Immigration Status Evidence

This post is written by Senior Editor Rob Spicer. Opinions and views expressed herein are those of the writer alone.

In the current political landscape, immigration status is greatly debated.  Due to the polarity of this issue, a party in a civil case may want to introduce evidence of the opposing party’s immigration status.  Actions involving automobile accidents are a common area where a party would want to introduce evidence of immigration status.  In other words, if a party is operating a vehicle while being unlicensed, the opposing party may want to introduce that unlicensed status, and thus, the non-immigrant status as evidence of negligence.  The Kentucky Legislation has enacted the following:

Any driver involved in any accident resulting in any damage whatever to person or to property who is ineligible to procure an operator’s license, or being eligible therefor has failed to procure a license, or whose license has been canceled, suspended or revoked prior to the time of the accident, shall be deemed prima facie negligent in causing or contributing to cause the accident.[1]

 

The Supreme Court of Kentucky has examined the history of this statute in Rentschler v. Lewis, and discussed the relevance of introducing evidence of a failure to procure a driver’s license.[2]  Ultimately, the Court held that whether the driver was unlicensed or licensed did not prove or disprove that the driver operated the vehicle in a manner that caused the accident.[3]  Additionally, the statute only creates a rebuttable presumption, and that mere failure to procure a license alone does not have any relevance to whether or not the vehicle was improperly handled. By introducing evidence that the driver was not at fault in the accident, the presumption was rebutted, and evidence of being unlicensed was irrelevant and inadmissible.[4]

Admissibility of immigration status has not been directly addressed in Kentucky nor in the Sixth Circuit Court of Appeals.  However, amongst other jurisdictions, there are similar trends on the issue of whether or not to allow immigration status in as evidence.  The American Law Reports points to several cases from various jurisdictions which all share a common trend.[5]  There are two general circumstances that allow immigration status to be brought up: (1) the individual voluntarily testifies about it, or (2) the individual is claiming lost future earnings, and therefore, immigration status is relevant as it relates to the probability of deportation.[6]  Even if the individual is claiming future lost earning capacity, the courts seem to be divided on whether or not immigration status would be allowable.[7]  For instance, the Supreme Court of Indiana in May, 2017, held that if a court finds by a preponderance of the evidence that deportation is likely, then the immigration status is inadmissible.[8]

However, the standard is not as high when future lost wages are not being alleged. In Ayala v. Lee, two illegal immigrants were hit by a vehicle and injured and defendants wanted to introduce their immigration status.[9]  In its discussion this Court found that immigration status is typical prejudicial, and even if not, its relevance typically relates to whether a party is entitled to lost wages, and how they should be calculated.[10]  Additionally, immigration status alone does not reflect on an individual’s character and is not admissible for impeachment purposes.[11]  But, in this case, the individuals opened the door to questions about their status when their answers to interrogatories differed substantively from other evidence they submitted.[12]

Ultimately, immigration status should only be admissible in cases where that status has some relevance.  A lack of licensure alone is not enough to introduce immigration status, as it does not necessarily create an issue of negligence on its face.  However, if an individual who was a nonimmigrant made a claim for lost wages, that immigration status may be raised as wages are directly related to the ability to obtain employment as an immigrant.  Its seems though as a general rule, an opposing party will not be able to bring up immigration status unless that immigrant has either raised a claim that involves their status, or opens the door in their own testimony.

[1] Ky. Rev. Stat. Ann. § 186.640 (West)

[2] Rentschler v. Lewis, 33 S.W.3d 518, 519 (Ky. 2000)

[3] Id.

[4] Id at 521.

[5] Admissibility 79 A.L.R.6th 351 (Originally published in 2012).

[6] Id.

[7] Id.

[8] Escamilla v. Shiel Sexton Company, Inc., 73 N.E.3d 663 (Ind. 2017).

[9] Ayala v. Lee, 81 A.3d 584 (Md. Spec. App. 2013)

[10] Id. at 478-80.

[11] Id. at 480 (citing Figeroa v. U.S. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989)).

[12] Id. at 481.

Much Ado About Nothing: The Kentucky Supreme Court Interprets the 1982 Guidelines of the Clean Water Act

This post is written by Associate Editor Katie Price. Opinions and views expressed herein are those of the writer alone.

