Civil Rights Case – Colwell v. Bannister 9th Cir. 2014

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The Ninth Circuit Court of appeals recently looked at whether it is a violation of the Eighth Amendment when a Nevada state prisoner who was denied cataract surgery because of a Nevada Department of Corrections policy under which cataract surgery is refused if an inmate can manage to function in prison with one eye.

Facts

Mr. Colwell is an inmate at the Nevada Department of Corrections serving a life sentenced without possibility of parole. Colwell v. Bannister, No. 12-15844, at *4 (9th Cir. Aug. 14, 2014). After incarceration Mr. Colwell developed cataracts in both eyes and underwent cataract-removal surgery on his left eye in 2001.  Id. “By October 2001, a cataract had developed in Colwell’s right eye that rendered him totally blind in that eye by 2002.” Id. That cataract has never been treated and is the issue here.

The Nevada Department of Corrections (NDOC) Medical Director, Dr. Bruce Bannister, stated a cataract does no damage to the eye and can be removed at any time. Id.

The NDOC has a written policy on cataract removals.

It is the policy of the Department that inmates
with cataracts will be evaluated on a case by
case basis, taking into consideration their
ability to function within their current living
environment.

Id. at *5.

There are also written procedures for the removal of cataracts.

1. Patients with visual impairment
incompatible with the ability to perform the
required tasks of daily living in their current
living environment may be considered for
removal of a cataract.
2. All cataracts extraction requests must be
approved by the Utilization Review Panel and
the Medical Director.

Id.

Three other medical providers recommended Mr. Colwell’s cataract be treated. Id. One medical provider noted Mr. Colwell needed the surgery to perform his job sewing mattresses at the NDOC. Id. A medical panel denied the request for cataract surgery, as per NDOC policies (see above). Id.

A follow-up medical report indicated that “Colwell’s condition was not life-threatening but did ‘significantly affect’ his quality of life.” Id. at *7. However, the same doctor next week backtracked and noted that Colwell with 20/20 eyesight out of his right eye, could qualify to drive a motor vehicle in many states. Id.

Issues

1. Whether the NDOC’s decision not to grant surgery for an inmate suffering from a cataract in a single eye violates the Eighth Amendment.

Result

The court voted 2-1 to overturn the summary judgment verdict and remand it back to district court for trial.

Serious Medical Need

The government has an obligation to provide medical care for those whom it incarcerates.  A violation to provide medical care can constitute an Eighth Amendment violation. Id. at *9. To prove an Eighth Amendment violation an inmate needs to prove “deliberate indifference” to serious medical needs. Id. at *10.

Such a need exists if failure to treat the injury or condition could result in further significant
injury or cause the unnecessary and wanton infliction of pain…Indications that a plaintiff has a serious medical need include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.

Id. (internal quotations omitted).

The 10th Cir. held the cataract to be a serious medical need.  Although it did not jeopardize his life, he lost the use of an organ for a decade.  He cannot turn to the left.  Also his depth perception is affected.  “He ran his hand through a sewing machine on two occasions while working in the prison mattress factory; he ran into a concrete block, splitting open his forehead; he regularly hits his head on the upper bunk of
his cell; and he bumps into other inmates who are not goodnatured about such encounters, triggering fights on two occasions.” Id. at *13.

Deliberate Indifference

There are two parts to deliberate indifference, a subject and objective test.  The subjective test is violated when a prison official knows of and disregards an excessive risk to inmate health or safety.

The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

– Id. at *10-11.

The deliberate indifference claim is rather unique.  This case is not about a medical opinion, a medical decision or indecision, or even medical mistake or negligence.  This is about a medical policy expressly written by the NDOC.

A reasonable jury could find that Colwell was denied surgery, not because it wasn’t medically indicated, not
because his condition was misdiagnosed, not because the surgery wouldn’t have helped him, but because the policy of the NDOC is to require an inmate to endure reversible blindness in one eye if he can still see out of the other. This is the very definition of deliberate indifference.

Id. at *14.

Dissent

The dissent starts off by saying it sympathizes with Colwell and would have granted the surgery if it had power to do so. The dissent says that the cataract would fall short of the Eighth Amendments prohibition against cruel and unusual punishment.

The dissent notes the United States Supreme Court has cautioned courts should have a limited role in the Eighth Amendment.  “Courts are not representative bodies… a decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment.” Id. at *24.

