Daily Archives: May 27, 2021

By Esha Kher

SACRAMENTO, CA In a motion to suppress a roadside breathalyzer test, Sacramento County Superior Court Judge Stephen Acquisto here Wednesday navigated the line between giving actual consent and simply acquiescing to an exertion of authority by a law enforcement officer.

In the end, the judge granted the suppression motion, finding that the peace officer failed to clearly relay the critical admonishment that defendant David Orona has the right to refuse to take the breathalyzer test.

The motion of suppression was for the preliminary alcohol screening given to defendant David Orona by California Highway Patrol peace Officer Scott Starkey in the DUI investigation following a traffic collision involving Orona.

And, over the course of the cross-examination, Starkey revealed that the admonitions of the PAS test included no clear indication to the defendant that the test was voluntary.

While Starkey said he told Orona that the test is required by law, this elaboration never indicated that it was voluntary.

The cross-examination by Attorney Michael Tobo also revealed discrepancies in Officer Starkeys administering of the eight-point test. Starkey consistently said he didnt remember details about the admonition, and he guessed about the timing and length between tests.

The prosecution has the burden of establishing it was a voluntary test and Deputy District Attorney Patrick Brady argued that statutes 23812 and 23614 of the Vehicle Code and case law around consent have not granted motions of suppression when implied consent by verbatim is present, regardless of explicitly stating it.

Judge Acquisto, however, said that statutes 23612 and 23614 are not determinative in and of themselves whether consent is voluntary, and they dont set a bar that is higher than the Fourth Amendment standard.

The case law doesnt say that an officer presenting a breath test who doesnt assiduously adhere to every bit of information in those two statutes automatically renders consent as involuntary or defective.

What case law does say, said the judge, is that the Fourth Amendment applies and courts must look at the totality of the circumstances in determining whether the consent was voluntary.

Failing to strictly adhere to the advisement requirements in the statutes is not a basis to grant a suppression motion, apparently, and the judge held that he must look at the totality of circumstances to determine whether people have shown that alleged consent by defendant was voluntarily given.

Based on that, Judge Acquisto found that consent was not voluntarily given and there was a violation of the Fourth Amendment. He then granted the motion to suppress the breathalyzer test.

The defendant still faces driving without a license and driving without insurance charges.

Esha Kher is an undergraduate student at UC Davis studying Political Science and Computer Science hoping to pursue a career in corporate law. She is passionate about legal journalism and political advocacy that provokes new perspectives and sparks conversation among the public.

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Judge Rules CHP Violated Rights of Alleged DUI Driver, Tosses Charges - The Peoples Vanguard of Davis

Daryl James is a writer at the Institute for Justice in Arlington, Virginia.

Fines and fees mount quickly when the Philadelphia Parking Authority comes after someones car. So Sherri Robinson rushed to scrape together as much cash as she could on April 29 after the agency booted and towed her 2004 Audi.

Robinson had parked legally in front of her North Philly rowhome, near Temple University, but the PPA decided to use the vehicle as leverage to force payment for old tickets. Robinson did not dispute the citations themselves just the unreasonable penalties. She could not afford to pay what the PPA demanded, but hoped to make a down payment and negotiate the release of her Audi before costs climbed even more.

When she showed up at the adjudication center on the corner of Filbert and 9th streets with $600, a city worker refused the money and sent her away. Robinsons tab had swelled to more than $2,000, and the PPA demanded at least half up front, regardless of her ability to pay.

By the time Robinson returned to the payment window five days later with additional funds, her bill had climbed an additional $125 due to PPAs aggressive penalty system.

Late fees can double and then triple the cost of a regular parking ticket. The boot fee adds another $150, followed by $175 for towing and $25 per day plus tax for storage. If families cannot pay, the city can sell their sole means of transportation at auction.

Other penalties include vehicle registration suspension and even threats of arrest. Essentially, the scheme criminalizes poverty.

Philadelphia leaders signed onto a promise of bold reform with cutting-edge policies to end unjust fines and fees last May, when the city joined a coalition of 10 municipalities committed to dismantling oppressive systems. Although participating jurisdictions vowed to look at more than just parking enforcement, fixing the PPA should have been high on the list in Philadelphia.

One year later, the only result has been talk. Coalition members identified five priority areas, including the need to reduce parking fines and towing fees, and implementing more just payment plans. Yet the PPA has not budged on either of these things.

