Reclaiming the Irreparable Injury Rule: Why Trump Lost in Judge James Robart’s Court. By: Francisco Canales

Reclaiming the Irreparable Injury Rule: Why Trump Lost in Judge James Robart’s Court. 

By: Francisco Canales 

Since my last blog,[1] Donald Trump was sworn in as the 45th president of the United States. Now in office, he has lost no time to enact many of his campaign promises. One of his key promises, indeed, was to promulgate a temporary travel ban for migrants from countries that have a current history of having unreliable record keeping—specifically those countries that have been compromised by radical Islamic terror organizations.[2] This temporary travel ban allows federal agencies, in charge of our national security, to set mechanism to vet properly migrants from these countries before entering the United States.  This is a three-month ban for seven countries.[3]

A day after it was signed, this travel ban was challenged in different federal courts throughout the United States.[4] On February 3, federal district judge James Robart entered a temporary restraining order (“TRO”) that applied nationwide, staying enforcement of Trump’s travel ban.[5] So, given the scope of this TRO, this federal district court in the state of Washington has essentially centered all litigation to stop this travel ban in one venue. Thus, this broad order has forced the United States to appeal it in a more liberal circuit court of appeals.  After deciding the United States’s interlocutory appeal, the Ninth Circuit Court of Appeals unsurprisingly affirmed Judge Robart’s order, and the case is now pending. [6] Several litigation options are available to the United States to fight this order;[7]  in the meantime, however, the United States lost a key litigation battle,[8] and Trump’s ban cannot be enforced.[9]

This Blog will specifically analyze why Trump lost in the district court and why the Plaintiffs (“States”) satisfied one of the four legal requirements to stay the enforcement of Trump’s travel ban. In other words, why Washington and Minnesota were able to make a showing of “irreparable injury” from this temporary ban.

What are federal trial courts really doing when granting TRO’s in constitutional cases?

“Although irreparable injury is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury should be presumed in constitutional cases.”[10] Indeed, Professor Disarro argues that a “plausible explanation for the presumption might be that courts fear that close scrutiny of irreparable injury will reveal numerous instances where constitutional violations are virtually harmless.”[11] This argument explains why judges “are willing to acknowledge constitutional wrongs as harmless in criminal cases and even when it comes to civil damages claims, as the numerous nominal damages recoveries in Section 1983 cases attest, but they seem resistant to the concept of harmlessness when injunctive relief is sought.”[12] He further notes: “The presumption obscures the perhaps discomforting reality that many constitutional infractions produce either no injury or one that damages can adequately redress.”[13]

The Injury of Trump’s Travel Ban

Arguably, this ban produces no irreparable harm to the States. But Judge’s Robart decision found,

Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing….[14]

It should be of no surprise to jurists and scholars that the States won their motion to obtain a TRO.  The States made a facial showing that there was an injury, although it is largely speculative because the ban only stops a relatively low number of immigrants from entering the United States for a period of three months. And, the harm presented above is not really irreparable– unlike, say, Trump ordering the demolition of Seattle’s Space Needle. Thus, given the phenomenon that district judges throughout the United States are presuming irreparable injury when granting TRO’s, Trump was bound to lose this motion, regardless.

This presumption is greatly problematic here for the Trump administration and generally to injunctive relief jurisprudence.  “Presuming irreparable harm invites applications for preliminary injunctions in constitutional cases by eliminating what is usually the most difficult element for a plaintiff to satisfy.”  Indeed, “constitutional questions [should] be resolved on summary judgment or at trial than on a preliminary injunction ruling.”[15] Professor Disarro’s argument further explains why Judge Robart granted the States’ Motion: “In preliminary injunction proceedings, important constitutional questions will be decided tentatively and usually upon an incomplete evidentiary record produced at abbreviated and rushed hearings.”[16] As it happened in the States’s case, little record was presented to show an irreparable harm by the ban. Thus, this loss confirms the legal realities of the presumption of irreparable injury, and not so much the lack of merits of the United States’s case.

Moreover, Trump was also bound to lose his appeal on the court’s injunction of the ban. Appellate courts revising TROs will “apply the least rigorous appellate standard.”[17] By contrast, “[f]inal judgments on constitutional questions…will produce definitive holdings and be subject to nondeferential appellate review.”[18] So, given this appellate review standard, the deck was stacked against Trump;[19] albeit, the apparent lack of preparation by the United States’s Attorney arguing on Trump’s behalf and the judges’ liberal ideology did not help his case.

However, Judge Robart should have “consider[ed] a variety of factors to determine whether …provisional injunctive relief is appropriate: the nature of the right in question, the context in which the right is impacted, the severity of any deprivation, the burdens placed on the exercise of the right, the importance of a timely exercise of the right, and the adverse consequences beyond deprivation that will result.”[20] His seven page Order does not seem to analyze these key factors.[21] Although the Order’s Conclusion does note that the injunction may have “considerable impact… on the…executive…and the country’s citizens and residents”, the Order fails to address the national security interests at play here and the judiciary’s history of not revising discretionary findings regarding national security and immigration.[22] In other words, Judge Robart seems to have presumed the States’ likelihood of winning on the merits, as well.[23] Thus, this Order is faulty, but it is understandable why it was granted given the current perception by federal courts across the United States of granting injunctive relief in constitutional cases. 

Conclusion

Despite the shaky grounds for entering a nationwide TRO and buying the States’ parens patriae standing argument, and jumping analytical hoops in granting the injunction,[24] Judge Robart cannot be blamed in finding sufficient injury. His ruling is the creation of the current state of the law. The low threshold that federal district courts are currently setting when granting TROs in constitutional cases allowed for the States to make a sufficient showing to win their Motion.  Simply put: Don’t hate the judge, hate the Supreme Court’s unwillingness to reclaim the irreparable injury rule in constitutional cases, and do away with this presumption of injury.

This case could be the vehicle for the Court to finally eradicate a presumption of injury and make this rule applicable again in constitutional cases. “Requiring proof of irreparable harm should have little impact in cases where the injury is apparent and incontrovertible. But it will be significant in those cases where the existence or extent of injury, let alone one that can fairly be classified as irreparable, are questionable,” like in the States’ case.[25]

[1] In my last Blog, I analyzed the historical precedents of infamous travel bans enacted by the United States.

[2] Ariane de Vogue, “The legal arguments around Trump’s travel ban challenges,” CNN, ( 6:59 PM ET, 4 Feb. 2017. http://www.cnn.com/2017/02/04/politics/donald-trump-travel-ban-legal-challenges/.

[3] Id.

[4] Id.

[5] Washington v. Trump, Case no. C17-0141JLR, 4-7 (West. D. WA. 2017).

[6] Washington v. Trump, 2:17-cv-00141 (9th Cir. 2017).

[7] “WH Adviser Stephen Miller: A Single Judge ‘Cannot Make Immigration Law’ | Meet The Press | NBC News.” NBC News.  https://www.youtube.com/watch?v=lXkFX6NGRdc.