Serious Medical Issue / Pain

It is understandable that the majority bases much of its serious medical need analysis on McGuckin’s comment worthiness standard because Colwell’s cataract does not cause the wanton infliction of pain.

Id. at 31.

The dissent also points out that Mr. Colwell was not in any pain from the cataracts.

The dissent also questions all of the injuries which resulted from cataract, implying that it either did not occur, or that it resulted from other circumstances.  Id. at *32-35.

Disability / Serious Medical Condition

The dissent also contends that not every disability rises to the level of a serious medical condition.  “But if the bare fact of being blind in one eye may be considered a disability, it is not crippling.” Id. at *36.

The dissent says there is not as clear of a consensus for cataracts being a serious medical condition. Id. at *37.

Revenge Porn Laws Do Not Deter

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Last week, a profile on a revenge porn website was created for a woman who lives in Maricopa County, Arizona.  Many sexually explicit photos and a couple of videos are posted of this young woman, along with links to her social media accounts, and her place of employment.  After all, this was posted a couple of months Arizona made posting revenge porn a felony in the state.

I might be jumping the gun (because many of these laws are only a week or two old), but I do not think the revenge porn laws offer effective deterrence.  Instead the laws are pushing revenge porn underground into the “deep web” (I will define later) that will be next to impossible for law enforcement to track.

Also, I want to go on record that many if not all of the revenge porn laws only deal with half of the issue.  Revenge porn is certainly a problem, but then personally identifying information is posted along with the photos that are used to destroy lives.  The photos are one thing.  Posting one’s place of employment, phone numbers, information about friends and family, are arguably just as much as the problem as the pictures themselves.

Revenge Porn Comments

Revenge Porn Comments (I removed all identifying information intentionally from the screen shot.)

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American Bar Association Blawg Contest

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First, some good news.  Arizona Common Law is now officially listed in the American Bar Association blawg directory (that is the term for legal blogs, get it b-law-g).  Anyway, I thought that was pretty cool that this site is entered into their directory and they even gave a shout-out to my sister site Colorado Common Law.

We’re working on our annual list of the 100 best legal blogs, and we’d like your advice on which blogs you think we should include.

Use the form below to tell us about a blog—not your own—that you read regularly and think other lawyers should know about. If there is more than one blog you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.

Friend-of-the-blawg briefs are due no later than 5 p.m. ET on Aug. 8, 2014.

http://www.abajournal.com/blawgs/blawg100_submit/

To nominate your favorite legal blawg, time is running out.  It must be submitted by tomorrow at 5pm Eastern Standard time.

Here are some Arizona Blawgs which I enjoy reading:

Brown and Little PLC – The firm’s practice is criminal defense and the blog is filled with frank and honest commentary about the Arizona criminal justice system.

Carter Law Firm – The firm’s practice business law and contract.  Attorney Ruth Carter has been at the forefront of social media and internet law for a few years.  The blog offers some really insightful blog posts on all topics that her practice covers.

Who are your favorite blawgers?  They don’t have to be in Arizona.  Just where do you find interesting discussions about the law.  Post in the comments which blawgs you think are noteworthy.

Arizona Obscenity Law 40 Years After The Last Picture Show Ban

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I had a discussion with a family member over the phone the other day about modern movies and obscenity.  “Joe, have you heard about the movie 50 Shades of Grey coming out?” Because of my female friends and acquaintances I have some passing familiarity with the subject matter.  “Do you think it could be considered obscenity?  Some people are saying it is kinda like pornography for women.” Inquired my family member.  Well that is some food for thought…

It turns out that city of Phoenix has banned a movie before because of obscenity.  Could it try to do it again?  Using the movie 50 Shades of Grey as an example, I will analyze if a commercial movie with national appeal could be considered obscenity or not.

Phoenix’s Last Picture Show Ban

Almost forty-one years ago, the city of Phoenix, Arizona banned The Last Picture Show from its theaters because of obscenity. BBS Productions, Inc v. Purcell, 360 F. Supp 801 (D. Ariz 1973). The Phoenix City Attorney objected to “total frontal nudity of a female swimmer,” lasting approximately four seconds. Id. Apparently the scene in question involved Cybil Shepherd skinny-dipping.  The film received an R (restricted) from the MPAA (Motion Picture Association of America).  The Phoenix City Attorney said the film could be played if that four seconds of nudity was deleted from the film.  Id. Phoenix claimed the movie violated Ariz. Rev. Stat. § 13-537 (1971), which defined and banned obscenity.  “It is unlawful for any person knowingly to place explicit sexual material upon public display, or knowingly to fail to take prompt action to remove such a display from property . . under his control after learning of its existence.”  Id. (quoting Ariz. Rev. Stat. § 13-537 (1971)).