Excessive sanctions for petty violations continue, and the PPA refuses to match penalties with a persons ability to pay. Robinson described her struggle while standing outside the adjudication center on her second visit.

When her turn finally came to enter, she handed over $1,139.75 exactly half her debt. The rest she will pay in monthly installments over the next two years. In exchange, the PPA agreed to release her car.

Robinson seemed relieved, but her mood soured when she arrived at PPA Lot 7 in Bridesburg and found her Audi damaged. This car wasnt like this when they took it, she said. Half the bumper is hanging off now.

Others waiting for PPA service on May 4 shared their own frustrations. One mother said she had driven three hours to Philadelphia with her young daughter, a cancer patient who needed chemotherapy. When they came out of the treatment center, their car was gone.

Another woman described having her car towed when she went with her toddler to family court. She thought she had parked legally in a two-hour zone, but was unsure. The signs are confusing, she said. They dont even know what they mean by their signs. When she came outside, her car was gone.

A man who recently moved from Albany, New York, said he understood the signs but got confused by the payment kiosks. While he was trying to figure out which machine to use, he got a ticket.

Philadelphia is not alone in having this kind of rampant ticketing and penalty assessment. Baltimore, Boston, Chicago, New York, Los Angeles, San Francisco, and Washington, D.C., all use aggressive tactics to maximize parking revenue.

The American Bar Association calls such enforcement regressive because it disproportionately penalizes families with lower incomes and people of color. Will Aronin, a public interest attorney at the Institute for Justice, says the money-making schemes are also unconstitutional.

Aronin says the Philadelphia Parking Authority, which is governed by a state-appointed board, violates the Fourth Amendment guarantee against unreasonable search and seizure when it takes cars without warrants. He believes it violates the Eighth Amendment guarantee against excessive fines when it runs up penalties for minor violations, and that it violates the 14th Amendment guarantee of due process when it fails to provide protections for vehicle owners or to consider their ability to pay.

The Institute for Justice represented one Indiana man who lost his Land Rover following a first-time, nonviolent drug crime. He took his case all the way to the U.S. Supreme Court, and eventually got his vehicle back in 2020.

Now the Institute for Justice is turning its attention to Philadelphia, looking for clients to send a message: Cities have legitimate reasons to enforce parking rules, but the government must stop treating people like ATMs.

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Opinion: Screwed over by the PPA? Lawyers say the penalty system is unconstitutional - Billy Penn

In September 2020, the U.S. Court of Appeals for the 5th Circuit dismissed a federal civil rights lawsuit filed by Jos Oliva, an elderly Vietnam veteran who was beaten and left permanently injured by federal police at a Department of Veterans Affairs (V.A.) hospital in El Paso, Texas. According to Oliva, the V.A. cops targeted him for abuse after he failed to promptly show his ID, which was temporarily out of reach in a metal detector bin.

"I got a problem with this man," one of the officers reportedly said about Oliva's supposed lack of cooperation. "He's got an attitude." The same officer then placed the 70-year-old in a chokehold and slammed him to the ground, permanently injuring Oliva's shoulder.

Oliva's lawsuit alleged that the unprovoked attack violated his Fourth Amendment rights. But the 5th Circuit waved those constitutional concerns away, holding that U.S. Supreme Court case law effectively shielded the federal cops from facing any such civil accountability.

Today, Oliva received another undeserved injury, this time at the hands of the Supreme Court itself. In an unsigned order issued this morning, the Court declined to hear Oliva's appeal. The 5th Circuit's ruling in Oliva v. Nivar will remain in place.

Much of this regrettable legal saga is the direct fault of the Supreme Court. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the Court held that the federal drug cops who entered Webster Bivens' apartment without a warrant, rifled through his belongings, shackled him in front of his family, and later strip-searched him at the federal courthouse, could be sued for violating Bivens' Fourth Amendment rights. But as 5th Circuit Judge Don Willett protested in a recent opinion, the Supreme Court has since weakened its Bivens precedent to such an extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

The 2017 case of Ziglar v. Abbasi illustrates exactly how the Court undermined its previous holding. If a Bivens suit against an allegedly unlawful federal officer arises in "a new context," the Court said in Ziglarmeaning "the case is different in a meaningful way from previous Bivens cases decided by this Court"then the presiding judge should look for any "special factors counseling hesitation." As soon as any such "special factor" is found (or cooked up), then the lawsuit must be dismissed.

