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This past Monday, the U.S. Supreme Court ruled, in an 8-1 decision, that now it’s possible for a police officer to stop your car based on a mistaken understanding of the law without violating the Fourth Amendment.  Now watered down by Heien v. North Carolina, the Fourth Amendment to the U.S. Constitution requires police to meet a reasonableness standard, before a search can be made of your person or property. The Fourth Amendment prohibits unreasonable searches and seizures. Until this case, the police could not search your person or your car if they are mistaken on the law. Now the Supreme Court has said that a mistake of law by the police can make an otherwise unconstitutional search a lawful search.

4th Amendment

North Carolina law only requires vehicles to have one working stop lamp. Until this Supreme Court decision, a police stop and search based on a single non-working tail-lamp was prohibited. No more. Justice Roberts, writing for the U.S. Supreme Court wrote: “In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can.” 

This extends the “mistake of fact” exemption. For a real life example of an excusable mistake of fact that made an otherwise unlawful police stop lawful consider this: Assume you are driving in a High Occupancy Lane (HOV), and in your car are two (required) passengers, but they are sleeping out-of-view in the backseat and unseen.  In this situation, an officer may make a lawful stop. The mistake in fact was that the officer, not seeing the two rear passengers asleep on their sides, believed that your car was in the HOV lane without the required passengers. The stop is lawful, the mistake in fact was reasonable. Now, under the recent U.S. Supreme Court decision, if the officer makes a reasonable mistake of law the stop can be lawful.

Now, if a judge can be convinced that there was a reasonable mistake of law by an officer, the stop and search are lawful.  Here are the facts of Heien v. North Carolina and you decide: Early in the morning hours of April 29, 2009, an officer (sheriff) in North Carolina saw a car driving north on Interstate 77. Testifying that he (the sheriff) believed the driver was “stiff and nervous,” followed him in his marked patrol car.  A few miles passed and the driver stepped on his brake.  The sheriff saw only one working brake lamp and pulled the car over.  The stop uncovered cocaine in a plastic bag in the rear of the car. The driver was arrested and charged with trafficking in cocaine. There was no ticket for driving with a broken stop lamp because it is lawful to operate a car in North Carolina with such a defect.  The North Carolina Supreme Court upon hearing the facts determined that the stop was without legal cause and that there was no violation of law so there was no legal reason to stop the car.

Here is the tension in the law now: The U.S. Supreme Court does not permit citizens to escape criminal liability even if their mistake of law was reasonable. Lack of knowledge of the law is not an excuse to violate the law.  Now, however, that rule does not apply to the police.  The new rule of law permits the police to make reasonable mistakes of law when making a search and for the mistake to be overlooked.

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A former Boca Raton, Florida resident, Ms. Annette Bongiorno, age 66, was sentenced in Federal Criminal Court in New York. U.S. District Court. Judge Laura Taylor Swain sentenced Bongiorno to six years in Federal prison saying Ms. Bongiorno’s decision to follow Bernard Madoff’s instructions to perpetrate one of the largest frauds in U.S. history was inexcusable. The Judge said the fraud went forward and was advanced “right in front of her,” while Annette Bongiorno did nothing to stop or reveal the fraud.  Instead she helped, year after year, to continue one of the most tragic frauds in history.

Madoff - Annette Bongiorno

The losses are estimated at twenty billion dollars, with estimated forfeitures of almost 155.2 billion dollars. Forfeitures are monies that investors had withdrawn over the twenty-plus years of investing in Bernard Madoff’s investment product, and are forced to return to the Bankruptcy Court. Most investors drew out some of the earnings to live on, and left their original principal investment remain with Madoff’s private investment plan.   The reported yield on investment was not, by most standards, either over high or excessive under then-current market conditions so as not to draw suspicion. What made the Madoff investment product so attractive was the fact that year after year, without exception, his return on investment was constant, regular and unchanging.

