Donald Sterling’s Views on Race May Not be the Most Disturbing Thing About the Recent Clippers Scandal

Donald Sterling’s Views on Race May Not be the Most Disturbing Thing About the Recent Clippers Scandal

 By Jack O’Dowd

            In late April reports surfaced that Donald Sterling, the owner of the Los Angeles Clippers basketball team, had been taped making disparaging remarks about black people. The tape reflects a conversation had by Sterling and his girlfriend V. Stiviano. During the conversation Sterling relates to his girlfriend that he is upset that she is posting pictures of herself with black people onto her Instragram account. He says, “In your lousy f**ing Instagrams, you don’t have to have yourself with — walking with black people.”[1] The black person who was the subject of the remark was none other than NBA great Magic Johnson.

As if that weren’t bad enough, Stiviano continued to goad Sterling into making more objectionable comments about Johnson. Stiviano told Sterling that Magic Johnson was someone she admired. Sterling responded “I think the fact that you admire [Magic] — I’ve known him well, and he should be admired — and I’m just saying that it’s too bad you can’t admire him privately. And during your entire f***ing, your whole life, admire him — bring him here, feed him, f**k him, I don’t care. You can do anything. But don’t put him on an Instagram for the world to see so they have to call me. And don’t bring him to my games.”[2]  Stiviano was apparently the subject of a lawsuit filed by Sterling’s wife, and she vowed revenge.[3] Regardless of Stiviano’s motivations, it is shocking that an owner in a league comprised almost entirely of black athletes could have these views about blacks.

In the wake of the statements numerous players voiced their strong disapproval of Sterling and his comments. For instance, LeBron James, probably the most famous current player in the NBA, said he may not have played had his team’s owner made those remarks and that “There’s no room for Donald Sterling in the NBA — there is no room for him.”[4] The players on Sterling’s Clippers team staged a silent protest by wearing their warm-up uniforms inside-out so that the Clippers logo was not visible.[5] Similar acts showing disapproval were made by other teams around the league.

The league took drastic measures against Sterling, strongly condemning his remarks. The league’s commissioner, Adam Silver, empowered by a provision in the league’s constitution giving the commissioner nearly unbridled authority, handed down a harsh punishment. The specific provision reads “Where a situation arises which is not covered in the Constitution and By-Laws, the Commissioner shall have the authority to make such decision, including the imposition of a penalty, as in his judgment shall be in the best interests of the Association.” Pursuant to this, Silver banned the embattled owner from the league, stripping Sterling of any authority or management relationship with his team and barring him from going to games. Further, Silver imposed a $2,500,000 fine, the maximum authorized by the NBA constitution.

Sterling, who still owns the team despite not being able to associate with the league in any way, may also be stripped of his ownership interest in the Clippers. Silver said he would urge the other owners to force a sale of the Clippers. The league’s constitution provides for such a sale if three-fourths of the other owners vote to kick out an owner.[6] More specifically, the NBA constitution provides that an owner may be forced to sell his team for engaging in conduct such as gambling on games, fixing games, and the like. Another provision says an ouster may result should an owner “fail or refuse to fulfill its contractual obligations . . . in such a way as to affect the Association or its Members adversely.” [7] Thus, it does not appear that the NBA’s constitution directly provides for a forced sale in this situation.

Because the NBA’s constitution, a contract between owners, does not seem to provide for a forced sale in this instance, I would be troubled should Sterling be forced to sell this sizable asset. What I really find troubling is that private conversations made in confidence to his girlfriend could be the reason that he would lose his basketball team. I am not alone in this view. Another NBA great Kareem Adbul-Jabbar wrote in an op-ed in Time Magazine, “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?”[8]

Further, regardless of whether he is forced to sell, I am troubled by the “mob-rule” mentality that characterizes the opposition to Sterling ownership. As mentioned earlier, notable NBA players, cultural figures, and even President Barack Obama have condemned Sterling, and many have called for him to divest his ownership interest in the Clippers. However, public outcry should not be enough to force someone to sell his property. If people want to boycott Clippers games, so be it. But forcing a sale of a multi-million dollar basketball team based on private comments coaxed out of an old man by his spiteful young girlfriend is bad policy. Sterling should reserve the right to “go down with his ship” and hold onto his team regardless of the financial consequences. The loss should be his to bear.

Finally, I think it would be unwise for owners to force a sale here. Who knows what skeletons they may have in their own closets? Who knows what future technologies may make those skeletons known to the public? It may be a dangerous precedent for the owners to decide that private statements, no matter how hateful or moronic, should be used against an owner to force him to sell his team. Rather, the owner should be free to hang onto the team and bear the financial cost. While I don’t think any owner would actually hold onto a team that is being boycotted, I believe he should at least have the right to.

 

[1] Kevin Conlon, NBA Team Owner in Hot Water Over Racist Comments Attributed to Him, CNN (April 27, 2014), http://edition.cnn.com/2014/04/26/us/nba-team-owner-alleged-racist-remarks/

[2] Id.

[3] V. Stiviano, Rochelle Sterling legal battle at heart of scandal, LA Times (April 29, 2014), http://www.latimes.com/local/lanow/la-me-ln-v-stiviano-rochelle-sterling-donald-lawsuit-20140429-story.html

[4] Shaundel Richardson, LeBron on Donald Sterling: “There’s no room for him” Sun Sentinel (April 27, 2014), http://articles.sun-sentinel.com/2014-04-27/sports/fl-charlotte-bobcats-news-0427-20140426_1_lebron-james-donald-sterling-los-angeles-clippers.

[5] Bruce Golding, Clippers stage silent protest over Donald Sterling’s racist rant, New York Post (April 28, 2014)http://nypost.com/2014/04/28/clippers-stage-silent-protest-over-donald-sterlings-racist-rant/.

[6] Jeff Zilgitt, Can Donald Sterling best thorough NBA constitution?USA Today (May 2, 2014) http://www.usatoday.com/story/sports/nba/2014/05/02/donald-sterling-lifetime-ban-constitution-bylaws-owners-los-angeles-clippers-forced-sale/8626843/.

[7] Id.

[8] Melissa Rohlin, Kareem Abdul-Jabbar offers a different perspective on Donald Sterling, LA Times (May 1, 2014), http://www.latimes.com/sports/sportsnow/la-sp-sn-kareem-abdul-jabbar-donald-sterling-20140501-story.html.

Warrantless Cellphone Searches: Ripe for Review

Warrantless Cellphone Searches: Ripe for Review

 By Robert Peel

I. Introduction          

The Fourth Amendment to the United States Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[i] While courts have generally held that the Fourth Amendment protects privacy rights when an individual is in a situation that he would legitimately have an expectation of privacy,[ii] recent events such as the terrorist attacks of September 11, 2001, technological advances, and the failure of the United States’ laws and the judicial system have contributed to the erosion of the Fourth Amendment right to privacy.[iii]

Before 9/11, a legitimate expectation of privacy was defined when a person genuinely believed a place to be private and if a reasonable person would expect the same location under the same circumstances to be private as well.[iv] However, a person in a public space would have a reduced expectation of privacy, even when visiting a person in a jail, if the purpose of the monitoring of the conversation was reasonably related to prison security.[v] Although the same privacy rules still nominally apply today, The USA PATRIOT Act and several United States Supreme Court decisions such as Clapper v. Amnesty International have dramatically reduced the expectation of privacy of individual citizens in the United States.[vi] More recently, the revelations by Edward Snowden, the National Security Agency whistleblower, have cast doubts on the realistic expectation of privacy in today’s world. [vii]

