If a medical condition prevents you from wearing a mask, and a business employee asks about your medical condition, is that a violation the Fourth Amendment?

WASHINGTON D.C., DC QUESTION:

If a medical condition prevents someone from wearing a mask, and a business employee asks about his/her medical condition, is that a violation of that person's Fourth Amendment right?

Fourth Amendment of the U.S. Constitution

Erwin Chemerinsky- Dean and Professor of Law at University of California Berkeley School of Law

Robert Dinerstein- Acting Dean at American University Washington College of Law and Director of the Disability Rights Law Clinic

Several posts going around claim that a business can't legally ask you about your medical condition, because that would violate the Fourth Amendment of the U.S. Constitution.

So we're verifying if the Fourth Amendment bans a private business from asking about medical conditions.

Our Verify researchers contacted Erwin Chemerinsky with Berkeley School of Law and Robert Dinerstein with American University's Washington College of Law and their Disability Rights Law Clinic.

Boiled down,the Fourth Amendment is your right to privacy, and protects a person against unreasonable searches and seizures.

The Fourth Amendment only applies to the government, just like the First Amendment only limits what the government can do with regard to freedom of speech," Chemerinsky said. "The Constitution is meant to limit government action, and it doesn't restrict what private businesses, private universities or private entities can do."

Chemerinsky also said that simply asking a personal question is not considered a search.

Robert Dinerstein agreed.

"The Fourth Amendment really has no applicability here," he said. "The relevant law is the Americans with Disabilities Act."

So we can Verify, experts said the Fourth Amendment has nothing to do with wearing a mask at a business.

Under the Americans with Disabilities Act, it's illegal to discriminate against a person because of a disability. So in a situation where someone says they can't wear a mask because of a medical condition, Dinerstein suggests taking them at their word and offering a reasonable accommodation.

You should take the person at his or her word at that point, I think, and it's a whole lot easier and less intrusive, Dinerstein said. Who walks around with medical documentation when you want to go to the grocery store?

Excerpt from:

VERIFY: The Fourth Amendment has nothing to do with wearing masks at a grocery store - WUSA9.com

The states attempts to delay electronic signature gathering would leave Reclaim Idahos K-12 funding initiative dead in the water, attorneys for the group said Tuesday.

In a filing before the U.S. Supreme Court, Reclaim Idaho attorneys Deborah Ferguson and Craig Durham urge justices to let the online campaign continue. U.S. District Judge B. Lynn Winmill ordered the state to allow Reclaim Idaho to resume signature gathering last month, and the group began the effort last week.

The court simply gave Reclaim Idaho an opportunity far from a sure thing to meet Idahos rigorous standards to qualify its initiative for the fall ballot, Ferguson and Durham wrote. If they are successful, voters can vote against the initiative if they so choose.

Tuesdays filing, requested by Supreme Court Justice Elena Kagan, is the latest development in a complex legal dispute between Reclaim Idaho and state leaders a struggle that has stretched across three levels of the federal judiciary:

In Tuesdays response, Reclaim Idaho attorneys dismissed two of the states arguments that the federal court orders would lead to voter confusion, and that online signature gathering is ripe for fraud and abuse.

Technology offers a safe, secure, and reliable alternative to in-person signature gathering through electronic petition circulation and electronic signatures, Ferguson and Durham wrote. Courts rely on the authenticity of electronic signatures every day. That includes Idaho courts.

Reclaim Idahos Invest in Idaho initiative would increase corporate tax rates and income tax rates for Idahoans making more than $250,000 a year. The new taxes, $170 million to $200 million, would go into a dedicated fund for K-12 programs.

If the initiative qualifies for the November ballot, it would require a simple majority to pass.

Senior reporter and blogger Kevin Richert specializes in education politics and education policy. He has more than 30 years of experience in Idaho journalism. He is a frequent guest on KIVI 6 On Your Side; "Idaho Reports" on Idaho Public Television; and "Idaho Matters" on Boise State Public Radio. Follow Kevin on Twitter: @KevinRichert. He can be reached at [emailprotected]

Read more here:

Reclaim Idaho: Court delays would leave K-12 initiative 'dead in the water' - Idaho EdNews

Since the COVID-19 pandemic began, real estate owners and tenants have faced unprecedented day-to-day operational challenges from the loss of business and income. Two new real estate lawsuits seek to address these issues.

The first is by a flagship retail lingerie store tenant doing business in the heart of Herald Square. The second is by property owners seeking a judicial declaration that new legislation enacted by the City Council on June 20 [Commercial Harassment Law (New York City Local Law 53 of 2020), Residential Harassment Law (New York City Local Law 56 of 2020), and the Guaranty Law (New York City Local Law 55 of 2020), collectively, the Harassment Law] is constitutionally defective and unenforceable. Victorias Secret Stores v. Herald Square Owner LLC, No. 651833/2020, (N.Y. Cty. Sup. Ct. 2020) and Melendez et al. v. City of New York et al., No. 20 Civ. 05301, (S.D.N.Y. 2020). The outcomes of these two cases may significantly impact the real estate industry and subsequent lawsuits, shifting the burdens of the pandemic from one segment of society to another.

On June 8, 2020, Victorias Secret sued its landlord, Herald Square Owner LLC, in New York State Supreme Court in connection with its lease of Two Herald Square claiming the store has been shuttered since mid-March and abandoned due to COVID-19. Victorias Secret seeks a declaration that its obligation to pay the $937,734.17 monthly rent is rescinded. The suit is predicated on three legal theories: frustration of purpose, impossibility of performance and reformation of the lease.

The Landlord recently moved to dismiss the Complaint. It first alleges that the parties negotiated and agreed to limit the abatement of rent (in a provision not found in the standard form commercial leases), whereby the Tenant agreed that if forced to close its store for 6 consecutive days solely because Landlord failed to perform any obligation, where such failure is expressly not caused by governmental preemption in connection with a national emergency or government order. Second, it argues that the contractual defenses of frustration of purpose and impossibility of performance are limited to cases where the event was not foreseen at the time the lease was made and the parties could have limited their exposure contractually, but did not do so. Third, the Landlord contends that the two types permissible reformation (scriveners error and mutual mistake) do not apply here, insofar as this particular lease generally allocated risk requiring the Tenant to pay rent for any forced store closing that is not due to an inexcusable failure solely by the Landlord, that the mistake was not about a fact existing at the time of lease execution and that such reformation is time-barred (6 years from the date of signing here, August 2001).

Victorias Secrets opposition to the Landlords motion is not due until July 29, 2020. Oral argument awaits.

On July 10, plaintiffs Marcia Melendez and Ling Yang both first-generation immigrants and landlords, sued in the Southern District of New York seeking to invalidate the Harassment Laws and Guarantee Law. They allege that the Harassment Laws violate the First Amendment, insofar as they prohibit otherwise lawful commercial speech (i.e., owners requesting the payment of rent and back rent). They contend that the Harassment Laws impermissibly restrict speech, and do not directly advance a government interest, nor are they tailored to meet that interest. Plaintiffs claim that the interest in helping small business owners is not advanced by the legislation, which actually hurts them as small business property owners insofar as it prevents them from making otherwise lawful requests for rent and back rent. The Plaintiffs further claim that the legislation is overly broad and vague by failing to define material terms. (Notably, the law itself does not define the term threatening or impacted by COVID-19.) The Harassment Laws impose civil penalties of $10,000 - $50,000. Parallel Fourteenth Amendment due process claims are also alleged under both federal and state law.

The Plaintiffs also bring another constitutional challenge against the Guarantee Law, claiming that it violates the Contracts Clause of the US Constitution that restricts passage of any law impairing the obligation of contracts (here, leases), by prohibiting landlords from enforcing personal (good guy) guarantees for unpaid rent owed by the tenant for the period March 7, 2020 to September 20, 2020. They argue that the law bars them forever from collecting unpaid rent, utilities, fees, building maintenance charges, or taxes owed by the tenant for defaults occurring during the same seven-month period by defining such collection efforts as harassment.

Finally, the Plaintiffs allege that the Harassment Laws directly conflict with existing New York State laws, particularly the State Legislatures conferring exclusive jurisdiction upon the Governor the authority to shape the contours of his Executive Orders on a state-wide basis to address the pandemic. The City has not yet responded to the lawsuit, which has been assigned to Judge Gregory H. Woods.

As we noted in our prior AF Alert, the force majeure defense in New York generally does not apply to the obligation to pay rent. This may be why Victorias Secret did not allege it (or possibly because as the landlord alleges, no such clause is in the lease). By the same token, New York law restricts the defenses of impossibility of performance and frustration of purpose to instances where the event triggering the lawsuit was unforeseen at the time the parties signed the lease. Victorias Secret like many other suits recently filed thus pits the classic battle between the express language of the lease against the tenants contention that COVID-19 was unforeseen. Parties would be advised to review their lease with a view toward negotiating appropriate language in connection with amendments, renewals, or rent adjustments. It would also be prudent to review insurance policies for coverage for specific causes of loss.

In regard to the Melendez case, the United States Supreme Courts decision in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) set up the first question that the district court likely will address: whether the speech at issue here (owners request for rent or back rent) is fraudulent or illegal. The Plaintiffs contend that there was negligible evidence demonstrating that landlords were using fraudulent means in requesting the rent. If the speech is found fraudulent or illegal, though, government regulation may be freely applied without First Amendment constraints. Proper consideration of whether the governments interest in protecting tenants was sufficiently tailored will also be at issue. The claims will also test whether the demand for rent during such a pandemic is fraught with overreaching or simply a contractual obligation that ought to be enforced. Stay tuned.

See more here:

New Developments in COVID-19 Litigation for New York City Landlords: Saving Grace or Hail Mary? - JD Supra