Ms. Borngiorno became a millionaire as Bernard Madoff’s assistant, living in luxurious homes in Boca Raton, Florida, and Manhassett, an upscale town on Long Island, New York. U.S. Federal prosecutors sought a twenty-year sentence and were disappointed by Judge Swain’s six-year prison term.   Annette Bongiorno was convicted in New York Federal District Court, criminal division, in March of 2014. The sentencing was set for December 2014.

At the sentencing Federal Judge Swain said of Ms. Bongiorno, among other things, that Ms. Bongiorno was “not fundamentally corrupt” but was rather dazzled by the tone and demeanor of Bernard Madoff. The Judge went on to say that she had “borderline competence” to do the complex financial work that she performed in the Madoff operation. The Judge said Ms. Bongiorno should have realized, as far back as 1992, that Madoff’s operation was a fraud but that she lacked the moral fiber to step forward. The Judge went on to say she was “a knowing and willing participant who made a choice to participate.”

Refuting the Judge’s statement, Ms. Bongiorno insisted that she was innocent of actual knowledge when she said in open court “I did not know what was happening, I didn’t mean to hurt you.” What surprised most attorneys familiar with Federal fraud cases and sentencing is, despite Ms. Bongiorno’s protestations of innocence, the Judge sentenced her to a light sentence of only six years in Federal prison. Ms. Bongiorno, almost challenging the Judge’s decision to be lenient by an under guidelines variance said in open court “how very sorry I am by all the sorrow and loss caused by Madoff and by extension, by me.” These, her protestations of innocence, were an attempt to distance herself from the fraud.  Judge Swain, seemingly ignoring Ms. Bongiorno’s statements, shocked prosecutors by the light sentence of six years in Federal detention. To support Judge Swain’s sentence, the Judge remarked the issues of poor health. Ms. Bongionrno’s slight build (five feet tall) and the Judge’s statement that Ms. Bongiorno would not do well in prison, were made on the record to support the Judge’s variance in sentencing Ms. Bongiorno below the Sentencing Guidelines.

Visit the Wall Street Journal’s section for more articles on the Madoff Ponzi Scheme.

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The arrest is where it begins. A Federal criminal arrest can often be an almost civil event between professional U.S. agents and the target. Once arrested you are brought before a Magistrate for arraignment. At arraignment the matter of reading the indictment, determination of counsel, and conditions of pre-trial release, or pre-trial incarceration, are determined.

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What comes next is the most difficult and most important stage: it is called Pre-Trial Discovery. In Federal criminal courts in Miami and Fort Lauderdale all cases, not just some, or a few, but all Federal criminal cases are won and lost in Discovery.  Older lawyers learned Motion Practice, and it is still true that in the technical skills of motion practice a case lives, or dies. There is great truth in the ancient lawyers’ adage that good lawyers have good answers, great lawyers have good questions.  What goes on in Federal criminal courtrooms in Miami and all over Florida, is a struggle to force the U.S. Attorney to reveal evidence that will exonerate.

Over fifty years ago the U.S. Supreme Court wrote the groundbreaking case of Brady v. Maryland. In the Brady decision, the U.S. Supreme Court made the finding that the government’s failure to disclose favorable evidence violates the constitution.  But what the Court gives, it also takes away….when the Court added the inscrutable caveat that the rule only applies to information that is “material.”  Certainly no one knows the unknown, but forcing a prosecutor to provide exonerative evidence is what truly great criminal trial lawyers do best.

This is sadly truest, and most lacking, in Federal criminal courts where prosecutors have an unwritten code of total war to secure a conviction. Most criminal trial lawyers in Federal criminal court will agree that Brady rules are more in the breach then in the observance.  A recent study by the National Association of Criminal Defense Lawyers found that in 620 cases under study Federal prosecutors failed to disclose favorable information in 145 of the 620 cases. It is also widely held by criminal defense lawyers that judges are no friend to criminal defense attorneys in federal court.  The NACDL study concluded that in only 14 percent of the cases judges granted the defendant’s motion. Finding a way to use discovery rules to gain advantage is best done not in anger, but with patience.