II. An Overview of the History of Electronic Surveillance

Two main types of electronic surveillance exist, wiretapping and electronic surveillance.[viii] The first type of electronic surveillance is the traditional wiretap, where a wire line of communication such as a phone line or cable is “tapped” and a voice transmission is captured.[ix] The second type, the broader electronic surveillance, is when data, information, or sounds are transferred electronically from one device to another and are intercepted, including communications such as emails.[x] Law enforcement is required to obtain a warrant under the Fourth Amendment because of the similarity of electronic surveillance and wiretaps to search and seizures.[xi] Congress has attempted to keep pace with the electronic surveillance by passing several laws that grant law enforcement authorities the power to enter homes to “bug” them while also trying to protect the right of individuals.[xii] One such law is the Electronic Communications Privacy Act (ECPA), which was later updated with an addition called The Communications Assistance for Law Enforcement Act of 2006.[xiii]

In June 2013, NSA whistleblower Edward Snowden revealed that the NSA had been collecting phone records and Internet records of American citizens as well as allied foreign leaders, most notably German Chancellor Angela Merkel.[xiv],[xv] Also alarming for privacy advocates was the fact that major Internet and telecommunications companies including Apple, Microsoft, Facebook, Twitter, Verizon, and AT&T were complicit in collecting this information for the NSA.[xvi] As recently as January 17, 2014, President Obama sought to alleviate the fears of the American people with a speech outlining new restrictions on the use and collection of phone and Internet records by the NSA, but generally defended the practice.[xvii] Both critics and proponents of the NSA program like to point out that only a few arrests have been made as result of the surveillance with proponents of the surveillance claiming that this shows that the information is not being abused, with critics of the program saying that since the surveillance is not even very useful it should be discontinued.[xviii]

Additionally, Congress passed the Foreign Intelligence Surveillance Act (FISA), which lowered the evidentiary threshold needed for surveillance for foreign intelligence gathering, as well as Americans accused of spying.[xix] After the terrorist attacks of 9/11, Congress passed the USA PATRIOT Act, which greatly broadened the authority of law enforcement agencies to fight terrorism, but also limited the privacy rights of individuals in the United States.[xx] In 2005, news organizations reported that the National Security Agency began intercepting phone calls and Internet communications of American citizens without warrants in 2001 following the terrorist attacks of 9/11.[xxi]

III. Circuit Court Decisions on Privacy of Electronic Surveillance

While federal courts have continually expanded the tools available to law enforcement agencies for catching criminals (including some that are arguably illegal),[xxii] there have been some noticeable victories for privacy advocates.[xxiii] In U.S. v. Wurie, the defendant was accused and convicted of trying to sell cocaine, in part from electronic data seized from his cell phone after he was lawfully arrested.[xxiv] After he was arrested, the defendant’s phone kept ringing with the same contact showing on the screen.[xxv] After going through the call log, the police officers found the address associated with the phone number, went to the address, and found a large amount of cocaine, large enough for distribution which allowed the defendant to be convicted for a higher crime.[xxvi] Though the First Circuit Court of Appeals ruled that the police officers had the right to seize the cell phone, the court in a split decision held that the police did not have the right to search the cell phone without a warrant.[xxvii] The First Circuit’s analysis stems largely from the fact that a modern cell phone is essentially like a computer today because of the large storage capacity and multifunctional uses.[xxviii]

While First Circuit agreed that “search-incident-to-arrest” is a valid doctrine for specific limited searches, because of the breadth of data on a cell phone, the Fourth Amendment precludes such a search because the it would be a general search.[xxix] Additionally, any exception, such as the need to preserve evidence that the defendant could destroy is irrelevant in a case where the police seize a cell phone, because the police would have time to obtain a warrant to search the item before the defendant could access the seized item and destroy the evidence.[xxx] The court also did not fear the “remote wipe” technology as they had mentioned technology that could easily prevent, or at least alleviate the problems caused by “remote wipe” apps including solutions as easy as turning off the phone until the warrant could be obtained and the memory copied.[xxxi]

While the government only used the cell phone to search the call logs, the government admitted in their case that they would be able to commit a more general search, and further that they could search any seized mobile device including tablets, iPads®, and laptops.[xxxii] This overly broad general search requires search warrant pursuant to the Fourth Amendment because cell phones contain so much information, including personal information, “photographs, videos, written and audio (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records.”[xxxiii] Furthermore, the court reasoned, a phone search could even conceivably become a house search with the various phone applications and programs that allow a person to view home security cameras through their mobile phone screen.[xxxiv]

The First Circuit seemed to fear in its ruling that even cracking the door for even minor infractions of privacy would lead to a deluge of information which would infringe upon the rights of individuals.[xxxv] The First Circuit was prepared to err on the side of individual liberty at the expense of law enforcement.[xxxvi] Additionally, the court believed that the amount of data obtainable from a phone is far greater than the amount of data that one could store in a wallet, briefcase, or address book, which are the traditional containers that the government has been able to invoke in the search-incident-to arrest doctrine.[xxxvii]

Despite the apparent gains for privacy advocates for electronic surveillance with the First Circuit’s ruling, the First Circuit’s ruling appears to be the minority position with the Fourth, Fifth, Seventh, and Tenth Circuits, all allowing warrantless cellphone searches in several unanimous opinions.[xxxviii] In Judge Posner’s opinion for the Seventh Circuit in U.S. v. Flores-Lopez, he analogized the looking through a seized cell phone to the opening of a diary to verify its owner’s name and address which has been shown to be a valid use of the warrantless search-incident-to-arrest doctrine.[xxxix] In Flores-Lopez, the defendant was convicted for large-scale crimes involving methamphetamine, and part of the evidence that was used for the conviction came from when the police officer searched a cell phone from the defendant to discover the defendant’s cell phone number so that law enforcement could subpoena telephone records to find more evidence from the crime.[xl]

IV. The Supreme Court is currently deliberating on the issue

            Given the circuit split and the uproar over warrantless surveillance in general, the Supreme Court has wisely decided that the issue is ripe for review.[xli] Many have argued that the founding fathers would have never considered such an expansive view of the Fourth Amendment.[xlii] Several of the conservative Justices, including Chief Justice John Roberts, seemed to wonder what the value of the obtaining a warrant would be since the warrant would likely be granted. Despite the need for a fast response for law officials, it is scary to think that the Chief Justice may not believe that a warrant is needed to search such an expansive item. However, the liberal justices, including Sonia Sotamayor, seemed to be more willing to protect the public from such unreasonable searches.[xliii] Interestingly, Antonin Scalia, usually a bastion of the right, seemed to be willing to at least search for a moderate ground in the cell phone searches.[xliv]  He may be the one who actually casts the deciding vote, instead of the usual Anthony Kennedy, and the Supreme Court will likely make its decision some time in early June.  However, despite the oral arguments, it is often wise not to read too much into what the Justices ask during the oral portion of the case, as that does not necessarily predict how they will vote. Hopefully, when the Supreme Court decides the outcome, the Justices will choose to protect the right of American citizens from unreasonable searches of potentially intimate property as was guaranteed by the Bill of Rights.

 

 

[i] U.S. Const. amend. IV

[ii] Electronic Surveillance, Legal Information Institute (Oct. 21, 2013, 3:30 PM), http://www.law.cornell.edu/wex/electronic_surveillance

[iii]Hina Hamshi, Alex Abdo, Privacy and Surveillance Post-9/11, American Bar Association (Oct. 21, 2013, 4:00 PM), http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol38_2011/human_rights_winter2011/privacy_and_surveillance_post_9-11.html

[iv]Electronic Surveillance, supra note 2

[v]Id.

[vi]Hamshi, supra note 3

[vii]Doyle Murphy, Edward Snowden says NSA spying worse than Orwell’s ‘1984’ in his ‘Alternative Christmas Message’, New York Daily News, Dec. 25, 2013, available at http://www.nydailynews.com/news/world/edward-snowden-nsa-spying-worse-orwell-nineteen-eighty-four-article-1.1558183

[viii]Electronic Surveillance, supra note 2

[ix]Id.

[x]Id.

[xi]Id.

[xii]Id.

[xiii]Id.

