Same Sex Adoption in Arizona After Latta v. Otter

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Arizona’s adoption laws could be influenced by a recent civil rights cases decided by the federal appeals court holdings that same sex marriage prohibitions violate the Equal Protection Clause of the Fourteenth Amendment. See Latta v. Otter, No. 13-cv-00482 (9th Cir. Oct. 7, 2014); Baskin v. Bogan, No. 14-2386 (7th Cir. Sept. 04, 2014).

Legal analysts think there may be changes to the legal landscape in Arizona because same sex marriages are permissible in Arizona.

Adoption by same sex couples is just one area that may be impacted by the Majors ruling (which is based on the Latta v. Otter opinion), holds prohibitions on same sex marriages are unconstitutional.

Currently, Arizona law creates a preferences for a married man and woman for adoptions.  “If all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.”  Ariz. Rev. Stat. § 8-103(C).

Okay, let’s clarify real quick, “[a]ny adult resident of this state, whether married, unmarried or legally separated is eligible to qualify to adopt children.”  Ariz. Rev. Stat. § 8-103(A).  Although anyone can adopt a child, the “adoption agency shall place a child in an adoptive home” that is in the best interest of the child.  Ariz. Rev. Stat. § 8-103(B).  When signing Senate Bill 1188 into law in 2011, the Arizona Legislature directed state and private agencies to place children in adopted homes which are in the best interest of the child.  But one of the potential factors gives preferential treatment to a married man and woman.  The law very specifically mentions a preference  for a married man and woman and not a married couple.

The legislative history and media reports at the time confirm the same type of equal protection concerns arise under the adoption law. “Conservative groups and other supporters of the measure said children should have every opportunity to grow up in a household with a mom and dad.” The AZ Republic reported in 2011 when the law changed to add a preference for a married couple. Furthermore, media report is corroborated by the official “House Summary, As Transmitted To The Governor.”

Now that courts have ruled Arizona laws prohibiting same sex marriages are found to violate the Fourteenth Amendment of the United States Constitution this could have a positive effect on same sex couples who choose to adopt.

Hopefully, the provision giving preference to married heterosexual couples will be changed legislatively or judicially, soon.

To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as
unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values.’

 — Latta v. Otter, No. 13-cv-00482, at *28 (9th Cir. Oct. 7, 2014).

Phoenix Police Department Creates Mental Health Advisory Board

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The Phoenix Police Department is making serious strikes in how it handles situations where individuals have mental health issues.

“The board, made up of mental health professionals, will help police with training methods when it comes to dealing with mentally ill cases, and include regular reviews of protocol.”  According to reporting by ABC 15 News.

I am really proud of the Phoenix Police Department for making this first step and creating an advisory board. This is an example of the standard of professionalism set by the department.  Accepting that more could be done, Phoenix police are actively engaging experts in the community in how to handle complex situations that involve individuals with mental health issues.

As I have argued in the past, on this website, I believe the Americans with Disabilities Act creates an affirmative duty for police to accommodate individuals with known mental health problems (it must be known to the police too).  The task force could recommend what reasonable accommodations could be made by police officers during investigations.

Procedures and guidelines for police on mental health calls in Phoenix are less than clear from at least the public’s perspective.   ABC 15 News did report in the article linked to above that on each mental health call performed by Phoenix police, an officer and a Sargent trained in crisis intervention are on hand.  Presumably the crisis intervention training includes a mental health aspect — or at least I would hope so.

While many more mental health calls go on each day than are reported in the news, two high profile situations yielded very different results.

The use of deadly force during mental health calls by the Phoenix Police Department is still concerning to me.  It is not clear if non-lethal options are available, and if so, are taught as a first option in the crisis intervention training.  The news articles appear to only mention police use or potential use of guns. Perhaps this is just incomplete reporting by the local news media.  On the other hand, I would like the advisory board and for Phoenix police to focus on non-lethal options.  Of course there are times when lethal force is necessary to protect law enforcement and citizens, it should be a last resort in situations with known mental health issues.

I think that is a reasonable accommodation.