Here is an illustration of how it is done: Witnesses, who were known to Federal investigators and determined as not useful to the prosecution, are not interviewed.  In discovery practice, all Federal districts require that field notes of investigators be revealed to defendants Demanding interview lists (not notes) is the way to get the names of witnesses who were not interviewed and do not appear in the investigator’s notes. Resistance by prosecutors is successfully skirted by demanding investigation names of both those interviewed and those not interviewed.

Federal criminal court judges, in my opinion, often thwart defense investigations rather than helping them.  You can encourage a Federal judge’s unwilling assistance by couching your demands in such a way as to suggest failure to grant the motion may well be an ethical violation.  Again, asking good questions is better than having good answers.  When you file discovery requests, such that they place a judge in an area that is between ethically right and wrong, you can overcome a judge’s predilection to expediency in moving his criminal docket. Start with having no fear. Do not fear a judge nor prosecutor. Fear cripples; but knowledge and skill can enlist a Federal criminal judge to assist in your discovery rather than block it.

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Several women have accused entertainer Bill Cosby of rape.  The  victims who have come forward with rape charges allege criminal  sex acts that were in past years.   Florida’s statutes of limitations  rules set a framework for what acts are time-barred and those that are not.   What rules of law would apply if Bill Cosby were charged and arrested for sexual battery in Florida?

Source: Wikipedia.org

Sexual offense categories and sentences,  vary with the ages of those involved.   Florida’s sexual battery crimes have different levels of culpability, which depend not only on the age of the victim, but the age of the perpetrator. Florida enhances penalties for sexual batteries by those in positions of trust such as parents and teachers.  In Bill Cosby’s situation the lapse of time between the date of the act and the involvement of prosecutorial agencies would quite likely bar a prosecution in Florida.  Sexual Battery is a subject in the news because of its social and political implications: none of this is missed in the Bill  Cosby matter.  What has been reported as a delay in bringing the allegations forward is also being reported as the very human delay between a violation and the victimization of an individual and a plea for help.

At the time of the posting of this blog, none of the accusers allege that the sexual batteries (rapes) were committed in Florida. Each state has its own set of laws concerning statute of limitations and rape. Depending on which state seeks to arrest and prosecute Bill Cosby, their individual state laws would govern the prosecution. Statues of limitations do not “repose” or end prosecutions when the accused fled the jurisdiction of the courts and hid from detection. The statute of limitations would also be tolled if the facts of the case could not have been discovered by the State due to efforts by the perpetrator to hide or obscure the detection of relevant facts.

Bill Cosby’s accusers have received great and widespread public support in their attempts to bring Bill Cosby before a criminal court for prosecution. Depending on the individual facts of each case and relevant State laws, prosecutors will explore and decide on where and if to bring criminal charges of rape against Bill Cosby. Since some of the accusations go back a significant numbers of years, some of them are from acts alleged to have occurred twenty-five years or more in the past, an issue may be whether prosecutors can proceed on the current laws, or must prosecute under the laws as they existed at the time of the alleged sex acts. This gets into the area of constitutional laws as some modifications that have been made by legislatures to sex crimes involve constitutional rights and other modifications have no constitutional implications.  It will be for local prosecutors in the State’s in which the allegations arose to decide to bring criminal charges.

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A recent New York Times article highlights 1,000 cases in which entrapment  may see new life in courtrooms and legislatures throughout the United States.  Entrapment laws go back to the 1930’s when the U.S. Supreme Court first put constitutional rights in play to restrain what the Justices called “outrageous government conduct.”  Entrapment is when someone neither inclined nor seeking to commit a crime, is presented the opportunity by a government agent and is induced or persuaded into the enterprise with no prior inclination.