In April of this year the Kentucky Supreme Court took a turn at interpreting federal law when it decided Louisville Gas and Electric Company v. Kentucky Waterways Alliance, et al. and Commonwealth of Kentucky, Energy & Environment Cabinet v. Kentucky Waterways Alliance, et al.[1] While the Jurisdictional and Administrative issues presented in this case were independently provoking, the main conflict centered around the interpretation of the 1982 Guidelines of the Clean Water Act.

The Louisville Gas and Electric Company (LG&E) is utilizing a process known as “coal-fired steam electric generation and transmission”, where “the combustion of coal is used to generate steam, which in turn propels electricity generating turbines.”[2] In compliance with the Clean Air Act, LG&E must attempt to lessen the sulfur emissions, which is accomplished through “wet scrubbing” – using a waste water stream to collect sulfur particles, and, ultimately, places the waste water into the Ohio River. Ironically, which was not lost on this Court, the attempt to control air pollution facilitated water pollution. Among others, mercury, arsenic and selenium were chemicals that were not being filtered from the waste water before it emptied into the Ohio river. These were the chemicals put at issue in this case. [3]

The disputed guidelines were created 25 years ago. The drafters of the 1982 Guidelines for the Clean Water Act refrained from specifying limits for the pollutants at issue, as they felt optimal protection could be better reached with future technology.[4] The Kentucky Waterways Alliance (KWA) and others argued that this implied that LG&E was under an obligation to use the most current technologies to prevent water pollution to get a permit to discharge into the river.[5] LG&E argued that there were jurisdictional issues and the case should be transferred.

Initially, the Circuit Court determined that “Best Professional Judgement” , a standard utilized by the Clean Water Act, had not been realized by the permit writer when she emitted technological standards, and LG&E’s permit was vacated. [6] The Appellate Panel affirmed.[7] The Kentucky Supreme Court then granted the motions for discretionary review.[8] The Court explored the jurisdictional issues, and determined that the Appellants were “not entitled to relief on their jurisdictional claim.”[9] However, the Court agreed that the Best Professional Judgement standard was met by the permit writer, who “imposed the technology-based effluent limitation required by the 1982 Guideline, but also required LG&E to test its effluent periodically for mercury and for toxicity and to keep records on the results. Further, the permit provided that it would be reopened in two years for reassessment in light of any new technological or regulatory developments.”[10]  In other words, the individual writing  the permit for LG&E not only included all the standards set by the 1982 Guidelines, but she set the permit to expire in two years – right around the time the EPA was scheduled to publish new standards. This, according to the Kentucky Supreme Court, was adequate use of the” Best Professional Judgement”. Therefore, the permit was reinstated by the Kentucky Supreme Court.[11]

In an ultimate testament to the slow workings of the legal system, or, optimistically, the rapid improvement of technology, the EPA’s 2015 Guidelines addressed the concerns of the KWA in this case.  The EPA established new Best Available Technology (BAT) limitations with “numeric effluent limits on the discharge of mercury, arsenic, selenium and nitrate/nitrite.”[12] Furthermore, the EPA did not utilize the Best Professional Judgement Standard for these guidelines, to the chagrin of, just about, everyone involved. [13] While it is easy to conclude that everyone “won” in this situation, and that this case became obsolete before it published, there are still lessons to be gleamed in this production. First, there is the practical merit of patience when new guidelines on point are scheduled to be published. If nothing else, this case seems to be a testament to wasted time and resources. More importantly, there is a downplay of an issue that should be on the minds of everyone: mercury, arsenic and other chemicals are streaming into the Ohio River. We can argue until we are blue-in-the-face about the amount of chemicals a company can dump into our river. However, we know that we will not escape the consequences of those chemicals being in our waterways, no matter the capacity. While I would agree that the permit writer was acting with her best professional judgement, and that the jurisdictional issues were handled fairly, the real issue in this case is one that spans larger than the scope of our legal system.

[1] 2015-SC-000462-DG, April 27, 2017.

[2] Id. at 2

[3] Id. at 4

[4] Id. at 3

[5] “ The Act Limits such discharges to those authorized by permit, a so-called ‘National Pollutant Discharge Elimination System’ (NPDES) Permit” , Id. at 11

[6] Id. at 7

[7] Id.

[8] Id. at 8

[9] Id. at 11

[10] Id. at 22; There was anticipation of an upcoming EPA report on these chemicals – the 2015 Guidelines id. at 4 , referring to 80 Fed. Reg. 67,838-01 (Nov. 3, 2015)

[11] Id. at 26

[12] Id. at 24

[13] Id.

International Terrorism and the Formal Emergence of Corporate Interplay on the International Playing Field: Alien Tort Statute and International Corporate Liability

This post is written by Associate Editor Charles Stone. Opinions and views expressed herein are those of the writer alone.

With the preeminence of corporations and their ability to act in the international community, there is a push to hold corporate entities liable for “their” actions. The test case before the Supreme Court involves the several alien individuals who were injured, kidnapped, or killed by terrorists in attacks against Israeli citizens overseas. The surviving aliens and families of the deceased have pointed the finger at Arab Bank, PLC whom allegedly funded and facilitated various terrorist organizations who were involved in the attacks. The claims were brought under the Alien Tort Statute (ATS) in the New York Federal Court. This issue is now before the Court because the opinion in Kiobel did not address the question of Corporate Liability.[1] The facts referenced above arise from the consolidation of five lawsuits, all filed in the Eastern District of New York.[2]

On Wednesday October 11, 2017, the Supreme Court heard oral arguments in Jesner v. Arab Bank. This case involves the use of the ATS, and seeks to answer whether the statute “categorically forecloses corporate liability.[3] The text of the statute is only one sentence, and has been used to allow non-U.S. Citizens to sue others in U.S. Federal Courts.[4]

There were many questions that were contemplated during the oral arguments, as the decision will inevitably have far reaching ramifications and will incite further litigation dealing with the nuances of the law. Among these arguments were:

  1. Whether holding corporations liable would increase foreign entanglement issues.
  2. Whether holding corporations liable would increase friction with other states.
  3. What the the reasons for the ATS are, why it was enacted, and is other statutes available that would allow a plaintiff to prevail on a claim that would not require the increased scope of the ATS.
  4. The date it was enacted prompted textualist questions during the oral argument that questioned whether or not corporate liability was hypothesized in 1789, and whether it is/should be recognized today.

The Statute was enacted in in Section 9 of the Judiciary Act of 1789 and provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[5] This Act was enacted in order to allow redress for a French Diplomat who was left without a remedy under the law.[6] Since this time, the Act has been contemplated in many different situations,[7] but the question as to corporate liability has yet to be addressed.

While the arguments and law in this area are dense and well-developed by the parties, a cursory point which was added in Footnote 11 of Appendix C of the petition, aligned with a question that I was curious about.[8] With the:

idea that corporations are ‘persons’ with duties, liabilities, and rights has a long history in American domestic substantive law. See e.g., N.Y. Cent. & Hudson River R.R. Co. V. United States, 212 U.S. 481, 492 (1909) (rejecting the argument that, “owing to the nature and character of its organization and the extent of its power and authority, a corporation cannot commit a crime”). See generally Leonard Orland, Corporate Criminal Liability § 2.03-2.04 (2006) (discussing the policy behind, and history of, corporate criminal liability). It is an idea that continues to evolve in complex and unexpected ways. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 50 (2010). The history of corporate rights and obligations under domestic law is, however, entirely irrelevant to the issue before us – namely, the treatment of corporations as a matter of customary international law.[9]

My concern is how it would be reconcilable to hold that a corporation would not be considered liable under the ATS when in Citizens United the Court expressed that it had “rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons’’; essentially treating a corporation as a person.[10] How can a corporation have a dual personality that allows it to have all the benefits and few of the drawbacks of a natural person? It seems they have solved the age-old proverb, that you can have your cake, and eat it too.

It will be curious to see the outcome of this highly contested case with enormous ramifications. The Supreme Court will ultimately decide whether corporations may be forcefully dragged into U.S. Federal Courts from around the globe to answer for “their” transgressions, and formally emerge as players on the international field; or, if corporations will continue to be shrouded and afforded protections against liability. The oral arguments did not shed light on the direction that all of the Justices were leaning. Corporations around the world collectively hold their breath.

[1] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

[2] Jesner v. Arab Bank, PLC, No. 06-CV-3869; Almog v. Arab Bank, PLC, No 04-CV-5564; Afriate-Kurtzer v. Arab Bank, PLC, No. 05-CV-0388; Lev v. Arab Bank, PLC, No. 08-CV-3251; and Agurenko v. Arab Bank, PLC, No. 10-CV-0626.

[3] Petition for Writ of Certiorari at i, Jesner v. Arab Bank, PLC., 2016 WL 6069100 (2nd Cir. 2016) (No. 16-499).

[4] 28 U.S.C. § 1350

[5] Id.

[6] Kiobel, 569 U.S. at 120.

[7] Id. at 121

[8] Petition for Writ of Certiorari at 71a, Jesner v. Arab Bank, PLC., 2016 WL 6069100 (2nd Cir. 2016) (No. 16-499) (attaching opinion from Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010)).

[9] Id.

[10] Citizens United v. Federal Election Commission, 558 U.S. 310, 343 (2010).

The FBI, Corruption, Bribery, and College Basketball’s Biggest Story

This post is written by Symposium Editor Tyler Noonan. Opinions and views expressed herein are those of the writer alone.

When you go to school in Kentucky, you are surrounded by college basketball fans.  Most students either bleed Kentucky Wildcat blue, or Louisville Cardinal red.  With the exception of a few students who make the journey south from across the river in Ohio, students are on one side or the other.  There are no students who root for the state as a whole – you’re either a Wildcat or a Cardinal, but not both.  Here at Northern Kentucky University, fans of these two schools put their hatred aside to cheer on the “little brother” Norse, who, just this past year, qualified for the NCAA Tournament in their first year of eligibility.  All of this goes to say that when there is major news involving one of these schools, it gets people talking.  For law students, that major news is amplified when it involves an FBI investigation, an employment dispute, and a contract claim.  Such is the case of Rick Pitino, a former coach of both Kentucky and Louisville, who was recently fired from the latter.

Pitino, who has a long and well-publicized past record of controversies, was fired on October 16 after being placed on administrated leave on September 26.[1]  The firing was in response to an FBI investigation that resulted in criminal charges being brought against an Adidas executive and numerous college basketball coaches around the country.[2]  Louisville was one of several schools allegedly involved in a conspiracy in which Adidas reportedly offered $100,000 to the families of top high school recruits in order to get them to go to Adidas schools.  In return, Adidas would reap the benefits of the Adidas-sponsored school’s presumed success and national attention.  In addition, if the player were to reach the NBA after their time in college, there was an understanding the player would sign an endorsement deal with Adidas.  Louisville was not the only school involved, but they, and Pitino, were the most high-profile names.

Other than the obvious criminal possibilities, there are several employment matters at play.  You may be wondering why Louisville would place Pitino on administrative leave rather than just firing him from the start – it’s because Pitino’s contract with the university, which made him the highest paid coach in college basketball, was set to pay him $44 million through 2026.[3]  If Louisville were to fire Pitino immediately, the firing would have been for no cause.  If fired for no cause, Louisville would be in breach of the contract and would have to pay Pitino all $44 million.  So, by putting Pitino on unpaid administrative leave, Louisville was preparing to fire Pitino for just cause.  Firing for just cause can only be done – at least in Pitino’s case – after 10 days notice and an opportunity to be heard.  Thus, Pitino was placed on administrative leave rather than being immediately terminated.  If just cause is established, Louisville would only have to pay Pitino through the end of the month in which he was fired (which would amount to about $10,000).  Essentially, whether there is just cause for Pitino’s firing is a $44 million dollar question.

So, does Louisville have just cause?  Louisville can, due to Section 6 of Pitino’s contract, fire him for just cause for “a material violation of the contract or for a refusal or unwillingness to perform the contract to the best of Pitino’s abilities.”[4]  Gregory Postel, the interim president of the university and chair of the University of Louisville Athletic Association (ULAA), offers several ways in which Pitino did not adequately hold up his end of the contract:

“Failure to diligently supervise compliance of assistant coaches; failure to promote an atmosphere of compliance, academic integrity, and ethical conduct within the men’s basketball program; failure to monitor the activities of all assistant coaches and administrators involved with the program who report, directly or indirectly, to Pitino; failure to notify compliance staff of concerns or red flags relating to the “late surprise commitment” of Brian Bowen and failure to notify compliance staff of the presence on campus of investment advisor Christian Dawkins [Bowen is the suspected recruit that accepted the money and Dawkins is another individual facing criminal charges for his role in the conspiracy]; failure to ensure staff cooperation with university, conference and/or NCAA investigations and accept responsibility for maintaining the integrity of the investigation and enforcement process; failure to take responsibility for violations; failure to actively monitor staff’s activities, resulting in the commitment of multiple NCAA level-1 violations; engagement in willful misconduct that caused a major violation of a rule or bylaw of the university, the conference or NCAA; and engagement in willful misconduct that tends to greatly offend the public, causing disparaging media publicity of a material nature that damages the good name of the university.[5]

 

As you can see, the list is long.  Postel pointed out that this support for just cause isn’t just in response to the FBI’s charges – this behavior has been going on for years.  In particular, Postel pointed to a 5 game suspension Pitino was already facing due to a prostitution scandal.  In the past, Louisville’s basketball program had allegedly offered money to prostitutes so that they would have sex with recruits and current players.  Based on all of this – Pitino’s history and these new allegations – it is almost a certainty that just cause for the termination exists.

Pitino, of course, will not go down without a fight.  Pitino is likely to bring a breach of contract claim and could, in addition, bring claims of defamation and tortious interference with business relations.  Some of the potential legal arguments for the contract claim include: a lack of factual verification, as no court of law has confirmed any of the allegations against him; a systematic corruption at the university that caused him to be the scapegoat for the FBI’s allegations; and, an inadequate opportunity to be heard (by saying that all of the press and attention the story has received nationally have made it impossible for him to get a fair hearing).  Pitino can argue defamation by showing the irreparable harm his reputation has received.  However, Pitino, as a public figure, would have to show that those who defamed him did so intentionally or with knowledge that their statements were false.  His tortious interference with business relations claim can be shown by arguing Pitino’s future earning ability is completely diminished.  For example, Pitino had a personal endorsement deal with Adidas.  After Louisville officially fired Pitino, Adidas terminated their contract with him.[6]  It is this type of harm to business prospects that could lead to the tort claim.  However, if the allegations prove to be true, Pitino will have no valid arguments.

Although it appears that Louisville has the upper hand, it may nevertheless be smart to pay Pitino at least a portion of the remaining money on the contract.  If Pitino fights for the money all the way through trial, more information is bound to come out.  Considering it is highly unlikely that Pitino was the only one to know of the alleged payments, the information brought out by trial would almost certainly be harmful to Louisville.  It is entirely possible that a trial could be the start of a whole new wave of problems facing the university.  Thus, it may be better if Louisville just “cuts its losses” and pays Pitino a portion of the contract to stay quiet.

Regardless of the ultimate fate for Louisville and Pitino, one thing is guaranteed: the entire state of Kentucky will be paying close attention.  Interestingly, with Pitino no longer holding the title of college basketball’s highest paid coach, Kentucky’s John Calipari has taken over the top spot.[7]  As a result of this scandal, Calipari’s new title is likely just one of many coming victories for the Wildcats over the Cardinals.

[1] See Michael McCann, Rick Pitino’s Contract Dispute and its Potential Impact on Larger NCAA Scandal, Sports Illustrated (Oct. 14, 2017), https://www.si.com/college-basketball/2017/10/14/rick-pitino-louisville-contract-dispute-ncaa-scandal-fbi-investigation.

[2] See Daniel Rapaport, What We Know About Each School Implicated in the FBI’s College Hoops Investigation, Sports Illustrated (Oct. 2, 2017), https://www.si.com/college-basketball/2017/09/29/what-we-know-about-each-school-fbi-investigation.

 

[3] See Michael McCann, Rick Pitino’s Contract Dispute and its Potential Impact on Larger NCAA Scandal, Sports Illustrated (Oct. 14, 2017), https://www.si.com/college-basketball/2017/10/14/rick-pitino-louisville-contract-dispute-ncaa-scandal-fbi-investigation.

[4] Id.

[5] Id.

[6] See Scott Polacek, Rick Pitino’s Contract with Adidas Terminated Following Louisville Firing, Bleacher Report (Oct. 16, 2017), http://bleacherreport.com/articles/2739027-rick-pitinos-contract-with-adidas-terminated-following-louisville-firing.

 

[7] See Sam Belden, Rick Pitino will reportedly lose out on up to $55 million, Business Insider (Sept. 27, 2017), http://www.businessinsider.com/rick-pitino-effectively-fired-salary-contract-louisville-2017-9.

Wait, is that Really What I Think?

This post is written by Associate Editor Tarah Remy. Opinions and views expressed herein are those of the writer alone.

Have you ever just sat down for a moment, unplugged and considered all the opinions you have–where they come from and at what point in life you decided on that specific point of view? Today’s society is uniquely “informed;” there is a constant barrage of information being soaked in from a range of different sources, all claiming truth. Even now, you are thinking of a few, perhaps Facebook, news channels, Twitter, online news sources, and sometimes even a physical newspaper. However, have you ever wondered how much of that news is tailored to push a “public opinion” and how easily we all fall prey, even when we think we don’t?

We are an isolated people. It is an unfortunate truth, but for the most part, we only know what we read or see or hear, and besides that, we know nothing at all.[1] Most of us are not out in the field discovering breaking news; most people are confined to what they have been given. In his book, Setting the Agenda: Mass Media a Public Opinion, Maxwell McCombs says it best, “[f]or nearly all the concerns on the public agenda, citizens deal with a second-hand reality…” The idea that journalist are the public’s eyes and ears still lives on today. In theory, “there remains a sense that there are many things that news journalism ought to be doing — to monitor, to hold to account and to facilitate and maintain deliberation…,”[2]  however, with that, we forget that journalists are only human, just like you and me. And just like this blog suggests, human beings are susceptible to manipulation. Most news sources may simply be pushing an opinion and sometimes it is easier to just agree.

Today, much of the news we take in is from social media. We read articles, watch videos, and even read opinions by friends and other social media connections. But you know, just like Wikipedia, the news on social media is constantly being edited and changed. With everyone being on high alert for “Fake News” take a minute and maybe do the following:

  1. Think about what you just read
  2. “Triangulate”—Research other news sources running the story. Compare and contrast what they’re saying, are they saying the same thing? What’s different? Why do you think it’s different?
  3. Consider why you believe that, and how that belief could change the public rhetoric for the better.

Even though we may not know it, our opinions have an effect on society; why else would news sources and political parties push to convince us to think their way? As lawyers to be, we have been taught to think critically, don’t allow yourself to wonder whether the opinions you have are your own.

[1] Maxwell McCombs, Setting the Agenda: Mass Media and Public Opinion

[2] Natalie Fenton, Drowning or Waiving? New Media, Journalism and Democracy

Can Prosecutors appropriate your phone’s location pings without probable cause?

This post is written by Executive Editor Patrick Quinn. Opinions and views expressed herein are those of the writer alone.

1

 

We store untold amounts of personal information on cell phones. My phone, cracked screen and all, carries personal pictures, audio recordings, browsing history, and purchase records spanning years. In 2014, the Supreme Court ruled in Riley v. California that the private information contained within my phone receives Fourth Amendment protection.[1] As such, law enforcement must have a warrant before searching through its contents.[2]

This fall term, the Supreme Court will hear a case questioning whether Riley protection extends to the personal location information and call history recorded by cell companies. [3] No one can ignore device manufacturers, third party applications, and cellular service providers use our location data through the normal course of business. The time and location data allows us to place a phone call, send a text, or find nearby restaurants on Yelp.

As of 2009, law enforcement can access this information without a warrant.  Specifically, the Secured Communications Act (SCA) allows courts to order cellular companies to disclose customers’ call and location data upon request. For the court order, Prosecutors need only show reasonable grounds, not probable cause, to believe the information is relevant to an ongoing criminal investigation. [4]

Timothy Carpenter, an accused armed robber, questions the Constitutional validity of the SCA.[5] As part of their case against Carpenter, prosecutors obtained, without a warrant or showing of probable cause, several months-worth of his cell phone history.  The information included the number, time, and place where Carpenter sent or received calls.[6]  Prosecutors alleged this location information placed Carpenter in the vicinity of the alleged armed robberies.[7] Motions to suppress this evidence were denied and a jury ultimately convicted Carpenter of six armed robberies totaling a 116 year prison sentence. The Sixth Circuit denied Carpenter’s appeal holding Carpenter had no reasonable expectation of privacy on location data his cell carrier recorded during the course of business.[8] Now the case has reached the Supreme Court.

When I consider what case law the Justices will use in their decision, Katz and Jones come to mind. Katz was using a phone booth to place illegal bets. The government eavesdropped on his calls without a warrant but their hard work was all for naught. The Court ruled a person, even in public, has a reasonable expectation of privacy in his person. [9]  Making a private call in a public phone booth was still private.  In Jones, the Court examined the extended monitoring of a person’s location.[10] Specifically, tracking someone’s movements and location with a hidden GPS monitor for an attenuated period of time requires a warrant.[11]

 

Proponents of the SCA argue any reasonable expectation of privacy dissolves when users voluntarily disclose their call information to their cell carrier.[12] Personal information on a cell phone is private but the disclosure of the information necessary to provide service is not.[13] Similarly, the Court has already ruled bank records are not subject to Fourth Amendment warrant requirements because account holders voluntarily disclose their transactions to their banks.[14] Perhaps the Court will liken cell phone records to bank statements. Who you call and where you call is not private but the pictures you send them or the conversation you have is.

 

Should the Supreme Court decide to phone-a-friend, I would vote for Fourth Amendment protection. Mr. Carpenter’s circumstances mirror the warrantless GPS monitoring more than anything else. Walking in public, I realize I show passersby my location and actions in the singular instances they see. I know the cell company records time and place information as part of our service agreement. They need it to connect each call.  Yet assembling those instances to create a comprehensive step-by-step account of my movements and associations, then retrofitting that information to an alleged criminal schema seems befitting the very protections the Fourth Amendment seeks to guard.

 

I’m sure I would hear Justice Sotomayor agreeing with me on my mythological SCOTUS conference call. In her Jones concurrence, she wrote the Fourth Amendment covers comprehensive location tracking because it “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”[15] Even though we voluntarily disclose individual bits of information to cell companies in return for service, we cannot concede the government access to these records without a warrant or probable cause.

 

**DISCLOSURE: The author of this article did “pretty average” in Criminal Procedure so any information absorbed by the reader is at their own risk**

[1] See Riley v. California, 134 S. Ct. 2473, 2485 (2014).

[2] Id.

[3] Amy Howe, Justices to tackle cellphone data case next term, SCOTUSblog (June 5th, 2017, 12:52 PM), http://www.scotusblog.com/2017/06/justices-tackle-cellphone-data-case-next-term/

[4] Id.

[5] Petition for Writ of Certorari at 3, Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016) (No. 16-402).

[6] Id.

[7] Id. at 8.

[8] Id. at 9.

[9] See generally Katz v. United States, 389 U.S. 347 (1967).

[10] See United States v. Jones, 132 S. Ct. 945 (2012).

[11] Id.

[12] Brief of Respondent at 8, Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016) (No. 16-402).

[13] Id. at 7.

[14] United States v. Miller, 425 U.S. 435, 440 (1976).

[15] Jones, 132 S. Ct. at 955.

Is Homeland Security “Trumping” International Relations and Religious Freedom?

This post is written by Associate Editor Spenser Knauss. Opinions and views expressed herein are those of the writer alone.

