  Due to the influence of Yelp reviews on a businesses’ reputation, the law firm requested that the former client take down her negative reviews.  The former client refused and the law firm sued the former client for defamation in state court, seeking help from the courts in ensuring its name would not be tarnished.  This case between the law firm and its former client is Hassell v. Bird, and it has made its way all the way up to the California Supreme Court.

Currently, the California Supreme Court is deciding whether to let the Court of Appeals decision stand or whether the Court will issue its own decision.  On September 29, 2014, the Superior Court declared, which then on June 7, 2016 the Court of Appeals affirmed with an opinion written by Justice Ruvolo, that the reviews of the former client were indeed defamatory.  Although Yelp was not a party to the suit, the opinion ordered Yelp to step in to remove these negative false reviews.  The Court explained that since Yelp is an “administrator of the forum” where the negative reviews are found, Yelp is responsible for removing the defamatory speech.

The counsel for Yelp is optimistic that the California Supreme Court has decided to hear its case because it has given Yelp an opportunity to demonstrate how this decision will have an detrimental effect by “restrict[ing] the ability of websites to provide a balanced spectrum of views online.”  Yelp’s counsel and other community members argue that this judicial decision will restrict a consumers’ First Amendment right to free speech.  On the other hand, the law firm’s counsel, San Francisco lawyer Monique Olivier, strongly asserts that these false negative reviews, if considered defamatory, are not protected by the First Amendment, and therefore there is no infringement on a consumers’ right to free speech.  Presently, the California Supreme Court has not decided the matter and the parties in Hassell are awaiting a decision as to whether the higher court will hear their case.


Main Issue Addressed by the Courts

The main issue presented before the California Supreme Court is whether an online publisher has a right to notice and the opportunity to be heard before a trial court orders removal of online content.

In Yelp’s Opening Brief on the Merits, Yelp argues that the Court of Appeals decision should be overturned mainly because the court did not provide Yelp with proper due process protections by not taking into account Supreme Court authority that requires notice and the opportunity to be heard when it relates to orders restraining the distribution of speech.  Yelp argues that the Court of Appeals decision was extremely flawed because they created an avenue for courts to easily apply injunctions to non-parties, even without any inquiry into factual accounts of misconduct.  Specifically, Yelp asserts that now anyone who seeks the judicial system to help provide relief to a case regarding defamation, can forum shop in California and “circumvent due process rights” in this state.

Yelp provides that as a publisher of third-party authorized speech, its First Amendment right to control its own website was violated by this decision.  Furthermore, due to this decision, businesses now have an effective tool in removing unflattering commentary whereas online entities like Yelp are denied their right to exercise editorial control in publishing consumer reviews.  Overall, Yelp urges the California Supreme Court to reverse the Court of Appeals’ decision because this case provides an opportunity to abuse the court system in order to stifle speech on the Internet.

In Hassell’s Answering Brief on the Merits, Hassell argues that invoking the First Amendment, the Due Process clause, and the federal Communications Decency Act will not help Yelp escape a court order preventing them from republishing postings that have been judicially determined as defamatory.  Hassell cites to both cases from the U.S. Supreme Court and the California Supreme Court, who have consistently held that defamatory speech falls outside of the scope of First Amendment protections.  For example, U.S. Supreme Court cases, Ashcroft v. Free Speech Coalition and Keeton v. Hustler Magazine, Inc.; and Balboa Island Village Inn, Inc. v. Lemen, a California Supreme Court case, all demonstrate that false statements are not protected from any constitutional provision because they harm both the subject of the false statements and the readers of the statement.

Overall, Hassell declares that the same prohibition against speakers to create defamatory speech should apply to anyone, like Yelp, who is distributing defamatory speech.  Hassell argues that she tried to resolve this matter out of court with both Yelp and Bird, but since she was unsuccessful to coming to a reasonable agreement, she sought the relief that she is rightfully entitled to from the court.


Potential Lasting Effects on Online Forums 

Any action the California Supreme Court takes will have a lasting effect on the limitations of free speech online.  If the California Supreme Court determines that forum administrators, like Yelp, bear the responsibility of monitoring whether a consumer has posted a negative false review that is considered defamatory, businesses can easily have reviews removed by the forum administrator if they believe that the review is offensive and inaccurate.