[8] As argued by Professor Anthony Disarro, “the preliminary injunction has become, much like class certification, a ‘momentous’ pretrial ruling that ‘[w]ith vanishingly rare exception . . . sets the litigation on a path toward resolution by way of settlement, not full-fledged testing of the plaintiffs’ case by trial.’ The recognition that a preliminary injunction decision is ‘no mere . . . procedural ruling’ is reflected in the fact that Congress has expressly authorized interlocutory appeals from these pretrial determinations.” Anthony Disarro, A  Farewell  to  Harms:  Against Presuming  Irreparable Injury in  Constitutional Litigation, 35 Harv. J.L. & Pub. Pol’y 743, 746-747 (2012). (internal citations omitted).

[9] See generally Washington, supra note 5.

[10] Disarro, supra note 9, at 744.

[11] Id. at 746.

[12] Id. at 747.

[13] The courts’ fear in this regard seems irrational. A plaintiff who cannot show irreparable harm can always obtain a declaratory judgment of unconstitutionality. The declaratory remedy was specifically created by Congress to provide a remedy for plaintiffs asserting constitutional claims who cannot satisfy the requirements for injunctive relief.  The remedy would seem superfluous if irreparable harm can simply be presumed in every case.

[14]  Washington v. Trump, Case no. C17-0141JLR, 4-7(W. Dist. WA. 2017).

[15] Disarro, supra note 9, at 747.

[16] Id.

[17] Id.

[18] Id.

[19] Given these realities, there is a high possibility that Trump make his at the trial court and seek  a final judgment on the merits.

[20] Id. at 794.

[21] See generally Washington v. Trump, Case no. C17-0141JLR (W. Dist. WA. 2017).

[22] Id.

[23] See Id.

[24] See Id.

[25] Disarro, supra note 9, at 794.

Should Professional Athletes Feel Obligated to be Social Activists? By: Chris Youngpeter

Should Professional Athletes Feel Obligated to be Social Activists?

By: Chris Youngpeter 

In 2016, former San Francisco 49ers quarterback Colin Kaepernick touched off an avalanche of criticism and support when he refused to stand for the national anthem before 49ers football games. Kaepernick’s refusal to stand was a silent protest in response to the mistreatment of African Americans by police and others in the United States.[1] Far from being a singular act of athlete activism, Kaepernick’s protest is the latest in a series of instances of athletes speaking out against injustices in the U.S. The revival of activism among professional athletes in a politically charged moment in U.S. history begs the question: Do professional athletes have an obligation to speak out and support movements of social activism in their own communities and across the country?

There is a rich history of activism by professional athletes in the United States. The pinnacle of this activism occurred in the mid-1900s. In 1967, Muhammad Ali refused to be drafted into military service in the Vietnam War.[2] Other famous black athletes, including Jim Brown, Bill Russell, and Lew Alcindor (now Kareem Abdul-Jabbar) publicly supported Ali’s decision at a meeting dubbed the “Ali summit.”[3] Ali’s decision cost him his title belt and led to a felony conviction for draft evasion that was ultimately reversed by the Supreme Court.[4] During the Summer Olympics in 1968, U.S. medalists John Carlos and Tommie Smith wore black gloves and raised their fists during their medal ceremony in a symbol of Black Power.[5] Both men received death threats and were suspended and sent home by the Olympic committee.[6] Kareem Abdul-Jabbar boycotted the 1968 games entirely “to call attention to the rampant racial injustice of the time,” and was called “un-American” for it.[7]

Activism by high profile professional athletes stagnated in the late 1900s. Michael Jordan, arguably the most famous athlete of the twentieth century, famously avoided publicly discussing controversial political issues.[8] The trend of hesitancy has ended in the last few years. In 2012, basketball players on the Miami Heat protested the Trayvon Martin killing by taking a picture wearing hoodies.[9] In 2014, college and professional athletes protested the police actions that resulted in the death of Eric Garner by wearing T-shirts that said “I Can’t Breathe.”[10] Many WNBA players have publicly supported the Black Lives Matter movement.[11] Four of the biggest stars in the NBA made a speech at the 2016 ESPY awards “urging fellow athletes to push for change on issues of race, policing and violence.”[12]

Some commentators would suggest that it is easy for today’s athletes to be social activists because, unlike those in previous generations, athletes today have little or nothing to lose from activism.[13] I disagree with this sentiment. Athletes may no longer face prosecution or public denigration to the same extent as Muhammad Ali in the 1960s[14], but they still face significant blowback for being social advocates. Brandon Marshal, a linebacker for the Denver Broncos, felt the sting of his decisions to follow in Kaepernick’s footsteps and kneel for the national anthem when he lost two endorsement deals.[15] In addition to financial costs, athletes also risk alienating their fan base. These consequences can prevent athletes from protecting their livelihood and being agents of change in their community.

It is unfair to characterize athletes who choose not to become social activists as merely “protecting their brand.” Someone with the talent and financial resources of LeBron James or Carmelo Anthony, two NBA stars, may be protected from overt acts of retaliation from the league or team management. Other professional athletes do not have this luxury. It is understandable why an athlete on the fringes of a roster would not want to publicly broadcast controversial political opinions. In 1992, Craig Hodges, a member of the Chicago Bulls, gave President George H.W. Bush “a letter asking him to do more to end injustices toward African-Americans.”[16] Despite being a member of two straight NBA title-winning teams, no team was willing to sign Hodges for the next season.[17] Hodges believed he was blackballed for his open activism.[18] This problem has not been solved in the intervening twenty-five years. Executives in the NFL, speaking anonymously about Colin Kaepernick, have said that a team that wants to sign him “will have to give at least some thought to how the move would be taken by the ticket-buying public.”[19] It is possible that Kaepernick will be blackballed by NFL teams due to his activism, so it would not be illogical for athletes in his position to choose less public ways of improving their communities. With this in mind, it should not be considered “selling out” when an athlete is not a public social activist.

So, what is to be expected from an athlete who chooses to be an activist? After police officers in Cleveland, Ohio, were not indicted for the killing of Tamir Rice, one Baltimore activist called on LeBron James to protest by refusing to play games for the Cleveland Cavaliers.[20] He did not take this advice.[21] In the aftermath of the Alton Sterling shooting in Louisiana, Carmelo Anthony opined that social media “hashtag” campaigns would no longer be sufficient for those who choose to speak out.[22] This sentiment was echoed after the Sterling shooting by New Orleans Saints running back, Mark Ingram.[23] Anthony suggests that activists engage with politicians directly.[24] This includes local officials, congressmen, assemblypersons, and community leaders, among others.[25] Anthony also suggests that activism should begin on the community level, and those who participate should work to build a mutual respect between police officers and the people who live in the streets that those officers patrol.[26]

There is no perfect roadmap for deciding how to be an activist professional athlete. A few parameters can be set, though. Violence, or the advocating of violence, is not acceptable. Those who participate in activism should make an effort to educate themselves on the current issues that are affecting their community and the historical causes of these issues. Activist athletes should invest their time and resources into their communities. Activists should understand that not every opposing opinion is held in bad faith and should avoid “scorched earth” tactics that poison the well for future progress. There is plenty of value in starting and taking part in difficult conversations about topics like race relations and police brutality. Carmelo Anthony is correct in advocating for political involvement, starting at the local level.

Professional athletes should not be forced into social activism, but those who choose it voluntarily should be encouraged to express their opinions. These athletes should build on the legacies of trailblazers like Muhammad Ali and Kareem Abdul-Jabbar to become driving forces for positive change in their communities.