Despite the fact the film won eight (yes, eight) Academy Awards, the City of Phoenix objected to four seconds of nudity.  Seriously Phoenix?

The federal district court in the end ruled the movie was not obscene. “[W]e conclude that the exhibition of the charged four second segment of total frontal nudity of a female swimmer is not violative of Section 13-537 and therefore we are not confronted with any actual or justiciable issue of the constitutionality of the Section on its face.” BBS Productions, Inc v. Purcell, 360 F. Supp 801, 805 (D. Ariz 1973).

With the release of the movie 50 Shades of Grey, could Phoenix have another repeat on its hands?  Let’s take a look.

Arizona Obscenity Laws

There are quite a few obscenity statutes on the books that can be found in Arizona Revised Statutes, Title 13 Criminal Code, Chapter 35 Obscenity.  I think there are three pertinent statutes when it comes to the idea of the obscenity of movies.

An item is obscene within the meaning of this chapter when all of the following apply:

(a) The average person, applying contemporary state standards, would find that the item, taken as a whole, appeals to the prurient interest. In order for an item as a whole to be found or intended to have an appeal to the prurient interest, it is not necessary that the item be successful in arousing or exciting any particular form of prurient interest either in the hypothetical average person, in a member of its intended and probable recipient group or in the trier of fact.

(b) The average person, applying contemporary state standards, would find that the item depicts or describes, in a patently offensive way, sexual activity as that term is described in this section.

(c) The item, taken as a whole, lacks serious literary, artistic, political or scientific value.

Ariz. Rev. Stat. § 13-3501(2) Definition.

The Arizona Supreme Court notes in State ex rel. Collins v. Superior Court, 787 P. 2d 1042, 1043-44 (Ariz. 1986), the obscenity statutes are modeled after the United States Supreme Court case Miller v. California, 413 U.S 15 (1973). 

There are three important aspects of this test: 1. it must cause sexual arousal (appeal to the prurient interest); 2. it must be patently offensive; and 3. it lacks serious value.  The first two standards are judged on a local or statewide standard.  The last is judged on a national standard.  All three must be present in order to meet the definition of obscenity.

A. Expert testimony or other ancillary evidence is not required to determine obscenity if the allegedly obscene item has been placed in evidence. The item itself is the best evidence of what it represents.

B. If a person relied upon a rating given to a film or motion picture by the motion picture association of America or an equivalent rating association, the rating and evidence concerning the person’s reliance on such rating shall be admissible in evidence in a trial for violation of this article.

– Ariz. Rev. Stat. § 13-3510 Evidence of obscenity.

If obscenity is hard to define, it must be even that much more difficult to try to find evidence of obscenity.  Statutorily, Arizona makes an attempt to show what sort of evidence can prove obscenity.  The law is pretty broad and instead of trying to define what evidence is best, the statute seems to try to define what it is not. Expert testimony is not needed to determine obscenity.  An individual merely should look at the item to determine if it is obscene or not — just look at it and make a determination for yourself. Section B probably needs to be read in conjunction with Ariz. Rev. Stat. § 3501(2).  “We believe that the practice of the legislature in reacting to the federal supreme court cases included the recognition that the standards would be a matter for the jury.” State ex rel. Collins v. Superior Court, 787 P.2d 1042, 1046 (Ariz. 1986).  The jury would then have to decide the three prongs.

** Obscenity is also forbidden by Arizona racketeering statute Ariz. Rev. Stat. § 13-2301.  No definition of obscenity is given in the racketeering statute, so it is possible a prosecutor would use Ariz. Rev. Stat. § 13-3501 to determine if it is obscenity in the first place.

Ok, well that gives us a baseline of where the current obscenity law sits, and what kind of evidence is admissible in making the case for obscenity.

50 Shades of Grey

At this point 50 Shades of Grey is still being made and it will be months before anyone will know what the content may be.  Based upon how the book may be adapted for the movie, I am hypothesizing at what the future content will entail.  Let it be noted that I have nothing to do with the production of this movie and this is all purely speculative based off the content in the book and the preview of the movie.

If you didn’t watch the preview of the movie above, you should probably take a quick look at it.

