A Group of Law Students’ First Asylum Case

January 16, 2015

By: Andres Salazar, Elham Rabiei, Maria Minis, and Tareva Marshall, Immigration Clinic Members

As law students, we all hear the same lecture from our professors: “Law school is not like the legal practice.”  One way to better understand the demands of legal practice is to participate in a legal clinic.  A legal clinic is an organization in a law school that specializes in a specific area of law and provides clients legal help on a pro bono basis.  A law school often has multiple legal clinics to provide pro bono representation in a variety of areas.  Law students apply to work in a legal clinic associated with their school, and work as the primary representatives of the clinic’s clients under the supervision of a professor.  We participated in the Charlotte School of Law Immigration Clinic.

During the Clinic, we were privileged to represent a family from Honduras who was applying for asylum in the United States.  Asylum is a case where the immigrant is asking the United States via the Immigration Court or the United States Customs and Immigration Service (“USCIS”) to allow him or her to stay in the country for humanitarian reasons.  The humanitarian reason is almost always that the immigrant is not safe in his or her home country because of some form of persecution.  Also, there must be no other safer alternative for the immigrant but to reside in the United States.

In our clients’ cases, they faced a threat of persecution, violence, and possibly death, because of their familial relationship to a witness who testified against a well-known gang member in Honduras.  This family member’s testimony was important in the case against the gang member, who was responsible for the deaths of three of our client’s relatives while they were in Honduras.  Our clients fled the country due to the fear that the gang would retaliate against the entire family for the one member’s testimony.

The family was referred to the Immigration Clinic by an immigrant’s rights group in North Carolina.  We split the case into two separate trials which were tried by two different Immigration Clinic student teams in front of the Charlotte Immigration Court.  The cases were split due to the different processing times of all the family member’s cases in the Immigration Court System, so that the entire family could obtain adequate representation by our clinic.  Ms. Elham Rabiei and Ms. Maria Minis tried the first case in April of 2014, while Mr. Andres Salazar and Ms. Tareva Marshall tried the second case in September of 2014.  We won both trials, and our clients were granted asylum.  Our clients’ trials were successful because of our hard work and because of the guidance from our supervising professor, Professor Fernando Nuñez.

About Asylum

When one hears the word “asylum” in the immigration context, it usually means political asylum, where an immigrant is persecuted by his or her own government due to the immigrant’s political beliefs.  However, there are other grounds for asylum, including persecution based on religion, race, nationality, or membership in a particular social group.  The legal definitions of persecution due to political beliefs, religion, race, and nationality are fairly set in law, so either the immigrant clearly meets the criteria or not.  The last category, membership in a particular social group, is constantly being re-defined by circuit courts and the Board of Immigration Appeals (“BIA”).  A particular social group can be almost anything.  It can be psychiatric patients in a mental hospital, people who identify as LGBTQ, family members of a witness who defies a gang member by testifying against the gang, and so forth.  The key point to the definition of a particular social group is that the membership has a defining trait that cannot, or should not, be changed.  If an immigrant chooses to use membership in a particular social group as the basis for his or her asylum claim, then the immigrant must demonstrate that he or she meets the definition of a member of a particular social group by providing credible testimony, documentary evidence, or both.

Relevance of Asylum Law

Asylum law is vital because it provides humanitarian relief for immigrants who are persecuted in their home countries.  For some immigrants, including the Immigration Clinic’s clients, the decision of a judge granting asylum is a matter of life or death.  United States immigration laws give the immigrant an opportunity to apply for, and prove, that asylum is necessary in his or her case.  It also reaffirms that our nation is a nation of immigrants, and that we as a country are still proud of our heritage by continuing the tradition of accepting immigrants in need.

In 2013 alone, the Executive Office for Immigration Review, which oversees the immigration courts, reported that 36,674 applications for asylum were filed in immigration courts around the country.[1]  Of these, 9,933 applications for asylum were granted, while 8,823 applications were denied, 1,439 were abandoned by the applicants, 6,400 were withdrawn, and 11,391 did not receive a decision for other reasons.[2]  These numbers do not include the many asylum applications that are filed before and decided by USCIS.  As evidenced by the statistics, even considering a broad definition of asylum, it is difficult to obtain.

However, asylum is still sought by many immigrants in spite of the difficulty because it provides them a protective status as an asylee within the United States.  This protective status ensures that once the immigrant obtains asylum, the immigrant will not be deported to his or her native country so long as the danger to the immigrant’s life exists in his or her native country.  It also allows for the immigrant to obtain a work permit so that the immigrant may start to rebuild his or her life here in the United States.  After residing as an asylee for a certain period of time, the immigrant may apply for lawful permanent residence—otherwise known as a green card—to reside in the United States indefinitely.

An asylum case is different than typical litigation in that the case moves relatively quickly.  One reason for this is that the asylum applicant must file for asylum within one year of arriving in the United States, as compared to other types of cases like personal injury cases, where the Statute of Limitations provides a three year deadline from the date of an accident to file suit.  Because of how Border Patrol and later the Immigration Court System processed the cases, each individual family member was in a slightly different stage of processing, which motivated our decision to split the cases up.  For example, we grouped a young couple and their son together since they had already completed the initial processing stage in January of 2014, while we grouped another woman, her adult son, her niece, and the niece’s two children together because some of them were still being processed by the Immigration Court System and Border Patrol at that same time. This gave the two teams slightly different timelines for preparing for trial.  The first team filed for asylum in January of 2014, and tried the case in April of 2014, with written closing statements submitted in May of 2014.  The second team filed for asylum in the beginning of April of 2014, and tried the case in September of 2014.

