Constitutional Issues

Should social media passwords be a job requirement?

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This week's Daily Record column is entitled "Should social media passwords be a job requirement?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Should social media passwords be a job requirement?

I recently learned that the Yates County Sheriff’s Department was requiring current employees and job applicants to provide the Department with their social media passwords. The requirement was later rescinded for current employees.

The Yates County Sheriff’s Department isn’t alone. Requiring social media passwords as part of the job application process is an increasing trend—and a disturbing one, especially when the employer is a governmental entity, such as a law enforcement agency.

A similar case made the news earlier this year when Maryland corrections officers were required to provide the Maryland Division of Corrections access to their Facebook accounts as part of the job recertification process.

The ACLU of Maryland became involved and challenged the policy, asserting that the policy violated the privacy right of employees, job applicants and their “friends” on social networks. In January of 2011, the ACLU sent a letter to the DOC (online: http://www.aclu-md.org/aPress/Press2011/collinsletterfinal.pdf) summarizing its objections. In part, the ACLU objected to the privacy violations occurring because of the policy: 

Neither Officer Collins nor his Facebook “friends” deserve to have the government snooping about their private electronic communications. Login information gives the DOC access to communications that are intended to be private…(and) the DOC demand for login information is equivalent to demands that they produce all of their private correspondence and photographs for review, or permit the government to listen in on their personal telephone calls, as a condition of employment.

The Maryland DOC later suspended the policy for 45 days as it related to current employees and in April 2011, revised the social media policy somewhat, but the revisions did little to alleviate the ACLU’s privacy concerns.

The Maryland DOC and the Yates County Sheriff’s Department aren’t the only law enforcement agencies requiring applicants to provide social media passwords. In fact, according to a November 2010 report, the IACP Social Media Survey, issued by the International Association of Chiefs of Police, nearly one third of all law enforcement agencies required access applicants to provide access to their social media profiles as part of the background check.

That so many law enforcement agencies engage in this practice is troubling for any number of reasons. Many social media users choose to limit public access to their social media profiles in order to enhance their levels of privacy and they do so for a reason: to keep their personal information private. When an agency obtains passwords to an applicant’s social media profiles, the agency is able to access all electronic communications related to the profiles, regardless of the privacy settings in place.

Additionally, when agencies obtain passwords to these profiles, they gain access to a vast array of information, including communications from unsuspecting third parties. These communications include messages and photographs posted to the applicant’s wall, status messages from friends that appear in the applicant’s social media stream and private messages from other users that are intended for the applicant’s eyes only.

Even if law enforcement job applicants consent to allow hiring agencies access to social media profile passwords, the “friends” of the applicants most certainly did not consent to having communications that they believed to be private perused by law enforcement officials. Thus, policies of this type infringe upon the privacy rights of innocent, unsuspecting third parties who happen to be friends with and correspond with job applicants. For that reason alone, this practice should be terminated.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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I Have a Date With TSA Next Month

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This week's Daily Record column is entitled "I Have a Date With TSA Next Month."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.

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I Have a Date With TSA Next Month

In early December I’m speaking to the IP section of the Colorado Bar Association about the legal and ethical issues of social media for lawyers. My trip to Denver will be the first time that I’ll have flown since the TSA’s new screening procedures were implemented.

My hope is that I won’t be “randomly” selected to walk through one of the new full-body scanners that were rolled out to airports, including the Rochester International Airport, across the country earlier this month. These scanners dose the subject with radiation and create a detailed, graphic image of the person’s nude body. According to TSA representatives, the radiation levels are safe, but others dispute this claim.

If I am one of the 20 percent of travelers selected to receive a full-body scan, I intend to opt out, both for health-related reasons and as a matter of principle.

Unfortunately, now that the screening procedures have changed, that means I’ll be subjected to the new, more invasive pat-downs that were implemented at the same time as the new full-body scanners.

A TSA agent will use the fronts of their hands to pat down all areas of my body, including my breasts and groin. Previously, TSA agents used the backs of their hands and avoided engaging in non-consensual fore- play with air travelers.

Not anymore.