The Guardian newspaper reviewed the book, Fifty Shades of Grey by EL James. “The trilogy features Anastasia Steele, who falls in love with Christian Grey, a troubled young billionaire who likes sex only if he can accompany it with quite formal, stylised corporal punishment.”  In the review of the book, the newspaper characterized the writing style as “[the author] writes as though she’s late for a meeting with a sex scene.”

If the popularity of the book is any indication of how the movie might fair, the movie might wind-up as an instant classic.  The book has sold 100 million copies worldwide (this is just the book, not the entire trilogy), with 45 million sold in the United States.

The city of Phoenix or another city in Arizona could try to ban a movie like 50 Shades of Grey, but it would likely be met with the same result.  I think the last prong of the test set forth in Ariz. Rev. Stat. § 13-3501(2) is really tough to meet.

The first prong of sexual arousal or prurient interest is probably satisfied by the potential subject matter of the future movie.  The second prong is a little bit more difficult to forecast.  It would be up to a jury of Arizonans to determine if the future content matter of the movie is patently offensive or not.  The third prong, lacking social value is the big problem spot. If a movie is to make a profit on a national scale, I think it is difficult to say it lacks social value.  People are speaking with their money when they go to see movies in the theaters or even purchase the DVDs.  I think sales alone could indicate whether a movie has social value or not, on a national scale.  Another indication would be the awards won.  Like in the case of the Last Picture Show it won eight Academy Awards!  Winning national awards for the movie can be demonstrative of social value on a national scale.

It certainly will be interesting to see where the producers of the movie go with 50 Shades of Grey.  It will also be interesting to see how the movie adds to our ever-changing notion of what is obscenity.

 

Defending the Decriminalization of Brothels in Arizona

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The Superbowl will come to Arizona in February 2015, but decriminalized brothels will most likely not.  At least, that is what politicians across Arizona are saying after brothel expert, Dennis Hof owner of the Moonlite Bunny Ranch in Carson City, Nevada, proposed the idea of setting up a brothel in Arizona before the Super Bowl.

Hof’s a businessman, who is an interested party to be sure, motivated in part by money.  But there is some altruism to what he is proposing.

Opening up brothels would allow Arizona to regulate the business in several aspects.  The state could require condoms usage and STD tests in brothels that would arguably lower the transmission of sexually transmitted diseases.  The state would know who voluntarily entered into an agreement for sex for money, and who did not, a step toward rooting out human sex trafficking in Arizona.  The state would be able to regulate that all sex workers are of age, and better prohibit minors from participating.  Registered sex workers would not fear going to the police if they are physically assaulted, raped, or stiffed (these are real secondary effects of illegal prostitution that often go unreported).

In this article I will look at what it would take to fulfill Hof’s idea of opening up a legal brothels in Arizona. I have analyzed what constitutes a brothel in Arizona in a previous post.

Prostitution in Arizona

I probably have to state the obvious: prostitution occurs in Arizona even though it is currently illegal.  Yep.  I hate to burst anyone’s bubble, but prostitution still occurs despite it’s illegality.

  • A two day sting in Tempe netted 16 arrests for prostitution and crimes related to sex trafficking in July 2014.  AzCentral
  • A Glendale police officer was arrested in a prostitution sting in June 2014. AzCentral
  • A sweep of Arizona’s truck stops led to the recovery of five children and 52 adults, all of whom were victims of commercial sex trafficking, June 2014.  AzCentral
  • Mesa Police arrested four men in an undercover child prostitution sting. AzCentral
  • Police alleged a gentleman’s club in west Phoenix was a front for prostitution, May 2014. MyFoxPhoenix
  • Six men were arrested in a Tempe underage prostitution sting, April 2014.  MyFoxPhoenix
  • Tempe police posing as 15 and 16 year-old girls arrested 30 people in a prostitution sting, April 2014. AzFamily

Okay, these were the stories in the news that are recent, and I could quickly find.  All of these stories were reported within the last couple of months, so I think it is fair to say that prostitution, especially child prostitution is still a large problem in Arizona.

The Super Bowl will most likely make human smuggling, and child prostitution worse, exponentially worse. According to Forbes, 10,000 prostitutes were brought to Miami for the 2010 Super Bowl.

Arizona has prostitution industry whether it is legal or illegal.

Human trafficking v. Prostitution

“Human trafficking is a modern-day manifestation of the slave trade,” said then U.S. Attorney, Daniel G. Knauss in a report on human trafficking in the greater phoenix area published in 2007.

