Articles Posted in Legal News / Legal Information

BuzzFeed, a social media “gadfly” page, reports that the DEA created a fake Facebook account, filled the page with statements that evoked a response, and made criminal cases. Using personal photographs and information (drawn from the personal information of a woman arrested on Cocaine charges) the DEA tricked her “associates” to reveal incriminating information. Here is what the DEA did…. using the name “Sondra Arquiett” the DEA created a Facebook account.

Source: Facebook

The DEA extracted personal photographs and personal information from the cellphone belonging to a New York resident who was arrested in a cocaine case. Using this false Facebook page, some people who knew Sondra Arquiett engaged in Facebook conversations revealing incriminating evidence and making incriminating statements. Photos of her BMW automobile and a narrative of how she was lonesome for her boyfriend were posted. DEA, in a creative binge posted photographs of her on the hood of her car and photos (taken from her cellphone) of her young son and her niece. Now there is a federal lawsuit in U.S. District Court in Albany, New York.

Defending itself, the DEA argued that Arquiett had “implicitly consented” to the DEA using her cellphone contents. It is unknown as to what Arquiett actually said or stipulated as to the use of the contents of her cellphone. Arquiett in her lawsuit against the DEA stated that she was now suffering emotional distress and fear because she was “outed” on Facebook as a cooperating witness and an informant. Aquiett stated that dangerous and violent people who went to the DEA Facebook page were going to kill her because she was an undercover cooperating witness who could testify against them. Her pleadings spoke of “dangerous individuals” who were being investigated and that those “dangerous individuals’ were going to kill her because of the fake Facebook page created by a DEA agent.

Facebook has a policy, known to the DEA and known to the DEA agent that states, “You will not provide any false personal information on Facebook or create an account for anyone other than yourself without permission” [taken from Facebook’s policy and uses agreement that all Facebook users must agree to before creating a Facebook account and constructing a Facebook page]. No comment has been forthcoming from Facebook, but they are summoned to testify at the trial. Arquiett was originally arrested in New York in July of 2010. Her case was resolved in 2012 in Federal Court. Reports of the case can be found in statements by Justice Department spokespersons, NBC and “BuzzFeed.”

As recently as August 6, 2014, the New York Times reported that Justice Ruth Bade Ginsberg has commented on the Supreme Court’s recent decisions, saying that while gay and lesbian rights move ahead, women’s rights have moved off the Court’s radar.  Her comments were that she sees “inconsistency.”

Source: huffingtonpost.com

Now, no one is suggesting anything sexy about the Court, but their sexitics (sex + politics) is being analyzed, reviewed and digested and has been in the news.  As recently as June 2014, the Supreme Court has ruled that same-sex couples have the right to equal treatment in some clearly defined legal matters.  And, during the same term, the Court has created law that corporations are persons and have religious views and rights.

The fiction of corporations as persons (just as humans are persons) has been used by the Court to give corporations the right to participate in elections and, now, to challenge women’s rights.  The Court is playing this as if it were a trump card. It is assigning human rights to corporate personhood and equating those rights and powers with human personhood.   Now the Court has gone on to use this new concept of “corporate personhood” to restrict women’s rights, and Justice Ginsberg’s reaction is in the news. This modest comment is a powerful statement that the sexitics of the Court is out of balance.  Court followers agree that her stance on “sexitics” on the Court may push her to remain on the Court beyond her hoped-for retirement, and champion women’s rights.  Justice Ginsberg’s comments were made before a law school audience.  Her reported comments are that the Court writes of “equal dignity” and fundamental values in gay rights cases, but the Court is retreating on women’s’ rights issues.

From our perspective, in the courtrooms, it is foreseeable, and I’m forecasting here, that the Supreme Court may soon declare that marriage is a union between persons, and that the sex of the persons does not bear in the legal considerations and rights of marriage.  The clear trend of this Court is to push back on women’s rights.  If you review the recent decisions on medical leave, equal pay for equal work, and abortion and contraception rights in the Court’s recent decisions involving “Obama Care,” the trend appears like a rollback.  Re-read the “Hobby Lobby” case and see how the Court has created a right for corporations to have religious views on non-religious issues and trump a woman’s access to contraception.  Define religious issues as having to do with faith and spiritual matters and a woman’s right to control her body’s reproductive capacity and you can find a defining line between one’s beliefs in spiritual matters and social issues such as reproductive rights and personal choice on access to contraceptives.

The news of July 9, 2014 from Iraq is that 90 pounds of uranium compounds have come into possession of the Islamic State In Iraq and Levant (ISIS).  The uranium was obtained from a university laboratory in Mosul, a city in Northern Iraq that is occupied by ISIS and is beyond the control of the Nation of Iraq.  A spokesperson for the International Atomic Energy Agency has officially notified the United Nations in New York of these developments.

The International Atomic Energy Agency Convention on the Physical Protection of Nuclear Material obligates the signing nations to protect nuclear facilities and material in peaceful domestic use, storage and transport.  The treaty, entered into in 1987 and modified in 2005 has 150 nations as “signatories”.  The treaty covers the “low grade” nuclear material stolen by the ISIS.  The International Atomic Energy Agency, in its press release, indicated that the nuclear material is not suited for atomic explosive weapons, but may be used in “dirty” bombs.  A dirty bomb is a conventional explosive device embedded in radioactive material.  The conventional explosives would spread the nuclear material and contaminate the explosive radius with levels of radioactivity that exceed acceptable levels of exposure for humans.

There is no judicial venue for enforcing agreements signed by nations.  The Charter of the United Nations has a process for member nations to bring treaty violations before the Security Council, but no enforcement process exists.  The United Nations created the International Court of Justice (ICJ) as a court for nations to litigate disputes in accord with international law.  The ICJ has been a forum of limited jurisdiction and has been a court where some member states go to seek resolution of disputes.  The limitation of the court is it has no enforcement powers.   Because the ICJ cannot enforce any of its rulings it has declined to take cases where the outcome would require enforcement.  By example a civil court in the United States can use contempt powers to arrest and detain and fine persons who fail to comply with Court orders.

The Security Council of the United Nations, under Chapter VII, can impose sanctions on member nations that threaten international peace and security but does not and has not invoked Chapter VII in matters that would require actual enforcement.   At this time a violation of the Convention on the Physical Protection of Nuclear Material by ISIS may be beyond the powers of the ICJ to act and, for political reasons, the Security Council may not invoke Chapter VII.   Individual citizens cannot force nations to comply with their treaty undertakings with some limited exceptions: The United States Supreme Court has, over the past 120 years, permitted some banks and corporations to sue in Federal Court when they are financially harmed by inaction or non-compliance by signatory nations to some treaty obligations.

Obama Care (the Affordable Health Care Act) requires health insurance provide birth control benefits. The Hobby Lobby case tells us you don’t have to if you are a closely held corporation (4 or fewer stockholders) and you have bona fide religious objections to birth control.

Source: http://www.popsugar.com/Hobby-Lobby-Birth-Control-34447944

The decision is seen as an end run to, in effect, backdoor reproductive and privacy rights by framing the issue as a question that can be decided under the Religious Freedom Restoration Act of 1993. What has upset an entire universe of people, from women’s rights and gay and lesbian rights to, and including, civil rights advocates is the Supreme Court’s willingness to allow this obvious subterfuge.

In deciding the case, the Court agreed to look only at the Religious Freedom Restoration Act of 1993’s procedural processes. The Court went to great pains to say this case has nothing to do with abortion rights and civil rights, and that is why the Court is being attacked.  In its written decision, which is being called intellectually dishonest, the U.S. Supreme Court decided that regulations promulgated by the Department of Health and Human Services under the Patient Protection Act violated the “burdensome” test of the Religious Freedom Restoration Act.  The (RFRA) prohibits the Government from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability unless the Government demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.  Because the Court found that four of the contraceptive coverages “burdened” Hobby Lobby’s right to religious expression, the Court struck the four contraceptives from the insurance of employees of Hobby Lobby.

The Court made great efforts to calm the waters by reminding the reader to keep in mind that this case was not a first amendment religious freedom case.  Nor, so the Court wrote, is it a privacy or a women’s rights case, an abortion rights case or a civil rights case.  The Court was clear that it was only deciding on the issue of burdensome regulations as it affects rights of payers of medical insurance to impose their own religious beliefs. Critics of the decision accuse the Court of  trying to change the relationship of government and religion with this decision.  Critics say  the legal “mechanics” is a  slight of hand by the Roberts Court.

The U.S. Supreme Court accepted and will rule on the Anthony Elonis case in the Court’s upcoming Fall term.  The Elonis case involves a man who was found guilty and sentenced to over three years in prison for posting threats to his wife on Facebook.   Because of the Supreme Court’s recent decision on cellphone searches, commentators are anticipating that the Elonis case will make new law on internet social sites and First Amendment free speech.  With the way our Constitution is set up, the Supreme Court doesn’t “make” law, it resolves conflicts from lower courts and clarifies issues of constitutional law.  In this situation, there  are major conflicts in rulings from various States concerning their criminal laws and those of federal courts interpreting federal law.  The Elonis case is also about internet (like books, or newspapers, or letters, or radio), each medium is, as Marshall McLuhan says,  the message.    The Supreme Court has to address the question: Does that matter?  Internet social sites are a medium for both  conveying  political speech and personal “posts.”  If there is a line, the Supreme Court is expected to focus on that issue.

The conflicting interpretations from lower courts hinge on what the “speaker” intended, as opposed to what the “hearer” understands.  One line of cases hold that a threat is a statement only if  the speaker meant to communicate it as a threat to an individual or a group   (Watts v U.S.).  Other lines of decisions hold that if a reasonable person would see it as a threat then it is not protected speech, regardless of the intent of the speaker.   Elonis’s defense is that his threats, some of which are composed in patterns used in rap music, are protected free speech.

This issue has a long history of litigation both in State and Federal courts.  One federal opinion arose from  a Vietnam War protester who, in front of a protest group said, ”If I’m drafted into the army and they give me a rifle, the first person I’ll put in its sites is the President of the United States.”  Is that protected political speech or a threat to kill the President of the United States?  How about burning a cross?  Is that political speech or a threat against African Americans?  How about burning a copy of the Koran?  Is that protected speech or should I be criminally prosecuted because a Muslim neighbor of mine perceived this as a threat to himself and his family?  Now consider rap music in which the artist goes on about killing police.  Is that a threat to police or protected free speech.

The Supreme Court can, and will, decide on what is the question before they give us an answer.  What most commentators are saying is that this case will make new law because it involves the Internet.

More than 65,000,000 (one in four adults) people in the U.S. have some form of criminal record. For each of them the consequences of a criminal record carries both legal disability and a social and economic stigma. Collateral consequences of a conviction impose legal restrictions including the loss of civil rights, voting privileges, disqualification from many professions, loss of economic opportunities from lenders, credit providers, educational opportunities and grants, public assistance and publicly funded training programs. The U.S. Congress has convened a Task Force under the House Judiciary Committee.  The bipartisan Over-Criminalization Task Force has conveyed and taken testimony.  The National Association of Criminal Defense Lawyers has appeared before the committee to provide the House with information and insight.  The Task Force will study and produce suggestions to address the collateral consequences on the federal level.  The committee has heard testimony that across the board mandatory collateral consequences be eliminated.

Expected findings are that the collateral consequences fall disproportionately on racial and ethnic minorities.  Many members of Congress were clearly looking for information and guidance from criminal justice activists and the Department of Justice. The issue involves the loss of productivity and the total economic and social costs borne by the U.S. economy when persons with criminal records cannot become tax-paying citizens and become less productive or non-productive members of the community.

The Task Force will study and consider changes in the laws and policies so that as a national policy the nation will:

1. Seek to end second-class legal status and stigmatization of persons who have completed their sentences;
2. Only impose collateral consequences for specific offenses and not all convictions;
3. Impose collateral consequences on recent offenders and create a route for consequences to be eliminated with the passage of time and proof of improved conduct;
4. Restore legal rights and status upon completion of sentence;
5. Design and implement a program whereby individuals can earn the right to end collateral consequences;
6. Permit individuals charged with a crime to avoid collateral consequences by court-sanctioned programs;
7. Encourage decision makers such as lenders and landlords to review on a case-by-case basis individual offenders who have had collateral consequences lifted;
8. Fund States to purge old in inaccurate criminal records;
9. Encourage criminal lawyers to seek avoidance of collateral consequences in plea negotiations; and
10. Fund public education programs.