[xiv]The NSA Files, The Guardian (Dec. 20, 2013, 1:00 PM), http://www.theguardian.com/world/the-nsa-files

[xv]Paul Owen, NSA files – Edward Snowden’s letter to Angela Merkel, The Guardian, Nov. 1, 2013, available at http://www.theguardian.com/world/2013/nov/01/nsa-files-edward-snowdens-letter-to-angela-merkel-live-coverage

[xvi]Kevin Bankston, Bad Connection, Slate, Nov. 21, 2013, available at http://www.slate.com/articles/technology/future_tense/2013/11/telcos_like_verizon_and_at_t_are_silent_on_nsa_surveillance.html

[xvii]Transcript of President Obama’s Jan. 17 speech on NSA reforms, The Washington Post, Jan. 17, 2014, available at http://www.washingtonpost.com/politics/full-text-of-president-obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-4a4bf7bcbd84_story.html

[xviii]Ed Pilkington, Nicholas Watt, NSA surveillance played little role in foiling terror plots, experts say, The Guardian, Jun. 12, 2013, available at http://www.theguardian.com/world/2013/jun/12/nsa-surveillance-data-terror-attack

[xix] Electronic Surveillance, supra note 2

[xx] Id.; Hamshi, supra note 3

[xxi] NSA Spying on Americans, Electronic Frontier Foundation (Dec. 20, 2013, 1:30 PM), https://www.eff.org/nsa-spying

[xxii]See Hamshi, supra note 3

[xxiii]United States v. Wurie, 728 F.3d 1, 1-2 (1st. Cir. 2013)

[xxiv] Id.

[xxv]Id.

[xxvi]Id.

[xxvii]Id. at 14.

[xxviii]Id. at 7-8.

[xxix]Id. at 8-9, 13.

[xxx]Id. at 11-12

[xxxi]Id.

[xxxii]Id. at 8-9, 13.

[xxxiii]Id.

[xxxiv]Id.

[xxxv]Id.

[xxxvi] See generally id.

[xxxvii]Id. at 9.

[xxxviii]Id. at 16.

[xxxix]United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012)

[xl]Id. at 803-804

[xli] See Nina Totenberg, Supreme Court Considers Limits on Warrantless Cellphone Searches, NPR (Apr. 29, 2014, 4:03 PM), http://www.npr.org/2014/04/29/308068253/supreme-court-considers-where-lines-drawn-in-cell-phone-searches

[xlii] Id.

[xliii] Id.

[xliv] Id.

Lights, Camera, Arrest!: Police Officers’ Ability to Stop and Arrest Citizens from Video Recording Under the Qualified Immunity Doctrine

Lights, Camera, Arrest!: Police Officers’ Ability to Stop and Arrest

Citizens from Video Recording Under the Qualified Immunity Doctrine

By: Clay Comley

             As the 1st Amendment of the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[1] While the range of rights protected by the First Amendment is anything but a straightforward list governed by a bright-line rule, the 1st Amendment is generally understood as protecting two classes of rights: Freedom of religion rights under the Establishment and Free Exercise clauses and freedom of speech rights under the freedom of expression clause.[2] Furthermore, the Freedom of Expression clause encompasses numerous types of citizens’ rights including freedom to express oneself without government interference and freedom to peacefully assemble.[3] However, the component of the First Amendment at issue in this paper is the freedom of press. Despite this right’s title, the Supreme Court has recognized that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information . . .” available to the public.[4] In other words, the protections afforded to the freedom of press through the First Amendment do not give members of the press or media any special rights over ordinary citizens.[5] The First Amendment allows all citizens to record matters of public interest and express themselves through dissemination of this information.[6] Because case law clearly indicates that the Freedom of Press protects ordinary citizens from gathering information “from any source by means within the law,” courts have reasoned that the filming of public officials engaged in their duties in public spaces is a protected facet of freedom of press.[7] However, because public officials deal with varying situations in their official capacities, courts have also reasoned that such officials must be allowed some immunity against claims from members of the public.[8]

As a result of countless claims against public officials acting in their official capacity, courts created the legal doctrine of Qualified Immunity to protect these individuals from personal liability.[9] Instead of sending officials out into the public with no sense of what they could be held liable for, Qualified Immunity seeks to provide these officials with the ability to reasonably anticipate when actions will open them up to personal legal liability.[10] As a result, in theory, if a public official acts in a way reasonably believed to be lawful, they are shielded from liability for that action.[11]

Under the Qualified Immunity doctrine, governmental actors performing discretionary functions are entitled to Qualified Immunity from suits as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[12] Thus, Qualified Immunity acts as a rebuttable presumption for public officials if they allege that they acted reasonably when performing the allegedly violative behavior.[13]

As aforementioned, in order to overcome the rebuttable presumption of Qualified Immunity, a plaintiff must show that a constitutional right was both violated and “clearly established” at the time of the violation.[14] While some rights such as the right to speak in a public forum and publish and distribute literature are undoubtedly established and detailed in precedent case law, whether video recording police officers’ conduct is a “clearly established” right is still strongly debated among the federal courts throughout the United States.

Since video recording technology has been made readily available to the general public, people have been recording the conduct of law enforcement officers.[15] However, just like the federal courts involved in the circuit split at issue here, there are parties that argue for both sides. Advocates of citizens’ right to record police activities often point to flagrant instances of injustice and brutality, such as the infamous Rodney King beating in 1991.[16] For example, the independent investigative LAPD team stated “. . . without the . . . videotape the complaint might have been adjudged to be ‘not sustained,’ because the officers’ version conflicted with the account by King and his two passengers.”[17] While this instance has become the flagship for civil rights activists speaking against police brutality, it also illustrates the dangers of individuals’ testimony without concrete recorded evidence. Without the availability of 1st-hand recordings, many crimes and torts would be dismissed from our legal system and some would never even come to light.[18]

Despite this evidential concern, opposing parties argue that recording police can negatively affect how they perform their official duties.[19] For example, if an officer is recorded and subsequently reprimanded by his department or the public despite no wrongdoing being found, that officer may be deterred from effectively using force against citizens in the future.[20] Furthermore, in some circumstances, the party responsible for the recording can inhibit a police officer’s duty to work effectively. In Ortiz, while recording the police officer, the plaintiff placed his camera “as close as one foot” from the officer’s face.[21] Such drastic actions not only decrease a law enforcement officer’s privacy as an American citizen, but may debatably teeter on the edge of assault in the right circumstances.[22] As a result, 11 states still enforce some form of an Eavesdropping law or wiretapping statute against citizens who record police activities.[23] Under these laws, without the officer’s permission, he or she may not be recorded in any way. Furthermore, if unauthorized recording occurs, the recording individual may then be subject to criminal discipline.[24] Regardless of which side one takes in this debate, the recent cases comprising the circuit split indicate that there are advocates for both sides

CURRENT CIRCUIT SPLIT

Jurisdictions Holding Police Officers have Qualified Immunity

The Third and Fourth Circuits have both held that video recording police officers is not a “clearly established” right, which affords Qualified Immunity to police officers who stop citizens from recording their behavior.[25] It is important to note that although these courts afford Qualified Immunity to police officers in these circumstances, they concede that video recording police activity may be a right protected by the First Amendment. Despite this concession, citizens who have this right violated by police officers are unable to successfully obtain civil judgments against them. It is also important to note that each case from these circuits have varying facts, which as a result, may have affected the court’s opinion.