First, human trafficking is not the same as human smuggling.  Human trafficking is an offense against a person and does not require the crossing of international borders. Human smuggling is transporting individuals across the United States border to enter the country illegally.

Human sex trafficking is simply the act of forcibly moving an individual to a location for the purpose for involuntary sexual acts. An example of human trafficking could be, a person from Nebraska may be forcibly transported to Arizona for the Super Bowl to perform sex work.  Human trafficking can occur completely within the borders of the United States.  However, individuals can be smuggled into the United States and then be trafficked.

Second, for the purposes of the discussion in this blog post, prostitution is the performance of sexual acts for money between consenting adults. It is really important to note when I say prostitution I am talking about a voluntary act between two adults who knowingly and voluntarily agree to have sex for money. Minors cannot consent to have sex for money — it is that simple.  Any sort of force or coercion used to gain the consent of an individual to have sexy for money also is not prostitution.

Historical fact: when Arizona entered statehood in 1912 one of the original laws on its books prohibited human trafficking for sex work.  Unfortunately, it is still a problem in Arizona today, more than 100 years later.

Options to Decriminalize Prostitution/Brothels in Arizona

The first and easiest way to decriminalize prostitution/brothels, would be to legislatively modify or repeal all laws criminalizing prostitution.  Instead of going through the legislature, if Hof or some other well-funded person or organization mobilized a movement they could potentially pass a citizen referendum.  That is what happened with the decriminalization of marijuana in Colorado and Washington.

Either way, here is a start of the laws that would need work:

Many of the statutes in Chapter 32 Prostitution, of Title 13 of the Arizona Criminal Code would have to be repealed, including but not limited to:

  • Ariz. Rev. Stat. § 13-3203 – Procuring or placing persons in a house of prostitution.
    • This would have to be narrowed to include only those who are forcibly placed in a house of prostitution.
  • Ariz. Rev. Stat. § 13-3204 – Receiving earnings of a prostitute.
    • This would have to be repealed entirely.  Prostitute’s earnings would not only be legal, but perhaps even taxable.
  • Ariz. Rev. Stat. § 13-3208 – Keeping or residing in house of prostitution; employment in prostitution.
    • The repeal of this statute would decriminalize brothels.
  • Ariz. Rev. Stat. § 13-3209 – Pandering; methods; classification
    • This would have to be repealed entirely to allow for prostitution and brothels.
  • Ariz. Rev. Stat. § 13-3211 – Definitions
    • Would have to repeal the following definitions: prostitution, prostitution enterprise, and probably sadomasochistic abuse, just to be on the safe side.
      • Sadomasochistic abuse – “means flagellation or torture by or on a person who is nude or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.”
  • Ariz. Rev. Stat. § 13-3214 – Prostitution; classification
    • Would have to repeal most of the statute.  Some of it deals with sex trafficking which could remain in tact.

Also the definition of racketeering would need to be changed.

  • Ariz. Rev. Stat. § 13-3214(D)(4)(b)(xxi),(xxiii) – includes both obscenity and prostitution as offenses chargeable under racketeering.
    • The racketeering statute could remain in tact.  The subsections XXI relating to obscenity and XXIII relating to prostitution could easily be removed and the rest of the statute would be able to continue to function as normal.

In addition to repealing and modifying the laws, new laws should be enacted to regulate and tax the industry.  This isn’t as difficult as it may seem.  Some of the framework is already in place.  The city of Phoenix already licenses escort businesses.  An escort is defined by the city as:

Any person who for monetary consideration in the form of a fee, commission or salary, is held out to the public as available for hire to consort with or to accompany another or others to social affairs, places of amusement or entertainment, within any place of public resort, or within any private quarters. It shall be unlawful for any person to work or perform services as a sexually oriented escort.

– Phoenix Mun. Code § 10-87(E).

The second option would be to challenge the laws judicially.  This would be an enormous uphill battle, but perhaps there is some hope.  In a future post, I will look at what it would take to challenge the Arizona prostitution and brothel laws through the state courts.

 

The First Amendment’s to Right to Know

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The argument that the First Amendment includes a right to know is gaining traction in Arizona and the Ninth Circuit Court of Appeals.

In the fall of 2013 was the first time I heard this argument made.  The state of Arizona as well as other death penalty states have had trouble for a couple of years now procuring drugs used in the administration of the death penalty.  Some companies object on moral grounds that their drugs are used in executions.  The companies who do not object can be subject to public protests and scrutiny that probably is not favorable to their business.  It is no surprise that states including Arizona have become very tight-lipped about their execution procedures.

The defense attorneys were worried at that point the state of Arizona was planning to used expired drugs to carry-out the execution.  Basically their argument was two steps: 1. There was a First Amendment right to know if the drugs were indeed expired or not; and 2. They need to know was necessary so they could file a an Eighth Amendment claim against cruel and unusual punishment if Arizona planned on using expired drugs.   However, the Eighth Amendment cruel and unusual punishment claim hung on whether the public had a right to know Arizona’s death penalty procedures.

I think this argument is going to be used more as state executions are not going smoothly.  CNN says “Botched Executions Can’t Be the New Norm.” The Huffington Post examines “How Arizona, Ohio and Oklahoma Executions Went Awry.”

In fact, I think the argument that the First Amendment includes a right to know may gain traction outside of death penalty realms and could be applicable to open record requests of all types.

The Argument as Used in Woods v. Ryan

After Arizona moved for a warrant of execution requests the defense “sent the first of four letters inquiring about the method the Department would use to execute Wood.” Wood v. Ryan, 14-16310, at *5 (9th Cir. July 19, 2014).  The questions were procedural in nature: which drugs would be used, how much would be administered, the credentials of who would administer the drugs, and the name of the manufacturer. Id.

The Arizona Department of Corrections (ADC) did not directly respond to the defense attorneys’  questions, but offered vague explanations.  The drugs would be obtained domestically and Food and Drug Administration (FDA) approved, although it would not go into further detail based on an Arizona privacy law Ariz. Rev. Stat. § 13-757.

The defense attorneys again requested manufacturer information, expiration dates of the drugs, and for official copies describing Ohio’s new execution protocol.

ADC responded to the request with documents do display the expiration dates of the Midazolam and Hydromorphone.  The drugs are good through September 2015.  However the Department of Corrections redacted the manufacture’s name.  The manufacture’s name may not seem like a big deal, but the Arizona Department of Corrections was previously caught by a federal court in 2012 for illegally importing drugs, with the (FDA’s) approval, to bypass regulations and import unapproved drugs to carry out executions.  After being mislead by the Arizona Department of Corrections before, the defense attorneys were trying to make sure the proper procedure was used.

Following this correspondence, Wood still seeks: (1) the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.

Wood v. Ryan, 14-16310, at *7 (9th Cir. July 19, 2014).

The defense claimed the state of Arizona is violating the following protections:

1. First Amendment right to petition the government for redress and grievances; and

2. First Amendment right to be informed about the manner in which the manner Arizona implements the death penalty.

The basis of the First Amendment is to be able to criticize the government. “Underlying this right is the common understanding that a major purpose of that Amendment was to protect free discussion of governmental affairs.” Wood v. Ryan, 14-16310, at *10-11 (9th Cir. July 19, 2014) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982)) (internal citations omitted).  The First Amendment protects speech from governmental intrusion, so it only makes sense is one of the main purposes is to protect citizens from criticizing it.  “This protection ensures that the individual citizen can effectively participate in and contribute to our republican system of government.” Id.

Seeking access to government documents and procedures invokes a First Amendment test that looks to “‘complementary considerations'”  which inform the analysis: “(1) whether the place and process have historically been open to the press and general public[ ] and (2) whether public access plays a significant positive role in the functioning of the particular process in question.” Wood v. Ryan, 14-16310, at *10-11 (9th Cir. July 19, 2014) (quoting Cal. First Amendment Coal. v. Woodford, 299 F.3d 868,   875 (9th Cir 2002) also quoting Press Enterprise II v. Superior Court, 478 U.S. 1, 8-9 (1986))).

The ruling in Wood would be vacated a few days later reversing the preliminary injunction granted by the Ninth Circuit Court of Appeals.  However, the First Amendment analysis can stand independently of the preliminary injunction and potentially be used in future applications.

Future Applications

I find this to be a fascinating First Amendment argument that is fairly unique.  Before I attended that court hearing last summer I never really thought of the First Amendment guaranteeing a right to know. It is even more encouraging that the argument is starting to become accepted in the Ninth Circuit.  Even though the Court is discussing execution procedures there is nothing to limit this analysis to other governmental functions.  The “complimentary considerations” test could apply to a wide variety of situations where individuals seek information about governmental information / procedures.

I would like to see how this could supplement a Freedom of Information Act / state Open Records request to give it more teeth on First Amendment grounds and not just relying on federal or state law.

The Future of Disparate Impact

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Disparate impact has seen its fair share of controversy in the past year and a last minute deal probably saved the theory it in late 2013.

The Equal Employment Opportunity Commission (EEOC) received lots of attention and a fair amount of criticism when they filed legal complaints against BMW and Dollar General alleging discriminatory practices based upon disparate impacts.  BMW had a hiring process that screened out applicants with a criminal conviction.  Dollar general had a similar policy.  The EEOC alleged even though the policies were not targeting any class of people, African Americans are negatively impacted because of their disproportionate arrest and conviction rate.  The pundits filled both the television and the opinion pages of newspapers arguing for and against the legal strategy.

To magnify the discussion surrounding disparate impact the United States Supreme Court accepted certioari for the 2013 term, Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., No. 11-1507 (2012), but a private deal was brokered weeks before oral arguments and the case never made it to the justices.  The issue that would have been argued is whether disparate impact claims are applicable under Section 804(a) of the Fair Housing Act (“FHA”). That section makes it unlawful “to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”  The reason why many people think the court decided to hear the case is at least revise how disparate impact is used in the housing context.  Eleven federal courts of appeals during thirty-eight years have upheld the disparate impact standard in the context of the Fair Housing Act.  Brief for the Respondent, No. 11-1507 at 27-28 (2012).

Disparate impact is used as a tool for determining if there is discrimination.  It is used in cases where there is a facially neutral policy (the policy is applicable to everyone), but the impact negatively affects a class of people.  Even if a neutral practice does have such a disparate impact, a business will not violate Title VII if it can prove that the neutral practice is job related and consistent with business necessity. For a much more in-depth explanation of disparate impact, see my post about the theories of discrimination.

Academics have also chimed on disparate impact as well.  Many of the articles in the current Harvard Civil Rights – Civil Liberties Law Review are centered on disparate impact:

The Agency Roots of Disparate Impact

Assessing HUD’s Disparate Impact Rule: A Practitioner’s Perspective

Banning the Box but Keeping the Discrimination?: Disparate Impact and Employer’s Overreliance on Criminal Background Checks

As for my own personal opinion, I think disparate impact will be used in determining discrimination complaints for the foreseeable future.  Overt discrimination appears less and less.  So being able to produce a document or policy that discriminates against a class of people is more of a relic of the past.  I do not believe discrimination is dead — in fact, far from it.  On the other hand, I also believed that disparate impact is not a perfect tool for evaluating discrimination.  But I think it is a very valuable tool in the arsenal to combat discrimination.

 

 

Phoenix and Tucson Police Directives

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The Tucson provides their directives online on governmental websites (a link is at the bottom of the post).  It appears there is some type of trend for the most populous cities in the United States to provide their directives online, either voluntarily or through a court order.

I think it is great police are posting their directives online.  It is a win-win for all.  Some might not think allowing anyone with an internet connection to see the inner-workings of the largest police stations in the state and nation would be a good thing, but let me explain first.

When voluntarily provided the police are able to set the terms on what and how it is distributed.  For example, in the Phoenix Police Directives, Section-9, which describes tactical plans is omitted from public view (for a while the Phoenix Police directives were available on the Phoenix Police website, which does not appear to be the case anymore).  When police voluntarily share information with the public they are the arbiters of what is included, like when the Phoenix Police decided their tactical plans should remain private.  I think that should be applauded.  If the public is able to reference police procedures, it can build trust within the community.

For example, the Tucson Police General Orders, subsection 2200 Constitutional Issues, indicates the do not pay for informants — good to know.  If someone ever claiming to be a police officer offers me money for information, I will know to be suspect of the situation.  Knowing Tucson’s police current policy and being able to reference it quickly via the internet instills trust and confidence that I have in them.

Phoenix Police Department Procedure / Manual

Phoenix Police Department Procedure / Manual

This is an example directive taken from the Tucson police manual.

Tucson Police Department Manual / Procedure.

I have not yet have had the time to go through and compare the procedures of Phoenix, Tucson, and Mesa on every single point.  What I think would be really interesting is to see what if any differences there are between the different departments.  My guess is that there may not be too much of a difference because there are companies that provide boilerplate for police departments.

One thing I did look for is how the police treat citizens who they know suffer from mental health.  The Phoenix Police have several policies that deal with mental illness — some of which go above and beyond what other major cities apparently require.  I will go into detail further at a later date.