This fast-paced timeline demonstrates how an asylum case can be a very challenging experience, especially as a law student with class obligations outside of the clinic.  As with all litigation, we had to meet with our clients on a regular basis not only to prepare their case, but to also prepare them so that they would be ready to answer questions in the courtroom setting.  This preparation included numerous visits, sometimes multiple times in a week, to the clients over spring break, over summer vacation, and during the academic semester.  The first team had about three months to prepare its clients for court, write a forty page brief, and organize about four hundred pages of supporting evidentiary documents.  These evidentiary documents included details about the clients’ persecution as well as the country conditions of Honduras and declarations from witnesses detailing the persecution our clients suffered.  The second team had about five months to prepare its clients’ case, but there was an additional challenge: the government attorney facing them at trial was much better prepared due to all of the evidence provided in the first trial.  Both trials were challenging because of the time constraints, and we all were stressed due to managing the cases along with our full-time course load.

Rewards of Practice

In spite of the challenges and stress, the trials were one of the most rewarding experiences of our lives.  From developing a case theory to figuring out how to file proofs of service, these valuable legal skills taught us the mechanics of the Charlotte Immigration Court.  The clinic also taught us invaluable communication skills, including how to connect with, and interview, the client to find all the relevant facts of the case.

Additionally, the experience allowed us to forge friendships within the Immigration Clinic that will continue long after we graduate and enter the legal workforce.  We worked on the same family’s case, so we worked together closely for the entire semester.  We learned a lot about effective teamwork, and we became each other’s moral support when we felt overwhelmed by the pressure of the case and school.

The most important experience that we got out of working on this case was the knowledge that we were helping another human being.  This case got us out of the law school bubble and into what real life is like for lawyers and clients.  Hearing the stories that our clients told us, especially regarding their case, made an entire semester’s worth of immigration law much more meaningful to us.

In law school, you read the facts of a case that will be relevant to the class.  In the end, those facts are still just facts on paper.  There is no personal connection to the case, so it is difficult to relate to the parties who are arguing their case.  In the clinic, when you are working with real clients, those facts are no longer facts on paper, but words coming out of a real person’s mouth about their very real problem.  Suddenly, it becomes personal to you.  You are your client’s voice, and you must navigate the law to achieve the best result for your client.  Due to this personal connection to the case, now you can imagine how the law could help or harm your client, and how the fine details of a governing case that seemed so irrelevant in class could be the key to winning or losing. There is truly no substitute for working in a clinic—not only is it an opportunity to practice as a student attorney working on real cases, but it also helps those who need it the most.

We would highly recommend participating in a clinic while attending law school.  While it will require hard work, and some struggling to balance clinic work with homework, the rewards of learning to practice like a lawyer and help people at the same time will be more than worth it.

[1] http://www.justice.gov/eoir/efoia/FY2009-FY2013AsylumStatisticsbyNationality.pdf.

[2] Id.


The Low-Down on the Beat-Down: How Corporal Punishment is Damaging Our Children and Continuing Racial Discrimination

January 13, 2015

By: Carla Vestal

Events within the National Football League (NFL) have once again brought up an age old argument: How should parents and schools discipline children?  Within the past weeks, you may have heard a friend or family member say, “I was whooped and I deserved it,” “No-one is going to tell me what to do in my home with my kids,” “The Bible says, ‘Spare the rod. Spoil the child,’” or other similar remarks.

The effect of corporal punishment is far more than the immediate physical pain a child will feel.  Corporal punishment breeds a culture of violence, has been directly linked to mental and emotional health issues, and continues a legacy of racial discrimination in the South.

What is Corporal Punishment?

Corporal punishment is defined as, “the infliction of physical pain upon a person’s body as punishment for a crime or infraction . . . In a broad sense, the term also denotes the physical disciplining of children in the schools and at home.”  Spanking, whooping, whipping, and paddling are all forms of corporal punishment.  Often times this type of action is carried out by the adult using their hands, belts, switches, paddles, and, in extreme cases of abuse, electrical cords, spatulas, and wooden cutting boards.

What is the law?

All states allow parents to physically hit their child as long as the force used is considered “reasonable.”  When cases of corporal punishment become extreme enough to constitute abuse it is likely the Department of Social Services (DSS) or the court system will become involved.  In these instances what is “reasonable” varies by geographic region and community standards.

Currently, nineteen states allow for corporal punishment in the public school system.  Interestingly, the majority of these states are in the South and are commonly referred to as the “slave states” or the Bible Belt.[1]  In these states, corporal punishment is administered in a racially and ethnically biased manner which targets African American, Native American, and Special Education children.[2]

What do the statistics tell us?

Multiple national surveys of parents report almost identical results.  In one cross-sectional study from Child Trends, 77% of men and 65% of women agreed that corporal punishment is appropriate for children.  The results of a study conducted on North Carolina parents showed that 74% of North Carolinian mothers admitted to hitting a child under two-years old and 5% admitted to using corporal punishment on a child younger than three months old!

A comprehensive study conducted by the American Civil Liberty Union (“ACLU”) and Human Rights Watch concluded that in schools where corporal punishment is allowed, the punishment is administered in a racially biased manner.  African Americans make up roughly 17.1% of the public school population yet sustained 35.6% of reported corporal punishment.  Males were paddled more frequently than females, but African American girls were paddled at a rate of 2:1 to Caucasian girls.