According to the Third Circuit, video recording police activities during traffic stops is not a “clearly established” right because the U.S. Supreme Court has held that traffic stops are inherently dangerous situations for police officers.[26] In Kelly, the plaintiff was a passenger in a vehicle pulled over for minor traffic violations including speeding and a “bumper height restriction.”[27] Plaintiff, a passenger in the vehicle, secretly began recording the defendant without his knowledge. When the officer realized this, he confiscated the camera and arrested the plaintiff. The police officer claimed he had probable cause to arrest the plaintiff due to Pennsylvania’s wiretap statute and his lack of consent to his activities being recorded.[28] After the lower court granted defendant’s motion for summary judgment under the Qualified Immunity doctrine, the Third Circuit reviewed the case.[29] Ultimately affirming the district court’s grant of summary judgment, the court focused on two main points: 1) the fact that there was conflicting case law throughout the country at the time of the alleged violation and 2) the inherently dangerous nature of traffic stops that requires police officers’ command of the situation.[30] As a result of these circumstances, the Third Circuit held that police officers engaged in traffic stops are to be afforded Qualified Immunity for cessation of video recording.[31]

The Fourth Circuit also determined that recording police activity was not a “clearly established” right.[32] However, unlike the Third Circuit, the Fourth Circuit ruled against a plaintiff for recording in a public space as opposed to during a traffic stop.[33] Unfortunately, the Fourth Circuit Court failed to elaborate on its precise reasoning. In its opinion, the Court simply stated, “[T]he district court concluded that Szymecki’s asserted First Amendment right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct. We have thoroughly reviewed the record and the relevant legal authorities and we agree.”[34] However, the Court also added Fourth Circuit precedent that states, “if the right is recognized in another circuit and not in this circuit, the official will ordinarily retain the immunity defense.”[35] Therefore, the Fourth Circuit does not use another circuit’s recognition of a “clearly established” right as evidence of its status as such. Instead, this Circuit only recognizes rights as “clearly established” if it is shown in its own courts.

Jurisdictions Holding Video Recording Police is “Clearly Established” Right

As previously stated, the First and Eleventh Circuits have held that video recording police officers’ activity is a “clearly established” right.[36] Thus, in those circuits, law enforcement officers do not possess Qualified Immunity when they prevent or cease video recordings.[37]

For example, the Eleventh Circuit has held that citizens have a “clearly established” right to video record police activities in public places.[38] The Court also stated that this right is especially established when the subject being recorded is a “matter[] of public interest,” such as a public officer’s interactions with civilians.[39] Without discussing the particular facts of the plaintiff’s claim, the Eleventh Circuit recognized this conduct as a First Amendment right “subject to reasonable time, manner and place restrictions.”[40] Although the Court affirmed the grant of defendants’ motion for summary judgment, this was due to plaintiff’s failure to show the conduct actually violated plaintiff’s rights.[41] Despite the plaintiff’s lack of evidence, the Court held that such video recording is a “clearly established” right.[42] Unfortunately, this opinion did not detail the extent of the right or what restrictions would be considered “reasonable” in the Eleventh Circuit.

But after the Eleventh Circuit’s decision in 2000, more than a decade later, the First Circuit agreed with the Eleventh Circuit and further explained the nature of this First Amendment right.[43] In Glik, the First Circuit found that the right to record police officers “fits comfortably within” the principles protected by the First Amendment.[44] In Glik, the plaintiff was walking in a well-known park in Boston called the Boston Common, when he noticed three police officers arresting a suspect.[45] After hearing another bystander exclaim that the officers were hurting the man, the plaintiff began recording the event on his cell phone.[46] After the suspect was subdued, an officer approached the plaintiff and asked if the cell phone recorded audio.[47] Replying in the affirmative, the plaintiff continued recording and was then arrested for violation of the Massachusetts wiretap statute.[48] The phone was confiscated and kept as evidence.[49] All of the criminal charges against plaintiff were dropped and he initiated this lawsuit against the officers.[50] After defendants’ motion for summary judgment as denied by the lower court, they appealed to the First Circuit claiming that defendants were protected under Qualified Immunity.[51] While defendants argued that plaintiff did not have the right to record because he was a private individual rather than a reporter, the First Circuit stated that such First Amendment rights were not limited to members of the press.[52] The Court further explained that because recording police activity “. . . not only aids in the uncovering of abuses . . . but also may have a salutary effect on the functioning of government . . .” private citizens should be allowed to exercise such a right without police interference.[53] According to the First Circuit, because plaintiff acted peacefully, legally, and was protected by the First Amendment, defendants “lacked the authority to stop [him].”[54] The Court also appropriately noted “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.”[55] Much like the Eleventh Circuit stated in Smith, the First Circuit also conceded that reasonable limitations must occasionally be placed on such activities.[56] Despite this concession, the Court stated that the plaintiff was still protected because he acted in an obviously public area and neither “spoke to nor molested the officers” throughout his recording.[57]

Obviously, one of the most alarming issues that surround this controversy is that video recording is becoming more widely available and simplified through the use of cell phones. According to ABC News, 91% of Americans currently own a mobile phone, which most likely have video recording capabilities.[58] Furthermore, 61% of Americans use a “smart phone” with Internet, capable of posting videos online.[59] Thus, this issue simply must be settled because the amount of litigation regarding such recording is likely to only increase.

[1] U.S. CONST. amend. I.

[2] FIRST AMENDMENT, http://www.law.cornell.edu/wex/first_amendment (last visited Oct. 3, 2013).

[3] Id.

[4] First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978).

[5] First Amendment, http://www.law.cornell.edu/wex/first_amendment.

[6] Blackston v. AL, 30 F.3d 117, 120 (11th Cir. 1994).

[7] Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978).

[8] Abbott v. Sangamon Cty., 705 F.3d 706, 14 (7th Cir. 2012).

[9] Id.

[10] Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir. 2008).

[11] Chelios, 520 F.3d at 691.

[12] Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982) (emphasis added).

[13] E.g., id.

[14] Id.

[15] See Andrew R. Shaw, Our Duty in Light of the Law’s Irrelevance: Police Brutality and Civilian Recordings, 20 GEO. J. POVERTY LAW & POL’Y 161 (2012).

[16] Id. at 162.

[17] Id.

[18] Id.

[19] http://www.pqed.org/2011/01/should-people-be-allowed-to-record.html.

[20] Id.

[21] Ortiz v. City of New York, 2013 U.S. Dist. LEXIS 136897 (S.D.N.Y. 2013).

[22] Id.

[23] See generally Stephanie Claiborne, Comment: Is it Justice or a Crime to Record the Police?: A Look at the Illinois Eavesdropping Statute and its Application, 45 J. MARSHALL L. REV. 485.

[24] Id.

[25] See generally Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009); King v. City of Indianapolis, 2013 U.S. Dist. LEXIS 123505 (So. Ind. 2013).

[26] Kelly, 622 F.3d at 262.

[27] Id. at 252.

[28] Id.

[29] Id. at 251.

[30] Id.

[31] Id.

[32] Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009).

[33] Id.

[34] Id. at 853.

[35] Edwards v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (internal quotations omitted).

[36] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

[37] Id.

[38] Smith, 212 F.3d 1332

[39] Id. at 1333

[40] Id.

[41] Id.

[42] Id.

[43] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).

[44] Id. at 82.

[45] Id. at 79.

[46] Id.

[47] Id. at 80.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id. at 82.

[53] Id. at 82-83.

[54] Id. at 83.

[55] Id. at 84

[56] Id.

[57] Id. at 84

[58] Joanna Stern, More Than Half of Americans Own Smartphones, ABC NEWS http://abcnews.go.com/blogs/technology/2013/06/more-than-half-of-americans-own-smartphones/.

[59] Id.

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

By Lacy Triplett

In relevant portion, the Fourth Amendment provides people “the right…to be secure in their persons…and effects, against unreasonable searches, and no warrants shall issue, but upon probable cause…”[1] Although the Fourth Amendment states that searches of persons and their effects must be conducted pursuant to a warrant, there are certain exceptions to that rule.[2] One common exception is a search incident to arrest, which as stated in Chimel v. California permits a police officer to search an arrestee’s person and the area within the arrestee’s immediate control.[3] The Chimel Court rooted the search incident to arrest exception in two justifications: (1) the need to protect an officer’s safety and (2) the need to prevent the arrestee from destroying evidence.[4]

In addition to searching the arrestee’s person, any items or containers on the arrestee’s person at the time of the arrest or within the arrestee’s reaching distance may be searched incident to the arrest.[5] The exception has been used for decades to uphold the warrantless searches of a variety of objects, such as pagers, wallets, and address books.[6] Yet the law is in flux in regard to warrantless searches of cell phones. Various circuits have decided the issue with the majority of those courts holding that cell phones are permitted to be searched incident to arrest under varying Fourth Amendment jurisprudence.[7] Despite the variance among the circuit courts, the Supreme Court will soon settle the split and provide police officers with an easy and practical rule to apply in the field.