[1] Mark Maske, Colin Kaepernick Made a Political Statement that Could Still Matter as He Seeks His Next NFL Job, Wash. Post, Mar. 3, 2017, https://www.washingtonpost.com/news/sports/wp/2017/03/03/colin-kaepernick-made-a-political-statement-that-still-resonates-in-nfl-front-offices/?utm_term=.95cd4a32f8a5.

[2] Erit Yellen, Athletes Have More Power than Ever to Change the World, The Undefeated (Jul. 29, 2016), https://theundefeated.com/features/athletes-have-more-power-than-ever-to-change-the-world/.

[3] Id.

[4] Id.

[5] Craig Mills, The New Golden Age of Black Athlete Activism, Daily Beast, Oct. 3, 2016, http://www.thedailybeast.com/articles/2016/10/03/black-athletes-embrace-social-activism.html.

[6] John Eligon & Scott Cacciola, Player’s Protest Revives a Spirit of Activism From the Days of Ali, N.Y. Times, Sep. 13, 2016, at A1.

[7] Kareem Abdul-Jabbar, Kareem Abdul-Jabbar: The Importance of Athlete Activists, TIME (Nov. 16, 2015), http://time.com/4114002/kareem-abdul-jabbar-athlete-activists/.

[8] Eligon & Cacciola, supra note 6.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Yellen, supra note 2.

[14] Eligon & Cacciola, supra note 6.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Maske, supra note 1.

[20] Adam Kilgore, In Wake of Police Killings, Activists Ask Athletes to Offer More than Hashtags, Wash. Post, July 8, 2016, https://www.washingtonpost.com/news/sports/wp/2016/07/07/in-wake-of-police-killings-activists-ask-athletes-to-offer-more-than-hashtags/?utm_term=.fa94173fb2bf.

[21] Id.

[22] Carmelo Anthony, We Athletes Can No Longer Remain on the Sidelines in the Struggle for Justice, the guardian, July 13, 2016, https://www.theguardian.com/sport/2016/jul/13/carmelo-anthony-column-athletes-justice-police-violence.

[23] Kilgore, supra note 20.

[24] Matt Vasilogambros, When Athletes Take Political Stands, Atlantic (Jul. 12, 2016), https://www.theatlantic.com/news/archive/2016/07/when-athletes-take-political-stands/490967/.

[25] Id.

[26] Anthony, supra note 22.

The Legacy of Barack Obama’s Presidency By: Barry Burkett

The Legacy of Barack Obama’s Presidency

By: Barry Burkett

Black History Month is a time of the year that allows all Americans, to take a step back and reflect on how far our country has come from the days of slavery. Without the efforts of brave men and women such as Rosa Parks, Martin Luther King Jr. and Muhammed Ali, it would have been unimaginable for America to be where it is today. With Black History Month drawing near the end, it is only appropriate to reflect on the presidency of a great man, husband, and father Barack Obama.

As the first black President of the United States of America, Barack Obama has certainly cemented himself in American history. From my teenage years to young adulthood, he was my President; and as a black male, it is unexplainable the impact that this has had on my life. By the way he has carried himself, he has served as an example to young black men that being intelligent, articulate, and caring are the keys to success.[1] However, his confidence and poise may be the most memorable qualities regarding his leadership[2] and the fact that he has never shied away from his heritage.[3]

Further, his presidency should not be cherished and celebrated exclusively by black men and women. By becoming the first black President and performing well, he has broken barriers for all Americans who have the “audacity of hope.” [4] He has proven that if we strive for a goal that has not been achieved or what people say cannot be done, we are capable of achieving it and more.

Even with his success, some political leaders and scholars may choose to define his time in office as an abuse of executive power[5] or an inability to maximize this executive power.[6] Others may believe that his legacy will be erased over the next few years by the Trump Administration.[7] Although Obama’s Administration did have its flaws, which all administrations do, these arguments fail to acknowledge that his legacy should be defined by more than his accomplishments or policies.

A man who cherished his family, knew how to celebrate the good times,[8] and uplift our country in the bad times.[9] A man who lived by his actions rather than his words alone and had the “audacity of hope” even in the face of adversity.[10] These values are what defined Barack Obama’s presidency and what carried him throughout his time in the oval office. Finally, for any political leaders who believe that repealing the Affordable Care Act will diminish his legacy,[11] they are sadly mistaken. The moments that all Americans have shared with Barack Obama and his family and what they represented as the first family of the United States can never be repealed.

What Next?

For these upcoming years and beyond, we must remain forward-looking and build on the significance of Barack Obama’s presidency. Although there is much room for better equality in America, the leaders and participants of the March on Washington would certainly be proud that their efforts were not in vain. The fact that we judged Obama by the “content of [his] character”[12] when we elected him to serve as America’s president shows a step in the right direction.

Yet the common belief is that Obama has left America divided on racial relations,[13] although these reasons are either unexplained or illogical. For eight consecutive years, we entrusted the well-being of the United States in the hands of a black man. Men who were once discouraged from pursuing an education and becoming doctors or lawyers. If this does not show that at least some progress has been made since the March on Washington more than fifty years ago, it is difficult to imagine what will.

Rather than building walls[14] to truly divide this nation like it once was, we need to push for more inclusiveness in our educational institutions and better opportunities for immigrants.   Further, whether it be police-community relations, immigration or health care reform, one person’s policies cannot and will not change America for the better. As a democracy, America is greater than the sum of its parts; and if we truly want change, it will take all of us.

As Barack and Michele Obama have advocated the past eight years, every action that we as Americans take will have an impact on our generations of tomorrow.[15] Do we what a future that is still marred by the negativity regarding race relations or where America’s reputation as a the “land of opportunity” becomes an afterthought? It is up to us whether these questions will be answered in the negative or affirmative. For me, I am confident that America will be better for our future generations because I have the “audacity of hope” inspired by Barack Obama’s presidency.

[1]My Brother’s Keeper Alliance, http://www.mbkalliance.org/ (last visited Feb. 26, 2017).

[2]Chris Cillizza, The Remarkable Confidence of Barack Obama, The Wash. Post (Jan. 25, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/01/20/the-remarkable-confidence-of-barack-obama/?utm_term=.549e43019d95.

[3]Ta-Nehisi Coates, My President Was Black, The Atlantic, https://www.theatlantic.com/magazine/archive/2017/01/my-president-was-black/508793/ (last visited Feb. 26, 2017).

[4]Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (2006).

[5]David Harsanyi, Obama’s Legacy Will Be Executive Overreach, The Federalist (Jan. 5, 2016), http://thefederalist.com/2016/01/05/obamas-legacy-will-be-executive-abuse/.

[6]Michael Eric Dyson, Barack Obama, The President of Black America?, N.Y. Times (June 24, 2016), https://www.nytimes.com/2016/06/26/opinion/sunday/barack-obama-the-president-of-black-america.html?_r=1.

[7]Dylan Matthews, Trump Will Undo Much of Obama’s Legacy. Here’s What Might Survive, CNBC (Jan. 6, 2017, 12:45 PM), http://www.cnbc.com/2017/01/06/trump-will-undo-much-of-obamas-legacy-heres-what-might-survive.html.

[8]Being an avid sports and music fan, Barack Obama was probably the most charismatic president that America ever witnessed. See Coates, supra note 3.