Another alarming finding of the study dealt with students with disabilities.  Children who need special education services in Texas comprise only 10% of the student body yet received 17% of the beatings by school administrators.[3]

What is the science behind the spankings?

Empirical data analysis conducted over a twenty year span links physical discipline, in any form, to an increase in a variety of mental health issues which may not even develop until later in life.  Mood disorders, anxiety disorders, aggressive/violent tendencies, depression and bi-polar disease, and alcohol and drug addictions have all been linked with having been hit as a child.  It does not matter whether the corporal punishment rises to the level of abuse in a legal sense.  The injury to the child’s developing psyche occurs when hit with any force.[4]

In the school setting particularly, corporal punishment serves to legitimize violence.  Students have to suffer the humiliation and indignation of having other students know that they were forced to bend over a table or chair, sometimes with exposed buttocks, to get hit.  Peer-to-peer and student-to-teacher relationships erode.  As a result of the student’s lack of trust in educators, students withdraw academically.  This eventually leads to a higher drop-out rate in school districts that use paddling.

In either environment, corporal punishment changes the trajectory of brain development.  In layman’s terms, children who received corporal punishment have less grey matter in their prefrontal cortexes.  It is well-established that less grey matter in the prefrontal cortex is an indicator of mental and emotional psychosis.  This area of the brain is also responsible for cognitive development.  Researchers also have found a significant correlation between corporal punishment and lower IQ scores on standardized tests.  The end result of the study conducted by The National Library of Medicine and National Institutes of Health concluded that the grey matter children need to develop into mentally and emotionally healthy adults who exhibit self-control is being eroded with each strike of corporal punishment.  Corporal punishment has the exact opposite effect on children than what the discipline technique is intended to encourage.[5]

Why do parents and schools still use corporal punishment in spite of the scientific evidence against it?

The answer to this question has deep societal roots.  Many parents continue to spank and whip their children because, as children, they were subjected to corporal punishment themselves.  This is how the cycle of ineffective parenting and in extreme cases abuse is passed from generation to generation.

Elizabeth T. Gershoff, the nation’s leading advocate of alternative parenting techniques which do not include physically hitting a child, has concluded that corporal punishment is the result of lower educational levels in parents and geographic location.  Her research, which has spanned fifteen years, posits that corporal punishment in the South is a remnant of slavery and the concentration of conservative Christian religions.

When parents possess a college education, the use of corporal punishment in the home drops drastically from 55% to 38%.  This is due to the parents understanding the long term negative effects of spanking, having better coping techniques and using alternative methods of discipline.

Conservative Christian religions, which are heavily concentrated in the Bible Belt, often recite the “Spare the rod, spoil the child” mantra found in the Old Testament.  Focus on the Family, a conservative religion website, even goes so far as to teach parents how to hit their children without leaving evidence of bruising or welting of the skin and what type of “wooden spoon or paddle” to use.

http://www.fpnotebook.com/legacy/Peds/Prevent/CrprlPnshmnt.htm

Moving Forward and Repairing the Damage

As of now, corporal punishment will remain a choice for parents and schools.  As more of the public becomes educated about the adverse effects of physical punishment, parents will hopefully do some self-reflection and explore other avenues to help their children respect boundaries in the home and school.

Public school systems in the South should be open to review their policies on corporal punishment, to absorb the scientific data on its use in the academic setting, and examine the links between slavery and how societal norms across the country no-longer support paddling in schools.

It is a difficult endeavor to challenge parents to think differently about corporal punishment when they use religious convictions to justify its use.  However, this relates back to education and particularly scientific breakthroughs.  The often cited “Spare the rod, spoil the child” defense goes back to the time of Solomon (roughly 3,000 years ago).  Grey matter in brain development could not be monitored through MRIs 3,000 years ago as it is today.[6]

In the end, the use of corporal punishment will remain a heated debate among parents, educators, church groups and society in general. One thing is for sure: it is a personal choice that each person in the position to administer corporal punishment will have to weigh out in his or her consciousness.

If you feel that you have been subjected to extreme corporal punishment in the form of physical abuse, please contact your nearest police department immediately.

National Domestic Violence Hot-line: 1-800-799-7233

National Child Abuse Hotline: 1-800-4-A-Child (1-800-422-4453)

[1] States that allow corporal punishment in the public school systems include: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and Wyoming.

[2] For statistics applicable to North Carolina: http://www.carolinaparent.com/articlemain.php?Who-s-Getting-Spanked-in-N.C.-Public-Schools-3299.

[3] For a more in depth analysis of special education and corporal punishment see: https://www.aclu.org/impairing-education-corporal-punishment-students-disabilities-us-public-schools-html.

[4] http://www.psychologytoday.com/blog/the-me-in-we/201202/how-spanking-harms-the-brain

[5] For a meta-analytic review of how corporal punishment discourages positive long-term behavior and encourages a lack of self-realization see: http://www.apa.org/pubs/journals/releases/bul-1284539.pdf.