On April 29, 2014, the United States Supreme Court will hear oral arguments regarding whether the Fourth Amendment requires police officers to obtain a search warrant prior to searching an individual’s cell phone incident to his lawful arrest.[8] The Court will hear United States v Wurie and its companion case, Riley v. California, both of which involve cell phone searches with the former being a flip-phone cell phone and the latter being a smartphone.[9]

United States v. Wurie

An officer was performing routine surveillance in Boston when he noticed Wurie and another individual engaged in what the officer believed to be a drug sale in a convenience store parking lot.[10] Wurie drove off in his car, while the officer and another member of the Boston Police Department stopped the other individual and found two plastic bags of crack cocaine in his pocket.[11] The individual stated he bought the crack cocaine from Wurie and noted that Wurie lived in South Boston.[12] Wurie was later arrested for distributing crack cocaine.[13] When Wurie subsequently arrived at the police station, two cell phones were taken from him as well as a set of keys and a large sum of cash.[14] Prior to being booked, one of Wurie’s cell phones received repeated calls from a number listed as “my house.”[15] The officers then opened Wurie’s cell phone to check his call log, and as soon as the officers opened the phone they saw Wurie’s wallpaper, which was a picture of a young black woman holding a baby.[16] The officers were able to determine the phone number associated with the caller ID for “my house,” which led them to an address where Wurie’s car was parked when he was arrested.[17] The officers then took the keys they confiscated from Wurie and went to the address associated with “my house” where the officers saw a woman who resembled the photograph on Wurie’s cell phone wallpaper.[18] Once at the apartment, the officers entered and “froze” it while they obtained a search warrant.[19] Upon receipt of the warrant, the officers seized cocaine and marijuana, guns, ammunition, and cash.[20]

The United States District Court for the District of Massachusetts denied Wurie’s motion to suppress the evidence officers obtained from searching his cell phone.[21] The First Circuit held that the officers’ search of Wurie’s cell phone was a violation of the Fourth Amendment, and specifically stated “warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception, given the government’s failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence.”[22] The First Circuit continued by stating that the Supreme Court, when it decided the cases which set forth the search incident to arrest exception, “could not have envisioned a world a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast store of tangible data—data that is not immediately destructible and poses no threat to the arresting officers.”[23] In reversing the district court, the First Circuit stated, “warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest…without having to secure a warrant. We find nothing in the Supreme Court’s search-incident-to-arrest jurisprudence that sanctions such a ‘general evidence-gathering search.’”[24]

Riley v. California

Riley was suspected in a gang shooting and was stopped in his vehicle by officers.[25] A subsequent search of his car revealed two handguns, which were forensically tied to the earlier shooting.[26] Riley was arrested and his cell phone was seized; his cell phone records showed that his phone was used near the shooting location around the time the shooting occurred and contained pictures of Riley making gang signs.[27] The trial court denied Riley’s motion to suppress the evidence from his vehicle search and from his cell phone search.[28]

People v. Diaz, a California Supreme Court case, controlled the Court of Appeals for the Fourth District’s ruling.[29] Diaz held that warrantless searches of cell phones were permissible because attempting to define a container as “worthy” or “unworthy” exceeded the bounds of the Fourth Amendment.[30] The California Supreme Court further stated that the storage capacity of an item was irrelevant.[31] Riley followed the precedent set forth by Diaz, and resulted in the Fourth District affirming the denial of Riley’s motion to suppress.

Possible Outcomes

Hopefully, the Court will issue a concrete ruling after it hears oral arguments on the issue of whether a search warrant is needed before officers search an arrestee’s cell phone, which will provide guidance to police officers. The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurie and find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant. The Court may take other approaches and rule that officers are only permitted to seize cell phones incident to arrest and are prohibited from searching them until there is a warrant. Another approach is that officers can only search cell phones when there is reason to believe that there is evidence of the crime on the cell phone, which falls in line with the Court’s recent decision in Arizona v. Gant.[32] Whatever ruling the Court chooses to adopt will have a substantial impact on police officers and citizens alike, either by significantly restricting the types of searches that can be performed or by significantly imposing on an individual’s privacy rights.

[1] U.S. Const. amend. IV.

[2] United States v. Robinson, 414 U.S. 218, 224 (1973).

[3] 395 U.S. 752, 762–63 (1969).

[4] Id.

[5] United States v. Curtis, 635 F.3d 704, 711–12 (5th Cir. 2011).

[6] See United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996); United States v. Watson, 669 F.2d 1374, 1384 (11th Cir. 1982); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993).

[7] See Silvan W. v. Briggs, 309 F. App’x 216 (10th Cir. 2009); United States v. Finley, 477 F.3d 250 (5th Cir. 2007); United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012); United States v. Murphy, 553 F.3d 405 (4th Cir. 2009).

[8] United States v. Wurie, SCOTUSblog, http://www.scotusblog.com/case-files/cases/united-states-v-wurie.

[9] Greg Stohr, Mobile-Phone Searches by Police Get Top U.S. Court Review, Bloomberg, (Jan 17, 2014) http://www.bloomberg.com/news/2014-01-17/mobile-phone-searches-by-police-get-top-u-s-court-review.html.

[10] United States v. Wurie, 728 F.3d 1,1 (1st Cir. 2013).

[11] Id.

[12] Id.

[13] Id. at 2.

[14] Id.

[15] Id.

[16] Wurie, 728 F.3d at 2.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Wurie, 728 F.3d at 12.

[23] Id. at 12.

[24] Id. at 13.

[25] People v. Riley, D059840, 2013 WL 475242 (Cal. App. 4th Dist. Feb. 8, 2013).

[26] Id. at *1.

[27] Id. at *2.

[28] Id.

[29] Id. at 6.

[30] People v. Diaz, 244 P.3d 501, 507 (Cal. 2011).

[31] Id. at 95.

[32] 556 U.S. 332 (2009).

New Difficulties in Executions Prompt Constitutional Questions

New Difficulties in Executions Prompt Constitutional Questions

By Alex Darby

                The death penalty is currently facing renewed scrutiny in the United States as the drugs previously used for lethal injection become increasingly difficult to obtain. States that still employ the death penalty have scrambled to find alternative methods of killing those on death row, raising new questions about the constitutionality of the death penalty.

The death penalty has become increasingly rare in most Western countries. Many of the companies that produce the drugs used in lethal injections are based in European countries that have banned the death penalty.[1] The drugs most commonly used in lethal injections were previously pentobarbital and sodium thiopental; however, upon increased public outcry that the drugs were used in executions, the companies that produced these drugs have either stopped production or sell the drugs with the strict prohibition that they cannot be used in executions.[2] For example, on learning that the drug propofol would be used for executions in Missouri, the German manufacturer of the drug requested the return of the drugs and threatened European Union sanctions. The governor postponed the execution of a man on death row for fear that the use of propofol would threaten the supply of the drug needed for hospitals.[3] The German company threatened the use of European Union sanctions and requested that the drug be returned.[4] Alabama has been forced to postpone executions because it has run out of pentobarbital, the initial drug used in the state’s executions.[5] Further, even states that may currently have a stockpile of the drugs will face a shortage when the drugs expire and are no longer usable.

To deal with the shortage of previously used drugs, states are turning to untested drugs from compound pharmacies that are “produced in small amounts on special order without strict regulatory oversight and have been linked to contamination in the past.”[6] This creates a significant issue as the manner of death that these drugs produce is not always clear. Dennis McGuire was executed by the state of Ohio using an untested combination of drugs.[7] The execution was the longest recorded execution in Ohio history, taking nearly 24 minutes.[8] McGuire spent roughly 10 minutes gasping and snorting before he finally died.[9] A properly performed lethal injection takes between 4 and 5 minutes to be completed.[10] These seemingly painful side effects and increasing secrecy around the sources for the drugs raise new Due Process and Eighth Amendment issues.