Three years later, in Hernandez v. Mesa (2020), the Court doubled down on that approach. "If we have reason to pause before applying Bivens in a new context or to a new class of defendants," the Court said, "we reject the request." As the Court declared in Ziglar, "the Bivens remedy is now a 'disfavored' judicial activity."

Jos Oliva filed a Bivens claim against the V.A. cops who attacked him. But the 5th Circuit, taking its cues from Supreme Court, dismissed his suit as "a new context" because "this case differs from Bivens in several meaningful ways." For instance, the appeals court maintained, "the case arose in a government hospital, not a private home." Also, "the VA officers were manning a metal detector, not making a warrantless search for narcotics."

The end result of that SCOTUS-sanctioned legal quibbling: The V.A. cops who beat an elderly veteran got to avoid accountability in civil court.

Read more:
Federal Cops Attacked a 70-Year-Old Vietnam Veteran and Then Avoided Accountability in Court - Reason

I.Introduction

The COVID-19 global pandemic has been an unprecedented challenge for U.S. employers over the past 12+ months. Among other things, pandemic-containment policies and best practices limited business and personal travel. As we enter summer 2021, the sun seems brighter as we near the end of the tunnel. But as the world re-opens and as more Americans become vaccinated, U.S. employers should give due care to several obvious and not-so-obvious areas:

(1) how to handle travel-quarantines, masks, and vaccines as applied to employees;(2) how to handle employees traveling internationally, including the ongoing challenges to obtain visas; and(3) maintaining employer data security and balancing privacy in a new era of remote work.

II.COVID-19 Workplace Considerations

Navigating the highly dynamic landscape of federal, state, and local COVID-19 rules and policies has presented myriad challenges for U.S. employers. Most recently, mass proliferation of vaccines and a clear decrease in hospitalizations is making it easier for employers to keep their employees safe, and is slowly (or sometimes abruptly!) leading to increased business reopening and travel throughout the United States. Federal and state guidance and regulations on masks, testing, and quarantining have begun to relax. The CDC announced on May 13 that fully vaccinated people no longer need to wear a mask or physically distance in any setting. The guidance also states that fully vaccinated people can refrain from testing and quarantine following a known exposure under certain circumstances.

However, most changes in federal guidance pertain to the public, and private employers are not the public. Accordingly, the CDC website sets forth the following caveat with regard to its most recent guidance on relaxed mask and quarantine guidelines: except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. (Emphasis added.) Moreover, although OSHA is advising employers to follow CDC guidelines for fully-vaccinated employees, the general duty clause under the OSH Act requires that employers keep their employees safe and recommends employers implement and maintain social distancing and shield or facemask measures for unvaccinated employees.

Thus, even though CDC guidance is becoming less restrictive, employers must still comply with applicable federal, state, and local workplace laws regarding mask mandates and quarantines. And because federal guidance and state reopening orders often contain detailed rules that vary by industry, it is vital that employers consider the fine print on all federal, state, and local rules and guidance. For example, following the May 13 federal CDC announcement, the state of Minnesota lifted its mask-mandate, only to have both the Minneapolis and St. Paul mayors announce that both cities are continuing to impose mask mandates.

In terms of vaccinations, it is in an employers best interest to have a fully vaccinated workforce (to the extent possible). However, in response to employer trends of incentivizing or even requiring vaccines, a countervailing state law trend is emerging to curb the ability of employers to promote vaccinations or treat vaccinated and non-vaccinated people differently. Several state governors (e.g., Texas, Florida, and Arizona) have issued executive orders limiting the use of COVID-19 vaccination documentation to confer certain rights or privileges on individuals. Also, Montana recently passed a law that, effective July 1, 2021, prohibits discrimination against non-vaccinated people.

With only a few exceptions, the Montana law prevents any entity from treating vaccinated and non-vaccinated people differently. Although employers in Montana can still recommend that employees receive vaccines, employer plans to only allow vaccinated employees to return to the office or only require non-vaccinated employees to wear masks have, in large part, come to a screeching halt.

III.International Travel Restrictions

Since his inauguration in January 2021, President Biden has kept his promise to roll back certain Trump administration travel and visa restrictions. For instance, President Biden has rescinded the so-called Muslim travel ban.

Biden has also rescinded Trumps categorical visa ban that prevented the issuance of certain common work visas, including H-1B and L-1 visas.

But the Biden administration remains strict about COVID-19 precautions, related international travel, and visa issuance. President Biden has maintained aspects of the previous Administrations travel restrictions and has even increased or added restrictions as global conditions evolve. Currently, there are four geography-based presidential proclamations that suspend entry into the United States of most foreign nationals who are physically present in any of 33 countries during the 14-day period prior to entry.