For more information, read:

NACDL’s Executive Summary of its report: “Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest or Conviction”

This week, the U.S. Supreme Court released a unanimous decision on cell phone searches by the police.   It is now a requirement for police to have a search warrant to search a cell phone.
The Supreme Court observed citizens are under increasing governmental surveillance.  Face recognition software can recognize individuals with 20% of the  face covered.  Cellphones and mobile devices can be triangulated to location.  Voice recognition identifies individual voices, and artificial intelligence systems listen, screen, discern and know who said what to whom when and where.  Ten years ago the fractionated accumulation data did not mean anything other then geewizz tech stuff, until, the Justices observed, law enforcement agencies collected and collated the data to track individuals without a warrant.

The Supreme Court decision requiring warrants for cell phone searches stated that the assembling of available data to track citizens has constitutional implications.   May the government  assemble data to track citizens without a warrant is the issue.    The public debate goes from: “If I’m doing nothing wrong, then I have nothing to hide.”  To: “If I’ve done nothing wrong, I have nothing to prove.”   The landmark ruling holds:  a cellphone taken off a person in custody cannot be examined and used as a window into derivative content.   To do that, the police must obtain a warrant.  Getting a warrant means they have to present information to a neutral magistrate (Judge) that justifies probable cause that a crime has been committed or is being committed.

This is the first of what will be a decades long series of cases, as yet unfiled and as yet unimagined, to test the limits of governmental accumulation of seemingly harmless information.  Supreme Court decisions have recognized  a right of privacy, but commentators correctly point out that there is no constitutional language creating it.  It is argued that privacy rights have been spun of whole cloth by judges wanting  to create a legal concept of privacy rights without a constitutional basis.    Privacy has been defined as acts, thoughts, or exploits to the edge of an individual’s emotional and moral compass that are protected from governmental regulation.    Embodied in constitutional structure,  the Bill of Rights, grants government  limited powers.     The Supreme Court has given  a frame, a skeleton, upon which the law can flesh out limits that let government govern conduct but not rule lives.  Defined as such, the Court ruled,  it is reasonable for a warrant requirement before an intrusion.

For more information, read:

• New York Times Article: “Major Ruling Shields Privacy of Cellphones”
• Wall Street Journal Article: “Supreme Court: Police Need Warrants to Search Cellphone Data”

The public conversation on the use of armed drones is in the news.  On one side it is argued that Due Process rights confer upon judicial process the sole venue for “civilized” adjudication before the imposition of the death penalty.  Remember that great movie line from Silverado (1985) when the Sheriff said: “We’re gonna give you a fair trial followed by a first class hangin.”   On the other side is the argument that the right of a “self-defense” killing of terrorists (either in leadership roles or carrying out the directives of homicide upon non-combatant civilians) is justified.  But now, it is argued, that for the same reason you can kill a pirate at sea, nations can kill terrorist targets on land.  Here’s how the argument is posited:

The  “right of innocent passage” by seafarers pre-dates Chinese trading junks of the third century B.C. and Greek trading vessels plying the waters of the Mediterranean.   Codified in the United Nations Convention on the Laws of the Sea are historical, and still valid, rules of conduct at sea as to the right of unfettered passage. The Geneva Convention on the conduct of armed conflict and modern judicial process conflate with those ancient laws of the sea; those who impede safe passage of seafarers can be summarily executed.

Under a court order the Obama administration released the legal justifications and rationales for the use of armed drones to  kill military approved targets (people). The New York Times and the American Civil Liberties Union had pressed the administration for the release of these legal justifications. Responding to pressures, the administration released the memorandum for publication in the press. Traveling under the theory that the government has the right to impose death on its own citizens under the public authorities justification, the memo was released. The “public authorities justification” permits fire trucks to break the speed limits in emergency calls. The “public authorities justification” permits a homicide (the taking of a human life) by police officers. The explanation given in the memo lists “imminent mayhem” as justification under the “public authorities justification” rubric for drone killings.