[9]Arguably the most moving moment of Barack Obama’s time in office was when he shed tears because Congress remained stagnant in its policies on gun control even after the senseless murders of the group of children at Sandy Hook Elementary three years prior. See Stephen Collison, Barack Obama’s Emotional Evolution on Gun Control, CNN (Jan. 7, 2016, 6:07 AM), http://www.cnn.com/2016/01/05/politics/obama-gun-control-evolution-executive-order/.

[10]See Obama, supra note 4.

[11]Van R. Newkirk II, The Trump Administration’s First Blow to Obamacare, The Atlantic (Jan. 24, 2017), https://www.theatlantic.com/politics/archive/2017/01/the-trump-administrations-first-blow-to-obamacare/514103/Snady.

[12]Martin Luther King Jr., President, Southern Christian Leadership Conf., I Have A Dream (Aug. 28, 1963).

[13]Hans von Spakovsky, Obama’s Legacy Is a Weaker and More Divided America, The Daily Signal (Jan. 19, 2017), http://dailysignal.com/2017/01/19/obamas-legacy-is-a-weaker-and-more-divided-america/.

[14]Julie Pace et al., Donald Trump to Move on Border Security, Immigration Enforcement, and Building the Wall, Time (Jan. 24, 2017), http://time.com/4646273/donald-trump-wall-mexico-border-immigration/.

[15]Laura Barren-Lopez & Kate Sheppard, Michelle Obama: Who Do You Want as Your Children’s Role Model, The Huffington Post (July 26, 2016), http://www.huffingtonpost.com/entry/michelle-obama-dnc-speech_us_5796c902e4b02d5d5ed2ac9b.

Apple v. FBI: Seeking to Protect Privacy, Apple Invites Governmental Action By: Ross Benson

Apple v. FBI: Seeking to Protect Privacy, Apple Invites Governmental Action

By: Ross Benson 

On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik initiated a terror attack on an office party at Farook’s workplace in San Bernardino, California, killing fourteen co-workers and wounding twenty-two others.[1] The two culprits were killed in a shootout with police outside the office building.[2] With the perpetrators dead, investigators had to determine a motive and find any other co-conspirators based on physical evidence that could be accumulated on Farook’s person and his residence. For investigators, Farook’s iPhone[3] would be the key piece in this case; the phone would show who had been in contact with Farook, where Farook obtained the weapons and supplies for the attack, and other valuable leads in the case.[4]

The FBI, headed by Director James Comey, sough first to work with Apple and have Apple voluntarily “open” Farook’s iPhone by creating a new operating system (“GovtOS”) that would allow certain features—including the security code—to be disabled.[5] Citing privacy concerns, Apple refused to crack Farook’s iPhone for the FBI.[6] Comey then applied for a search warrant, invoking the obscure All Writs Act of 1789.[7] Armed with the Writ, the FBI obtained an order from a magistrate judge compelling Apple to assist the investigation.[8] Apple again opposed the order.[9]

In a letter to customers, Apple CEO Tim Cook described the FBI’s fight against Apple as “unprecedented” and “threatening to the security of customers.”[10] Cook addressed San Bernardino directly, saying that Apple is “shocked” and “outraged” by the violence committed and has no sympathy for terrorists whatsoever.[11] In following the court order, Apple was happy to turn over any data that the company had it its possession in order to help the investigation.[12] However, Apple has described the FBI’s request as one which would require the company to write an entire operating system which could put all of its customers at jeopardy.[13]

In building a backdoor to get into Farook’s iPhone, Apple would be creating a digital key that could be used over and over on any Apple device.[14] Cook describes the backdoor as a “master key” that would be capable of opening hundreds of millions of locks including bank accounts, businesses, and homes.[15] In today’s world, an iPhone at its core is a handheld computer that happens to make phone calls; it is no longer a phone that also has other applications and programs.[16] Apple viewed the FBI’s request as a zero-sum-game where the loss of one user’s privacy necessarily impacts all users.[17] The order to “hack” Apple’s own users would undermine decades of security advancements that have been created to protect users from hackers and cybercrime.[18] Additionally, modern technology has advanced to a level where low level hackers could attack a device’s passcode electronically by using “brute force.”[19]

As Apple refused to comply with orders and made their case in the court of public opinion, FBI agents began to use the brute force tactics that Tim Cook was concerned with. Instead of an unsophisticated hacker attempting for force their way past the phone’s security system, one of the most powerful agencies in the world put all its might behind breaking in. After the long legal battle, the FBI suddenly withdrew their order, stating that due to third party help, the FBI could break into the phone without compromising any of the phone’s data.[20]

To unlock Farook’s iPhone, the FBI hired professional hackers to study the iPhone’s base code to find a way into the phone.[21] Finally, the hackers discovered a flaw in the software that would allow the FBI to access the data uncorrupted.[22] For the ability to crack the phone, FBI agents paid these professional hackers at least $1.3 million.[23]

It is unclear how the FBI will choose to proceed in similar cases going forward. While the FBI has the law on their side, the tech community clearly has a set of concerns that run counter to the FBI’s goals of obtaining all information.[24] The FBI has a job to do: keep Americans safe. Conversely, companies such as Apple must ensure that its customer’s privacy is protected and any devices sold are secure. Opening loopholes for the government would not only create issues with intrusive searches, but also provide the opportunity for these professional hackers to find their way in to a user’s phone and steal, sell, or destroy personal information.[25]

Either way, the FBI has shown that it will do what it takes to get into a phone or other personal device. By fighting the order to help the FBI so publicly, Apple gave the FBI the incentive to figure out how to break in themselves. In trying to send a message to consumers that privacy is a paramount concern to the company, many Americans view Apple as having used a tragic high-profile attack to advance their brand.[26] Prior to this case, Apple had complied with at least seventy warrants since 2008.[27] The fact that Apple chose to make a stand in this instance has raised questions about the company’s motive for many individuals.[28]

Next time, government agencies may not partake in a drawn-out public battle with a technology company. Instead, if the company doesn’t comply with demands or court orders, agents may simply kick in the virtual door. There is good reason to doubt the intentions of a company like Apple, however opening backdoors for the government—or other nation’s governments who are free from constraints—would create a dangerous precedent and loopholes ready to be exploited. Apple is stuck between two difficult choices: create the requested backdoor, or invite agencies to break in themselves. Apple chose the latter path, and future outcomes will not be known until Apple’s help is requested again.

[1] Everything we know about the San Bernardino terror investigation so far, Los Angeles Times (Dec. 14, 2015) http://www.latimes.com/local/california/la-me-san-bernardino-shooting-terror-investigation-htmlstory.html.

[2] Id.

[3] Amy Davidson, The Dangerous All Writs Act Precedent in the Apple Encryption Case, The New Yorker (Feb. 19,. 2016) http://www.newyorker.com/news/amy-davidson/a-dangerous-all-writ-precedent-in-the-apple-case. Interestingly, Farook’s phone was actually property of the San Bernardino Health Department—Farook’s employer—and the department had consented to a search of the phone. No Fourth Amendment issues are present in this case.