Some states, such as Oklahoma have enacted laws that keep the source of the drugs and the types of drugs used secret, even from the court itself.[11] The Alabama legislature is currently considering a law similar to the Oklahoma statute.[12] Proponents of the law argue that it is important to keep this information secret to ensure suppliers are willing to continue to provide the drugs.[13] However, an Oklahoma judge recently ruled that such secrecy is unconstitutional.[14] Proponents of the laws argue that the secrecy is required to ensure drug companies will continue to supply the needed drugs while opponents argue that without knowing what the lethal cocktail is composed of, there is no way ensure that the execution does not violate the Eighth Amendment prohibition on cruel and unusual punishment.[15] An Oklahoma judge held that, because of the potential Eighth Amendment risks, the secrecy surrounding the composition of the drugs created a Due Process issue that rendered it unconstitutional.[16]

The Eighth Amendment sets out a prohibition on cruel and unusual punishment. The Supreme Court has held varying positions on the constitutionality of the death penalty since the 1970’s. In 1972, the Court struck down Georgia’s death penalty statutes and with it similar statutes in a majority of states.[17] The Court changed course just four years later, holding that the death penalty is not per se unreasonable.[18] Under this reasoning, the resulting death is not unconstitutional, but the manner in which the punishment is carried out may be.

When the Court has recently reviewed cases involving lethal injection, the Court held that the Eighth Amendment prohibits methods that create an objectively intolerable risk of harm.[19] The risk of some pain is not sufficient, as in Baze v. Rees the court upheld the method lethal injection because they were alleged to cause severe pain only if administered improperly.[20] The issue that arises in the case of drugs from compound pharmacies is that these drugs are often untested- including the injection used in the execution of Dennis McGuire in Ohio. There is no way to know whether the resulting death will be painful or not until the inmate is lying on the table gasping. The attempt by various states to shroud the drugs used in secrecy creates an even more significant risk. There is no way for an attorney to argue that the drugs pose an Eighth Amendment violation, as there is no way to even speculate the effects a drug may have if the type of drugs to be used is untested and its source unknown.

While the difficulty procuring these drugs is causing significant difficulties for some states, it provides a new opportunity to discuss the death penalty, and whether it is still aligned with the views of the majority of the country. The Court has long tied Eighth Amendment analysis to evolving standards of decency.[21] The United States is one of the few Western countries that still use capital punishment. Further, the majority of executions in the United States occur in only a handful of states. [22] The death penalty has a long history in this country; however, the methods formerly used- such as hangings or the electric chair- would make many uncomfortable today. The idea that lethal injection is a “humane” means to end human life is now being challenged as new drugs produce accounts of deaths that seem far from painless. It is time that the US again raise its standard of decency, and prohibit this punishment altogether.

 

[1] See Facts About the Death Penalty, Death Penalty information Center, http://www.deathpenaltyinfo.org/documents/FactSheet.pdf; The Council of Europe, http://hub.coe.int/what-we-do/human-rights/death-penalty.

[2] Manny Fernandez Executions Stall as States Seek Different Drugs NY Times (November 8, 2013), http://www.nytimes.com/2013/11/09/us/executions-stall-as-states-seek-different-drugs.html?ref=capitalpunishment&_r=0.

[3] Aidan Lewis, Lethal Injection: Secretive US States Resort to Untested Drugs, BBC News (Nov. 14, 2013),   http://www.bbc.com/news/world-us-canada-24935868.

[4] Id.

[5] Alabama Out of Execution Drugs, Can’t Carry Out Sentences, Al.Com (Mar. 25, 2014, 8:04 p.m.), http://blog.al.com/wire/2014/03/alabama_out_of_execution_drug.html

[6]Erik Eckholm, Oklahoma Told It Can’t Shield Suppliers of Execution Supplies, NY Times (March 26, 2014), http://www.nytimes.com/2014/03/27/us/oklahoma-told-it-cant-shield-suppliers-of-execution-drugs.html?ref=capitalpunishment

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Kyle Whitmore, While Alabama Legislature Considers Execution Secrecy Bill, Oklahoma Judge Rules Similar Laws Unconstitutional, AL.Com (Mar. 26, 2014, 3:25 p.m.), http://blog.al.com/wire/2014/03/while_alabama_legislature_cons.html.

[12]  Id.

[13] See Lewis, supra note 3.

[14] Whitmore, supra note 11.

[15] Eckholm, supra note 6.

[16] Id.

[17] Furman v. Georgia, 408 U.S. 236, 240 (1972).

[18] Gregg v. Georgia, 428 U.S. 153, 179 (1976).

[19] Baze v. Rees, 553 U.S. 35, 50 (2008).

[20] Id. at 54-55.

[21] Roper v. Simmons, 543 U.S. 551, 561 (2005).

[22] See Facts About the Death Penalty, Death Penalty information Center, http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.

Right to Work (For Less): The Impact of ‘Right to Work’ Laws on Workers, Their Families, and the Economy as a Whole

Right to Work (For Less):

The Impact of ‘Right to Work’ Laws on Workers, Their Families, and the Economy as a Whole

By Nathan Gilbert

“Those who would destroy or further limit the right of organized labor- those who would cripple collective bargaining or prevent organization of the unorganized- do a disservice to the cause of democracy”[1] –John F. Kennedy

  1. Introduction

Over the past few years, those who seek to restrict and roll-back workers’ rights have been hard at work.  From Gov. Scott Walker’s push in Wisconsin to restrict collective bargaining rights,[2] to politicians interfering with a union election in Tennessee[3], the war on workers and their hard-fought gains in the workplace is being waged nationwide.  One of the major fronts in this struggle is the promulgation of so-called ‘Right to Work” laws.[4] This essay will examine Right to Work laws and the adverse impact they ultimately have on those who they claim to protect.

  1. Right to Work Explained

To adequately address this issue, we must first define what a Right to Work law is.  In short, Right to Work laws allow those represented by unions and covered by collective bargaining agreements negotiated and administered by unions to opt out of paying for such representation.[5] In a non-Right to Work state, or union security state, if an individual works in a location that is represented by a union, the employee has a choice: he can either choose to join the union and pay union dues, or he can choose not to join the union and pay a fair share fee to compensate the union for the costs of representing him.[6]

Critics call this “forced unionism”[7], but this moniker is simply not true.  Since the passage of the Taft Hartley Act of 1947, no person can be forced to join a union as a condition of employment.[8]  So, even in a state without Right to Work, no one can be forced to join a union against their will.  What is true, however, is that in union security states, employees who choose not to join the union can be required to pay a fee to the union to reimburse it for the costs of representing the worker.[9] The NLRB mandates that this fee cover “only that share of dues used directly for representation, such as collective bargaining and contract administration.”[10]  This is because, if the employee works in a union environment, the union is bound to represent and negotiate on behalf of all workers in the bargaining unit whether  they choose to join the union or not.[11]

The difference in a Right to Work state is that an employee cannot be required to pay union dues, nor pay such a fee to the union for the costs of representation, nor can he be required to join the union that represents him.[12] Essentially, the worker can get a “free ride”, by not paying union dues nor a fair share fee while still retaining all of the wages, benefits, and representational rights that the union has bargained for.  Again, the worker still enjoys all of the benefits and protections of the union contract even though he is not reimbursing the union at all for the services rendered.[13]

To help explain this concept, it may be beneficial to use an example. Let’s consider John the welder.  John chooses to go to work for ABC Corp. in Colorado, a union security state.  ABC’s employees are represented by Union XYZ.  When John chooses to go to work for ABC, he will be covered by the union contract negotiated and administered by XYZ.  This means he will receive all of the protections that come from union representation.  Since John is working in a union security state, he will be required to either join the union or pay a fair share fee to the union for their services in representing him.[14]  Now, let’s change the scenario and place John in a Right to Work state, say Mississippi.  John still works for ABC and is still represented by Union XYZ.  The difference now is that, because of the Right to Work law, John is not required to pay anything for the representation and benefits he receives under the union contract.[15]  He is basically allowed to receive all of the union benefits and representation without footing any of the bill.  This shifts the costs of John’s representation to his fellow co-workers who do choose to join the union.  Essentially, John’s co-workers are paying for his ‘right’ to free load.  It naturally follows that if all workers can get union benefits and protections without paying for them, then it is likely that very few employees will ever join the union and eventually the union will not be financially able to continue representing the employees.