What is not disputed in the released legal memorandum or in other government policy documents, as of yet, is the ancient rule permitting the killing of pirates for acts of piracy at sea. The rule, simply stated, is that a pirate attempting to board a vessel can be summarily killed. By analogy, a person who is in the process of attempting or committing an “act of mayhem” can be justifiably summarily killed, as any pirate attempting or boarding a vessel at sea.   In a contemporary legal analogy, Florida’s Stand Your Ground statute can justify an act in self-defense resulting in the taking of human life. The New York Times, in an editorial opposing any non-judicial rational for terrorist killings, approaches the issue from a due process judicial process aspect.  How different is the case for summarily killing Somali pirates from the use of drones to kill targets of opportunity in this our war on terrorism?  History and politics will ultimately make judgments upon the killings of our times by the use of armed drones.  Where do you stand?

For more information, read the New York Times editorial: “A Thin Rationale for Drone Killings”

Good news, bad news, we’ve heard it all. But when the good news or bad news comes from the voice of a corporate entity and stock prices move up, or down, lots of money is made, or lost. The price of any stock moves on news, here is an example to get grounded: If and when British Petroleum makes statements about the costs of the cleanup of the oil spill in the Caribbean, it’s stock price moves violently.  In this Supreme Court decision, which arose from a class action lawsuit, the question is what to do when a corporation makes a public statement, which has a

significant impact on the price of its stock. Specifically when a class action is filed by groups of individual stockholders who have collectively lost big money.

That very question, about how to handle class-action lawsuits by stockholders, did in fact go all the way up to United States Supreme Court.  Important? Very.  Here’s why: No single stockholder has the resources to sue for his/her individual losses.  These lawsuits take thousands of attorney-hours to litigate.  Now, not only can corporations shut down class action lawsuits faster, but they can also do it for less money.  Now, at the very early stages, these class action lawsuits can be dismissed.  And there’s more: The entire and only legal theory upon which these class action lawsuits are based, the “fraud on the market” theory, has been gutted.

The recent case is a big win for corporations and a big setback for groups of stockholders who sue any corporation in a class action lawsuit. It started like this: Halliburton, a major petroleum services company, made some very powerful statements about asbestos claims that had been filed against it’s companies by people who were injured by asbestos poisoning. The statement went on to project its effects on Haliburton’s earnings in its engineering and construction businesses. It also spoke about benefits of a merger in that field. In a class action by stockholders, they sued on the theory that the statements were false and the corporation’s statements were intended to inflate the price of Halliburton stock.

The Supreme Court’s decision in effect makes it more difficult for investors, grouping together in a class action lawsuit, to file claims. The decision to buy or sell a security is always based on perceptions of market valuations. The Supreme Court just stopped short of ending most class actions based on securities fraud theory. There is no other theory beside security fraud to sue a corporation for making misleading statements that affect the price of its stock.   This decision is all encompassing and very, very, significant. Just so you have some perspective; in the last ten years over $62 billion was paid out by corporations to investors who sued for securities fraud. The recent decision allows corporations to file motions to dismiss at the early stages. It also enunciates some powerful grounds making such dismissal motions very likely. Previously the law permitted a presumption of securities fraud just by alleging, that is accusing the corporation of trying to affect stock prices by making public announcements. The rules have now changed, making these suits more difficult to win and subject to early dismissal. This is consistent with earlier decisions by the Supreme Court. Over recent years, the court has limited workers and consumer class action lawsuits and this recent decision reads consistent with previous decisions affecting consumer and workers. Class actions bode well for a continuing trend: the law now requires more proof and earlier proof by plaintiffs to get the case in front of a jury.

More more information, read:

• New York Times article, “Supreme Court Erects Obstacle to Class Actions for Securities Fraud”
• Forbes article, “Supreme Court Leaves Fraud On Market Intact, Makes Life A Bit Harder For Securities Plaintiffs”