Anytime there is a negative review that a business believes is defamatory, the business can just go to court in order to receive a declaration telling the forum administrator to delete the personal reviews made by consumers.

Although this decision helps those who want to protect their businesses from false negative reviews, the decision may also create infringements on consumers’ freedom of expression because there is a possibility that their accurate descriptions of their experiences can be declared defamatory and censored by a court.

The restriction of past consumers to freely express their negative opinions of a business can also have an effect on future consumers, because future consumers may be attracted to a business who did something to improve its consumer experience.  Also, without seeing constructive criticism from consumers, businesses will not know how to become better or have an incentive to change.  An honest review is an important asset to a business because it can encourage more foot traffic or it can provide the business with an opportunity to better cater to its consumers.  Although it is unknown how the California Supreme Court will rule, it is likely that this decision will have a lasting effect on how consumers use social media and online forums to review their experiences.

Image by Steve Rhodes (via

Abortion Rights: “ash heap of history” or Surviving the Smoke?

One day after Donald Trump officially became the 45th President of the United States, millions of people across the world marched in solidarity with the 500,000 who protested in the nation’s capital. The Women’s March on Washington, brought those of different genders, ethnicities, religions, and circumstance to send, what Planned Parenthood Federation of America President, Cecile Richards, called “a strong message to the incoming administration that millions of people across this country are prepared to fight attacks on reproductive healthcare.”

“the ash heap of history.”


While the Inauguration has had the effect of stoking the fire for a resistance, one of Donald Trump’s first acts as President was aimed at crippling the very right the Women’s March on Washington aimed to protect. In an Executive Order, the 45th President moved to revive a federal ban eliminating U.S. funding for international health organizations who counsel women on reproductive health, including abortion. With Republicans now controlling the Executive and Legislative Branches of the United States Government, access to legal abortion faces the threat of being placed on, according to Vice President Mike Pence, “the ash heap of history.”

On January 31, 2017, President Trump announced 10th Circuit Court of Appeals Judge, Neil Gorsuch, as his Supreme Court nominee. Following the death of Supreme Court Justice, Antonin Scalia, on February 13, 2016, the highest court has not been complete. Senate Republicans have since refused to hold a hearing for President Obama’s nominee. This nominee appointment gave Trump an enormous role in shaping the composition of the Supreme Court. Judge Gorsuch was a traditional pick many Republicans support, however, the main question is whether Gorsuch’s stance on reproductive health care will bring a negative spark, marking the promised destruction of modern day abortion rights.

The Appointments Clause of Article II vests the power to appoint Supreme Court Justices in the Executive Branch and the President. Article II also subjects the President’s nominee to a confirmation by the United States Senate. Following the Senate’s refusal to hold a hearing for President Obama’s nominee, House Speaker, Paul Ryan, said, “Under our Constitution, the president has every right to make this nomination, and the Senate has every right not to confirm a nominee.”

The Supreme Court Justices act as legal protectors of the United States Constitution. In the landmark1803 case of Marbury v. Madison, the Court declared it “emphatically the province and duty of the judicial department to say what the law is.” The Constitution allows justices to “hold their Offices during good Behaviour…” which is interpreted to mean until death, retirement or impeachment for bad “Behaviour.” Although the two other branches of government limit the power of the Supreme Court, a potentially unlimited term gives a Justice power in shaping the laws and future of America.

One social issue the Supreme Court has protected is a woman’s right to a legal abortion. In 1973, the Court expressly declared, in Roe v. Wade, access to legal abortion is safeguarded through the due process clause of the Fourteenth Amendment, giving emphasis to the concept of “substantive due process.” Both the Fifth and Fourteenth Amendments to the Constitution of the United States emphasize no person shall be deprived of “life, liberty, and property, without due process of law.” This concept, analyzed in Roe, examines the question of whether the government’s deprivation of a woman’s “liberty” was justified by a necessary purpose. In a 7-2 decision, the Court found a woman’s right to choose was shielded as a fundamental right under the Fourteenth Amendment through this idea of “liberty.” This gave women autonomy over the pregnancy during the first trimester, preventing any state interference until the second and third trimesters.