This would be akin to a shopper going into a warehouse store such as Sam’s Club and demanding the same lower prices enjoyed by members without having to pay for those benefits through membership fees.  I can imagine that Sam’s Club would not support such a “right-to-shop” scheme, but this is no different than Right to Work.  It seems that union security states operate on the simple principle that if one enjoys the benefits on another’s hard work, he/she should have to contribute something to compensate for those efforts.  In a union security state, if a worker does not want to join the union or pay his fair share, he is still free to find work in an environment without union representation.  Unions are not charities and cannot survive without dues-paying members. Thus, it is natural that Right to Work laws would lead to the decreasing power of unions and a parallel decline in the standard of living for workers. This is exactly what Right to Work does.

  1. Consequences of Right to Work

One of the main consequences of attacking workers and their unions through Right to Work laws is the lower wages and benefits enjoyed by such workers when compared to those represented by unions:

  • “On average workers in states with “Right to Work” earn $5,538 a year less than workers in states without these laws.”[16]
  • “Overall union members earn 28 percent ($198) more per week than nonunion workers.”[17]
  •  “78 percent of private sector union workers have access to medical insurance through their jobs, compared with 51 percent of nonunion workers.”[18]
  • “Only 2.9 percent of union workers are uninsured, compared with14.2 percent of nonunion workers.”[19]
  • “…77 percent of private sector union workers have access to a guaranteed (defined benefit) retirement plan through their jobs, compared with just 20 percent of nonunion workers”[20]
  • Perhaps most startlingly, “[a]ccording to data from the Bureau of Labor Statistics, the rate of workplace deaths is 52.9% higher in states with Right-to-Work laws.”[21]

One of the main reasons that many on the Right often cite in of support Right to Work laws is that they believe that these laws will create jobs and support industrial development in their states.[22]  This also, does not seem to be the case.  A study from the Economic Policy Institute examined the state of Oklahoma before and after it passed Right to Work legislation.[23]  The study concluded that “Right-to-work laws have not succeeded in boosting employment growth in the states that have adopted them.”[24] Additionally, when looking at Oklahoma, one of the most recent states to pass Right to Work, the study found that before the law, manufacturing jobs were on the increase, but after Right to Work, “manufacturing employment and relocations into the state reversed their climb and began to fall, precisely the opposite of what right-to-work advocates promised.”[25]  Thus, the job growth panacea promised by proponents of Right to Work does not seem to conflate with reality.

But, for argument’s sake, let’s assume for a moment that Right to Work laws did increase job growth in states that adopt it. Would that be a good thing?  The businesses that would be moving to Right to Work states would likely move there to escape the wages and benefits bargained for by unions in their former states.  This means that these companies are likely relocating to Right to Work states to take advantage of lower wages, fewer benefits, and less workers’ rights and safety regulations. Is this the kind of economy that we want to encourage?  Right to Work contributes to a race to the bottom where the state that offers the lowest wages and fewest benefits “wins” new business.  But it is surely not the workers nor their families who “win”[26], nor is it even the states who attract these news jobs.[27]  It seems that the only winners of the race to the bottom are big business and the campaign accounts of their political allies.  This is evidenced by the millions of dollars big businesses and their affiliated lobbying organizations spend supporting Right to Work and other anti-worker legislation.[28]

  1. Conclusion

In conclusion, Right to Work is just another battle in the current War on Workers and their families.  Right to Work allows employees to enjoy all the benefits of union representation while paying none of the costs.[29]  In addition, Right to Work contributes to lower wages[30] and fewer benefits,[31] all the while failing to deliver on its promise of economic growth.[32]  Right to Work may be right for big business and politicians who seek to rescind workers’ rights and attack the unions that fought for and continue to defend them, but it is wrong for America.

[1] John F. Kennedy, Special Labor Day Message from Democratic Presidential Candidate John F. Kennedy, Am. Presidency Project (Sep. 5, 1960), available at http://www.presidency.ucsb.edu/ws/?pid=60413#axzz2jViZXIW8.

[2] Ian Saleh, Wisconsin Gov. Scott Walker Signs Collective Bargaining Bill, Bypasses Senate Democrats, The Washington Post(Mar. 11, 2011), available at http://www.washingtonpost.com/wp-dyn/content/article/2011/03/11/AR2011031103966.html

[3] Historic Election Brings Outside Interference In the Vote of Chattanooga Volkswagen Workers, United Auto Workers (Feb. 14, 2014), available at http://www.uaw.org/articles/historic-election-brings-outside-interference-vote-chattanooga-volkswagen-workers.

[4] Gordon Evans, Mother Jones: Right to Work Could Spread Beyond Michigan, WMUK 102.1 FM (Feb. 2, 2014), available at http://wmuk.org/post/mother-jones-right-work-could-spread-beyond-michigan

[5] Employer/Union Rights and Obligations, Nat’l Lab. Rel. Board, available at http://www.nlrb.gov/rights-we-protect/employerunion-rights-and-obligations (Last visited Mar. 27, 2014).

[6] See id. (“The NLRA allows employers and unions to enter into union security agreements which require all employees in a bargaining unit to… pay[] union dues and fees…  Even under a security agreement, employees who object to full union membership may… pay only that share of dues used directly for representation…”)

[7] Right to Work States, Nat’l Right to Work Legal Def. Found., available at http://www.nrtw.org/rtws.htm (Last visited Mar. 27, 2014.)

[8] 1947 Taft-Hartley Substantive Provisions, Nat’l Lab. Rel. Board, available at http://www.nlrb.gov/who-we-are/our-history/1947-taft-hartley-substantive-provisions (Last visited Mar 27, 2014).

[9]  See Nat’l Lab. Rel. Board, supra note 5.

[10] Id.

[11] Id.

[12] Id.

[13] See id.

[14] See id.

[15] See id.

[16] Jennifer Schaubach, “Right to Work” Laws: Get the Facts, Minnesota AFL-CIO, available at http://www.mnaflcio.org/news/right-work-laws-get-facts (Last visited Mar. 27, 2014).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] James Sherk, Right to Work Increases Jobs and Choices, The Heritage Foundation (Nov. 9, 2011), available at http://www.heritage.org/research/reports/2011/11/right-to-work-increases-jobs-and-choices.

[23] Sylvia A. Allegretto & Gordon Lafer, Does ‘Right-to-Work’ Create Jobs? Answers from Oklahoma, Econ. Pol’y Inst. (Feb. 28, 2011), available at http://www.epi.org/publication/bp300/.

[24] Id.

[25] Id.

[26] See Schaubach, supra note 16.

[27] See Allegretto & Lafer, supra note 23.

[28] See Lee Fang, Pro-‘Right to Work’ Groups In Michigan Outspend Union Counterparts, The Nation (Dec. 8, 2012), available at http://www.thenation.com/blog/171663/pro-right-work-groups-michigan-outspend-union-counterparts# (For example, in a recent Right to Work fight in Michigan, big business funded groups spent millions of dollars and vastly outspent their labor opponents in succeeding to get Right to Work legislation passed there)

[29] See Nat’l Lab. Rel. Board, supra note 5.

[30] See Schaubach, supra note 16.

[31] See id.

[32] See Allegretto & Lafer, supra note 23.

“Deliberate Indifference” to Prison Sex Abuse Sets Stage for 8th Amendment Challenge

“Deliberate indifference” to prison sex abuse sets stage for 8th Amendment challenge

by Tiffany Ray

If it’s true that the measure of civilization in a society can be judged by entering its prisons,[1] then Alabama is a barbaric place. The proliferation of sexual misconduct, coercion, vulgarity and mistreatment that constitutes life at the Julia Tutwiler Prison for Women in Wetumpka, Ala., is by now well known: A 36-page report by the U.S. Department of Justice, released early this year and widely reported in the press, documents a 20-year history of “unabated staff-on-prisoner sexual abuse and harassment” that has left the women incarcerated there to “universally fear for their safety.”[2]

In its report, which is the result of an extensive investigation, the DOJ asserts that, for nearly two decades, guards at Tutwiler have raped and sodomized inmates and coerced them into performing oral sex.[3] They have forced them to submit to sexual abuse in order to receive basic necessities such as tampons or laundry service.[4] They have watched the women as they take off their clothes, shower, and use the toilet, and they have subjected them to sexually explicit verbal abuse.[5] Allegations of such abuse are investigated superficially, if at all, and women who have reported such allegations have been subjected to further abuse by guards, to segregation, or to lie detector tests.[6]

The DOJ asserts that the state has violated (and presumably continues to violate) the Eighth Amendment rights of Tutwiler prisoners by “failing to protect [them] from harm due to sexual abuse and harassment from correctional staff.”[7] The Eighth Amendment provides board protection to prisoners from “cruel and unusual punishment” by government, but what are the contours of that right?

The Supreme Court has found that the test for what constitutes a cruel and unusual condition is not static, but rather drawn “from the evolving standards of decency that mark the progress of a maturing society.”[8] Surely what is happening at Tutwiler Prison is indecent by any standard. According to the Court, the conditions “must not involve the wanton and unnecessary infliction of pain, nor . . . be grossly disproportionate to the severity of the crime warranting imprisonment.”[9] The Constitution “’does not mandate comfortable prisons,’ (citation omitted), but neither does it permit inhumane ones.”[10] Conditions may be “restrictive” or even “harsh” and still be Constitutional.[11]  However, “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”[12]

In Farmer v. Brennan, one of three cases cited by the DOJ to support its assertion of a constitutional violation, the Supreme Court determined that deliberate indifference is shown when an official was “subjectively aware of the risk.”[13] In that case, a transsexual prisoner who was biologically male and projected feminine characteristics was raped and beaten after being placed in the general male population of a high-security prison.[14] Vacating and remanding a lower-court ruling for defendants in the case, the Court found that a prison official could be held liable for denying a prisoner humane confinement conditions if the official “knows that inmates face a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it.”[15]

The Court determined that deliberate indifference of prison officials equated to the subjective recklessness requirement of criminal law; something more than negligence but less than “acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”[16] The Court said prison officials need not be aware of a specific risk from a specific source: “. . . [I]t does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.”[17]

In Farmer, the Court said the Eighth Amendment both constrains the actions of prison officials – preventing them, for example, from using excessive force against a prisoner – and also imposes duties on them to provide “humane conditions of confinement.”[18] Specifically, officials must “ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take ‘reasonable measures to guarantee the safety of the inmates.’”[19] In Helling v. McKinney, the Court found that deliberate indifference to conditions that pose a serious risk to future health violates Eighth Amendment standards, even when no harm has yet occurred.[20] Prisoners have found relief from the courts from exposed electrical wiring, exposure to contagious diseases from other inmates, and, in Helling, from constant exposure to secondhand smoke.[21]

From such a footing, it does not seem far to go to determine that inmates deserve relief from the “universal fear” of sexual abuse and retaliation by their jailers. No one should live day to day with the fear that they might be the next target for abuse, and particularly in a place that is designed to provide them no means of escape. Just the threat of such abuse is corrosive and debilitating, particularly for the women at Tutwiler who, the DOJ says, are already more vulnerable because they are more likely to have been a victim of abuse prior to incarceration.[22] Surely the state has a duty to protect inmates from such treatment.

Moreover, it appears from the DOJ report that state officials have had notice of sex-abuse problems at Tutwiler since at least 1995, when the agency reported it as part of an investigation into the prison’s treatment of mental health issues.[23] More recent evidence was available as well: A 2007 DOJ report of sexual assault in prisons found that Tutwiler was among the worst offenders, ranking 11th out of 146 prison facilities for reports of sexual assault.[24] A report by the Montgomery-based Equal Justice Initiative in 2012 found that conditions had not improved since 2007 and that “pervasive sexual misconduct” continued.[25] It seems clear that the state knew women at Tutwiler were being sexually abused and yet failed to act to prevent it.

News of poor prison conditions in Alabama is hardly a shock, but the level of depravity and disregard apparently at work at Tutwiler is particularly galling. State officials have attempted to defend the indefensible; Kim Thomas, Commissioner of the Alabama Department of Corrections, for example, has said the DOJ’s findings were “off-base,” and prison conditions were not unconstitutional, though he declined to talk in specifics.[26]  Thomas said the department had requested an independent examination by the National Institute of Corrections, part of the DOJ, in 2012 following the Equal Justice Initiative reports of sexual abuse at Tutwiler and has been working to implement changes since then.[27] Among the improvements cited by officials are efforts to recruit more female prison staff at Tutwiler and train prison staff on proper management of female inmates, and plans to install security cameras.[28]

The fact that such improvements are not already an integral part of Tutwiler management would suggest a level of long-term apathy that casts doubt on the ability of state officials to take meaningful action now. Clearly, the state has been on notice for a long time that rights violations were occurring – or at the very least, were likely occurring – at Tutwiler. And yet the “proactive” steps cited by officials to curb such abuses began only a couple of years ago, and have apparently gotten nowhere. Meanwhile, Alabama prisons have been perennially underfunded, and there is no political gain for legislators in advocating an appropriation of additional resources for the benefit of convicted criminals. Thus, there is little hope of any drastic commitment by the Legislature to push through needed reforms.

Fortunately for the inmates of Julia Tutwiler Prison, the DOJ investigation appears far from over. The pervasiveness of sex-abuse allegations has led the DOJ to expand its examination to other, related areas: excessive use of force, constitutionally inadequate conditions of confinement, constitutionally inadequate medical and mental health care, and discriminatory treatment based on national origin, sexual orientation, and gender identity.[29] The DOJ report also included a litany of reforms the agency says must be implemented to curb sexual misconduct by prison staff, as well as the threat of a legal action brought by the Attorney General if they are not.[30]


[1] This statement is often attributed to Fyodor Dostoyevsky. See, e.g., Fyodor Dostoyevsky quotes, www.ThinkExist.com, available at http://thinkexist.com/quotation/the_degree_of_civilization_in_a_society_can_be/166419.html.

[2] Letter from Jocelyn Samuels, Acting Assistant Attorney General, U.S. Department of Justice, Civil Rights Division, to Hon. Robert Bentley, Governor of Alabama (Jan. 17, 2014), http://media.al.com/opinion/other/2014%201%2017%20Tutwiler%20Findings%20Letter%20%282%29.pdf.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

[9]  Id. at 347.

[10] Farmer v. Brennan, 511 U.S. 825, 832 (1994).

[11] Rhodes, 452 U.S. at 347.

[12] Farmer, 511 U.S. at 829.

[13] Id. at 828-29.

[14] Id. at 829-30.

[15] Id. at 848.

[16] Id. at 835.

[17] Id. at 843 (quoting Helling v. McKinney, 509 U.S. 25 (1993)).

[18] Id. at 832.

[19] Id.

[20] 509 U.S. 25, 33 (1993).

[21] Id. at 34.

[22] See Letter from Jocelyn Samuels to Hon. Robert Bentley, supra note 2.

[23] Id.

[24] Id.

[25] Id.

[26] Mike Cason, Department of Justice finds conditions at Julia Tutwiler Prison to be unconstitutional, al.com, Jan. 17, 2014, http://blog.al.com/wire/2014/01/department_of_justice_finds_un.html.

[27] Id.

[28] Id.

[29] See Letter from Jocelyn Samuels to Hon. Robert Bentley, supra note 2.

[30] Id.

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