[6] Interestingly, Solomon’s son, Rehoboam, went on to become a tyrant of a ruler whose subjects revolted against him.  He exhibited signs of extreme aggression and lacked empathy for his people.  “Whereas my father laid upon you a heavy yoke, so shall I add tenfold thereto.  Whereas my father chastised (tortured) you with whips, so shall I chastise you with scorpions.  For my littlest finger is thicker than my father’s loins; and your backs, which bent like reeds at my father’s touch, shall break like straws at my own touch.”  (1 Kings 12).  This adds weight to the scientific evidence that we have today that hitting children leads to anti-social behaviors and mental disease.


Lights, Camera, Arrested: Filming the Police Can be Risky Business

January 5, 2015

By: Brandon Pierce

Daniel Saulmon, charged with resisting, delaying, and obstructing an officer, spent four nights in a California jail—simply because he used a cell phone to film police officers on a public street.[1]  Fortunately, for Mr. Saulmon, his cell phone recording showed the exact opposite.  The video showed Saulmon being arrested only after he failed to provide the arresting officer with some form of identification.

Certainly that was not the first time a person attempted to film police officers in public.  The media has covered over and over and over and over again the developing trend of “citizen-journalists” using cell phones to film officers.  In many instances, police have barraged these citizens with demands to turn off their phones, have confiscated phones, and, like in Saulmon’s case, have arrested individuals who attempted to capture them on video.

Consider this: the First Amendment to the United States Constitution protects our freedom of speech against governmental censorship.  Law enforcement officers are public officials, serving on behalf of the government.  So the right to film law enforcement without legal repercussions would seem like a legal no-brainer, correct?  Well, many courts are still split over that supposition, and are working to find some resolution.  The United States Supreme Court has yet to weigh in on the issue, after denying certiorari to Anita Alcarez v. ACLU of Illinois in 2012.[2]

video

Why is this happening?

In 2012, the American Civil Liberties Union of Illinois (ACLU) asked the United States Court of Appeals for the Seventh Circuit that very question.[3]  The ACLU’s issue arose as a result of Illinois’s 1961 Eavesdropping Act.[4]  The statute prohibited the use of an eavesdropping device to record or hear any oral communication without “the consent of any communicating party.”  Violating the statute constituted a Class 4 felony, punishable with one to three years of imprisonment.[5]  However, law enforcement was granted even greater protection: violation of the statute against a police officer upgraded the charge to a Class 1 felony.  Thus, the punishment became more severe with a possible four to fifteen year prison sentence.  The ACLU challenged the statute’s constitutionality.  Ultimately, the Seventh Circuit held that the Act’s prohibition of openly filming police officers in public “burdens First Amendment rights directly, not incidentally.”[6]  Therefore, it is perfectly legal for citizens within the Seventh Circuit to record police officers performing their duties in public.

By contrast, in 2010, the Third Circuit refused to recognize filming the police in public as a First Amendment right.[7]  In that case, Brian Kelly was arrested for filming a police officer during a traffic stop.  The Pennsylvania Wiretap Act was used to justify the arrest.  The Act prohibits “the interception or recording of a conversation without the consent of all communicating parties.”[8]  When confronted with this issue, the Third Circuit held that due to “insufficient case law,” there was no right to videotape a police officer during a traffic stop.

The Importance of Your Right to Film the Police

Ensuring transparency within the law enforcement is a powerful public interest.  Filming the police affords valuable evidence of government misconduct, which is becoming easier to do each day.  Today’s technology has created multiple avenues for citizens to stream police conduct via Internet, often times, in a matter of seconds.

However, in states where courts have ruled in favor of the right to lawfully film police officers, there still exists the misconception that it is illegal.  That misconception was so pervasive that the New York City Police Department had to be reminded through an official memo circulated to each of its officers.  According to Daily News, the memo reminds officers that “members of the public are legally allowed to record police interactions,” and that “intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

Considering the national attention regarding police conduct, the NYPD’s memo is extremely timely, as more people are starting to film police interactions.  The public is more informed about how police officers are executing their duties when citizens are allowed to film and distribute police videos.  Additionally, it promotes accountability and transparency within civilian and law enforcement relations.  Ultimately, when police officers know they are being filmed, officer misconduct is less likely to occur.  Therefore, a citizen’s right to film the police is just and necessary; its legality, however, is still being debated throughout the nation.  For now, filming police officers in public places remains a risky business.

[1] http://photographyisnotacrime.com/2012/11/24/california-man-jailed-four-days-for-recording-cops/

[2] http://www.supremecourt.gov/orders/courtorders/112612zor_f204.pdf

[3] ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (2012).

[4]http://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+14&ActID=1876&ChapterID=53&SeqStart=33800000&SeqEnd=35000000

[5] Illinois Compiled Statutes (ILCS) – 730 ILCS 5/5-4.5-45.

[6] ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (2012).

[7] 622 F.3d 248, 262 (3d Cir. 2010).

[8] 18 Pa. Cons. Stat. § 5703.


The Black and White of What It Means to Be “Beautiful”

January 1, 2015

By: Tierra Ragland

In a world where European standards of beauty are the status quo, other standards of beauty are commodified, fetishized, or considered less than.  There have been countless research, articles, books, and documentaries published on the negative impact that European standards of beauty have had on people of color around the world.

Darker skinned Black women are “less classically beautiful” according to a September 18, 2014 article in the New York Times.  The article referenced Oscar nominee Viola Davis, who portrays defense attorney Annalise Keating on the new Shondaland drama “How to Get Away With Murder.”  Davis was described by the New York Times as “older, darker-skinned, and less classically beautiful” than Scandal star Kerry Washington and for that matter, Halle Berry.  This characterization of Davis is problematic because it assumes that there is only one standard of beauty for Black women.  The quote also addresses the historical social problem of using biracial women as the epitome of Black Beauty.