The Court’s standard to defend a woman’s right to an abortion, has been further restricted in recent years. Planned Parenthood v. Casey, in 1992, established a State’s ability to make laws restricting pre-viability abortions. The new test allowed restrictions to be placed on first trimester abortions, as long as the restrictions do not place an “undue burden” on women seeking the abortion. The Court’s “undue burden test” generated doubt on whether a woman’s right to an abortion was a fundamental right, which should be held to the highest level of scrutiny. These questions were answered on June 27, 2016 with the Supreme Court’s opinion in Whole Woman’s Health v. Hellerstedt. The 5-3 majority opinion upheld the “undue burden” standard and affirmed abortion is a fundamental right.

The possibility of further restrictions of abortion rights smolder on the horizon, but currently remain at bay.  After Whole Woman’s Health, a Trump appointed nominee will likely swing the Court toward a 5-4 majority in favor of upholding current abortion law. Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan voted to reaffirm Casey’s “undue burden” standard safeguarding a woman’s fundamental right to an abortion. Thomas, Alito, and Roberts were the three Justices to dissent to the opinion. If all the current justices were to remain on the bench until after the next president is elected, the potential threat to abortion rights should remain dormant even if Justice Gorsuch were to side with the dissent.

Specifically, the confirmation of Trump’s nominee creates a right leaning court with moderate conservative Justice, Anthony Kennedy, remaining the swing vote on the issue of abortion. While Kennedy indicated an intention to protect the “undue burden test” by siding with the majority in Whole Woman’s Health, Kennedy’s opinion in a 2007 abortion case suggests personal conflict on the issue. In Gonzales v. Carhart, the Court upheld a congressional ban on “partial-birth abortion.” Kennedy’s opinion suggests he was bothered by the lack of dignity in this procedure. In upholding the ban, Carhart affirmed States have some responsibility toward unborn children and in these rare instances the rights of the unborn overshadow the life of the mother. Kennedy also referenced his belief women may regret their choice stating, “[w]hile we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”


“Trump could establish a relatively young 7-2 conservative court.”

Justice Gorsuch is the first Trump nominee appointed, but with three of the Court’s senior members continuing to age, there remains uncertainty whether he will be his last. If Justice Ginsburg (83), Justice Breyer (78), and Justice Kennedy (80) decide to step down or their health were to fail, Trump could establish a relatively young 7-2 conservative court. In this scenario, the safety net protecting abortion rights is likely to become engulfed in flames.  Especially after Trump publically pledged to appoint justices who would overturn Roe v. Wade and stated “some form of punishment” is necessary for women who have an abortion.

Donald Trump’s appointment of Justice Gorsuch, could also mean a shift in majority regarding reproductive rights. Justice Gorsuch has an impressive legal resume, clerking for two Supreme Court justices, White and Kennedy. A self-described Originalist, Gorsuch is known in the legal profession for his textual analysis in his opinions. Gorsuch told law students at Case Western Reserve University School of Law, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” In the controversial Burwell v. Hobby Lobby case in 2013, Gorsuch penned a concurring opinion stating a mandate for employers to provide contraception coverage under the Affordable Care Act was a violation of the rights to religious freedom of Christian employers and religious organizations.  Gorsuch has not been required to give an opinion on Roe v. Wade, therefore his stance on abortion is largely unknown.

“Our constitution does not begin with ‘I, the President.’ It begins with, ‘We, the People.’”

Feminist leader, Gloria Steinem, pointed out, “Our constitution does not begin with ‘I, the President.’ It begins with, ‘We, the People.’” Year after year, it seems that “we, the people” favor a growing trend toward “pro-choice” abortion rights. For example, in a 2016 Pew Research Center poll, 56% of people stated abortion should be legal in all or most cases, while only 41% said it should be illegal. This majority increased from a 2015 Gallup poll with only 50% identifying as “pro-choice” and 44% identifying as “pro-life.” As our country moves forward with a new conservative President and Legislature, the issue to keep an eye on is the threat to a woman’s fundamental right to choose. Only time will tell how imminent this threat really is.

Image by: Lorie Shaull

Police High-Speed Pursuits: Giving Police the Authority to Intervene Before the Public is Harmed

Police Pursuits. The idea brings to mind thoughts of bank robbers fleeing from the police after committing a daring heist, only to be pursued by inept cops that wind up crashing into each other as the robbers drive away in perfect Hollywood fashion. However, police pursuits are rarely as glamorous and thrilling. In reality, they are terrifying and dangerous. In fact, according to the National Highway Traffic Safety Administration (NHTSA) more than 5,000 bystanders or passengers have been killed in police pursuits since 1979

In recent years there has been a call for police departments to limit their pursuit of fleeing suspects. A simple google search reveals the continuous calls for police to stop pursuing suspects unless they are considered dangerous or committed known violent felonies. For instance, in Jackson, Mississippi, Councilman Kenneth Stokes, in reference to police pursuits coming into his ward, went as far to suggest to the local population “[l]et’s get rocks, let’s get bricks and let’s get bottles and start throwing them and then [police] won’t come in here anymore.” Similarly, in Washington D.C., Charlie Viverette’s mother claimed police should not have been chasing the suspect that hit her son, killing him. Like Charlie Viverette’s mother, many wish to place the blame for such injuries at the feet of the police rather than the fleeing suspect. In those cases, where the police due pursue a suspect and the pursuit ends with the suspect injured or killed, the police not only face criticism from the public, but the department and the individual officers involved become the subject of a civil rights lawsuit.


In attempting to terminate a police pursuit there are a variety of tactics an officer may use. Officers may attempt to “box” a vehicle in by placing cruisers around the suspect’s vehicle and gradually slowing their own speed, forcing the driver to stop. Other methods include using spike stops or the most notable precision immobilization technique, also known as the “PIT maneuver.” During a PIT maneuver, the pursuing officer uses their front push bumper to strike a fleeing vehicles rear quarter panel/bumper of the vehicle, causing the vehicle to spin and end the pursuit. While these are the most common methods, they are not the only methods to end a pursuit.  Each of these methods can involve a high degree of danger for the pursuing officers, the public and the fleeing suspect, as evident by this video, where a fleeing suspect crashes into a police cruiser while trying to avoid spike strips.


The Supreme Court has addressed the issue of use of force in the context of police pursuits only four times. Two of their decisions dealt with vehicles attempting to flee a scene while officers were nearby. The other two, discussed below, addressed the police use of force during the actual high speed pursuit. In each case, the Supreme Court found that either the officer involved did not violate the Fourth Amendment or was entitled to qualified immunity under 42 U.S.C section 1983.

The Supreme Court in 2007 first addressed the Fourth Amendment and use of force during a police vehicle pursuit. In Scott v. Harris, an officer was found to not have violated the Fourth Amendment when the officer rammed a fleeing suspect off the road. Harris was rendered a quadriplegic after leading the police on a six-minute chase that ended when Scott used the push bumper of his cruiser to ram Harris’ vehicle, causing it to veer off into a ditch. The Court held that Scott did not violate the Fourth Amendment because Harris was an actual and imminent threat to the lives of any pedestrians who might have been present, other civilian motorists and the officers involved in the chase.

Harris argued that police should have ceased the pursuit instead of ramming his vehicle, and by ceasing the pursuit the public would have been equally protected. The Court refused to adopt a rule that would give incentives for suspects to escape simply by speeding, running red lights, and endangering the public. Rather, the Court adopted the more sensible rule that “police officer’s attempt to terminate a dangerous high speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

The Supreme Court’s second decision involving police pursuits came just last year in November 2015, with the case of Mullenix v. Luna. On March 23, 2010, Israel Leija Jr., lead police on high speed pursuit. During the 18-minute chase, Leija and the pursuing officers reached speeds between 85 and 110 miles per hour. Leija phoned the local police dispatcher while fleeing and told them he had a gun and threatened to shoot at the police if they did not abandon their pursuit. The dispatcher promptly relayed this information to all the officers involved.

While other officers pursued Leija, Trooper Mullenix drove to an overpass intending to set up a spike strip.  Directly below the overpass another officer waited with a spike strip already deployed. Mullenix decided to consider a different tactic, shooting at the vehicle to disable it however, Mullenix was not trained in such a procedure. As Leija’s vehicle approached the overpass, Mullenix fired six shots, striking Leija four times in the upper body. Leija’s vehicle continued under the overpass, struck the spike strips, hit a median, and rolled. Leija was killed in the incident.

Relying on its precedent, the Supreme Court reversed the lower courts finding that Mullenix did not have qualified immunity. Instead, the Supreme Court held that Mullenix was entitled to qualified immunity because his actions did not violate clearly established precedent beyond debate.



While some continue to call for the police to stop pursuing only the most egregious or dangerous felonies in the name of public safety, perhaps it is more appropriate for departments to authorize officers to end high speed pursuits in an expedited manner. A fleeing suspect in a motor vehicle becomes a high speed missile aimed at the nearest unlucky innocent bystander who’s done nothing more than be in the wrong place at the wrong time. In contrast, it is the suspect who has made the decision to flee in a motor vehicle, placing the public in danger. Perhaps this is why the Supreme Court has never found an officer’s actions in a high-speed pursuit to be unreasonable. As Justice Scalia in Scott opined,

“we think it appropriate in this process to take into account…their relative culpability. It was [Harris], after all, who intentionally placed himself and the public in danger…”

By adopting a policy that reflects these case precedents, police officers will have the ability, with the constitutional authority, to end high-speed pursuits quickly before the public can be harmed. Rather than chase a suspect’s vehicle for 11-minutes or blame the police, perhaps it is time that society places the blame at the feet of the individual who made the conscious decision to endanger the public. By allowing the police to quickly intervene, this will reduce a suspect’s ability to crash into innocent motorist or pedestrians. In addition, those cases brought by suspects claiming a violation of the Fourth Amendment for a tactic during a high-speed pursuit that resulted in injury or death to the suspect, trial courts should evaluate each case beginning with a rebuttable presumption that a suspect who flees in a motor vehicle poses a danger to the public and officers. With this presumption, it is evident by Supreme Court precedent that when the police use tactics that include the use of deadly force to stop a high-speed pursuit, the actions by the officers do not violate the Fourth Amendment against unreasonable seizures. By adopting a policy that reflects this precedent, perhaps more innocent lives like Charlie Viverette, can be spared and the culpability of a high-speed pursuit can be placed where it rightfully belongs.

A Long Journey to Secure Permanent Overtime Rights for California Domestic Workers

Photo Courtesy of the CA Domestic Workers Coalition

California was amongst the first states to regulate long-hours and impose overtime premium pay at the turn of the twentieth century. However, it was not until almost a century later, that the Legislature and Governor recognized that there was no justification to exclude domestic workers from this fundamental protection. On September 12, 2016, Governor Brown signed SB 1015, a bill making overtime rights permanent for more than 300,000 nannies and caregivers for seniors and people with disabilities. For over a decade, domestic workers in California have mobilized a grassroots, worker-led statewide movement for equal treatment under the law.  Golden Gate University School of Law’s Women’s Employment Rights Clinic (WERC) has served as legal counsel to the California Domestic Workers Coalition since 2010 in the Coalition’s effort to extend basic wage and hour protections to domestic workers.

A combination of racism, sexism, and the fear of regulating the home resulted in excluding domestic workers from most legal protections. While other workers gained labor protection at the turn of the twentieth century, domestic workers—by the 1930’s numbering as many as those in “the railroads, coal mines, and automobile industry combined”—were categorically excluded. In 1974, the Fair Labor Standards Act extended minimum wage protections to domestic workers but not to home care companions for the elderly or disabled.  Domestic workers fared no better in state wage and hour coverage. Approximately 18 states gave minimum wage and overtime coverage to some domestic workers. California regulates wage and hour laws by statute as well as by regulations, called Wage Orders, promulgated by the Industrial Welfare Commission. California began regulating domestic work in 1976, when the Industrial Welfare Commission adopted the Household Occupations Wage Order 15.  Domestic workers who cared for property (housecleaners) were given full wage and hour protections but those who cared for human beings were not. The 1976 wage order completely excluded “personal attendants” – childcare providers and caregivers who spent a significant amount of time caring for children, elderly or people with disabilities from coverage. Personal attendants were excluded from wage and hour coverage based on the erroneous belief that these workers were primarily young or elderly persons doing the work to supplement income received from their parents or social security benefits, respectively.

Domestic workers are crucial part of the economic and social fabric of our country.  However, isolated and hidden behind closed doors and mostly unprotected under the law, domestic workers face harsh working conditions. In a California report issued by the National Domestic Workers Alliance, the median hourly wage for nannies is $8.57, for caregivers is $8.69, and for housecleaners is $10.11. The researchers found that sixty percent (60%) of workers were paid an hourly wage at their primary job that is below the level needed to adequately support a family (using a conservative measure of income adequacy). Low wages have resulted in material hardship for domestic workers.  Thirty-five percent (35%) of workers reported that in the past twelve months they were forced to pay their rent or mortgage late and nearly one quarter (23%) reported that in the month prior to the survey there were times when there was no food to eat in their own homes because they had no resources to obtain it. Compounding this problem, twenty-five percent (25%) of domestic workers were paid below the California minimum wage.

In 2001, personal attendants got the right to minimum wage. Thanks to the California Domestic Worker Coalition, personal attendants gained overtime protections in 2014, through AB 241.  AB 241 went into effect in January 2014 but was set to expire or “sunset” on January 1, 2017, unless the Legislature extended or removed the sunset provision. SB 1015 removed the sunset provision, making overtime a permanent reality for personal attendants in California. Now, personal attendants (with some exceptions) are entitled to overtime after nine (9) hours of work in a day and after forty-five (45) hours in a week.

One reason why the overtime bills garnered opposition was the fear that home care would become unaffordable for many low to modest income households. However, available evidence is to the contrary. According to the Paraprofessional Healthcare Institute, institutionalization rates are not higher in states that provide home care workers with minimum wage and overtime. In California, since the passage of AB 241, there is no evidence that institutionalization rates have increased. Furthermore, in the first comprehensive study of California’s employers, the UCLA Labor Center found that only eight percent (8%) of domestic service employers hire for overtime.

Photo Courtesy of the CA Domestic Workers Coalition

Based on our on-the ground experience, the Clinic has seen a positive impact on both workers and consumers as a result of the new overtime rules. Many agencies and household employers have genuinely complied with the mandate of AB 241. In some cases, workers have seen a reduction in their hours but an increase in their pay, as their employers have eliminated a flat daily or weekly rate. AB 241 has also addressed the most egregious cases, where a single worker works 24/7 shift. These shifts, not only result in significant wage and hour violations, but also detrimentally impact the health of the worker and the quality of care for the consumer. As a result of AB 241, these employers have re-evaluated their shift scheduling and have moved away from 24-hour shift scheduling. With the passage of SB 1015, domestic workers and employers will have clear standards that provide clarity and fosters a stable workforce.

Today’s domestic workers are staffed by trained professionals. These workers are their families’ breadwinners. Making permanent overtime rights for these workers is an important first step in valuing their labor as real work, and recognizing the dignity of those who care for our loved ones.

Hina Shah is an Associate Professor of Law and Director of the Women’s Employment Rights Clinic at Golden Gate University School of Law.

Celebrities, Art, and the Law: When Celebrities Get What They Want and When They Don’t

When Celebrities Get What They Want . . .

Have you seen Kanye West’s latest sculpture?  If not, it’s from his new music video entitled Famous and is now on exhibition at the Los Angeles’ Blum & Poe gallery.  The sculpture, created from wax, is the realistic, nude likeness of: George W. Bush, Anna Wintour, Donald Trump, Rihanna, Chris Brown, Taylor Swift, Kanye West, Kim Kardashian, Ray J, Amber Rose, Caitlyn Jenner, and Bill Cosby.  Understandably, after the video was released on June 24, 2016 it caused quite the controversy.  Kanye even tweeted, “Can somebody sue me already #i’llwait.”  But while it seems unlikely that anyone will sue, the question posed here is—if they did, could they win?  The answer: probably not.