In the name of national security, forced intimacy strangers is now par for the course

Hopefully, my experience will be less traumatic than that of other recent air travelers.

First, there’s Tom Sawyer, a 61-year-old bladder cancer survivor who had urine from his urostomy bag spilled onto his clothes following a rough TSA search that left him humiliated and in tears. Then there are the breast cancer survivors, a number of whom have complained that TSA agents forced them to remove their prosthetic breasts.

Sexual assault victims have also been traumatized by the experience, describing heart-wrenching accounts of encounters with TSA agents. Many have said that the pat downs caused them to experience flash backs from the original sexual assault.

Then there are the children appearing in widely circulated YouTube videos. One is of a 3-year-old girl receiving an invasive pat down from a TSA agent and screaming “Don’t touch me!” as her mother holds the hysterical child during the search. In another video, a young boy is seen removing his shirt during a TSA pat down as bystanders express their disbelief.

Many security experts have likened the new procedures to an ineffective “security theater” performed only for show. In other words, the newly revised security dance looks good, but does very little to actually protect us from a terrorist attack.

This, to me, is simply unacceptable. I’m outraged by the invasiveness and ineffectiveness of the new security procedures and it pains me to hear of my fellow citizen's humiliating experiences at the hands of government agents.

They deserved better. We all do.

Needless to say, I don’t relish my upcoming “date” with TSA. I’m not looking forward to the possibility of being groped by a stranger after refusing the full-body scan. However, I plan to make the best of it and will pass the time by humming Meat Loaf’s song “Paradise by the Dashboard Light” as the TSA agent pats me down. After all, it only seems fitting.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com

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Curfew Fails Abused Children

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This week's Daily Record column is entitled "Curfew Fails Abused Children."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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The Rochester youth curfew was defeated once again last week when the New York State Court of Appeals issued its decision in Jiovon Anonymous v. City of Rochester.

At issue in the case was the legality of the youth curfew law, which became effective September 2006. The ordinance made it unlawful for those younger than 17 to be in a public place Sun- days through Thursdays between 11 p.m. and 5 a.m.,
and between 12 and 5 a.m. Fridays and Saturdays.

A minor accused of violating curfew could taken into custody immediately, and a conviction of the ordinance constituted a “violation,” as defined in the Penal Law,
punishable by a sentence of up to 15 days in jail.

The court limited its review to the constitutional issues raised on appeal and concluded that intermediate scrutiny, rather than strict scrutiny, was the appropriate level of analysis. Thus, in order to prevail, the City of Rochester was required to show that the curfew ordinance was “substantially related” to the achievement of “important” government interests.

The court applied the test to the constitutional claims of both the minors and parents affected by the law and determined that the Appellate Division, Fourth Department concluded correctly that Rochester’s curfew law was unconstitutional.

The court emphasized that the city failed to offer sufficient evidence to establish that the imposition of a curfew significantly reduced juvenile crime or victimization: “Without support from the City’s own empirical data, we conclude that the justifications made by the Mayor and the Chief of Police for the nighttime curfew, based primarily on opinions, are insufficient since they do not show a substantial relationship between the curfew and goals of reducing juvenile crime and victimization during nighttime hours.”

Similarly, the court concluded that the curfew law impermissibly interfered with parental due process rights, arguably interfering with stated goal of promoting parental supervision rather than supporting it: The “curfew ‘does not allow an adult to pre-approve even a specific activity after curfew hours unless a custodial adult actually accompanies the minor. Thus, parents cannot allow their children to function independently at night, which some parents may believe is part of the process of growing up’ (Nunez, 11 F3d at 952). Consequently, we conclude that the
challenged curfew is not substantially related to the stated goals of promoting parental supervision.”

The court then implied that the law would have had a better chance of passing constitutional muster if it had included a parental consent exception.

As I’ve noted in the past, my concern with youth curfews is that they effectively prevent children from escaping traumatic home environments. The inherent assumption behind curfews is that all guardians are caring, selfless and emotionally stable individuals.

Unfortunately, that is not always the case. For children with drug-addicted or abusive guardians, their homes are anything but safe. In many cases, the safest recourse for these children is to go elsewhere; sometimes the street simply is the safest alternative.