The geography-based travel ban countries currently include China, Iran, the Schengen Area, the U.K., Ireland, Brazil, South Africa, and most recently, India. While these orders only restrict the travel of individuals to the United States, anecdotally it has become clear that some U.S. consulates in these countries will notissue visas, even if the traveler intends to quarantine in a country not on the list and then enter the United States 14+ days later.

Fortunately, the geography-based travel/visa restrictions entail various exceptions. For instance, the restrictions do not apply to U.S. citizens and permanent residents (and parents of minor children who are U.S. citizens), and there are exceptions for travelers whose entry is deemed in the U.S. national interest.

Each U.S. consulate has its own processes to apply for a National Interest Exception (NIE), and thus travelers and employers are encouraged to investigate such processes on a consulate-by-consulate basis.

Besides the geography-based travel limitations, another way in which the Biden Administration is taking seriously the containment of COVID-19 is ongoing travelrelated mandates for masking and COVID-19 testing.

- With regard to masks, the administrations January 21, 2021 proclamation requiring airports, trains, intercity bus services, and other forms of public transportation to require masks to be worn in compliance with CDC guidelines appears to still be in force.

The most recent CDC guidelines regarding masks and public transportation, in turn, require travelers to wear masks, even if they are fully vaccinated.

This requirement is for travelers boarding, disembarking, or traveling on airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares. . . .

- With regard to COVID-19 testing, the same January 21, 2021, proclamation also requires all travelers (U.S. citizens and permanent residents included) to produce proof of a recent negative COVID-19 test prior to boarding an international flight to the United States and to comply with CDC guidelines concerning travel, self-quarantine, and self-isolation after entry. Critically, this requirement for a negative COVID-19 test prior to flying to the United States applies to everyone, including individuals who have been fully vaccinated.

IV.Data Security and Privacy: Considerations Related to U.S. Ports of Entry

As global travel slowly resumes, and employees embrace some of the work-from-home or digital nomad work arrangements permitted during the pandemic, employers should pay close attention to the data their employees store on company electronic devicesespecially if an employee will be traveling internationally and will be carrying a company electronic device. Given the explosion of work-from-home arrangements and the commensurate increase of employees taking company devices to their homes and with them while traveling, this is particularly timely.

Among professional-level employees, it is not always well-known how much discretion U.S. Customs and Border Protection officers at U.S. airports have in conducting warrantless searches of electronic devices carried by travelers. Americans generally assume they have a right to be free from unreasonable searches and seizures, as provided by the Fourth Amendment. But a well-established and significant exception to the 4th Amendment applies at U.S. ports of entry, whereby the U.S. government has nearly unfettered discretion to search individuals at the border and other ports of entry, including searching data contained on electronic devices. The extent of this broad power to search was recently confirmed by the First Circuit Court of Appeals in Alasaad v. Mayorkas, which involved challenges to the U.S. Customs and Border Protections (CBP) and U.S. Immigration and Customs Enforcements (ICE) electronic device search policies. See Alasaad, 988 F.3d 8 (1st Cir. 2021).

As described in Alasaad, there is a distinction between basic searches and advanced searches under the border search exception. Basic searches are routine searches that do not require reasonable suspicion. The scope of a basic search is relatively limited but it is far from non-intrusive. Border agents can make travelers present and unlock their electronic devices, and can then search for information on the device that is accessible through software applications present on the device.

Anyone who refuses the search can have their device seized for a certain number of days, can be detained themselves, and foreign nationals can be denied entry.

In advanced searches, officers can connect[] external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents. Alasaad, 988 F.3d at 13. According to the First Circuit, when it comes to advanced searches, officers only need reasonable suspicion of any crime. See id. at 20.

Note that CBP policy does not allow officers to search remote access data, that is, data in the cloud.

Employers should actively consider the potential costs and benefits to allowing employees to have access to work data on smartphones and other electronic devices. If allowed such access, employers should take several precautions, such as using strong encryption methods and requiring employees to completely shut down electronic devices before reaching any airports, deleting unnecessary sensitive data from their devices, and saving all sensitive data remotely (to the cloud).