 

 

Equal Protection in Arizona Same Sex Marriages – A Look at the Change in Case Law

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Last week a judge struck down a same-sex marriage ban in Arizona on equal protection grounds.  The ban was created by both state law and a state constitutional amendment.  United States District Judge John Sedwick on Oct. 17, 2014 declared Ariz. Const. art. 30, § 1, Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) all violated federally protected constitutional rights.  Majors v. Horne, No. 14-cv-00518 (D. Ariz. Oct. 17, 2014) (the full opinion is available at the bottom of this article).

But this was not the first time the state laws were challenged (the Arizona Constitutional Amendment was not created at the time).  In 2003, the Arizona Court of Appeals unanimously found both Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) to be reasonable laws, and upheld them in the face of constitutional challenges. Standhardt v. Superior Court of Ariz.,77 P.3d 451 (Ariz. Ct. App. 2003) (holding Arizona’s statutory prohibition of same sex unions does not violate either the Arizona or United States Constitution). These are the same state laws Judge Sedwick ruled unconstitutional last week.

So what gives?  What has changed so much in the past eleven years to warrant a complete reversal in judicial ideology?  I am very happy for this civil rights victory for same sex couples.

How two unanimous courts could come to completely opposite viewpoints on the same set of laws, really interests me from a civil rights perspective.  I want to delve into this really interesting situation and see what happened.

Couple Gets Married After Waiting 23 Years @ Same Sex Marriage Legalized in Iowa

Photo credit: Alan C., Flickr

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Article – Riley’s Implications for Fourth Amendment Protection in the Cloud

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The United States Supreme Court held in Riley v. California that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.

It seems like the what is on the physical cell phone is just the root of the search and seizure issue.  Many cell phones are connected to much more information than the physical device can hold.  Extending the capacity to access documents, cloud storage can vastly increase what a cell phone has access to.

Acting as an extension of the physical cell phone, it is not completely clear what the Fourth Amendment search and seizure ramifications are.

Riley’s protection of cloud-based data for cell phone searches, however, does not address the broader question of whether information stored in the cloud is entitled to Fourth Amendment protection in other contexts. Indeed, the Court went out of its way to state that Riley did ‘not implicate the question [of] whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.’ The Court also distinguished the facts of Riley from those in Smith v. Maryland, one of the principal cases to apply the so-called “third-party doctrine.” The third-party doctrine, which provides that information voluntarily revealed to third parties is not protected by the Fourth Amendment, may pose the biggest obstacle to whether cloud-based data receives Fourth Amendment protection, since any data stored in the cloud is necessarily conveyed to third-party servers. Yet by sidestepping the third-party doctrine in Riley, the Court never had to address how the doctrine applies to private data stored across remote servers.

Nevertheless, while failing to explicitly afford Fourth Amendment protection to cloud-based data, Riley still provides the best evidence yet that the Court may be ready to reconsider the third-party doctrine and to recognize Fourth Amendment protection for personal data stored in the cloud.

– Ryan Watzel, Riley’s Implications for Fourth Amendment Protection in the Cloud, 124 Yale L.J. F. 73 (2014), http://www.yalelawjournal.org/forum/rileys-implications-in-the-cloud.

 

Predictive Policing in Phoenix

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Algorithmic crime-fighting, based on predictive technology makes makes me nervous.  Let me just say that upfront.

The Phoenix Police Department probably predicted I would write that…

It appears that Phoenix Police Department uses predictive analytics, as at least a tool to aid them in policing the sixth most populous city in the United States.  My Open Records request with the Phoenix Police Department is pending, without a timetable for completion.  While we wait, I think it is appropriate to look at what we do know about predictive policing.

Predictive Policing

There is not a whole lot of academic information on predictive policing, in part because predictive analytics is such a young field in and of itself.

Probably the best definition I could find of this mysterious topic came from the RAND Corporation, a non-profit global policy think tank.

Predictive policing is the application of analytical techniques—particularly quantitative techniques—to identify likely targets for police intervention and prevent crime or solve past crimes by making statistical predictions.