Arguably, curfew laws that include a parental consent exception at least provide a  neglected child with some flexibility, since it’s safe to assume that drug-addicted or otherwise neglectful parents are more than happy to have their children out of their sight.

The parental consent exception does little to protect the well being of abused children, however, since many abusers refuse to allow their child to leave the home. The home is the abuser’s playground and the child is their toy.

Any type of curfew law, then, is harmful to abused children. Such laws effectively imprison children in their abuser’s lair, actually encouraging —rather than preventing —victimization.

Any initiative that results in harm to a percentage of the population it is intended to protect is a failure.

Accordingly, rather than appealing the Court of Appeal’s decision or attempting to amend the curfew law, the city should simply abandon its failed initiative.


In New York, Privacy Trumps Technology

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This week's Daily Record column is entitled "In New York, Privacy Trumps Technology."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Last week the New York Court of Appeals handed down its decision in People v. Weaver, a case I wrote about when oral arguments occurred in March.

At issue in Weaver was whether GPS tracking device evidence obtained by law enforcement without a warrant should have been suppressed.

The disputed evidence was obtained after a GPS tracking device was placed on the defendant’s car in the absence of a warrant and his movements were tracked for 65 days without his knowledge.  He was eventually arrested and charged with 2 counts of burglary, for which he was later convicted.

The Appellate Division, Third Department, concluded that the evidence obtained from the GPS device was admissible since the defendant had no expectation of privacy regarding movements that would have been visible via the naked eye.

In my earlier article, I vehemently disagreed with this conclusion, urging that the constitutional interpretation of our laws must conform to the ever-changing technological landscape, and that the failure to do so would render our laws and constitutional protections obsolete:

Technological advances are changing our lives in ways we never before imagined. New devices are being invented that enhance the ability of law enforcement officers to observe and follow our movements in ways not envisioned just 10 years ago. Who knows what capabilities law enforcement will have 20 years from now?…Judicial oversight of the use of advanced technologies is necessary to prevent baseless, invasive and limitless intrusions into the lives of law-abiding Americans.


I was pleased to learn that the New York Court of Appeals agreed, ruling that the evidence was inadmissible. 

The Court noted that GPS technology does not simply enhance the senses, but rather allows a “new technological perception” that could not otherwise be obtained without massive amounts of manpower, equipment and funding. 

Also of importance to the Court in reaching its determination was the vast amount of personal information that could be collected via constant GPS tracking of a person’s whereabouts, including the individual’s political, professional, religious and amorous associations.

Accordingly, the Court concluded that the evidence should have been suppressed pursuant to the New York State Constitution:

Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated.  Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.


Judge Smith, Judge Read and Judge Graffeo dissented.  In Judge Smith’s dissent, he asserted that the majority’s holding amounted to the constitutionally unsupportable proposition that certain technological devices were too advanced to be utilized by law enforcement in the absence of a warrant.

To an extent, I agree with Judge Smith—the majority’s holding encompasses the idea that the complexity and invasiveness of emerging technologies warrants judicial scrutiny of the methods utilized by law enforcement in order to prevent abuse. We part ways to the extent that he asserts that this proposition is unconstitutional.

Rather, the majority’s holding is simply an acknowledgement that the right to be free from unlawful governmental intrusions must not be permitted to be whittled away in the face of increasingly intrusive technologies. 

Simply put, in New York, the right to privacy should always remain paramount.

It is, for that very reason, that Weaver is one of those heartening decisions that makes me proud to be a New Yorker.  It is rare that a lone opinion is able to single-handedly restore my faith in the judicial process and the protections offered by our State Constitution.  People v. Weaver is just such a case. 






A Confounding Victory

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This week's Daily Record column is entitled "A Confounding Victory."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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A Confounding Victory

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment —the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

—ARIZONA V. GANT, NO. 07-542

Last week, on April 21, the U.S. Supreme Court decided Arizona v. Gant, a decision being touted as a constitutional victory by privacy rights advocates.

The court held that arresting officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or if the officers have a reasonable belief that the vehicle contains evidence of the crime for which the person is being arrested.

The decision is both fascinating and a profound example of why Fourth Amendment jurisprudence is worth little more than the paper on which it’s written.

What is most fascinating about the decision is the unlikely judicial alliances found in the 5-4 decision. The majority opinion was authored by Justice Stevens, who was joined by the rather motley crew of Justices Scalia, Thomas, Souter and Ginsberg. Chief Justice Roberts and Justices Kennedy, Alito and Breyer dissented.

That Justice Scalia joined the majority in limiting the scope of a search incident to arrest is, in and of itself, unusual. For so-called “liberal” Fourth Amendment champions such as myself, however, Justice Scalia’s concurring opinion is all the
more surreal.

First, Justice Scalia indicated that he would go further than the majority and hold that a search of a vehicle incident to arrest is reasonable only when the police have probable cause to believe the vehicle contains evidence of a crime. Justice Scalia
explained that officer safety procedures dictate that the arrestee should be removed from the car prior to the arrest, therefore the arrestee should virtually never be within reaching distance of the passenger compartment, rendering that exception unnecessary.

Even more confounding is that, when discounting that exception, Justice Scalia acknowledged that police actions do not occur in a vacuum. He explained that the exception allowing officers to search for weapons within reach of the passenger compartment “leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search.”

And, with that simple statement, Justice Scalia broke the golden rule of Fourth Amendment jurisprudence, forever changing the course of Constitutional Law classes across this great land. Hypothetical factual scenarios will necessarily have to be rooted in reality from now on.

No longer will robot-like police officers, devoid of emotion or ulterior motives star in hypothetical arrests. Rather, the factual scenarios will take into account that law enforcement officers are just as human as the rest of us and enter the field carrying
their own set of psychological baggage: ripe with prejudices and under pressure, both professional and personal.

Hypothetical examples will be grounded in reality, with the full knowledge that police officers not only are tempted to, but actually do, alter the sequence of events occurring before an arrest to conform to current Fourth Amendment jurisprudence. Evidence obtained illegally ultimately is rendered admissible after creative narration in police reports.

That is the reality, rarely acknowledged, when carefully scripted, fictional scenarios reach the hallowed halls of the U.S. Supreme Court.

That Justice Scalia, of all people, acknowledged that fact, makes this particular victory all the more confounding.


Carelessness Trumps the Exclusionary Rule

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This week's Daily Record column is entitled "Carelessness Trumps the Exclusionary Rule."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Carelessness Trumps the Exclusionary Rule

In February 2008, I wrote an column about the U.S. Supreme Court’s decision to grant certiorari in Herring v. U.S.

I predicted the court would conclude that the exclusionary rule did not apply to the facts of the case. At issue in Herring was whether the exclusionary rule should apply to evidence discovered during an unlawful arrest, when a suspect’s arrest is based on erroneous information from another law enforcement officer. Herring was arrested based on an arrest warrant that was recalled, but not purged, from the
computer database, as it should have been.

Earlier this month, the court issued its decision in Herring v. U.S., No. 07-513, and confirmed my suspicion that it would, once again, chip away at the exclusionary rule:

In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not ‘go free because the constable has blundered.’”People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion by Cardozo, J.).

The holding is problematic for any number of reasons, but two of the court’s underlying assumptions are particularly disturbing: One being that any deterrent effect of the exclusionary rule in the case would be “marginal”; the second, that all arrestees are necessarily criminals.

Justice Ginsberg wrote the dissent in the 5-4 decision, noting that the most troublesome outcome likely will be an increase in the wrongful arrests of innocent citizens:

[T]he ‘most serious impact’ of the Court’s holding will be on innocent persons ‘wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base.'

She also addressed the concern I previously raised —that a decision holding the exclusionary rule inapplicable in such a situation would remove any incentive to promptly remove recalled arrest warrants from government databases:

The Court assures that ‘exclusion would certainly be justified’ if ‘the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests.’ … This concession threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. … In keeping with the rule’s ‘core concerns,’ … suppression should have attended the unconstitutional search in this case.

As Justice Ginsberg notes, widespread use of computer databases is now the norm in America and massive amounts of data are collected, stored and shared among various governmental agencies.

Undoubtedly, such sharing of information has the potential to increase law enforcement’s ability to protect U.S. citizens from harm. The Herring decision, however, essentially guarantees just the opposite will occur. As the economy falters
and budgets tighten, governmental entities most certainly will fail to allocate sufficient resources toward the periodic regulation and review of law enforcement databases, since there is now little, if any, incentive to do so.

As a result, ordinary, law-abiding citizens —especially those with common names or names resembling those on terror watch lists —will bear the brunt of the decision.
Such an outcome is unfortunate, unacceptable and un-American.


Fear and Liberty Must Co-exist

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This week's Daily Record column is entitled "Fear and liberty must co-exist."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


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Fear and Liberty Must Co-exist

“[F]ear cannot…allow…the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed.”
Farag v. U.S., __F.Supp.2d__, 2008 WL 4965167 (EDNY 2008)

Just before Thanksgiving, the U.S. District Court for the Eastern District of New York addressed the intriguing issue of whether federal agents could rely solely on airline passengers’ Arab ethnicity when determining whether probable cause exists for their arrest.

In Farag v. U.S., the plaintiffs brought a Bivens claim against governmental entities and employees, asserting that their arrest and subsequent detention and interrogation violated their constitutional rights.

The plaintiffs, both of Egyptian descent, were long-time friends. One was an American citizen and a retired New York City police officer while the other possessed a valid U.S. Visa and was an Egyptian citizen, employed as a sales manager by General Electric.

After vacationing in California, the plaintiffs boarded a plane in San Diego bound for New York City. Counterterrorism agents were on the flight as well and subsequently detained and arrested the plaintiffs based on suspicions of terrorism.

The government asserted probable cause for the plaintiffs’ arrest existed based on non-ethnic factors. The court dismissed that argument, then turned to the government’s claim that the plaintiffs’ Arab ethnicity and use of the Arabic language were relevant factors in the determination of probable cause since the individuals who “participated in the 9/11 terrorist attacks were Middle Eastern males … [and] the United States continues to face a very real threat of domestic terrorism from Islamic terrorists.”

In other words, their position was that, in our post-9/11 world, the mere fact that an airline passenger is believed to be of Arab ethnicity is of great importance when determining probable cause since Arabs have a greater propensity to commit acts of terrorism than non-Arabs.

The court flatly rejected this argument, noting that precedent from both state and federal courts squarely supported the conclusion that ethnicity should not be used as the basis to support governmental intrusion under the Fourth Amend-
ment:

There is no doubt the specter of 9/11 looms large over the case. Although it is the first post-9/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment, the court cannot subscribe to the notion that in the wake of 9/11 doing so now is permissible. As the Second Circuit recently admonished, “the strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.” Iqbal v. Hasty, 490 F.3d 143, 159
(Second Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, __U.S.__, , 128 S.Ct. 2931, __L.Ed.2d__ (2008).

It is heartening to read those words in the context of a court decision, rather than an editorial. The United States is a great country founded on the principles of liberty and freedom from baseless governmental intrusions. Such protections, embodied in our Constitution and Bill of Rights, are what separate us from much of the world.

We cannot allow the horrors of 9/11 to reduce us to a land of people paralyzed by fear, full of hatred and distrust. Our legitimate concerns regarding our safety and the safety of our families must never be permitted to override the liberties and freedoms to which all people are entitled, regardless of their race, religion or creed.

Fear and liberty can co-exist. They must co-exist; otherwise the America we know will be no more.


Religious liberty for some, not all

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This week's Daily Record column is entitled "Religious liberty for some, not all."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Religious liberty for some, not all

“Hypocrisy is oftenest clothed in the garb of religion.”
— HOSEA BALLOU

I was intrigued when the Becket Fund for Religious Liberty, a public interest law firm that purports to protect all religious expression, recently confirmed it would be filing a religious discrimination lawsuit against the Town of Morristown in U.S. District Court for the Northern District of New York on behalf of Amish residents.

The lawsuit will allege Morristown’s enforcement of building codes against the Amish, including a requirement that all homes have fire alarms, violates the sect’s constitutional rights.

In a letter to the members of the town board dated March 18, the fund states:

We are writing you to express our deep concern over Morristown’s decision … to engage in selective prosecution of 10 Old Order Amish men for alleged violations of the Town’s building code. … As an international, interfaith, public interest law firm, the Becket Fund is dedicated to protecting the free expression of all religious traditions and the freedom of all people of faith to participate fully in public life without discrimination. (Emphasis in original).

The position asserted in the letter is in keeping with the fund’s statement of beliefs found, on its Web  site: “What Do We Believe":

Freedom of religion is a basic human right that no government may lawfully deny. … Religious expression (of all traditions) is a natural part of life in a free society, and religious arguments (on all sides of a question) are a normal and healthy element of public debate. Religious people and institutions are entitled to participate in public life on an equal basis with everyone else, and
should not be excluded for professing their faith.

Upon delving deeper, however, it appears that the fund’s assertion that it serves the interest of all religious traditions is disingenuous, at best. Rather, the fund represents only the interests of politically and socially conservative religious groups.

The apparent disingenuousness is most evident in the fund’s ardent opposition to gay marriage. Over the last few years, the fund has  filed amicus briefs opposing the legalization of gay marriage in Over the last few years, the fund has  filed amicus briefs opposing the legalization of gay marriage in at least three state courts —Maryland, Connecticut and Iowa.

In the brief filed in the pending Iowa lawsuit, Varnum v. Brien, Case No.: CV5965, the fund admits in footnote 3 that it does not represent the interests of all religions, but rather those whose beliefs conform to the fund’s conservative agenda:

Notably, the signatories to that brief consist exclusively of persons and groups that ‘support the dignity of loving, committed same-sex couples, and believe that same- sex couples should be permitted to enter civil marriage.’ See, Brief Amici Curiae of Iowa Faith Leaders at 8. These signatories, who have faced no threat to their religious liberty under the traditional legal definition of marriage, would face no greater threat if that definition changed since their theology supports same-sex marriage. But their brief ignores the many interests of religious groups (perhaps the majority) that theologically oppose same-sex marriage. And it is precisely those more traditional religious institutions whose religious liberty is threatened.

It is clear, then, that despite empty assertions to the contrary, the fund does not support the interests of every faith, since all religious institutions do not oppose gay marriage.

In fact, a number of religious organizations openly support same sex relationships as a matter of policy, including the Universal Fellowship of Metropolitan Community Churches, Ecumenical Catholic Church, Church of God Anonymous, the Alliance for Jewish Renewal (ALEPH), Reconstructionist Judaism, Reform Judaism and the Unitarian Universalist Association.

Others, including United Church of Christ and various Quaker groups allow clergy, congregations and local governing bodies to determine the appropriate level of support for gay marriage.

The Becket Fund for Religious Liberty is but a caricature of a true public interest law firm. While purporting to represent religious liberty for all, the fund supports only those religions that conform to its conservative agenda, rendering its litigation efforts selective at best, and hypocritical at worst.


Does Security Require the Loss of Liberty?

Drlogo11 This week's Daily Record column is entitled "Does Security Require the Loss of Liberty?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Does Security Require the Loss of Liberty?

Men fight for liberty and win it with hard knocks. Their children,
brought up easy, let it slip away again, poor fools. And their grand-
children are once more slaves
.”
—D.H. Lawrence, “Classical American Literature,” 1922

I prefer liberty with danger to peace with slavery.
—Unknown

By the year 2010, the New York City Police Department plans to photograph and track every vehicle that
enters Manhattan.

The goal of the program, “Operation Sentinel,” is to fight terrorism by collecting data from every vehicle traveling along seven tunnels and bridges —the Brooklyn-Battery, Holland, Lincoln and Queens-Midtown tunnels, and the George Washington, Henry Hudson and Triborough bridges.

Under the plan, all cars and trucks will be photographed and their license plates will be scanned and saved in a database in Lower Manhattan for at least one month. In addition, sensors will be used to scan each vehicle in an effort to detect radioactivity.

Operation Sentinel will work in tandem with a $70 million federal program, “Securing the Cities,” and the Lower Manhattan Security Initiative, a $90 million project that includes implementation of a video
surveillance system around Lower Manhattan that will track thousands of people each day. The stated goal is to have more than 3,000 cameras in place by the end of the year.

The video surveillance system is being referred to as a “ring of steel” and is modeled after the system used in London’s financial district.

That fact is particularly interesting, given that the video surveillance system in place at the time of the terrorist attacks in London did nothing to prevent the bombings. Rather, the surveillance tapes simply assisted authorities in identifying and rounding up suspects after the attacks occurred.

It would seem, then, based on the lessons learned from the London attacks, that any sense of safety provided by constant governmental surveillance of New Yorkers’ movements would be illusory, at best.

The only aspect of the plan that is arguably preventative is the intent to scan vehicles for the presence of radiation. Brief investigations of positive readings likely would be rare and would serve the stated purpose of preventing an attack, rather than assisting in seeking vindication after the fact.

The need for vindication following a terrorist attack is natural and understandable, but where the vast majority of the $160 million likely will serve to achieve vindication, rather than prevention, it seems a bit excessive.

Last week, New York City Mayor Michael Bloomberg defended Operation Sentinel and offered the following rationale for its implementation: “New York City is something special. It’s not just a very big city in this world. It is, in many senses, the iconic city. It represents Western Democracy.”

Bloomberg is correct. New York City, with the Statue of Liberty in its harbor, is a symbol of the very freedom and liberty upon which our great nation was founded.

If we must erode our civil liberties in the name of terrorism, shouldn’t the primary goal in doing so be prevention, not vindication after the fact? Is the loss of our freedoms truly outweighed by the minimal preventative benefits of surveillance cameras and tracking systems? Is the slow demise of our civil liberties in the name of the battle against the nebulous enemy, “terrorism,” truly worth it?


Is justice obtained if not consistently applied?

Drlogo11 This week's Daily Record column is entitled "Is justice obtained if not consistently applied?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Is justice obtained if not consistently applied?

The death penalty is one of the few issues with which I have difficulty reconciling my rather liberal criminal defense tendencies.

While the concept of the state executing another human being is repugnant to me, I find that on rare occasions the sordid facts of a highly disturbing case cause a little voice inside
my head to whisper convincingly, “if ever a case merited such a severe penalty, it’s this one.”

The recently decided U.S. Supreme Court opinion, Kennedy v. Louisiana, No. 07-343, is just such a case.

As a mother of two children, I am particularly repulsed by allegations of a rape committed against a defenseless and helpless child. The underlying facts of this case are heart wrenching. The victim was just eight years old when she was brutally raped by her stepfather, resulting in injuries so severe that she required emergency reparative surgery.

Of all the non-fatal cases that might warrant the death penalty, this reprehensible crime most certainly fits the bill. This poor child’s life will never be the same.

Not surprisingly, my feelings were mixed when I learned the court held that imposing the death penalty in child rape cases violated the Constitution. Specifically, the majority of the court concluded that the Eighth Amendment prevented Louisiana from imposing the death penalty for the rape of a child in cases where the crime did not result, nor was intended to result, in the death of the victim.

However, I began to experience an overwhelming sense of relief as I read the majority opinion. The decision was well grounded, both in policy and legal precedent. Despite the horrendous facts of the
case, the court made the correct determination and spared us, as a society, of the burden of attempting to navigate an untraversable slippery slope.

The crux of the issue was not of retribution, but rather, one of practical application. The court focused on the severity and finality of the death penalty and the likelihood that its application would prove to be anything but consistent in child rape cases:

“We find it difficult to identify standards that would guide the decision maker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way… In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakis[h].’ … We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim. … Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

The potential for the arbitrary application of the death penalty in child rape cases is extraordinary. The lack of uniform implementation of such an irrevocable and final sentence would be anything but just. And justice simply cannot be assured in the absence of consistency.