Access the directives here:

Phoenix Police directives (this is a direct link and the file is more than 1,200 pages in length.  Please be advised it is a large file).  Note: It appears that the Phoenix Police Department at least has temporarily removed their directives from their website.  The copy provided below is what I previously downloaded while it was publicly available on the internet.

Tucson Police directives

See my earlier post about the city of Mesa Police directives.

***It is important to note police directives may be updated at any time.  Thus, there may be new directives or revised directives that are not included.

Mesa, Arizona Police Department Directives

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Through an Open Records Request, the Mesa Police Department shared with me their directives.

Mesa Police Directives Theft Investigations

Mesa, Arizona Police Directives Theft Investigations

Police directives come by several interchangeable names including procedures and manuals. Basically are two types of directives for police: written and unwritten.  Written directives are crafted for scenarios that are foreseeable that police may encounter.  Oral directives are left for times where the scenarios are unforeseeable.  It can be argued that the written directives set a self-imposed standard of care.  By looking at the directives, a person will have one sign post in which to to help make a determination if which the police acted in accordance with their own standards.

Here are the Mesa Police directives (it is a large file almost 1,300 pages in length, so it is probably best to download it to a place where you can read it).

*** It is important to note police directives may be updated at any time.  Thus, there may be new directives or revised directives that are not included.

 

 

 

Implementation of Search Engine Link Deletion

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It looks like the European Union is going to be the test case for search engine link deletion in the name of individual privacy.  Some are saying this is the end of the internet as we know it because unfettered search results of the past are now going to be censored.  Others are saying this is the start of a new era for individual privacy.  My guess is that it will be somewhere in between the two ends of the spectrum.

Google already unveiled the new form earlier this week where users can request to delete a link that is: irrelevant, outdated, or otherwise inappropriate.  Procedurally, it appears a resident of a European country can visit the site https://support.google.com/legal/contact/lr_eudpa?product=websearch. The user then fills out the form and Google will sometime in the future make its determination.  ]It is unclear how which links will be selected for removal and which links will remain in the database.  Since this is uncharted territory for any search engine, the results will be interesting.

Google Link Deletion Form

Google Link Deletion Form

Courts are given power to adjudicate the law in its given jurisdiction — a geographical boundary.  However, the internet is not very good at setting boundaries.  Some countries try to filter the internet within their borders to varying degrees of success.  Licenses also restrict content providers from where they may provide their goods, through geo-blocking.  It is unclear at best how Google will only limit residents of the European Union to its link removal service.  The internet knows no speech boundaries.  It is quite possible that after some time Google may allow all searchers to file for link removal.

Since it looks like link deletion is here to stay, the impact on speech, if any, needs to be sorted out.

Previously,  I analyzed the speech issues associated with the European court’s decision.  I argued search engines employ two different types of speech that should be afforded different levels of protection.  First, the removal and curation of the index seems to be pure speech.  This is where the most human interaction is involved.  Second, the ranking of sites seems to be less pure since humans only give the instructions.  There are so many websites out there that it is impossible for humans only to build a code that will execute it’s speech.

Proper evaluation of the protection courts will provide for search engine speech is important because technology evolves.  A letter from Sergy Brin and Larry Page to the shareholders in 2013 gives a glimpse of how search may evolve in the coming years.

While it is still early days, we’ve also made significant progress understanding people’s context, which is crucial if we are to improve human-computer interaction. Think about your commute.  You need the traffic information very accessible so you can plan for it, or avoid it altogether.  If you’re going to another appointment, you want the directions to start from where you are at that moment (rather than having to type in your location on a small screen).  Improved context will also help make search more natural, and not a series of keywords you artificially type into a computer.  We’re getting closer: ask how tall the Eiffel Tower is, and then when ‘it’ was built.  By understanding what ‘it’ means in different contexts, we can make search conversational.

– Larry Page, 2013 Founder’s Letter, available at https://investor.google.com/corporate/2013/founders-letter.html (last visited June 06, 2014).

It is difficult to assign constitutional protections to technologies because by the times courts come to a consensus the technology is outdated.  See United States v. Jones, 132 S. Ct. 845 (2012) (holding a car mounted GPS to monitor the vehicle’s movements constitutes a search under the Fourth Amendment).  As search engines continue to evolve over time, it is important the judicial rules are able to adapt to the changing technology.

 

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