When a celebrity attempts to control the exploitation of their name, likeness, and fame, this falls under a claim of misappropriation.  Some states have adopted the action under a separate common law remedy, however, most have developed it as an offshoot of the common law right of privacy.  Restatement of the Law, Second, Torts § 652(c) (“one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”).  Under Cal. Civ. Code § 3344, the person’s likeness has to be pretty detailed and “readily identifiable.”  The likeness must also be used for commercial purposes.

For example, Vanna White lost a claim of misappropriation under the California statute, but won under the common law when a Samsung commercial contained a robot with her likeness.  Thus, a claim for misappropriation under the common law is much broader than in California.  For instance, “likeness” could encompass not only a picture of you, but also other items that would make one think of you.  And, this “likeness” could be used for both commercial purposes or for non-commercial purposes (such as impersonating someone to induce others to disclose confidential information).

But, when the value of a work of art comes principally from some source other than the fame of the celebrity, this is not misappropriation.  In the iconic case Winter v. D.C. Comics, the Winter Brothers filed suit against DC Comics for misappropriation of their likeness.  In the comic series, the “Autumn Brothers,” half-worm-half-humans are killed by an anti-hero.  However, the court found that the value of the work contained sufficiently transformative elements to warrant First Amendment protection.  The “inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized or whether the depiction or imitation of the celebrity is in sum and substance of the work in question.”

In other words, the question becomes whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.  Here, Kanye’s sculpture has enough transformative elements to be protected under the First Amendment.  While it is clear that the nude figures are indeed the celebrities identified above, Kanye is using them to personify “fame” and what it means to be “famous.”    And, the idea of a boudoir including all of the nude celebrities is, indeed, fanciful.

And When They Don’t . . .

In case you don’t remember, “Left Shark” made its appearance at Super Bowl XLIX.  But few thought about who owned the rights to the costume of this infamous back-up dancer.  Left Shark was one of Katy Perry’s costumed half-time dancers, who became an internet sensation for dancing slightly off beat.  However, after Perry’s legal team sent Etsy-based 3D-printer, Fernando Sosa, a cease and desist letter, the question arose—can Katy Perry copyright Left Shark?  The answer: most likely no.

The extent that clothing is copyrightable is a question that lawyers as well as judges still grapple with today.  Article I, Section 8, Clause 8 of the Constitution states that Congress has the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  Therefore, cultivating creativity is the general concept behind copyright law. Copyright law exists to balance the creator’s entitlement to compensation, and the public’s desire to benefit from creations.  This balance means giving the creators enough rights to have an incentive to create, and the public the benefits of advancing technology and culture.

Courts have concluded that clothing is non-copyrightable because it serves a utilitarian purpose.  17 U.S.C. § 101 defines “useful article” as one having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.  An article that is normally a part of a useful article is also considered a useful article.  For example, even Halloween costumes are seen as utilitarian and thus, in the eyes of the law, are not copyrightable.

While this may seem strange in light of fashion weeks filled with grand designs from Chanel to Valentino, there are, understandably, exceptions to § 101’s general rule.  In the quintessential case Brandir International, Inc. v. Cascade Pacific Lumber Co., the court held that “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements.”  Contrariwise, when design elements are identifiable because they reflect the designer’s “artistic judgment,” they may be seen independently of functional influences, and thus conceptual separability exists.  When features can be identified separately and are capable of existing independently from the utilitarian aspects of clothing, those items may be protected by copyright.

Courts often rely on the Denicola Test, which highlights whether the designer was significantly influenced by functional considerations.  In writing for Brandir, Judge Oakes stated, “copyrightability ultimately should depend on the extent to which the work reflects artistic expression uninhibited by functional considerations.”  But, what constitutes “artistic expression” is disputed.  For example, in Kieselstein-Cord v. Accessories by Pearl Inc., the central issue was whether a designer belt buckle was copyrightable.  Under the Denicola Test, the court had to decide whether a designer belt buckle had a visual function that was not tied directly to its utilitarian function of holding a belt together. The court held that the buckles were “sculptured designs cast in precious metals – decorative in nature and used as jewelry is, principally for ornamentation.”  Therefore, the buckles were separate enough to be protected by copyright, although belts in general receive no such protection.  Continue reading “Celebrities, Art, and the Law: When Celebrities Get What They Want and When They Don’t”