Recently, President Donald Trump (“President Trump”) issued his third executive order banning entry into the United States for citizens of eight countries—Chad, Iran, Libya, North Korea, Syria, Somalia, and Yemen—for an indefinite amount of time.[1]  President Trump’s new ban also suspended entry for Venezuelan government officials and their families.[2]  Even though President Trump’s administration argues the ban was enacted for homeland security, many feel the ban was enacted to discriminate against the Muslim religion.[3]

The American Civil Liberties Union (“ACLU”) will amend its existing lawsuit, filed in March, against President Trump to include the new travel ban.[4]  ACLU believes the new ban is still a violation of the United States Constitution and was created to discriminate against several nations and their religions.[5]  Furthermore, Chad’s government called for President Trump to reconsider the travel ban because the ban will contradict “. . . Chad’s constant efforts and commitments in the fight against terrorism at regional and global levels.”[6]  In addition, the Venezuelan President stated that the travel restrictions violate the United Nations’ values and international law.[7]

The third executive order replaced the second executive order, which banned citizens of six Muslim countries from entering the United States for a 60-day period.[8]  It also banned refugees from entering the United States for a 120-day period.[9]  The United States Supreme Court scheduled an oral argument on the legality of the second travel ban for October 10, 2017 but cancelled the oral argument when the third executive order was enacted.[10]

It will likely be difficult for the ACLU to win its lawsuit against President Trump because his powers are vested in the Constitution, Immigration and Nationality Act, and the United States Code.[11]  Furthermore, the Secretary of Homeland Security, the Secretary of State, and the Attorney General selected the eight countries included in the new ban after evaluating 200 countries.[12]  It was decided that the eight countries harbor significant terrorist activity and  remain deficient “. . . with respect to their identity-management and information-sharing capabilities, protocols, and practices.”[13]

The Department of Homeland Security determined that 47 countries were classified as being “at-risk” of becoming inadequate based upon “an analysis of their identity-management protocols, information-sharing practices, and risk factors.”[14]  The Department of the State gave all “at-risk” countries 50 days to improve their performance before determining which countries’ citizens should be impacted by the travel ban.[15]

Ultimately, President Trump argues Chad is the United States’ partner in battling terrorism but Chad has not adequately shared safety and terrorism information.[16]  Chad also houses numerous terrorist groups like ISIS and al-Qa’ida.[17]  Like Chad, President Trump claims Venezuela’s government is uncooperative in providing terrorism and public safety information.[18]

President Trump’s third executive order includes language maintaining that the order will not create a right or benefit for any party against the United States or against any other party.[19]  However, the American people should consider whether America is truly a melting pot and whether America wants to promote religious diversity.  Americans should ask themselves these questions:

  1. Should the Supreme Court schedule another hearing even though the old executive order is moot?
  2. Was the new executive order signed in an effort to cause the Supreme Court hearing to

be cancelled?

  1. Why were the eight countries chosen to be included in the ban?
  2. Should President Trump’s statements during his campaign and early presidency

regarding Muslims impact the constitutionality of the new executive order?

  1. Is the travel ban still unconstitutional since North Korea and Venezuela, non-Muslim

countries, were added to the new executive order?

  1. For a country founded on religious freedom, does a potential to increase homeland security “trump” religious freedom and international relations?

 

[1] Lawrence Hurley & Andrew Chung, U.S. Civil Liberties Group to Challenge Trump’s New Travel Ban, 2017 Thomson Reuters, (Sept. 29, 2017), https://www.reuters.com/article/us-usa-trump-immigration/u-s-civil-liberties-group-to-challenge-trumps-new-travel-ban-idUSKCN1C42XM.

[2] Id.

[3] The Latest: Trump’s New Travel Ban:  Third Time the Charm?, U.S. News (Sept. 25, 2017), https://www.usnews.com/news/world/articles/2017-09-25/the-latest-travel-ban-on-north-korea-largely-symbolic

[4] Hurley & Chung, supra note 1.

[5] Id.

[6] The Latest: Trump’s New Travel Ban, supra note 3.

[7] Id.

[8] Id.

[9] Id.

[10] Trump Travel Ban:  Questions about the Revised Executive Order, BBC News:  US & Canada (July 14, 2017), http://www.bbc.com/news/world-us-canada-39044403.

[11] Donald J. Trump, Proclamation:  Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, The White House Office of the Press Secretary (Sept. 24, 2017), https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Trump, supra note 11.

[17] Id.

[18] Id.

[19] Id.