Predictive Policing, RAND Corporation, at *5.

Through an analysis of existing academic papers, vendor literature, and police use of predictive analytics the RAND Corporation came up with four types of predictive policing.

  • Predicting crimes – forecasts places and times with an increased risk of crime
  • Predicting offenders – potential for an individual to re-offend in the future
  • Predicting perpetrators identities – profiling likely offenders
  • Predicting victims of crimes – identify groups or, in some cases, individuals who are likely to become victims of crime.

– Predictive Policing, at *6.

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Mental Health Call Diffused By Phoenix PD

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Phoenix police handled a very difficult situation where a man who suffers from schizophrenia wanted to harm others.  According to the ABC 15 News reporting.

At one point, the man had a knife and lunged at an officer.  It is reported the police officer drew his gun and thought about using it to protect himself, he ultimately did not use it.  The situation was diffused and the man was taken in for a psychiatric evaluation.

The result was not the same in mid-August where a woman wielding a hammer was killed during a mental health call when a Phoenix police officer shot her.

Looking through the index of the Phoenix Police Department Operation Orders it appears the section Mental Health Orders Tactical Response 9.7.3.F governs how mental health calls are dealt with.

I cannot analyze or share with the readers Section 9.7.3.F because it is restricted in the copy Operation Orders I have.  As this topic is in the news a few times recently, I will file an public records request and see if I can get access to this particular provision and shed some light on how Phoenix Police are expected to dealt with mental health calls.

It is important to note, once again, the Phoenix Police estimate they serve ten mental health calls a day.  It appears the vast majority of these are handled successfully without incident, such as the present case.  The police are put in a very complex and potentially very dangerous situation when dealing with mental health calls.

One residual thought I have from both incidents is why are guns only mentioned as weapons the police used or considered?  It is curious that non-lethal options are not mentioned.  It is not clear from the news articles if non-lethal means were available or used.  The Operation Orders should be able to provide a clearer picture about this.  And I hope it is a question that can be answered.

Article – The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement

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The posse is in effect!

This is a really interesting article I came across that will be published in the near future in a prominent law journal.

I know this article was written through a Colorado lens and would be great material for my Colorado Common Law site, but here in Maricopa County, Arizona we have one of the most notorious sheriff’s — Sheriff Joe Arpaio, “America’s Toughest Sheriff.”

In 2013, Sheriff Joe Arpaio made headlines when he proposed the idea of armed Sheriff posse members to patrol schools to increase school safety.  In an ABC News story from 2013, it states that approximately 500 civilian volunteers are certified to carry a weapon as a part of Maricopa County Sheriff Posse.

Sheriff’s posses doe not receive a whole lot of attention, either in the media or legally.  This is a really interesting look at a volunteer arm of law enforcement.

The Sheriff’s posse comitatus authority to call forth armed citizens to aid law enforcement is deeply rooted in the Anglo-American legal system, originating no later than the ninth century. The posse comitatus power thrives in the twenty-first century United States. Sheriffs today use their posse comitatus power frequently, sometimes daily. This Article describes the historical roots, the modern uses, and the Second Amendment implications of posse comitatus.

The posse comitatus power does not belong exclusively to Sheriffs, but the power was originally created for them, and they remain the most frequent users. Accordingly, Part I of this Article describes the origins and history of the Office of Sheriff. This Part explains how the nature of the Anglo-Saxon office provided the foundation for the American sheriff as a constitutional officer, elected directly by the people, and enjoying great independence in the performance of his duties. Whereas police chiefs are appointed to their place within (and not at the top of) the chain of command of a city government, sheriffs are autonomous.

Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present. The posse comitatus law of the 21st century United States is essentially the same as the posse comitatus law of England during the ninth century. The Sheriff in carrying out his duty to keep the peace in his county may summon to his aid the able-bodied adults of the county; the Sheriff has complete discretion about whom to summon and how the persons summoned shall be armed.