Viola Davis, star of "How to Get Away with Murder."

Viola Davis, star of “How to Get Away with Murder.”

To properly discuss the consequences of the statement made by the New York Times, we must discuss the history of what it means to be considered a beautiful Black woman in America.  Throughout history, it has been written into law that Black people in America are to be socially and legally less than White people in America; from slaves being counted as 3/5th of a person to Blacks not having the right to vote, there has always been systematic superiority.  Even with the massive legal strides that have since been gained by the Black community, the societal consequences of hundreds of years of socially-stratified inequality still remain.

The Doll Test

In the 1940s, psychologists Dr. Kenneth and Dr. Mamie Clark designed and conducted a series of experiments known colloquially as “the doll tests” to study the psychological effects of segregation on African-American children.  For this test, four dolls, all identical except for their skin color, were used to test the racial perceptions of children between the ages of three and seven.  The children were asked to identify the races of the doll and which color they preferred.  A majority of the children preferred the white doll and assigned positive characteristics to them.  The Clarks concluded that “prejudice, discrimination, and segregation” created a feeling of inferiority among African-American children and damaged their self-esteem.  Dr. Clark testified as to the results of his study in Brown v. the Board of Education.  The doll test has been recreated in several documentaries and studies with no change in the responses of the children or the overall results of the test.  The statements made about Viola Davis in the New York Times article illustrate how even in 2014, those same racial preferences found in the doll test still remain.

Brown Paper Bag Test

A ritual once practiced by some historically Black colleges (HBCUs), social organizations, and historically Black sororities and fraternities involved not admitting anyone into the group whose skin tone was darker than a brown paper bag.  A brown paper bag was used because the color of the bag was considered the cut off for light skin and any skin tone darker than the bag was considered too dark or undesirable.  HBCUs, sororities, and fraternities no longer use the brown paper bag test.  However, comparing Black women on a spectrum that begins with Halle Berry, and ends Viola Davis as “less than classically beautiful” is exactly the same practice as the brown paper bag test.

Halle Berry

Halle Berry

The brown paper bag test is part of the larger social construction known as colorism.  Alice Walker defined colorism, in In Search of Our Mothers’ Gardens, as “prejudicial or preferential treatment of same-race people based solely on their color.”  Colorism prevails intra-racially and interracially for the same reasons: the dominance of Eurocentric beauty ideals, external racism, and internalized racism by Blacks.  The 2014 Documentary Dark Girls explores colorism among Black women in America and around the world.  The documentary depicts the social, psychological, and emotional experience of darker skinned Black women.

Society has yet to embrace the radical idea that we can all be beautiful.  Black women come in a variety of shades and a variety of social, cultural, and historical implications on what it means to be beautiful.  The media produces thousands of images of unattainable and unrealistic beauty ideals, which become even more problematic when you are the “wrong skin color.”  Yet it is up to us to begin realizing that there is no “classically beautiful,” and start embracing each and every person for the beautiful individual that they are, both inside and out.


“The Privacies of Life”: Cellphone Searches, Court Confusion, and Public Misconception in the Post-Riley Era

December 22, 2014

By: M. Claire Donnelly

The landmark decision of the summer, that has since thrown both police departments and technology companies into frenzy, was the unanimous Supreme Court decision in United States v. Riley.[1]  The highest Court in our nation made clear: “[o]ur answer to the question of what police must do before searching a cellphone seized incident to arrest is accordingly simple—get a warrant.”[2]  The Court reasoned that even though cellphones are hand-held objects, they are not less worthy of the protections of the Fourth Amendment that our Founders fought diligently for—to protect from “the privacies of life.”[3]  Riley, which upholds one of our most fundamental rights as citizens, has led to a  debate between civil rights groups, law enforcement agencies, and technology companies regarding privacy.  In addition to this debate, and in light of the Snowden leaks, the public is unaware of its privacy concerning technology.

As Riley made its way up the pipeline, commentators were not so sure how the Court would rule.  Although Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protects everyone from arbitrary or unlawful interferences with their “privacy, family, home, or correspondence,” the law upholding the right to privacy has struggled to respond to new technology.  Since the decision, Riley has impacted every cellphone user in our nation, which just so happens to be roughly 90% of American adults as of January 2014.[4]  Most of these users’ phones—58%—are smartphones.[5]  Every one of these cellphone owners is impacted in the way our government invades this now “private” area.

The impact did not end just there.  Riley has also impacted every technology company introducing new products that are touted to have the best encryption methods yet.  In September, Apple released that their new privacy policy does not allow for the company to bypass an individual cellphone user’s password.  Prior to this release, Apple was able to unlock cellphones for the police, and since this change the company has received public backlash from the FBI and law enforcement agencies.  The Director of the FBI, James Comey, attacked Apple and Google, who followed Apple’s lead, by saying the companies are “market[ing] something expressly to allow people to place themselves beyond the law.”  The FBI has since requested secret “backdoor” accessibility, unknown to the public.  Civil rights groups, however, have criticized this suggestion by arguing that once a backdoor is created, hackers and foreign governments will “come knocking.”[6]  In addition, these groups argued, “the government has never had access to everything, and it shouldn’t.”  Seems similar to the Court’s ruling.

Photo credit of coptubeamerica.com.