[4] Sean Hollister & Connie Guglielmo, How an IPhone became the FBI’s public enemy No. 1 (FAQ), CNET (Feb. 25, 2016) https://www.cnet.com/news/apple-versus-the-fbi-why-the-lowest-priced-iphone-has-the-us-in-a-tizzy-faq/

[5] Matt Burgess, GovtOS: Why Apple won’t unlock iPhones for the FBI, http://www.wired.co.uk/article/why-apple-refuse-help-fbi-iphone.

[6] Davidson, supra note 3.

[7] 28 U.S.C. § 1651 (authorizing United States Federal Courts to grant, “all writs necessary in the aid of their respective jurisdictions”).

[8] Elizabeth Weise, Apple v. FBI Timeline: 43 Days that Rocked Tech, USA Today (Mar. 15, 2016) http://www.usatoday.com/story/tech/news/2016/03/15/apple-v-fbi-timeline/81827400/.

[9] Id.

[10] Tim Cook, A Message to Our Customers, Apple (Feb. 16, 2016) http://www.apple.com/customer-letter/.

[11] Id.

[12] Id.

[13] Id. Tim Cook notes that there is currently no program in existence that would allow an entity or hacker to install a program that would circumvent a device’s security features. “In the wrong hands…this software would have the potential to unlock any IPhone.”

[14] Id.

[15] Id.

[16] Mikey Campbell, Man pleads guilty in celebrity iCloud hacking case, admits to phishing scheme, Apple Insider (Mar. 15, 2016) http://appleinsider.com/articles/16/03/15/man-pleads-guilty-in-celebrity-icloud-hacking-case-admits-phishing-scheme. Especially with the prevalence of the iCloud, the entry into one device could get a hacker into a person’s entire network. Celebrities have been common targets, with personalities like Jennifer Lawrence and Kate Upton having their private pictures posted on the internet as a result of a hack into one Apple device. See, Caroline Moss, Nude Photos of Jennifer Lawrence, Kate Upton, and Ariana Grande Leak in Massive Hack, Business Insider, (Aug. 31, 2014) http://www.businessinsider.com/4chan-nude-photo-leak-2014-8.

[17] Supra, note 10.

[18] Id.

[19] Id. Brute force a term used to describe the systematic attack on a security password. Modern computers are capable of bombarding another device with unlimited passcodes until eventually the right combination is entered. Apple has designed their phones to lock up after several failed attempts, preventing brute force tactics from working. Apple is concerned that the backdoor override the FBI wants to implement would allow individual hackers to simply force their way into the phone by creating programs to systematically input passcodes. See, Paul Gil, What is ‘Brute Force’ Dictionary Hacking, LifeWire (Sept. 16, 2016) https://www.lifewire.com/brute-force-dictionary-hacking-4061418.

[20] Supra, note 8.

[21] Ellen Nakashima, FBI paid professional hackers one-time fee to crack San Bernardino iPhone, The Washington Post (April 12, 2016) https://www.washingtonpost.com/world/national-security/fbi-paid-professional-hackers-one-time-fee-to-crack-san-bernardino-iphone/2016/04/12/5397814a-00de-11e6-9d36-33d198ea26c5_story.html.

[22] Id.

[23] Julia Edwards, FBI paid more than $1.3 million to break into San Bernardino iPhone, Reuters (April 22, 2016) http://www.reuters.com/article/us-apple-encryption-fbi-idUSKCN0XI2IB

[24] Marco della Cava & Jessica Guynn, Tech giants to file joint pro-Apple amicus briefs, USA Today (Feb. 25, 2016) http://www.usatoday.com/story/tech/news/2016/02/25/microsoft-file-amicus-brief-supporting-apple/80935714/.

[25] Supra, note 10.

[26] Brain Mastroionni, Feds: Apple has unlocked iPhones “many times” before, CBS News (Feb. 18, 2016) http://www.cbsnews.com/news/feds-apple-has-unlocked-iphones-before/.

[27] Kim Zetter, Apple’s FBI battle is complicated. Here’s what’s really going on, Wired (Feb. 18, 2016) https://www.wired.com/2016/02/apples-fbi-battle-is-complicated-heres-whats-really-going-on/.

[28] Id.

Nowhere to Rest: The Criminalization of the Homeless for Sleeping in their Cars By: Meg Deitz

Nowhere to Rest: The Criminalization of the Homeless for Sleeping in their Cars 

By: Meg Deitz 

Cramped quarters and piled belongings are the interior decorations for this “dwelling.” The shelter is a battered, black Toyota Camry but for the gentleman sleeping soundly in the reclined driver’s seat, this is his only home. Unfortunately, depending on which city this man parked in, his simple act of taking rest could end with a warning, citation, fine, imprisonment, or even impoundment of the one asset he has left, his car. However, a municipality’s punishment of the homeless for taking vehicular shelter could subject them to lawsuits for unconstitutional ordinances and heavy payments of damages.

Across the United States, over one hundred and eighty-seven cities have passed ordinances criminalizing unavoidable daily actions by the homeless such as sleeping in public.[1] Thirty-nine percent of those cities specifically prohibited individuals from living or sleeping in their vehicle within city boundaries creating a one hundred and forty-three percent increase in the punishment of this action since 2006.[2] For many homeless individuals, sleeping in a vehicle is the only option available other than sleeping on the sidewalk.[3] Yet, city officials and businesses reject compassion in favor of pushing agendas of health and safety that end up leaving many homeless unsheltered and cost the city more money.[4]

The federal government considers someone homeless if they lack a “regular[] and adequate nighttime residence” and whose normal nighttime shelter is either a public or private emergency shelter or “a public or private place not designed for…regular sleeping accommodation[s] for human beings.”[5] As of 2016, 17.7% of the U.S. population met the federal definition of homelessness.[6] On a single night in 2016, thirty-two percent of homeless individuals spent the night in an unsheltered location possibly on a park bench, sidewalk, or alley.[7] The causes of homelessness are diverse but the most common reasons include mental illness, a lack of affordable housing, and landlord discrimination.[8] During 2015, the average wage needed to afford a one bedroom apartment was $16.35, over double the current minimum wage of $7.25.[9] Even for those able to find housing, a criminal history prevents many individuals from being able to obtain housing as private landlords refuse to rent to them and federal housing guidelines deny applications for individuals with a criminal conviction. [10]

Without housing, the homeless must turn to whatever resources they still have which may consist of only their car and a few belongings. A fine or conviction for living in one’s car entitles the city to impound a vehicle leaving a homeless individual with no shelter, no resource to travel, and no money to get their vehicle back.[11] Additionally, the conviction can have a lasting effect. An arrest record or unpaid tickets can hinder obtaining a job through private employers or searching for a job if a driver’s license is suspended for unpaid citations.[12] Thus, a homeless person may find herself punished for the involuntary activity of simply trying to survive by sleeping in her automobile to protect herself and her property from the elements.

However, according to the federal government, punishing involuntary acts increasingly qualifies as a cruel and unusual punishment under the Eighth Amendment.[13] The Department of Justice makes it clear that if stay at an emergency shelter is impossible, due to no vacancy or restrictions, than sleeping in public is a necessity for the homeless, a “universal and unavoidable” activity of human survival.[14] Thus, criminalizing universal and unavoidable conduct is a violation of the Eighth Amendment.[15] However, criminalization of involuntary acts is only barred when shelter is unavailable requiring plaintiffs to prove that on the night in question they had no choice but to camp or sleep in public.[16] But, an availability of shelter does not imply voluntary homelessness.