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Now that you have the bones of the law on entrapment let’s look in on what your Government is doing.  Here are the facts…you decide if it’s entrapment or not:

Three hardened criminal types, all with extensive criminal histories involving guns, narcotics and violence, are sitting around in their crib, talking dirty and doing the bad boy thang.  An FBI agent posing as a drug courier goes to them with a proposal….. He tells this den of evil-doers that his main supplier has a big load of cocaine coming in, gives them the location.  He promises it is at least a half million dollars in street value cocaine. He tells them there may be some guns, but not enough that these three can’t handle. The FBI agent tells them its easy pickings and he’ll help. Our gang starts to get their arsenal together, buys some plastic garbage bags and stays: the bags are for the cocaine and the stays are to tie the hands of the drug lord’s retinue.   Then, with dreams of easy money dancing in their heads and never having left their rooms, a SWAT team breaks into their lair and arrests them on charges of conspiracy to distribute more than five kilograms of cocaine, armed trafficking and conspiracy. Those charges get them into ten-year minimum incarceration guidelines ranges and maximum life in prison for armed trafficking. What’s your decision here? Are the cases solid, can you convict, or will some judge throw the case out as entrapment?

Let’s go to the formula…

Were they inclined to commit the armed trafficking crime, or just waiting around for an opportunity to continue their bad boy ways? Were they seeking or looking for the opportunity or did a government agent bring it to them? Were there inducements made by the FBI agent to entice them to commit the crime? Does the government action offend the community’s sense of fair play and fair dealing? Does this rise to outrageous governmental conduct or is it solid law enforcement? If the three were not career criminals but three bored college students would it make any difference to you? Should it?

A Los Angeles judge dismissed two defendants in the above fact scenario and held one for trial. A Second Judge in Los Angeles dismissed similar charges. Then the government took the dismissals to a court of appeal and argued that the guns were real, the defendant’s criminal histories were real and the high stakes cocaine and money allurements were merely there to get their attention, not create a new crime. The agents who approached our little gang knew nothing about them other than they were men with extensive criminal histories living in poor neighborhoods. Is this something that “steers too close to tyranny” (as the court that dismissed the case wrote) or acceptable law enforcement methods of clearing neighborhoods of bad actors? Everyone gets to vote, but the only vote that counts is the guy in the black robe.

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Rarely imposed since the 1940’s, quarantines are both: 1) Creatures of law, subject to constitutional muster and 2) Public health policy; based on the best current state of medical science: its understanding of the process by which infection works in its biological host, and the methods of transmission of communicable disease organisms.

The issue has been in the news because Ebola, emanating from Western Africa, may be communicated by infected persons traveling to the United States. Ebola as a disease does not have the virulence and infection rates of other viruses…but the next communicable disease may. SARS came, but was tamped down, the next disease may be more difficult to control or may spread faster than current control standards can effectively restrain transmission.

Source: www.businessweek.com

Source: www.businessweek.com

 

Lawrence Gostin has been doing good work in assembling the law on the question of law and quarantine. Teaching at Georgetown University, he has reviewed what Governor Christi did in New Jersey. The legal questions in any analysis are: 1) Rules of class designation; and, 2) Fairness in individual risk assessment. The law, as it stands, first addresses whether the designated members of the class, subject to quarantine,  comply with Due Process standards of reasonableness. Secondly, the law requires that those members of the class have adequate access to the courts to determine if their individual facts, their “individualized risk,” is afforded judicial review.

We are speaking to the constitutional issues of Due Process and Equal Protection under the law. The legal criticism of New Jersey’s  and Maine’s rules (as they were initially propounded), are the States’ rules were over inclusive and do not have a process for individual assessment of the actual risk of infection transmission from the persons in the class. Nurse Kaci Hickox, initially tented outside a New Jersey hospital, then went to Maine,  and subsequently permitted to live in her home, brought what may be the first of a wave of legal challenges to the quarantine programs as they are currently structured. Ms. Hickox, age 33, was a volunteer nurse working with Doctors Without Borders for five weeks in western Africa. She was detained at Newark Airport under federal quarantine, then, in effect; She came under New Jersey’s recently enacted quarantine rules before going up to Maine.