Here is the original post:
The Great Reopening: Considerations for Employers as Employees Begin to Travel and Return to the Office - JD Supra

Scary Mommy and Nathan Howard/Getty

On May 13, the CDC (somewhat abruptly) issued new guidance for vaccinated folks. They wrote that vaccinated individuals no longer need to wear a mask in outdoor or indoor settings, except in hospitals, on public transit and unless required by state, local, or private mandates.

The new guidance came as a surprise for most of us, who assumed masks would be the last of the pandemic public health mandates to be lifted. The new guidance was met with an equal amount of hope (because it signals that the pandemic is nearing an end) and confusion. Confusion because the guidance doesnt recommend how to determine whether someones been vaccinated.

Businesses that dont want to rely on the honor system may begin to consider asking employees and customers for proof. Enter discussions about HIPAA. Folks who dont want to disclose their vaccination status are quick to point to HIPAA. Theyre wrong. Asking for proof of COVID vaccination is not a HIPAA violation.

HIPAA stands for Health Insurance Portability and Accountability Act. Its a federal law that was signed in 1996. Arguably, its one of the most misunderstood health laws in our country.

Originally, its purpose was to secure health insurance for employees when they were between jobs. In 2003, the Privacy Rule was put into effect. This rule does two things. One, it gives people the right to access their own medical information. And, two, it limits covered entities ability to access and share other peoples medical information without consent.

HIPAA prevents a covered entity from accessing or sharing your medical information without consent. Covered entities include health care providers, healthcare plans, and healthcare clearing houses (like billing companies), according to Katelyn Jetelina, who holds a Masters in Public Health and a PhD in Epidemiology and Biostatistics.

HIPAA is not a comprehensive privacy law. It applies to a very specifically defined subset of healthcare providers and folks who work in the healthcare space. Airplanes, grocery stores, your favorite restaurants are not covered entities and therefore not subject to HIPAA laws.

Kayte Spector-Bagdady, a medical ethics researcher at the University of Michigan confirmed as much. She wrote, HIPAA does not apply to the average person or to a business outside health care. It doesnt give someone personal protection against ever having to disclose their health information.

HIPAA does not protect someone from ever having to disclose their personal medical information. That includes disclosing whether theyve been vaccinated. Institutions can and often do require proof of vaccination before allowing admission.

Spector-Bagdady notes that, Institutions rarely have the right to require that you actually get vaccinated, but if you want to work somewhere in particular, or want others to provide you services (such as schools, or businesses, or travel), they might have the right to ask you to provide proof of vaccination first.

Thats why schools can require kindergarteners to show proof of vaccination before beginning school, why international travelers are required to show proof of vaccination to board plans to exotic locations, and why college students are required to show proof to live in a dorm.

More than simply being permitted to ask for vaccination status, Spector-Bagdady writes that some institutions may even have a legal obligation to protect others.

Jetelina, who writes as Your Local Epidemiologist, even encourages businesses to ask for proof of vaccination. She notes that doing so protects employees, the unvaccinated, and the immunocompromised, as well as the healthcare system itself from another surge.

Asking for proof of vaccination does not violate HIPAA, nor does it violate the Fourth Amendment or the 1964 Civil Rights Act. The Fourth Amendment, which protects folks from unreasonable search and seizure, applies only to the federal government. It does not apply to private businesses.

Likewise, neither the Americans With Disabilities Act nor the 1964 Civil Rights Act would prevent a business from asking a customer or employee about their vaccination status. The U.S. Equal Employment Opportunity Commission has confirmed that. In their guidance, the EEOC wrote, Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.

Businesses that ask for proof may be subject to other federal privacy laws, according to Carmen Roe, a legal analyst for KHOU. These laws have not yet been tested in courts in the way vaccination status would test them, and the result is unclear.

When businesses require proof of vaccination they are not requiring you to vaccinate. The choice to vaccinate or not is still yours. They are simply putting limits on what you can do in their space. Howard Markel, M.D., Ph.D., Director of the Center for the History of Medicine at the University of Michigan, explains it like this: You are free to make choices about vaccination, but all of our choices have consequences. It simply means you wont be able to go places or do things that will require you to show youve been vaccinated.

The COVID-19 vaccines are our path out of this pandemic. But they only work if theyre usedshots in arms. With mask mandates disappearing, its even more important that the unmasked person beside you in line is vaccinated, too. Businesses want to protect their employees and customers. In terms of requiring proof of vaccination as a way to provide that protection, HIPAA wont stand in their way.

Read this article:
No, Asking For Proof Of Vaccination Is Not A HIPAA Violation - Scary Mommy