In 2015, many shelters across the country ended up turning away an average of twenty-five percent of individuals seeking shelter due to a lack of beds.[17] Even for shelters with adequate beds, inadequate facilities and restrictions on gender leave many homeless unsheltered as families are turned away from all women or all men facilities.[18] Even if a shelter has vacancy, the individual may lack the knowledge or time and resources to check every single shelter before the gas in his tank runs out. Considering an individual’s homelessness as voluntary when they lack resources to find an available bed or are dismissed for failing to meet shelter requirements is too narrow a holding and further litigation is necessary to obtain a broader definition of what can be considered “voluntary” for homeless individuals.

Alternatively, a code provision criminalizing sleeping or living in a vehicle can be challenged for unconstitutional vagueness creating a violation of due process by the city’s criminalization of common conduct.[19] Circuits split over the years on their views of sleeping in a vehicle with some courts finding the state presented a legitimate interest in prohibiting living in a vehicle for sanitation reasons[20] and others holding there was an abuse of constitutional rights because the codes punished behavior that did not threaten others.[21] Sleeping in a vehicle statutes may be voided on grounds of vagueness, situations where the statute would punish everyone from the sleeping child in the backseat to the eating driver to the homeless.[22] A lack of clarity on what the prohibited conduct consists of leaves the public unsure of what actions are illegal.[23] Additionally, vagueness typically leads to arbitrary enforcement because interpretation of the statute largely lies in the hands of police to decide who goes to jail for the offense.[24] Unguided, unconstitutional enforcement recently appeared in Los Angeles, California where the statute covered a broad range of conduct but was only enforced against the homeless requiring the city to pay over a million dollars to the plaintiff’s counsel for legal fees.[25] While neither sleeping in public or in one’s car is constitutionally protected activity of itself,[26] the criminalization of such activity tends to criminalize common acts required to survive, sleeping and having shelter, that hurt no one and leave police choosing who to punish.

For cities concerned about sanitation, a decrease in tourism, or safety, alternate solutions remain available that are more cost effective and compassionate to the homeless than citations and arrest. Cities are beginning to set aside designated parking areas with sanitation facilities for the homeless to have a place to rest.[27] Additionally, police training requiring officers to maintain up to date information on available community resources including shelters, designated parking lots, or non-profit homeless ministries enables the city to aid the homeless, free up officers to handle real crimes, and begin to alleviate the homeless population by deferring them from the court system.[28]

The criminalization of sleeping in a vehicle only serves to “create a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”[29] Laws criminalizing homelessness send a clear message to homeless individuals that “We don’t want you here!” Specifically, codes prohibiting sleeping in a vehicle shows that cities do not care if the only other option for the homeless is living on the streets once their vehicle is impounded or they are unable to find employment or housing due to an arrest record. An act on the part of private citizens to show city leaders that shelter for a fellow human being is more important than city appearance is the first step towards getting the homeless off the streets and back into society with the aid and shelter they deserve.

 

[1] Tristia Bauman et al., Nat. L. Ctr. on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities 9-10 (2016), https://www.nlchp.org/documents/Housing-Not-Handcuffs.

[2] Id.

 [3] Bauman, et al., supra note 1, at 25.

[4] See Hershey v. Clearwater, 834 F.2d 937, 940 (11th Cir. 1987) (citing the city’s reasons for implementing a ban against sleeping or lodging in an automobile); Bauman, et al., at 4.

[5] Stewart B. McKinney Homeless Assistance Act of 1987, 42 U.S.C. § 11302(a) (2000).

[6] Nat. All. to End Homelessness, The State of Homelessness in America 2016 12-13 (2016), http://www.endhomelessness.org/page/-/files/2016%20State%20Of%20Homelessness.pdf.

[7] Meghan Henry, et al., U.S. Dep’t of Hous. and Urban Dev., Office of Cmty. Planning and Dev., The 2016 Annual Homeless Assessment Report (AHAR) to Congress 1, (2016), https://www.hudexchange.info/resources/documents/2016-AHAR-Part-1.pdf.

[8] See Bauman et al., supra note 1, at 9; Tanene Allison, Voice: Confronting the Myth of Choice: Homelessness and Jones v. City of Los Angeles, 42 Harv. C.R.C.L. L. Rev. 253, 257 (2007); Zoe Loftus-Farren, COMMENT: Tent Cities: An Interim Solution to Homelessness and Affordable Housing Shortages in the United States, 99 Cal. L. Rev. 1037, 1044 (2011).

[9] Bauman et al, supra note 1, at 47.

[10] Id. at 19, 36.

[11] Id. at 25.

[12] Id. at 36.

[13] Statement of Interest of the United States at 9, Bell v. City of Boise, 709 F.3d 890 (2013) (No. 09-540), https://www.justice.gov/opa/file/643766/download (citing two previous amicus briefs submitted by the United States arguing that in the absence of shelter criminalizing camping in public violates the Cruel and Unusual Punishment Clause).

[14] Id. at 4, 12.

[15] Id. at 13.

[16] Jones v. City of Los Angeles, 444 F.3d 1118, 1137 (9th Cir. 2005) (vacated after settlement, 505 F.3d 1006 (9th Cir. 2007)); See also Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013); Harrison Berry, Homeless Camping Ordinance Lawsuit, Boise Weekly (Sept. 29, 2015), http://www.boiseweekly.com/boise/federal-judge-dismisses-boise-homeless-camping-ordinance-lawsuit/Content?oid=3608241 (discussing the dismissal of Bell which was dismissed on remand from the Ninth Circuit because the plaintiffs could not show they were unable to secure shelter on the night they received citations for camping and sleeping in public).

[17] U.S. Conf. of Mayors 2015, The U.S. Conference of Mayors 2015 Status Report on Hunger and Homelessness 2 (2015) https://www.usmayors.org/pressreleases/uploads/2015/1221-report-hhreport.pdf.

[18] Statement of Interest of the United States at 4, supra note 13; Bauman et al., supra note 1, at 28.

[19] Pompano Beach v. Capablo, 455 So.2d 468, 469 (4th Cir. 1984).

[20] Hershey, 834 F.2d at 940.

[21] Capablo, 455 So.2d at 470-71; Desertrain v. City of Los Angeles, 754 F.3d 1147, 1156 (9th Cir. 2014).

[22] Capablo, 455 So.2d at 470-71; Desertrain, 754 F.3d at 1156.

[23] Desertrain, 754 F.3d at 1157.

[24] Id. at 1156.

[25] Desertrain, 754 F.3d at 1157; see also Gale Holland, L.A.’s Voided Law Against Sleeping in Cars Costs it $1.1 Million in Legal Fees, Los Angeles Times, (Aug. 19, 2015), http://www.latimes.com/local/lanow/la-me-ln-la-homeless-legal-fees-20150819-story.html.

[26] Hershey, 834 F.2d at 940 n.5.

[27] Holland, supra note 25; Courtney Tompkins, Long Beach Eyes ‘Safe Parking’ Program for Homeless Living in RVs, Vehicles, Press-Telegraph, (Oct. 9, 2016), http://www.presstelegram.com/social-affairs/20161009/long-beach-eyes-safe-parking-program-for-homeless-living-in-rvs-vehicles.