Part III provides a case study of the posse comitatus in modern Colorado. Posses have thwarted the escapes of criminals, including serial killer Ted Bundy. Posses also serve as citizen volunteers on a regular, structured basis; the assist the sheriffs during county fairs, weather emergencies, and hostage situations, and they perform many other duties. The most highly trained posse in Colorado is the Colorado Mounted Rangers, which provides armed assistance to many sheriffs’ offices and police departments on an as-needed basis.

Finally, Part IV considers the relation between the posse comitatus and the Second Amendment. The Second Amendment aims to foster a “well-regulated militia,” and in furtherance of this purpose, the right of all the People to keep and bear arms is safeguarded. The posse comitatus and the militia are not identical, but they overlap and are intertwined to such a degree that the disarmament of the one would inevitably destroy the other. One consequence of the Second Amendment was to ensure that the citizenry will be armed so that there can be an effective posse comitatus.

Accordingly, sheriffs and other officials who have the authority to summon the posse comitatus are intended third-party beneficiaries of the individual right to keep and bear arms. Sheriffs have proper third-party standing to defend and advocate for the Second Amendment rights of citizens in their jurisdictions.

A length Appendix summarizes the posse comitatus and related statutes which presently provide for citizens to be summoned to aid of law enforcement in almost every American state.

– David B. Kpopel, Independence Institute; Denver University – Sturm College of Law, SSRN.

 

 

Unionizing Phoenix’s Strippers

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You don’t have to watch the latest Franklin and Bash episode to know that strippers sometimes get a raw deal in society.  I can’t stop to help thinking that maybe if strippers unionized it would help cure some societal ills strippers face in employment, but it could also help the community as well.

What would it be like if the strippers in Phoenix unionized?  Hhhmmmmm.

I have been playing around with this idea for a while, long before I saw the Franklin and Bash try to unionize all the exotic dancers of Los Angeles, Season 4, Episode 6.  Seriously, if all the strippers in the city of Phoenix had a union to ensure they earned at least minimum wage, discrimination is kept in check (pregnancy discrimination comes to mind), and would be protected by the National Labor Relations Board in case they wanted to strike or picket (which would be interesting) —  it could help cure a lot of problems.

*** This article is not based off of any strip club in Phoenix and is just a generalization from what I have read about in the industry.  I do not know how any of the strip clubs in Phoenix are run, I only know the applicable laws governing employment.

Gorgeous Librarians

– Photo Credit: Thomas Hawk, Flickr

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Article: Collateral Consequences of Criminal Convictions – Employment in Arizona

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One of the consequences of a criminal conviction is difficulty in gaining employment the debt to society has been repaid. It is a referred to as a collateral consequence because it is not a part of the intended punishment – is a secondary effect.

A civil rights movement, known as ‘ban the box’ aims at persuading employers to remove from their hiring applications the check box that asks if applicants have a criminal record.  This article deals with the state of Arizona asking applicants if they have a prior criminal record.

Arizona law states a person shall not be removed from employment consideration by the state, unless the “offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.”  Ariz. Rev. Stat. §904(E).  Deciding what offense bears a reasonable relationship to the employment is not always clear, and leaves substantial discretion to the hiring agency.

The author of the article makes the point that since so many professions require state certification, licensing, or a permit to operate, this statute touches many industries in Arizona.

Collateral consequences are hidden sanctions through federal, state and local statutes, regulations and policies that affect the rights and responsibilities of rehabilitated persons after the penalty of a criminal conviction has been completed. Collateral consequences place a continuing burden on individuals seeking a fresh start in life thereby making relief from the consequences more elusive.

Penny Wilrich, Collateral Consequences of Criminal Convictions – Employment in Arizona, SSRN Elibrary.

 

Arizona Proposes Hotels Background Checks for Employees

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Arizona hotels have come under fire for potential negligent hiring of employees of who have unfettered access to rooms.  During the last two years a couple of hotels in Maricopa County have hired employees who were convicted felons, gave them access to hotel rooms, and allegedly the former employees sexually assaulted guests.

Now, a few state lawmakers are looking into whether background checks should be required for certain employees who work at hotels.

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