Photo credit of coptubeamerica.com.

Post-Riley, lower courts are now grappling with many other issues surrounding cellphones.  One such issue, which has been emerging as a “prime battleground” post-Riley, is cell site information, which is the data gathered from location-sensing technology on a cellphone.  Notably, two weeks before Riley was issued, the United States Court of Appeals for the Eleventh Circuit ruled on cell site information, also referred to as “metadata.”  The Eleventh Circuit rejected law enforcement’s practice of tracking a suspect under this method without a warrant because the information is within the cellphone owner’s reasonable expectation of privacy.  Soon after, in light of Riley and the Eleventh Circuit, the Northern District of California denied law enforcement’s “longstanding practice” of obtaining cellphone location information.

Another main issue that has arisen is evidenced by a district court in Virginia Beach, Virginia, that just ruled on the new iPhone 6 encryption software, Touch ID.  The court held that the new encryption, which allows the user to access the contents of his phone via fingerprint touch rather than inputting a password, is not protected in the same way that a password is under the Fifth Amendment’s prohibition on self-incrimination in a criminal proceeding.  The court reasoned that unlike compelling a password, which violates the Fifth Amendment because it requires a defendant to divulge the contents of his mind, a fingerprint is akin to a DNA sample or handwriting, which the law permits.[7]  These are not the only issues that have judges considering the impact of Riley in their rulings, however.  As judges decide cases on searches of student cellphones, photographs seized from a cellphone of a court observer, and photographs seized off a phone incident to arrest, they are considering the powerful words of the Court in Riley: “get a warrant.”  By categorizing these handheld objects as deserving of this privacy, subsequent issues that arise from cellphones must adhere.

As more and more issues arise, recent reports are highlighting unlawful government surveillance with regards to cellphones other than opening the phone itself or collecting the phone’s metadata.  For example, National Public Radio (NPR) recently reported on the use of “Stingrays” and “ISMI catchers,” which mimic a cell phone tower and intercept cellphone signals.  The American Civil Liberties Union (ACLU) requested records from one police department in Florida suspected of using this type of surveillance technology.  However, federal agencies swooped in and destroyed or got rid of the technology, and provided no information on the matter.  Similar requests have been made by thirty-four ACLU affiliates, who filed over 375 requests.  According to the Riley ruling, these tactics should require warrants, absent exigent circumstances.

Another recent scandal in the media occurred in October after FBI Director Comey commented on the public misconception and hurdles of surveillance technology.  He stated:

“In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications.  That is not true.  And unfortunately, the idea that the government has access to all communications at all times has extended—unfairly—to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals…  Some believe that the FBI has these phenomenal capabilities to access any information at any time—that we can get what we want, when we want it, by flipping some sort of switch.  It may be true in the movies or on TV.  It is simply not the case in real life.”

Similar to the Riley Court, Comey acknowledges the importance of privacy protection in the everyday person’s cellphone and the need to have a firm standard.  However, as the above cases and reports demonstrate, law enforcement is abusing this privacy standard.  Law enforcement must adapt prior policies and change its ways in order to comply with this standard.

Locally, the Charlotte-Mecklenburg Police Department (CMPD) has reported to be adapting their policies, which are currently contrary to the law post-Riley.  Prior to Riley, investigators obtained cellphone information incident to arrest without a warrant.  CMPD Detective Brent Foushee, who has been with the department twenty-six years, said the Court’s decision in Riley “turned this [practice] on its head.”  In addition, he said that about half of his suspects in custody consent to the search of their cellphone, which under the law—even under Riley—is lawful because of the voluntary consent.

Technology companies and law enforcement may be making efforts to conform to Riley, but with these changes comes more problems.  Moreover, courts have not yet caught up with already-existing technology.  How will they be able to catch up with technology in the works?  And how will technology companies and law enforcement efficiently adapt with each change in the law?  Furthermore, as CMPD demonstrates, there are still lawful ways to get around the privacy standard upheld in Riley.  This is not an easy process.

Law enforcement, the judicial system, and the public are all struggling to understand the law in regard to cellphones.  While the Supreme Court has recognized the importance of privacy in this area, implementation of that privacy and creating a fine line for where that privacy begins and ends is unclear.  One thing is for certain, however: the Court has recognized—in a unanimous decision—that it is unlawful to conduct a warrantless search of a cellphone.  Subsequent cases regarding cellphone technology must follow this ruling.

[1] Riley v. California, 134 S.Ct. 2473 (2014)(United States v. Wurie was combined with similar case Riley, and they were argued and decided together).

[2] Id. at 2495.

[3] Id.

[4] http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/

[5] Id.

[6] https://www.aclu.org/blog/national-security-technology-and-liberty/securing-our-data-should-come-first.  Academia in the field is also shooting down Comey’s suggestion, as Columbia University science professor Steven Bellovin said, backdoors are “a disaster waiting to happen.”

[7] See also Keeping the Government Out of Your Smartphone, where Chris Soghoian, Principal Technologist and Senior Policy Analyst at the ACLU warned: “screen unlock patterns are not your friend.” And see Apple’s Fingerprint ID May Mean You Can’t Take the Fifth, where Marcia Hofmann, a boutique lawyer focusing on computer security, a former staff attorney at the Electronic Frontier Foundation, and adjunct professor at U.C. Hastings College of Law, warned of the legal effects of moving from pin to fingerprint.


Federal Clemency Initiative

December 8, 2014

By: Courtney Rudy

The Department of Justice in conjunction with the President created The Clemency Initiative, which encourages federal inmates to petition to have their sentences commuted or reduced.[1]  The group, “The Clemency Project 2014,” assists prisoners who apply for this clemency initiative.  Article II section 2 of the U.S. Constitution grants the President the power of executive clemency.  The presidential power only extends to federal criminal offenses.  Executive clemency comes in the form of pardons, commutation of sentence, remission of fine or restitution, or reprieve.  Requests for executive clemency for federal offenses are first sent to the Pardon Attorney who reviews the petition and prepares a recommendation for the President.[2]  The Deputy Attorney General signs the final disposition for each application.  The Office of the Pardon Attorney then prepares the documents the President signs when he grants an executive clemency and notifies all applicants of the President’s clemency decisions.[3]

Deputy Attorney General James Cole announced the Clemency Initiative on April 23, 2014.  He stated that the Clemency Initiative was created to make the criminal justice system effective, fair, and to restore people’s confidence in the system.[4]  The initiative was specifically created for federal prisoners who, if sentenced today under current sentencing laws and polices, would likely have received a substantially lower sentence.[5]  The Office of the Pardon Attorney and the Federal Bureau of Prisons are working together on this initiative.  Another major source of assistance comes for a non-government affiliated organization: The Clemency Project 2014.[6]

To apply for the Clemency Initiative, federal prisoners can fill out an Executive Clemency Survey through the TRULINCS Survey Service.[7]  If an inmate does not have access to the Bureau of Prisons TRULINCS system they will be provided with a paper version of the executive clemency survey. [8]  To qualify for the Clemency Initiative, inmates have to meet all six of the following requirements:

  1. They are currently serving a federal sentence in prison, and by operation of law, would have received a substantially lower sentence if convicted of the same offense(s) today;
  2. They are a non-violent, low-level offender without significant ties to large scale criminal organizations, gangs, or cartels;
  3. The have served at least 10 years of their prison sentence;
  4. They do not have a significant criminal history;
  5. They have demonstrated good conduct in prison; and
  6. They have no history of violence prior to or during their current term of imprisonment.

The Clemency Project 2014 will contact all inmates who fill out the executive clemency survey to let the inmates know if they met the criteria.  If the criteria are met, the inmate will be provided an attorney through the Clemency Project 2014.

The Clemency Project 2014 is a non-government affiliated organization created shortly after the Deputy Attorney General announced the Clemency Initiative.  The organization is mainly composed of members from the American Bar Association, the National Association of Criminal Defense Lawyers, Federal Defenders, the American Civil Liberties Union, and Families Against Mandatory Minimums.  Individual attorneys, activists, and law school clinic students also participate.  All Clemency Project 2014 attorneys provide their services pro bono, ensuring that the federal prisoners incur no charges.  The services the attorneys provide are screening the prisoners’ applications and representing or finding representation for prisoners who qualify.  On October 31, 2014, the Clemency Project 2014 announced that 25,425 federal prisoners have submitted application for consideration, 4,864 applications are currently under attorney review, 5,024 applications contained a sentence of less than ten years disqualifying the applicant, and more than 1,500 attorneys have volunteered to take pro bono cases.[9]

You may be surprised that federal public defenders and court appointed attorneys are not a party of the aforementioned group of individuals involved.  They are not involved as explained in a memo from the Administrative Offices of the United States Courts issued on July 31, 2014.  The Memo states that prisoners are not constitutionally guaranteed legal representation in clemency suits, meaning that the government cannot pay the attorneys to provide representation.  The memo also states that although federal public defenders cannot provide representation in clemency proceeding, they are still able to assist with screening clemency applications if it is on a fully reimbursed basis.

Since federal public defenders were prisoners’ main resource for legal issues and it has recently been decided that they are not able to provide representation in clemency proceedings, the Clemency Project 2014 is always looking for volunteers to assist with the large amount of cases.  The Clemency Project 2014 provides online training, resource materials, a panel of expert resource counsel, and a screening committee.  To find out more about how to become a volunteer, contact volunteer@clemencyproject2014.org.

[1] USDOJ: Office of the Pardon Attorney: New Clemency Initiative.” USDOJ: Office of the Pardon Attorney: New Clemency Initiative. Accessed October 10, 2014. http://www.justice.gov/pardon/new-clemency-initiative.html.

[2] Current Pardon Attorney is Deborah Leff.

[3] Current Deputy Attorney General is James Cole. USDOJ: Office of the Pardon Attorney: About the Office.” USDOJ: Office of the Pardon Attorney: About the Office. Accessed October 10, 2014. http://www.justice.gov/pardon/about-pardon.html.

[4] “For our criminal justice system to be effective it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system. I am confident that this initiative will go far to promote the most fundamental of American ideals – equal justice under law.” Deputy Attorney General James M. Cole
Press Conference Announcing the Clemency Initiative
Washington, D.C.
April 23, 2014

[5] “NACDL.” Clemency Project Overview and FAQs. Accessed October 10, 2014. http://www.nacdl.org/clemencyproject/

[6] USDOJ: Office of the Pardon Attorney: New Clemency Initiative.” USDOJ: Office of the Pardon Attorney: New Clemency Initiative. Accessed October 10, 2014. http://www.justice.gov/pardon/new-clemency-initiative.html.

[7] TRULINCS is an electronic messaging system run by the Federal Bureau of Prisons. For .05 a minute inmates can sent electronic messages to approved recipients, which are then reviewed by correctional staff and forwarded to a 3rd party site. Inmates pay for this service by accessing their inmate trust fund account. https://www.publicknowledge.org/news-blog/blogs/the-price-of-communicating-from-behind-bars

[8] “NACDL.” Clemency Project Overview and FAQs. Accessed October 10, 2014. http://www.nacdl.org/clemencyproject/

[9] “Clemency Project 2014.” Clemency Project 2014. Accessed October 10, 2014. https://www.clemencyproject2014.org.


An Old Problem, New Face

November 6, 2014

By Johnny Hollis

One of the oldest issues in our society is homelessness.  It affects every state, county, and city in our nation.  Studies show that nationally 19 out of every 10,000 people are homeless, while in individual states that number ranges from 8-106 out of every 10,000 people.  Causes of homelessness range from loss of employment, mental and physical changes in health, loss of loved ones, and other traumatic life events.[1]  While homelessness is decreasing in our country, in general, there is a rise in one particular area: within the transgender population of the Lesbian Gay Bisexual Transgender and Queer (LGBTQ) community.[2]

What does “transgender” mean?

Transgender is an umbrella term that is used to describe a wide range of identities and experiences, and the term is used to refer to persons whose gender differs from what they were born as.[3]  Transgender persons often express themselves through their clothing, change of names, or medical procedures, all which help further their desire to live their identity.

What are the causes of homelessness among the transgender population?

Among experiencing discrimination from family members, in educational environments, and in the workplace, transgender individuals also experience discrimination in homeless shelters—the very place designed to assist them in times of crisis.  To start with, they are often isolated and alienated by family members at young ages, thus leaving them with no place to go.

Next, obtaining an education becomes hard because of the ridicule, immaturity, and bullying transgender individuals face from peers as well as faculty and staff.  According to the National Center for Transgender Equality, 15% of those who identify as transgender drop out of school because of the pressures that derive from bullying.[4]

Although Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color, as well as national origin, sex, and religion, the law fails to protect certain classes, including sexual orientation and gender identity.[5]   This leaves room for discrimination in the work place in the form of harassment by coworkers through taunting and/or isolation, as well as discrimination by employers through job application barriers, promotion denial, and by being fired.[6]

With the lack of familial support, education, and work, some transgender individuals are forced to either conform to the societal definition of gender and sexual orientation, or live in distressed conditions such as homelessness.

The Challenges of Being Transgender and Homeless

The difficulties and challenges that arise for transgender individuals are greater when they experience the effects of being homeless.  For example, even the task of finding a homeless shelter becomes quite tiresome.  Because transgender individuals identify opposite of their “born” gender, many shelters will not recognize identity over outward physical appearance.  This causes many to have to either live on the street, or participate in “survival sex” work in order to have a shelter for the night.[7]  Survival sex is defined as “involving individuals over the age of 18 who have traded sex acts (including prostitution, stripping, pornography, etc.) to meet the basic needs of survival (i.e., food, shelter, etc.) without the overt force, fraud or coercion of a trafficker, but who felt that their circumstances left little or no other option.”[8]

Homeless_-_American_Flag

What Can We Do to Advocate for Equality?

Interested advocates can begin helping this population by reaching out to local LGBTQ organizations in order to gain a better understanding of the LGBTQ community and the challenges that are faced within.  Local organizations such as Equality NC: North Carolina LGBT Organizations and the Charlotte Lesbian and Gay Fund are good places to start.

Advocates can also engage locally by contacting their local homeless shelters and demanding that they create a safe, open, and inclusive environment for all people.  An inclusive environment would include safe zones, which are areas that are designated to prevent harassment and discrimination.  The shelters should also provide adequate information and resources that help facilitate individuals’ transition from homelessness to full independence again.

Furthermore, we can petition our state to prohibit any further discrimination within our K-12 and post-secondary schools.  We can not only petition against discrimination, but also petition for education relating to transgender and the LGBTQ community in totality.  We can also continue to reach out and lobby our local, state, and federal government requesting amendments to the language of our employment protection laws to include protections for sexual orientation as well as gender identity.

The Civil Rights Clinic began contributing to the cause by reaching out to the local community, and as a result, was able to persuade the City of Charlotte to include gender discrimination in their discrimination policy, and is assisting Cabarrus County in updating their policy as well.

Conclusion

Although homelessness currently affects many transgender individuals, it does not have to continue its climb to prevalence.  Through advocacy, education, and awareness we can eliminate the factors that contribute to homelessness within the LGBTQ community.

[1] http://www.homeaid.org/homeaid-stories/69/top-causes-of-homelessness

[2] http://www.endhomelessness.org/pages/lgbtq-youth

[3] Lisa Mottet & John M. Ohle, Transitioning Our Shelters: A Guide to Making Homeless Shelters Safe for Transgender People 3, 7 (2003).

[4] http://transequality.org/Issues/education.html

[5] http://www.eeoc.gov/laws/statutes/titlevii.cfm

[6] http://www.hrc.org/resources/entry/discrimination-against-transgender-workers

[7] Lisa Mottet & John M. Ohle, Transitioning Our Shelters: A Guide to Making Homeless Shelters Safe for Transgender People 4 (2003).

[8] http://www.covenanthouse.org/sites/default/files/attachments/Covenant-House-trafficking-study.pdf


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