[28] Stacy Lee Burns, ARTICLE: The Future of Problem-Solving Courts: Inside the Courts and Beyond, 10 R.R.G.C. 73, 84 (2010).

[29] U.S Interagency Council on Homelessness, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness 8 (2012), https://www.usich.gov/resources/uploads/asset_library/RPT_SoS_March2012.pdf.

 

Stormans, Inc. v. Wiesman: Analysis and Implications By: Logan Griffith

 

Stormans, Inc. v. Wiesman: Analysis and Implications

By: Logan Griffith 

In June of 2016, the Supreme Court declined to grant certiorari to review the Ninth Circuit’s ruling in Stormans, Inc. v. Wiesman.[1] The case involved a set of pharmacy regulations in the state of Washington, one of which – the “deliver rule” – requires pharmacies to “deliver lawfully prescribed drugs and devices to patients.”[2] The rule contains some exceptions that excuse a pharmacy from filling such a prescription, such as when the prescription is erroneous, there is a national or state emergency, or the patient cannot pay.[3] Notably, there is no exception for a pharmacy to refuse to fill a prescription due to a religious or moral objection.[4]

Plaintiffs, a pharmacy and two individual pharmacists, successfully challenged the regulation in 2007 on Free Exercise grounds.[5] The Ninth Circuit reversed.[6] For a claim to succeed on Free Exercise grounds, the plaintiff essentially must show that the law is not neutral or that it is not generally applicable.[7] In the view of the Ninth Circuit, the plaintiffs here were unable to show either.[8] The tests for neutrality and general applicability are interrelated.[9] With regards to whether or not the law is neutral, the court looks to the objective or motivation behind the law.[10] Here, the Ninth Circuit found that the objective of the regulations was “[to] establish a practical means to ensure the safe and timely delivery of all lawful and lawfully prescribed medications to the patients who need them.”[11] The court also noted that “the rules prescribe and proscribe the same conduct for all, regardless of motivation.”[12] With regards to the general applicability of the law, the court primarily looked at whether or not the regulations were substantially underinclusive as to “non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect.”[13] Here, the court found that the exemptions are “necessary reasons for failing to fill a prescription,” and thus are not underinclusive. [14]

As noted earlier, the plaintiffs then appealed to the Supreme Court. For the Supreme Court to grant a writ of certiorari, at least four members of the Court must vote in favor of granting.[15] Only three did – Justices Alito, Thomas, and Roberts – with Justice Alito authoring a dissenting opinion.[16] Justice Alito finds numerous problems with the nature of the Ninth Circuit’s opinion, but his bigger problem is arguably with the attitude of his fellow justices in refusing to hear the case.  Alito expresses concerns that Christian pharmacists will be made unemployable if they object to selling “abortifacients.”[17] This is due to the fact that the regulation would allow an individual pharmacist to refuse to fill a prescription she has a moral objection to, but would force the pharmacy to account for that and provide for a pharmacist that would fill such a prescription.[18] Alito cites the findings of the District Court as to the neutrality (or lack thereof) of the regulation, saying that “regulations were adopted with the ‘predominant purpose’ to ‘stamp out the right to refuse’ to dispense emergency contraceptives for religious reasons.”[19] The opinion also finds the “inability to pay” exemption particularly problematic.[20] Alito’s problem with this exemption is that it extends beyond “denying service to customers who won’t pay” and allows pharmacies to refuse to fill prescriptions for patients because the pharmacy does not accept the patient’s insurance.[21] Alito’s treatment of this exemption ignores the complex nature of the interactions between pharmacies and insurance providers, but that is beyond the scope of this writing.[22] In the end, Alito goes so far as to say “[t]he bottom line is clear: Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”[23]

Reactions to the Ninth Circuit’s decision and the Supreme Court’s refusal to grant certiorari have varied wildly. Some have viewed the decisions as an indication that “anti-Christian bigots” now have the force of law behind them, at least in the Ninth Circuit.[24] Commentators on the other side of the spectrum have characterized the reactions of right-wing commentators as “melodramatic” and “silly.”[25] Moreover, some have criticized the lawsuit itself as a “poor vehicle for resolving questions about the Free Exercise clause,” as the regulations had been in place for a year by the time the suit was filed, and the plaintiff-pharmacy had not been penalized in any way for their practice of “facilitated referrals.”[26] In the end, the concern that Christians will no longer be able to pursue careers as pharmacists is in all likelihood entirely overblown. More importantly, the people of the state of Washington will likely now have an easier time obtaining Plan-B.

[1] Stormans, Inc. v. Wiesman, 136 S. Ct. 2433.

[2] Id. at 2435.

[3] Id. at 2436.

[4] Id.

[5] Stormans, Inc. v. Wiesman 794 F.3d 1064, at 1073, 1074.

[6] See, Stormans, Inc. v. Wiesman 794 F.3d 1064.

[7] Id., at 1075.

[8] Id., at 1084.

[9] Id., at 1076.

[10] Id.

[11] Id., at 1077.

[12] Id.

[13] Id., at 1079.

[14] Id., at 1080.

[15] Robert Barnes, Supreme Court Won’t Hear Challenge to Rule that Pharmacies Dispense Emergency Contraception, The Washington Post (June 28, 2016), https://www.washingtonpost.com/politics/courts_law/supreme-court-wont-hear-challenge-to-rule-that-pharmacies-dispense-emergency-contraception/2016/06/28/

[16] Stormans, Inc. v. Wiesman, 136 S. Ct. 2433.

[17] Id., at 2433.

[18] Id., at 2434.

[19] Id., at 2434.

[20] Id., at 2439.

[21] Id.

[22] See generally, Lisa L. Causey, Nuts and Bolts of Pharmacy Reimbursement: Why It Should Matter to You, Health Law Perspectives (June 2009), available at http://www.law.uh.edu/healthlaw/perspectives/2009/(LC)%20Pharmacy.pdf.

[23] Id., at 2440.

[24] David French, Thanks to SCOTUS, Vicious Anti-Christian State Action is Legal in the Ninth Circuit, The National Review (June 28, 2016), http://www.nationalreview.com/corner/437269/thanks-scotus-vicious-anti-christian-state-action-legal-ninth-circuit.

[25] Doug Mataconis, SCOTUS Declines to Hear Appeal of Pharmacists with Religious Objection to “Morning After” Pill, Outside the Beltway (June 30, 2016), http://www.outsidethebeltway.com/scotus-declines-to-hear-appeal-of-pharmacists-with-religious-objection-to-morning-after-pill/.

[26] Emma Green, Even Christian Pharmacists Have to Stock Plan-B, The Atlantic (June 29, 2016), https://www.theatlantic.com/politics/archive/2016/06/pharmacists-have-to-sell-emergency-contracptioneven-if-it-violates-their-religious-beliefs/489182/.