A constitutional challenge can and will be asserted to two aspects of effecting quarantine. First, the statute must meet constitutional muster: Due Process and Equal Protection. Then, the administration of the program, once structured by the enabling statute, must be effected by an agency. Agencies are created to carryout legislative  programs and are subject to the rules applying to administrative law. Ask: is the agency following the statute? Ask: is agency policy authorized? Ask: are agency rules compliant with Due Process? The landmark case of Gibbons v. Ogden is a good start for more comprehensive understandings of how judges approach quarantine challenges.

Federal laws state that jurisdiction arises from Article I, Section 10 of the U.S. Constitution under which the federal government effects collection of taxes and duties on imports by right of the constitution empowerment granted to the federal government to inspect items in commerce between the U.S. and foreign states. This has been extended to tariffs and taxes and quarantine. The push back comes from the reasoning in Printz v. New York, which limits the federal government’s power to commandeer (either by physical force or statute) local and state government officials to carry out federal law. Fasten your seat belts, its going to be a rough ride.

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On Friday November 7, 2014, the United States Supreme Court announced that it would “consider” a new major legal challenge to the Affordable Health Care Act.  This happened three days after voters in the United States voted in the “mid-term” election on November 4, 2014. Mid-Term because it is in the middle of the term of the President of the United States.  The balloting was for members of the United States Congress: the House of Representatives and the U.S. Senate.  The election results were regarded as a resounding victory for the Republican Party.   The Republicans gained voting control of the House of Representatives and the Senate.

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The forced coincidence is not likely an indication of the Justice’s willingness to rule on the Affordable Health Care Act, but to political pundits it resounds as such.  For those who want to believe that the Justices are over anxious to gut the Affordable Health Care Act, there other unfortunate facts.  On the top of the list is the fact that there no split in decisions coming up from the Federal Courts. 

The Supreme Court, as the final arbiter of the meaning of law, is constitutionally empowered to rule when there are conflicts in lower courts or constitutional issues of great importance.  Depending on how you want to see it: either the Supreme Court feels empowered or obligated to follow the politics of Republican Party stalwarts, or, it has been unfairly placed in the light of that accusation.  You be the judge.  But the Court has agreed to hear a case about how the Health Care Act is provided funding from a tax on medical devices.  The case they selected comes from the U.S. Court of Appeals for the 4th Circuit.  The Supreme Court Justices agreed to reconsider that ruling, which again looks like the judges are political operatives emboldened to do the bidding of Tea Party Republicans.

The aspect of the law that the Court has agreed to review gives them an opportunity to reverse their findings that permit the law to function.  The ruling to be reviewed concerns the Act’s system of subsidizing policies required by the law.  Subsidies are granted to Americans whose income is low.  The subsidies are not grants of free insurance, but lower premiums to those required to pay for their own policies.  More than five millions Americans are currently able to take subsidies to lower their actual out of pocket costs for  health insurance.   Those who qualify for a subsidy have their premiums costs reduced by as much as 76%, dropping the average monthly premium for those who need subsidies from $346 per month to $82 per month.   Any ruling eliminating the subsidies would constitute a major blow to the act.  If the Supreme Court reverses its previous ruling on these issues it would invalidate subsidies in thirty-six states.

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Two governors, Governor Christie in New Jersey and Governor Cuomo in New York, both announced quarantine rules and were undercut by President Obama.  The legal issue is whether a president can overrule a state governor on an issue such as quarantine.  Ebola, the viral infection that has killed 4,941 people (as of November 1, 2014) in Western Africa is on the minds of U.S. citizens.

Over the past weeks, the top stories have been about Ebola deaths, like the one of Mr. Thomas Duncan (who arrived in the US with Ebola and died in an American hospital), and Governor Cuomo of New York and Governor Christie of New Jersey.   Now, alarmingly, the news is about a Doctors Without Boarders physician from New York City who is in a New York hospital after riding on the ‘A’ train in the New York City Subway system.

A recent NBC poll finds that 71% of Americans want to quarantine anyone who has contact with a population of Ebola victims and the State vs. Federal conflict is at the top of the news. The science, at this moment, indicates that Ebola can be caught only if the victim has fever and symptoms, otherwise the infection is not transmitted.

Kaci Hickox, Ted Wilbur

But what is the law on a State taking action, of which the Federal government does not approve. The first rule is the Preemption Rule, which is founded on the Supremacy Clause of the U.S. Constitution. Preemption starts with this: If the Federal government has a law, then the States cannot come in and overrule with a different set of laws. The legal response is that the States have the power to regulate health rules and laws within their jurisdictions. Back at ya: With the Health and Welfare Clause (aka the General Welfare Clause) which empowers the Federal government to act in the area of regulation of such matters.   Then we hear from the Tenth Amendment known as the State’s Rights Amendment. The Tenth Amendment empowers States to act when the Feds have not, which loops us back to the Preemption Rule under constitutional law.

Now the response is that when the Federal government does rule, as it seeks to in this instance with fewer restraints, the States can enter and make laws as long as they do not retreat from the Federal mandate. Think of voting rights and search and seizure laws. The U.S. Supreme Court has set the bar for what is a reasonable search and seizure, but many States have interpretations that grant greater protections: that can be acceptable under the Preemption Rules.

Then there is the politics of public perception and opinion. The 2014 mid-term elections are forecast to be a Republican win because of the public’s anger at a democratic administration that, on this issue, seems to be out of sync with 71% of Americans.  Now, if a legal challenge is brought to the U.S. Supreme Court, the Judges can pass on a ruling by finding that this is a political issue, not a legal question, and crawl behind the screen of judicial restraint and respect for a political issue that is not a legal issue.

It all comes down to asking the question in terms of rules of constitutional law. States Rights issue, or maybe it’s a Health and Welfare issue, or can we frame the legal issue under the Commerce Clause which gives the Federal government vast powers to regulate interstate commerce. Consider this: Is the spread of an infectious disease from one state to another something that has an effect on interstate commerce?  Yes. But if litigants frame this as a preemption matter…..or maybe it’s not a preemption issue because Governor Cuomo just expanded the Federal rules on what is a proper quarantine period.

The conclusion here goes to both the strength and the weakness of our form of government and the rule of law. Lawyers learn in law school that the likely winner in any legal conflict is the one who gets to frame the issue and thereby select the rules that a court will apply. Remember the old legal adage: A good lawyer knows the answers to questions, a great lawyer knows the right question to ask.

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This past Wednesday, October 22, 2014, four former Blackwater contractors were convicted in the infamous 2o007 killings in Baghdad, by a federal jury.

In 2007, at the height of the United States incursion in Iraq, seventeen Iraqi civilians were killed and eighteen wounded in a busy traffic circle in Bagdhad. Employees of Blackwater Corp, a private security company, did the killings and non-fatal shootings. Blackwater was then, and remains today, a military contractor providing services to United States Armed Forces.

Source: www.dailymail.co.uk

Source: www.dailymail.co.uk

The widely reported case brought into focus the fact that the U.S. was using private companies to provide security forces and military services in conjunction with members of the United States military. The allegations then were, and the convictions confirm, that the killings in Nusoor Square were in violation of the rules of engagement and the rules of war.

The attorneys for the convicted contractors have told both the Court and the press that the convictions will be appealed. The case was brought by the United States Justice Department and in the charging documents the Justice Department alleged that the privateers committed murder, manslaughter, and several firearms offenses.

The facts as alleged in the criminal complaint were as follows: On September 16, 2007 nineteen Blackwater employees (called “contractors”) were providing security services to a convoy. The contractors were informed that a car bomb was detonated in Baghdad in a location that was near or part of the team’s assignment. They were escorting and protecting some United States officials. The team, disregarding orders from a senior Blackwater employee (who was in effect in command of the operation) changed the route to the Green Zone. They established a blockade obstructing traffic in busy Nusoor Square, which is next to the U.S. Green Zone. Seven members of the security team from Blackwater fired at vehicles and civilians in the traffic circle. They killed and injured unarmed Iraqi civilians. Among those killed was a medical doctor, a car salesman, an Iraqi soldier, a taxi driver and others who were there in the traffic circle. Blackwater said the convoy was under attack. At the trial witnesses told the jury that was untrue and that the contractors fired first and without provocation.

The case was dismissed in 2008 when a judge found that the government prosecutors withheld evidence that would have exonerated the defendants and ordered a new trial. The Congress of the United States held hearings on the allegations and the hearings were widely covered by the press in the United States and around the world. At the trial, there was evidence that the convoy came under attack and testimony that the contractors and testimony that the Blackwater contractors fired first and without provocation.

Here are the names of the defendants and the charges and convictions:

– Paul Slough, 35, of Keller, Texas: Convicted of thirteen counts of voluntary manslaughter, and 17 counts of attempted manslaughter and one firearms offense.

-Evan Liberty, 32, of Rochester, New Hampshire: eight counts of voluntary manslaughter, 12 counts of attempted manslaughter and one firearms offense.

-Dustin Heard, 33, of Maryville, Tennessee: six counts of voluntary manslaughter, 11 counts of attempted manslaughter and one firearms offense.

-Nicholas Slatten, 30, of Sparta, Tennessee: guilty of first-degree murder.

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Congressional Republicans have been vocal in demanding the United States impose travel bans from African nations where Ebola infection rates are high. Travel bans have a long history of being of dubious value, and a look at travel bans imposed on HIV victims is informative.

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The United States government has previously imposed travel bans to control HIV infection rates. Travel bans were imposed and required waivers for the following categories: Spouses of US citizens with HIV, unmarried sons or daughters of US citizens with HIV, minor unmarried adopted children of US citizens with HIV, parents, persons eligible to self-petition under the Violence Against Women act, and refugees seeking humanitarian exceptions. The ban was reportedly ignored to a significant extent, but many persons (without any of the waivers) were removed, deported or denied entry by U.S. Immigration authorities. In 2010, the ban was lifted, but Homeland Security in the U.S. is considering it as a framework if political pressure persist in restricting entry from infected African nations.

Any legal ban would have to provide for greater travel freedom for US citizens. The United States Constitution, the “Privileges and Immunities Clause” recognizes freedom of travel as a constitution right. These rights, however, do not apply to citizens of foreign nations. It is unclear, but generally understood, that non-US citizens with legal status in the United States are afforded such travel rights. Historically there are some exceptions: look to the “Mann Act” for restrictions on travel between states of unmarried male/female companions. Cases such as Ward v. Maryland (79 US 418) are the basis for the constitutionality of such restrictions on travel. Balancing those rights is the “health and Welfare” clause of the constitution.

The current state of the law permits the Director of the United States Center for Disease Control to impose travel bans between states (nations) to control and contain “viral hemorrhagic fevers” Ebola is such a disease. The last legal challenge to quarantine laws came in 1902 when the US Supreme Court upheld the power of individual states to impose quarantines even if the quarantine effected interstate commerce. If the US government fails to act then individual States, exercising their police powers, can effectively control or ban the travel of individuals who do not comply with State reporting laws requiring proof of disease-free status. Regardless of the arguments that travel restrictions do not work, the increasing public pressure for action is expected to put State’s rights activists in the front of moves for states, such as Texas and Florida, to impose State restrictions in the absence of federal action.

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