Alabama Criminal Justice and the Sex-Trafficking SuperHighway By: Alexis Killough

Alabama Criminal Justice and the Sex-Trafficking SuperHighway

By: Alexis Killough

America is fundamentally disinclined to accept slavery of any type as a violation of basic civil rights. Despite that disinclination, serious human rights violations in the form of human trafficking are prevalent in today’s national society. In spite of superficial appearances or lack of media attention, there is a well-developed and strongly established system of human trafficking in place in and around Alabama.[1] The Well House, a nonprofit organization in Birmingham, Alabama dedicated to sheltering and rehabilitating women who were trafficked or prostituted throughout Alabama and the Southeast, identified Interstate Twenty as The Sex Trafficking Superhighway in their documentary by the same name.[2] This well-traveled road runs right through the heart of Alabama, connecting South Carolina to Texas, passing several well-known active international airports and port cities. They explain that more slaves are sold now in America than in the year before the Civil War, and that “75% of these humans are trafficked as sex slaves.”[3] The average girl trafficked for sex on Interstate Twenty is only sixteen years old, though there have been girls as young as thirteen lured into the business.[4] Frequently, when the police get involved, they arrest the girls who are prostituting, just to get them off of the streets, though generally without tracing down and arresting their pimp or trafficker.[5] According to Polaris Project data compiled from December 7th, 2007 to September 30th, 2016, the Polaris Project’s hotlines received 954 calls from Alabama, from which they found 255 cases of potential human trafficking.[6] Nearly half of the victims from these cases were foreign nationals, not United States citizens.[7] This indicates that individuals are being trafficked into Alabama for sex and labor, not just being removed and traded to elsewhere, so the trafficking through Alabama has national and international implications.

The Alabama code defines Human Trafficking in the First Degree, a Class A Felony, as knowingly subjecting another person to servitude through the use of coercion or deception.[8] Alabama also lays out the crime of Human Trafficking in the Second Degree, a Class B Felony, for anyone who knowingly benefits from engagement in said illegal coerced servitude.[9] A victim’s history of sexual activity or voluntary prostitution, connection to defendant by blood or marriage, consent, or a mistake as to the age of the victim are not defenses to human trafficking under Alabama law.[10] However, victims of human trafficking who are charged with offenses relating to their status as trafficked individuals may use that fact as a defense against any charges arising out of their trafficked status, such as prostitution.[11] Finally, the Alabama human trafficking criminal laws demand that the defendant, upon conviction, will have to pay restitution to the victim, including medical and psychological treatment costs, transportation costs, value of the labor given by the victim, and any other expenses or losses incurred by the victim as a result of the defendant’s wrongdoing, regardless of whether the victim remains in America for recovery or returns to their home country or another country for shelter.[12] For any additional monetary damages, victims are permitted to bring a civil suit against their trafficker for compensatory or punitive damages, among other relief measures.[13]

In addition to those basic provisions, Alabama laws provide additional protections to juveniles who are or may be victims of human trafficking. A child under the age of 18 who is a victim of human trafficking cannot be adjudicated delinquent or transferred to adult court and criminally convicted for prostitution and juvenile intake officers are ordered to look into the social history of each child reported for prostitution to determine if they might be a victim of human trafficking.[14] Instead of punishing those juvenile victims for their illegal acts, Alabama juvenile courts will declare them to be a child in need of supervision, allowing them to come under the protection of the juvenile system and receive all of the requisite social services without punishing them for a situation that was beyond their control.[15] This further protects the juvenile from the stigma of delinquency status in addition to the stigma of being a trafficking victim and allows them to recover from their situation and return to a normal life.

In compliance with and assistance to the enforcement of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, the United States Department of State produces and publishes annual reports on international human trafficking evaluating the overall status of human trafficking, as well as investigating each country’s compliance with the Protocol.[16] It compiles information from embassies, governmental and non-governmental organization, reports and news articles, research trips, and academic studies.[17] With that information, the Department places countries into a tiered ranking system: Tier 1 indicates that the country’s government has acknowledged the problem and made efforts to address it while meeting the Trafficking Victim Protection Act’s minimum standards in that regard; Tier 2 indicates that the country’s government is not fully in compliance with the Trafficking Victim Protection Act’s standards, but are working towards compliance; Tier 2 Watch List includes countries who fit into Tier 2 but have a significant and/or increasing number of trafficking victims; Tier 3 countries are not in compliance nor are they making significant strides towards compliance.[18]

Alabama, evaluated as an independent country, rather than a state, would likely be ranked by the United States Department of State as a Tier 2 country in a Trafficking in Persons Report. From the surface, Alabama seems like it would easily be a Tier 1 country; the laws in place offer thorough protection to victims and leave plenty of room to properly prosecute and punish perpetrators.[19] This is unsurprising, given that Alabama is of course part of the United States, itself a Tier 1 country.[20] However, the enforcement of those laws seems to be the downfall of the state. As explained above and in The Well House’s documentary on human trafficking in Alabama, police in Alabama often arrest human trafficking victims for prostitution.[21] This seems to put Alabama, viewed independently, more in line with Albania, a Tier 2 country.[22] Both Albania and Alabama have good laws in place but have some problems when it comes to strictly following that legislation.[23]

Quite frankly, it is shameful that Alabama would only receive a Tier 2 ranking. As part of the United States of America, it is expected that Alabama would be a shining example of how to handle human rights issues surrounding human trafficking, just as the United States is regarded as being. Fortunately, however, the existing problems are relatively minor. Unlike the Tier 3 countries, Alabama at least has the appropriate legislation and infrastructure in place to protect the rights of human trafficking victim’s the way it should. All it will take is an adjustment in a few enforcement mechanisms and maybe a shift in the general mindset of some law enforcement. Instead of arresting every person suspected of being a prostitute, police should engage in a dialogue with that individual, gaining a social history on the person, before deciding the appropriate course of action. While the fact that juvenile courts and criminal courts will protect trafficked individuals once charges are brought and their status as trafficking victims is revealed, the arrest itself is stigmatizing and traumatizing. Instead, it would be ideal if those victims were treated as such from the moment they first encounter law enforcement. Then, law enforcement can take on the protective reputation they should ideally embody and the victims will feel safe, something Alabama can be proud of. Alabama is rarely, if ever, on the cutting edge, but protecting the human rights of trafficking victims in compliance with international standards would offer the state a chance to stand out for something positive.

[1] Till Spencer, The I-20 Story: The Sex Trafficking Superhighway, The WellHouse, http://the-wellhouse.org/the-i-20-story.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Alabama, National Human Trafficking Resource Center, https://traffickingresourcecenter.org/state/Alabama.

[7] Id.

[8] Ala. Code § 13A-6-152.

[9] Ala. Code § 13A-6-153.

[10] Ala. Code § 13A-6-154.

[11] Ala. Code § 13A-6-159.

[12] Ala. Code § 13A-6-155.

[13] Ala. Code § 13A-6-157.

[14] Ala. Code § 12-15-701.

[15] Id.

[16] See, U.S. Dep’t of State, Trafficking Persons Report 2016.

[17] U.S. Dep’t of State, Trafficking Persons Report 2016, at 36 (2016).

[18] U.S. Dep’t of State, Trafficking Persons Report 2016, at 36-39 (2016).

[19] See, Ala. Code § 13A-6-(150-160).

[20] U.S. Dep’t of State, Trafficking Persons Report 2016, at 387 (2016).

[21] Spencer, supra note 8.

[22] U.S. Dep’t of State, Trafficking Persons Report 2016, at 68 (2016).

[23] U.S. Dep’t of State, Trafficking Persons Report 2016, at 68 (2016).

%d bloggers like this: