Bigly Lie: Guns Will Save You in a Workplace Shooting

Today: Shooter kills 1, wounds others at NYC hospital; officials say he was doctor.

June 26, 2017 - Bail was set at $1 million for a man accused of shooting and seriously wounding a co-worker at a Carmel Mountain (San Diego) warehouse last week.

Jun 14, 2017 – Four UPS employees killed in a shooting at the company's facility in San Francisco.

Jun 5, 2017 - Six people, including the shooter, have been killed in an Orlando, Florida workplace shooting, WFTV, a CNN affiliate, reports.

May 31, 2017 CATOOSA, Okla. (KTUL) -- Catoosa police have released the name of the victim in Tuesday afternoon's deadly shooting. Police say Cody Thurman, 26, was shot to death near Marshall Street and North 165th East Avenue. The suspect, Steven Northcutt, was a coworker at a trucking company.

PS: I have added "bigly" to my Word dictionary and invite you to join along.

Recalling July 4, 1999

At the time of his suicide on July 4, 1999, Benjamin Nathaniel Smith was 22 years-old. He was a member the neo-Nazi World Church of the Creator, and under the spell of a vicious if charismatic racist leader, Matthew Hale. During that Fourth of July weekend, Smith targeted members of racial and ethnic minorities in drive-by shootings in the Midwest.

Smith had a significant connection to the UIUC campus. He was a student here until he was expelled in 1998 over domestic violence charges and posting racist literature. Influenced by Hale’s Pekin-based “Creativity Church,” he returned to the Urbana side of campus on July 3rd, shooting at African-Americans and Asians near the spot where a Chinese student was apparently abducted by a white male several weeks ago. Next, he travelled to Decatur, where he shot and wounded an African-American minister.

The day before, he went to a mostly Jewish neighborhood in Chicago, where he shot and wounded nine Orthodox Jews in drive-by shootings. Smith then shot and killed former Northwestern University basketball coach Ricky Byrdsong, an African-American, in front of two of Byrdsong’s children while they were walking outside their home in Skokie.

On the Fourth of July, Smith traveled to Bloomington, Indiana. There, he killed Won-Joon Yoon, a 26-year-old Korean graduate student in Economics at Indiana University, who was on his way to the Korean United Methodist Church. Smith committed suicide while attempting to elude the police.

Smith is dead but his violent white supremacy movement has grown exponentially. The Ku Klux Klan Act was passed in 1871 as a response to lynchings and mob terror committed by the newly formed remnant of the defeated Confederate army. The KKK’s main goal was to keep African-Americans and their liberal political supporters in a state of paralyzed terror as well as political disenfranchisement.

Parts of the law were ruled unconstitutional by conservative Supreme Court justices. The criminal law element was ruled as an unconstitutional usurpation of state law—a warped reading of post-Civil War amendments that were enacted because southern states would not treat African-Americans and their liberal supporters as equal to white citizens. (See above, a version of the American flag, circa 1865.)

For 90 years, the Ku Klux Klan Act laid dormant until Griffin v. Breckinridge (1971). Griffin and several other African-Americans were stopped in their car on a Mississippi highway by white men who believed the car was carrying civil rights supporters. Griffin and his passengers were nearly beaten to death. The Supreme Court ruled that the KKK Act allows for a civil lawsuit against private actors who conspire to deprive minorities of fundamental liberties such as the right to travel— a liberty right encompassed by the Due Process Clause of the 14th Amendment.

Since the time of Smith’s racist rampage, violent attacks on racial, religious, and ethnic minorities have sharply increased. Twitter and other social media platforms have given license to stigmatize these groups, and in some instances, to instigate violence against them. The white nationalism that fueled Smith’s Fourth of July murder binge in 1999 is a growing force that is making the once dormant Ku Klux Klan Act relevant again.  

What’s the Origin of Our Right Against Self-Incrimination?

This post passes along a fascinating explanation (excerpted) into the origins of our right against self-incrimination. But first, the back story to this post. The picture shows the arm of Christopher Slavin. He and an accomplice tricked two Mexican men to enter his car on Long Island, promising day labor at a warehouse. In the basement, Slavin attacked one man with a post-hole digger and almost killed him. He’s serving 25 years-life.

At trial, the issue was whether this assault was aggravated by racial animus. The state wanted to enter evidence of intent via photographs of Slavin’s neo-Nazi tattoos. The trial and appeals court upheld the introduction of this evidence. Credit defense lawyers with arguing, however, that the tattoos amounted to confessions of a hate crime—a really good argument on these facts.

If you read to the bottom, you’ll see how the state argued that use of the tattoos does not violate the right against self-incrimination.

….

Pretrial criminal procedures in the Middle Ages had no privilege against self-incrimination. At arraignment, the accused was required to expressly admit that he was the person charged.

After pleading not guilty, he was required to answer a second question about how would he be tried. The rights to battle, ordeal, or oath had to be relinquished before the case could be tried by a jury. The expected answer was “By God and my country.”

If there was a refusal to give this specific answer (assuming there was no issue about physical or mental ability to speak), there was a heavy penalty for recalcitrance. In cases of a felony, the method was peine forte de dure, which involved the piling up of weights upon the accused until he consented to a trial by jury. Other tortures and deprivations were also employed, even unto death when, if life left him, judgment found him. In cases of treason or misdemeanor, the refusal to answer was construed as a plea of guilt and the matter proceeded directly to determination of punishment.

One major factor in upgrading the tenet against self-betrayal into a rule of law was widespread opposition to the canonical oath de veritate dicenda, also known as the ex officio oath. Regularly used in the ecclesiastical courts but also in the prerogative courts, the ex officio oath required a defendant to swear under oath that he would answer all questions put to him truthfully without any prior knowledge of the subject of inquiry whatsoever.

This practice was detested because it led to all kinds of fishing expeditions for evidence of immorality, religious heterodoxy, or political dissent. In the 1550’s, during the reign of Queen Elizabeth I, both Catholics, who wanted a return to the Roman rites, and Puritans, who wanted to shed the dregs of popery, were frequently persecuted. By seeking a writ of prohibition in the common law courts, they tried to stop the use of the ex officio oath with limited success….

Compulsory process by law arrived in 1562. After enactment of the Statute of Elizabeth, 5 Elizabeth I, c. 9, § 12, a statutory penalty and right to sue was created for witnesses who refused to testify in a civil case, provided there had been proper service of process and tender of expenses…. Eventually compulsory process evolved from a duty to attend into the duty to disclose all knowledge.

Beginning in the late 1700's and into the nineteenth century, the criminal process in England became adversarial. The increased use of defense counsel reduced the expectation that the accused would offer a defense himself. Private associations of prosecutors arose to defray the victim's costs.

….

The relevant text of the Fifth Amendment states “no person shall be compelled in any criminal case to be a witness against himself.” Therefore, the word “witness” limits the category of compelled incriminating statements to those that are testimonial in character.

Counsel for Slavin has focused on the “communicative” aspect of the tattoos and urges that they fit under the Schmerber “shadow of testimonial compulsion.” This argument ignores the contemporaneousness component of compulsion. The New York State Court of Appeals has defined “testimonial or communicative evidence” to be that which reveals a person's subjective knowledge or thought processes.

However, prior voluntary communicative acts are distinguishable from contemporaneous communicative acts which retain the testimonial aspect required under Fifth Amendment analysis. People v. Holmes, 304 A.D.2d 1043 (3d Dept. 2003) (tattoo with nickname “Polo” was communicative but its display to jury was non-testimonial); People v. Spruill (alteration of tattoo from “Pike” to panther was proper evidence of guilty conscience); People v. Mars, 266 A.D.2d 316 (2d Dept. 1999) (love letters from defendant to non-spouse, which were found by defendant's estranged husband, were admissible to prove motive). Prior voluntary communicative acts without any contemporaneous testimonial aspect, lack the element of compulsion needed to bring them within the constitutional privilege.

College of Education at University of Tulsa Loses Certification

Oklahoma has a teacher shortage. In 2016, school districts cut about 1,500 teaching positions. They still had over 500 teaching vacancies when the school year started. The Oklahoma Teacher of the Year moved to Texas for better pay.

Now comes word that an Oklahoma agency under the control of Republican Governor Mary Fallin has denied certification to TU’s Education Department. In vague terms, TU states that the problem is with evaluating teacher preparation and candidate assessment.

Tulsa is a private university but subject to the state’s certification standards. The Tulsa World reports: “Higher education institutions that prepare teachers used to be accredited by the Oklahoma Commission for Teacher Preparation, but in 2014, a change in statute combined it with the Office of Accountability and renamed the new entity the Office of Educational Quality and Accountability, or OEQA. 

OEQA commissioners are appointed by Gov. Mary Fallin, and Fallin’s secretary of education, Natalie Shirley, serves as chairwoman.”

The action does not seem to be motivated by an agenda to destabilize public schools. Just this month, Gov. Fallin got behind a proposal to raise taxes $1.5 billion to help fund public education.

…

For readers in Illinois, this story might raise even more concerns about great education departments at EIU, ISU, and other state schools that are harmed by the budget impasse.

PHOTO CREDIT: Bennett, Christian Science Monitor

Miguel Montero and Jake Arieta: Was There a Wall?

Most news stories about Miguel Montero’s swift dismissal from the Cubs take a two-part approach: Montero had a good point, but he violated a norm about not throwing your teammate under the bus publicly.

Maybe it’s a bit deeper.

America is deeply polarized over the 2016 election. Friendships have been lost over whether one favors or opposes Donald Trump.

Now mix in the fact that Cubs ownership is tight with Donald Trump. Todd Ricketts was nominated by Trump to be Deputy Commerce Secretary but bowed out due to apparent conflicts of interest (bravo, Todd).

Throw in Jake Arieta’s tweet shortly after Trump’s big win: “Time for Hollywood to pony up and head for the border #illhelpyoupack #beatit.”

For most of us, it’s a throwaway tweet. And maybe Montero paid no mind to it.

But maybe it got under his skin. Montero grew up in poverty in Venezuela. He is likely here on an “O-1 visa.” If he married a U.S. citizen, he can qualify for citizenship that way—for now.

This is all speculation, but the point is that politics may have seeped into the Arieta-Montero battery in the kind of toxic way that many of our relationships are suffering from a lack of civility.

I’m not saying the Cubs are wrong—but I am saying that the Cubs are a very different team this year. Maybe there’s a wall that separates one group of young stars such as Anthony Rizzo and Kris Bryant who grew up with an upper middle class background, and another group of players—Willson Contraras (Venezuela), Pedro Strop (Domincan Republic), Javier Baez (U.S. citizen from poor island territory, Puerto Rico). If this is true, throwing out Montero won’t solve the problem.

And by the way, if you think the Cubs treated Montero fairly, let's also recognize that the Cubs didn't flinch at trading for baseball's best closer last year, Aroldis Chapman, after he allegedly choked his wife; nor did the Cubs flinch when two star infielders, Starlin Castro and Addison Russell, faced allegations of assaulting women. Yes, that's different from Montero's public rant, and yes, Montero isn't close to these players in talent.

But as of today, the Cubs owe Montero $14 million. That's a lot to pay for high-minded hypocrisy.

Breaking Noose: Make America Hate Again

Yesterday, the Ohio Civil Rights Commission confirmed reports that the UPS center in Maumee, Ohio had two nooses that were routinely hung at work. The report concluded that the UPS hub has been "permeated" with racially charged comments and incidents since 2013 to include displays of Confederate flags, racially offensive text messages and hostile comments.

In the past month, here are new reports of noose sightings:

A college football coach at East Tennessee State University was arrested this past weekend after he threatened to kill, beat, and hang a hotel clerk "from a noose" because his room key card didn't work.

For the third time in a year, a noose was found hanging last week from a lamp post near the Smithsonian Museum on African-American History and Culture.

On June 8^th, a teddy bear was found hung with a noose at a North Carolina high school.

On June 7^th, a 15 year-old student at a charter school found a picture of herself with a noose around her neck.

On June 3^rd, a noose was found hanging at a construction site near an elementary school in Washington, D.C.

A noose hung in the Port of Oakland sparked a walkout by workers on May 25^th.

Are You a Social Drinker?

I was asked this question today: “Are you a social drinker?” Doctors will ask that question, as do others.

I had some trouble with the question. At most university events where alcohol is served—graduation, fund-raisers, even tailgates— I don’t drink at all. Alcohol is served all the time at these venues.

If I am in company with people I don’t know well or trust, I won’t drink, either.

If I’m with family or close friends, I sometimes have a beer or glass of wine—but just as often or more so, I pass.

Anyway, I kind of condensed all of this and gave my answer—it boiled down to “not so much.”

Later, I looked into how some authorities define social drinking.

There is some variety in answers.

I found the answer from the Betty Ford Foundation a bit unsettling: “Question: How do you define social drinking? Answer: Social drinking may be that drink or two that soften the harsh events of the day or release one to relaxed sociability or just allow you to see the humor of it all.” For a rehab place, that sounds like rationalizing your problem away. Well, by that definition, I am not a social drinker.

Urban Dictionary defines social drinker in these terms: “A person who only drinks alcohol in social settings where there are already other people drinking.” Okay, I fit that definition.

Alcoholrehab.com gives a definition that comes closest to my wife’s definition. I would answer “yes” here:

“One way to describe a social drinker would be to say that these are individuals who: * Only drink occasionally. * Do not feel the need to drink alcohol in order to have a good time. * Never get into trouble because of alcohol. * Don’t do or say things they regret while drinking. * Do not spend a lot of time thinking about alcohol. * Feel no need to control their intake. Such individuals never drink enough to worry about having to cut back.

Compare that pretty narrow definition to The Free Dictionary, which defines social drinker in these terms: “social drinker: A person who consumes alcoholic beverages in moderation–ie, ≤ 2 'standard drinks'/day, often in a socially acceptable situation.”

Hmmm, I’m not sure what a “standard drink” is, and this definition sets a limit of two-per day.  

Finally, Psychology Today offers a pretty generous definition: “Social drinkers are those individuals who drink in low-risk patterns. According to the National Institute on Alcohol Abuse and Alcoholism (NIAAA), ‘low-risk’ drinking for females consists of no more than 7 drinks per week and no more than 3 drinks per sitting. For males, it consists of no more than 14 drinks per week and no more than 4 drinks per day. 

Okay, if that’s the definition, my answer (mostly no) seems okay.

***

On a serious note, I don’t see a consensus definition of social drinking here, and these are in some way or other authoritative sources. If you want to share a definition, e-mail me at m-leroy@illinois.edu. If I get enough replies, I will update this post (and will post your reply only with your permission).

“Three Blind Mice!” Alito, Thomas & Gorsuch Can’t See Muslim Discrimination

“Three blind mice. Three blind mice.”  (That’s a good way to describe Justice Alito, Justice Thomas, and Justice Gorsuch’s inability to see what nearly every other judge—Republican-- or Democratic--appointee saw. All but these three saw anti-Muslim discrimination.)

“See how they run. See how they run.” (See how they run to give paid speeches to religious and conservative lobby groups. See this recent quote from U.S. News& World Report: “Speaking to graduating Catholic seminarians last month, Supreme Court Justice Samuel Alito delivered an urgent message: America's "traditional values," he warned, are under attack, and the assault on Christianity is coming from the left.

"For most of my life, American people have been united in their strong respect for religious liberty. But recently, things have started to change," Alito told the Class of '17 at St. Charles Borromeo Seminary, a Catholic institution in Wynnewood, New Jersey. "The idea that speech can be banned if it expresses an idea that is offensive is spreading around the country.".)

They all ran after ….

Did you ever see such a sight in your life? (Yes. The U.S. Supreme Court, in 6–3 decision, Korematsu v. U.S., had six blind mice who sided with President Roosevelt’s executive order excluding Americans of Japanese descent from living, working and moving freely in the U.S. during WW II. They saw no racial discrimination.)

“You'll have lower prices under deregulation than you will through regulation.” Not.

Remember Enron as the Senate votes on health care. 

Here’s a famous quotes on deregulation: “You'll have lower prices under deregulation than you will through regulation.” Sounds like the arguments made for the Senate health care bill.

The quote is from Kenneth Lay. He was the CEO of Enron. Before he died in 2006, a court found that he was a central figure in a massive fraud that took advantage of deregulation of energy markets and deregulation of financial services.

For readers who remember the 1980s, the airline industry was massively deregulated. New, low-cost carriers sprouted up regularly. Today, four airlines control 70% of the market. Service has declined noticeably. You can find good fares at strange hours, but unless you fly Southwest, you’ll be gouged for schlepping your underwear on the plane.

Phones? The federal government broke up AT&T and created “Baby Bells,”— regional carriers. The market used to be competitive. And then it consolidated. Today, try to price-shop between Verizon, AT&T and Sprint. Most people wouldn’t say it’s a consumer friendly market.

Energy? It used to be regulated. Then in the 1990s and 1990s, that system gave way to “market competition.” The result? Companies such as Illinois Power were bought and merged into large regional companies. Good luck trying get service during an outage. If you have an ice storm or such, you could be without power for days or a week. It wasn’t that way when a local workforce was at the ready.

Tom Price, Secretary of Health and Human Service, promises today that the Senate bill will create market competition and benefit the patient.

Having been mistreated by my phone company, power company, and American Airlines-- and having no or very limited market alternatives, as I was promised-- I think this market competition talk is disconnected from reality.  

PHOTO CREDIT: PAUL FELL

How We View “Extreme Political Rhetoric”: Moving Toward Agreement

As a divided nation, we are beginning to come toward agreement that extreme political rhetoric is harmful.

That’s the takeaway from an item in the most recent WSJ/NBC poll. After asking the usual questions about presidential approval, health care and so forth, they asked about two attempted assassinations of members of the House, Gabby Giffords (D. Az.) and Steve Scalise (R.La.).
The questions were asked in January 2011 and June 2017.

Here are the questions and results:

(JUNE 2017) Thinking about the shootings of a Member of Congress, U.S. Capitol Police officers, and others on a baseball field in Alexandria, Virginia last week, do you feel extreme political rhetoric used by some in the media and by political leaders was an important contributor to the incident or do you feel this is an isolated incident by a disturbed person?

Isolated incident by disturbed person................................   46%

Rhetoric an important contributor ................................  41%

 Some of both (VOL) ......................................................      5%

 Not sure ......................................................................          8%

(JANUARY 2011) Thinking about the shootings of a Member of Congress, a Federal judge and others in Tucson, Arizona last weekend, do you feel the extreme political rhetoric used by some in the media and by political leaders was an important contributor to the incident or do you feel this is more of an isolated incident by a disturbed person that occurs from time to time?

Isolated incident by disturbed person.......................      71%

Rhetoric an important contributor............................  24%

Some of both (VOL).................................................       3%

Not sure......................................................................      2%

What Are “Badges of Slavery”?

In 2013, three men were convicted of kidnapping a disabled Navajo man and branding a swastika into his arm and shaving a swastika in his hair (above). The men worked in the same restaurant, and enticed their victim there to go their apartment, where they brutalized him.

Here is a summary of their criminal conduct:

At Beebe's apartment, the three white men drew on V.K.'s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.'s hair (pictured above). Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.'s arm.

William Hatch challenged his conviction, arguing that the federal Hate Crimes Act was unconstitutional because it gave an overly broad definition to “badges of slavery” under the 13^th Amendment. Hatch’s point was that the 13^th Amendment ended slavery of blacks and did not extend to crimes against Navajos.

In a fascinating decision, the Tenth Circuit Court of Appeals rejected that narrow reading and said that the 13th Amendment authorized enactment of laws to do away with the effects of slavery—hence the metaphorical expression, "badges of slavery." (The metaphor related to actual badges that were assigned to slaves, such as this one in 1817 in Charleston South Carolina, somewhat like a dog tag.)

I now quote the Court’s historical research (for the full case, read here http://caselaw.findlaw.com/us-10th-circuit/1637502.html).

Slaves could not own property, could not enter into contracts, and so forth. Slaveowners, by contrast, had complete control over their slaves and even their slaves' children. These aspects of slavery, as well as the so-called Black Codes that attempted to perpetuate the master/slave relationship as much as possible after emancipation, are what were then considered to be “incidents of slavery.”

“Badges of slavery,” by contrast, had a somewhat looser meaning. In the antebellum years, it could refer literally to a badge worn by slaves, such as copper badges issued to certain slaves in Charleston, South Carolina (see picture above). See generally Harlan Greene et al., Slave Badges and the Slave–Hire System in Charleston, South Carolina 1783–1865 (2008); Rutherglen, Badges and Incidents, at 166 (noting that “badge,” in antebellum legal discourse, was sometimes used as shorthand for “evidence permitting an inference from external appearances to legal status”).

In addition, “badges of slavery” could refer to the psychological scars that slavery inflicted upon slaves, McAward, Defining the Badges, at 577, or to any “evidence of political subjugation,” Rutherglen, Badges and Incidents, at 166.

In postbellum legal discourse, “badges of slavery” came to be used primarily as a synonym for slavery's continuing “incidents,” as perpetuated by the Black Codes. McAward, Defining the Badges, at 581; Rutherglen, Badges and Incidents, at 165. But “badges of slavery” also arguably extended to “widespread [private] violence and discrimination, disparate enforcement of racially neutral laws, and eventually, Jim Crow laws.” McAward, Defining the Badges, at 581.

Later in the opinion, the court explained why the Hates Crimes Act applied to Hatch’s conduct:

“Congress could rationally conclude that physically attacking a person of a particular race because of animus toward or a desire to assert superiority over that race is a badge or incident of slavery…. Just as master-on-slave violence was intended to enforce the social and racial superiority of the attacker and the relative powerlessness of the victim, Congress could conceive that modern racially motivated violence communicates to the victim that he or she must remain in a subservient position, unworthy of the decency afforded to other races.”

Company Lawyer Stands Liable for Arranging Deportation of Litigious Employee

A lawyer’s duty to zealously represent a client does not extend to having your client's litigious employee deported.

So ruled the Ninth Circuit Court of Appeals yesterday.

Meet Jose Arnulfo Arias, an immigrant who filed a lawsuit against his employer for wage violations.

Meet the attorney, Anthony Raimondo of Raimondo & Associates, who represented Arias’ former employer, Angelo Dairy, in a wage-and-hour lawsuit.

During that lawsuit, Raimondo had arranged for U.S. Immigration and Customs Enforcement to take Arias into custody at a scheduled deposition and then remove him from the country.

The ruling yesterday determined that “employer” is defined as “any person acting directly or indirectly” in an employer’s interest in relation to an employee.

The ruling paves the way for Arias’s retaliation lawsuit. Wage and hour laws prohibit employers from retaliating against employees for lawsuits for redress.

The back story? When Arias found out about Raimondo’s contact with ICE, he allegedly suffered “extreme anxiety” over worries that he would be deported, and agreed to settle.

Now, the company’s lawyer is on the hook; and likely, will go to trial or settle with Arias. 

Is Assassination Speech Protected by the First Amendment?

Johnny Depp sparked a controversy when he remarked, “When was the last time an actor assassinated a President?” 
How far can someone take this kind of talk and be protected by the First Amendment?

Rankin v. Ardith (1987) is the leading case on the issue. Ardith McPherson worked in the Harris County sheriff’s office.

When she learned of an assassination attempt on Ronald Reagan, she told a co-worker, “Shoot, if they go for him again, I hope they get him.” Another co-worker overheard the conversation and reported it. Ms. Rankin was fired for the comment.

The Supreme Court ruled that her speech was protected. The President’s life or death was deemed by the Court to be a matter of public concern, and thus, Ms. Rankin’s speech was protected. Statements that are incorrect, unpopular or ill-advised still enjoy constitutional protection.

Johnny Depp’s stupid question is akin to Ted Nugent’s stupid statement before the 2012 election, where the faded rock star said that President Obama would “either be dead or in jail by this time next year.” Not to be forgotten is President Trump’s former butler, Anthony Senecal, whose Facebook rants called for President Obama to be killed. 

Assassination speech is protected, unless it conveys specific incitement to plot and act. 

It's also important for the rest of us to exercise our First Amendment rights to denounce this type of speech.

Make America Great Again … Stop Cheating Employees on Overtime

A federal appeals court issued a major ruling yesterday on overtime pay for cable technicians. The employees were awarded $3.8 million.

Here is a quote from the decision (in red text):

FTS Technicians presented evidence that FTS implemented a company-wide time-shaving policy that required technicians to systematically underreport their overtime hours. Managers told or encouraged technicians to underreport time or even falsified timesheets themselves. To underreport overtime hours in compliance with FTS policy, technicians either began working before their recorded start times, recorded lunch breaks they did not take, or continued working after their recorded end time.

FTS Technicians also presented documentary evidence and testimony from technicians, managers, and an executive showing that FTS's time-shaving policy originated with FTS's corporate office.

There is more to this story. The employees won a verdict in 2012 directing FTS to pay for missed overtime. For the past five years, the matter has been in court because there aren’t precise records for the hundreds of members of the class. That’s because it’s the employer’s responsibility to keep time records accurately—and here, that didn’t happen.

The long-story short is that the appeals court said yesterday that a sample of reliable estimates from the larger class is sufficient to uphold the award of damages.

“Why Your Race Needs to Be Collectively Ovened”: ACLU’s Internet White-Terror Lawsuit

Tanya Gersh, a Jewish woman in Montana—and an outspoken critic of Donald Trump and his whites-first constituents— received intimidating e-mails, such as this:

“Thanks for demonstrating why your race needs to be collectively ovened. You have no idea what you are doing, six million are only the beginning. We are going to keep track of you for the rest of your life. You will be driven to the brink of suicide & We will be there to take pleasure in your pain & eventual end.”

One message included an image of the woman being sprayed with a green gas, along with the words: “Hickory dickory dock, the kike ran up the clock. The clock struck three and the Internet Nazis trolls gassed the rest of them.”

After Trump's election, Alt-Right supporters organized a march in her town to drive Ms. Gersh and her family from their residence. See the photo above.

The ACLU has now filed a lawsuit in Montana federal district court against Andrew Anglin, the man who runs an extremist web forum called The Daily Stormer. Anglin published 30 posts urging his followers to launch a “troll storm” against Tanya Gersh, a real estate agent in Whitefish, Montana.

Similar to the approach I am working on in my current research article, the lawsuit uses anti-intimidation laws to shutdown private conspiracies that seek to deprive individuals of civil rights. What my work has in common with this lawsuit is the idea that Internet hate speech is not protected if it is so targeted and specific as to cause a person to be fearful or living in a community—or in my case, of being employed in a workplace where nooses and swastikas are brandished, and where unions seek segregation of whites and blacks (there is a pending lawsuit with this fact pattern).

The Strange Careers of Jim Crow and Donald Trump

As you may know, Jim Crow is a term that refers to the South’s segregationist history, roughly from the end of the Civil War to the mid-1960s. As I blogged some months ago, the term Jim Crow is explained in C. Vann. Woodward’s The Strange Career of Jim Crow. He speculates the term came from Tom Rice, an entertainer who mocked black people while performing in black face.

Here is new information I uncovered in my research. A New York Times interview in 1881 with 72 year-old actor relates the source of Rice’s demeaning blackface song-and-dance routine that became widely popular in the South. The actor described the early history of negro minstrelsy and a memorable show in Louisville of a slave who was “very much deformed, the right shoulder being drawn up high, the left leg stiff and crooked at the knee, giving him a painful but laughable limp.” The slave, who apparently took his last name from his owner, a man named Crow, sang a whimsical song and would give a little jump at the end of each verse.  See An Old Actor’s Memories, N.Y.TIMES (June 5, 1881).

Thus, Rice popularized the demeaning imagery of an addled black man who was also physically disabled. 

The first few lines of Rice's song-and-dance shed light on today’s stereotyping of black culture:

Come, listen all you gals and boys, Ise just from Tuckyhoe;

I'm goin, to sing a little song, My name's Jim Crow.

CHORUS [after every verse]

Weel about and turn about and do jis so,

Eb'ry time I weel about I jump Jim Crow.

I went down to the river, I didn't mean to stay;

But dere I see so many gals, I couldn't get away.

The imagery seems to feature the black man as ignorant, aimless, and oversexed.

Thinking back on last year’s campaign, I was struck by Donald Trump’s apparently effective linkage of Mexicans as rapists and his mockery of physical disability—to my mind, a modern echo of Jim Crow’s damaging and enduring mockery of black people. These crude attacks win over many millions of people. 

PHOTO CREDIT: By Edward Williams Clay - Institute for Advanced Technology in the Humanities at the University of Virginia: Home - pic, Public Domain, https://commons.wikimedia.org/w/index.php?curid=391950

Future of Unions: Small Groups, More Disruptive, Fewer Contracts

Since the nation’s main labor law was enacted, employers have fought it. And they have mostly won.

How so? More than half our states forbid compulsory union dues. Great, you say? The idea behind dues paid by everyone reflected the fact that unions are by law the exclusive bargaining agent for all employees in that group. Example: If Employer A has 100 employees, and 51 vote for a union, the union must represent all 100 employees. (If you're in an HOA, it's identical logic. You pay whether you are in the majority or the minority for a special charge.)

Old-style unions wanted a contract with their employers. Yes, they would often strike for this. Once a contract was in place, strikes were forbidden by contract and replaced by arbitration.

So, what’s new? Yesterday, the Supreme Court refused to hear a federal appeals case that upheld the NLRB’s idea of “micro-unions.” 

Cosmetics sales people in stores such as Macy’s wanted their own union. Macy’s countered, “Let’s have an election involving all employees.” When employers seek “wall-to-wall units,” they win almost every time. It’s the main reason that Wal-Mart remains totally nonunion.

The NLRB said that cosmetics sales people are paid differently than others sales people, so they can have their own “micro-union.”

Going forward, unions will continue their recent efforts to organize smaller, more skilled workers in a larger work group. They don’t necessarily want to have a contract, given how one-sided these have become (e.g., employers force employees into their own arbitration systems and also force employees to waive all their legal rights to public courts).

If there is a bottom line, it is this: The Fight for Fifteen and Occupy movements typify the wave of the future—loosely organized, energized, boisterous protests usually centered on a very specific demand, for example, a living wage.

Labor relations is dying, and so are collective bargaining agreements. But worker unrest is not going away.

Son of a Witch!

Yes, there is a witch hunt.

Win for the Redskins, The Slants … and Confederate Flag and Monuments

Matal v. Tam, decided by the Supreme today, opens with Justice Alito’s informative summary:

“This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.

The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The case will allow The Slants to register their name with the U.S. Patent and Trademark Office—but the more notable win is for the Washington Redskins.

In 2014, the U.S. PTO revoked the registrations of their name. This decision ends a two-decade effort by Native American activists to cancel the team’s registrations as pressure to change the name.

Interesting to note, the Obama administration didn’t make up the disparagement clause—they did, however, broaden it. The disparagement clause was created in 1946, in the Lanham Act.

Until now, courts ruled that the disparagement clause in the Lanham Act didn’t violate the First Amendment because it never barred real-life use of the offending remark (e.g., Redskins, Slants, or Chief Illiniwek), nor does it prevent the owner from enforcing common law trademark rights.

Today, the Court rules that the ban amounted to “government speech.”

First Amendment lawyers wonder how far this new precedent will be stretched. Already being discussed: Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S. ___ (2015). Two years ago, the Supreme Court ruled that Texas did not have to grant a request to create a Confederate flag license plate.

The Slants case will provide support for efforts by Confederate flag supporters to overturn government bans on these flags and monuments.

Trump Takes Position Against Workers in Supreme Court Case

If Donald Trump is fighting for the American worker, you wouldn’t know this from the legal brief his lawyers filed on Friday in a major case before the Supreme Court.

As Reuters-Legal reports today, the Trump administration on Friday sided with employers in a Supreme Court case over the rights of workers to bring class action lawsuits against companies, court documents showed.

The case involves a ruling from the National Labor Relations Board that prohibits employers from requiring employees to waive class action claims.

What might that case look like? Let’s say your employer fails to pay you overtime when you are on call for Saturday as a mechanic, a nurse, a delivery driver and so on. Your restriction states that you must be within 20 minutes of reporting to work in case of a “call out.”

Depending on the extent of restrictions, the employee is owed pay for this time.

I discussed this matter with a nurse in Champaign last week.

My hunch is that she lacks the money to fight her employer for overtime pay.

Also, it’s unlikely that a lawyer will take her claim for pay, given its fairly small size.

It’s a different story if the nurse has 50 co-workers who are similarly affected. If they act as a group (called a class, in legal terms), they are on a more even footing with their employer—and they’ll attract good representation.

Donald Trump talks a big game about favoring the American worker, but so far his policy positions are more consistent with being a billionaire businessman.

Interrupting Julius Caesar: Using Conspiracy Law to Combat Right-Wing Conspiracy Leaders

How to fight back against right-wing conspiracy kooks? Last night, two protesters interrupted the Public Theater’s production of Julius Caesar, with one storming the stage to accuse the actors of inciting political violence. Trump supporter and conspiracy theorist Jack Posobiec filmed his partner-in-crime, right-wing blogger Laura Loomer, as she marched on-stage mid-performance.

“BREAKING: Julius Ceasar Gets SHUTDOWN,” Posobiec tweeted along with a video of the stunt, which showed Loomer shouting “Stop the normalization of political violence against the right!” as she marched on-stage.

Let’s compare that to Glasson v. City of Louisville (6^th Cir. 1975). Marjorie Glasson was on a sidewalk along a street where President Nixon’s motorcade was traveling in 1970. She held up a poster that read, “Lead us to hate and kill poverty, disease and ignorance, not each other.” A Louisville police officer tore up her sign, saying it was “detrimental.”

Glasson sued under Reconstruction-era civil rights laws. One law was the Ku Klux Klan Act. The city argued that since Ms. Glasson wasn’t African-American, the law couldn’t be applied to her. The federal appeals court disagreed, noting that the Ku Klux Klan Act was intended not only to protect freed slaves but also their political supporters.

Nearly 100 years after the law was passed, the court said that the law was passed to protect people who exercise their right to political dissent. The Klan Act isn’t limited to opponents of the KKK.
Section 1985(3) applies to private actors (not just state actors, as in Glasson). See Griffin v. Breckenridge (1971). 
Back to Julius Caesar. A “Section 1985(3)” [Ku Klux Klan Act] lawsuit would also need to show a conspiracy to deprive people of their civil rights.

Look at the facts: This was (pardon the pun) a staged and coordinated effort by the extreme right “news guy” Posobiec and his partner to interfere with the theater's right to voice a political view by putting on a play, and the right of patrons to watch the play without interruption. 
It’s time to fight conspiracy nuts with a conspiracy lawsuit.

Supreme Irony: Women Attorneys Lead Trump Investigation

Donald Trump’s crude treatment of women set a new low in American politics and culture. His demeaning view of women is visible in his administration, populated almost entirely by sycophantic men.

Bob Mueller apparently doesn’t buy the idea that only 50% of the adult population is qualified to do serious work.

Here are two attorneys he recently hired.

Jeannie Rhee (pictured above) has spent her private practice career advising clients who are the subject of government investigations, including white-collar criminal investigations, False Claims Act allegations and securities enforcement matters. In her public practice, Ms. Rhee also served as a Deputy Assistant Attorney General where she advised the Attorney General, the White House and senior agency officials on constitutional, statutory and regulatory issues regarding criminal law, criminal procedure, executive privilege, civil rights and national security. Ms. Rhee graduated from Yale Law School.

Lisa Page is an experienced Justice Department trial attorney. She has deep experience with money laundering and organized crime cases. She knows the territory where Paul Manafort took allegedly illegal payments from Russian-backed operatives in Ukraine. Ms. Page worked on the FBI task force in Budapest, Hungary, that focuses on Eastern European organized crime. She is a legal expert in money laundering cases.

Are Congress Shooting Victims Covered by Workers Comp?

Probably yes, due in part to Marilyn Ezzy’s broken finger in a 1980 softball game. Ezzy was a summer intern. Her law firm sponsored a softball team. She was encouraged but not required to play. After she broke her little finger in a game, her employer refused to cover medical costs. She claimed for workers comp—and in a “lead case” before the California appeals court, she won.

The court applied a version of the “work factors” test—the activity was directed by the employer, the games benefited the law firm by promoting esprit de corps, the firm’s name was on t-shirts, the team was composed of firm employees, and so on.

Rep. Scalise’s injuries are extremely serious, and his medical costs (guessing here) could top $1 million. He might have some type of permanent impairment. Over and above health insurance, worker’s comp would cover his hospitalization, medical and rehabilitation. Hypothetically, if he has a permanent partial disability, worker’s comp will pay an additional sum— likely in the hundreds of thousands— for this loss of capacity.

Rep. Scalise is actually an employee. Benjamin Franklin suggested at the Constitutional Convention that representatives and senators receive no pay, but his idea was rejected. The 2016 salary for rank-and-file members of the House and Senate is $174,000 per year; they pay into Social Security, and their employment is regulated by the U.S. Office of Personnel Management. 

It therefore seems he is covered by the federal version of worker’s comp (Federal Employees' Compensation Act)—and since the Ezzy case is widely followed, it seems more likely than not that his injuries would be analyzed along the lines of Marilyn Ezzy’s broken finger in 1980.

The congressional police officer who was shot is clearly covered.

The Tyson lobbyist, Matt Mika, has critical injuries—and his medical and rehab issues might be somewhat similar to Rep. Scalise.

However, he might have a tougher time claiming worker’s comp. Unlike Marilyn Ezzy, he is not employed by Congress. Tyson likely has a third-party carrier, and likely, they will not be sympathetic but rather try to avoid paying a huge claim. They’d argue that Mika was outside the scope of employment—and they would be on solid ground in distinguishing Mika’s case from Ezzy.

Regardless, prayers and best wishes to all the shooting victims.

Is Terror a Status Crime?

Today’s shooting was a likely terror attack. It appeared to have a political motive. It was violent. It aimed to shake the public’s confidence in basic security. But the shooter didn’t fit the preeminent narrative of terrorism.

Is terror a status offense? In other words, if two identical acts of terror are committed, one by a 66-year-old white man, and one committed by a 22-year-old Muslim, are we able to condemn them both as terror attacks without differentiating the status of the attacker?

Our Constitutional framers were deeply concerned about “status” crimes. A status crime makes a person's status the core element of an offense, not his conduct.

Therefore, they categorically outlawed all “bills of attainder.” 

That refers to an act of a legislature declaring a person or group of persons guilty of some crime and punishing them.

We’ve had them in the past. During the height of anti-Communist passions, Congress enacted a labor law. In United States v. Brown, 381 U.S. 437 (1965), the Supreme Court invalidated the section of the labor statute that criminalized a former communist serving on a union’s executive board. Brown was convicted because he was a Communist and a labor leader.

We’re not at that point of labeling a group of people as terrorists; but the stark differences in responses to the recent Manchester and London attacks, compared to the attack on our American lawmakers, suggests that we might see attainders in the future.

Flag Day 2017: Two Flags for a Deeply Divided U.S

Are we a united nation? The first picture is a U.S. flag sent to me by a student who has served our nation in combat. Ben writes: “Here is a flag for your desk. This flag means a lot to me and to many others who spent 7 months from away from home working to defend it. We don’t see political views, we don’t see race, we just see freedom and democracy. While we have opinions, the flag supersedes our opinions. Our oath is to the nation and to the flag—so it remains on our shoulders daily.”

The second picture is hard to look at, especially after reading Ben’s powerful homage to our nation’s flag. The perverted flag was displayed by Jeffrey Hall. As reported by the Washington Post  last year, here is his vision for America: “I want a white nation.” Mr. Hall once patrolled the U.S.-Mexico border looking for illegal immigrants. He often spoke at rallies, promoting the goals of the National Socialist Movement, the largest neo-Nazi organization in the U.S. country, with 46 chapters in 20 states. Hall was shot and killed by his then-10-year-old son, who killed his father while Mr. Hall was asleep on his living room couch. The son later said that his father beat him constantly.

My student, Ben, is serving this nation for you, for me, for our children, and grandchildren—and even for the Joseph Halls of America.

Thank you, Ben and your fellow service members, for making America great. Let’s hope we can all rally around the flag you sent me, which I proudly display in my office.

How Does the Antichrist Relate to Job Bias?

Sometimes an idiosyncratic case makes an important and more general point.

The Facts in EEOC v. Consol Energy (4^th Cir. 2017): Beverly Butcher, a 37- year employee at a Pennsylvania coal mine, had a sincere belief in the Antichrist. He got into trouble with his employer after his religious accommodation request was denied.

Mr. Butcher believes that a mark on his right hand is tantamount to the “Mark of the Beast,” and therefore shows allegiance to the Antichrist.  

The Company implemented a new hand-screen system that involved a biometric marker on everyone’s right hand. Mr. Butcher offered to check in with his shift supervisor or punch in on a time clock, but his employer insisted on scanning his hand or imposing discipline.

Forced to choose between a hand scan and a future of fire and brimstone in Hell, Mr. Butcher retired.

Later, he learned that the Company offered two employees with hand injuries alternate methods to track time.

A federal appeals court on Monday upheld a $590,000 jury verdict against Consol Energy Inc. for Mr. Butcher to retire because it would not accommodate his evangelical Christian beliefs. The three-judge panel concluded, “It is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings."

The court added that the only relevant inquiry about Butcher’s beliefs is whether they are sincere, which the jury found they were.

The lesson? If an employee makes a highly unusual request for a religious accommodation, the employer can only consider whether the request reflects a sincerely held belief.

The court did not address whether an alternate method of tracking time would be unduly burdensome for the employer. In this case, Consol made no attempt to consider an accommodation. (Other cases establish that an employer need only consider a “de minimis” accommodation.)

Why You Should Know About “Pleaks”: U.S. Government Historically “Leaks Like a Sieve”

Donald Trump has called Jim Comey a “leaker,” and also cast aspersions on other “leakers.” Is leaking an offense? What’s the history of leaks?

In 2013, Prof. David Pozen published a law review article that took up these questions. He found that leaks from the executive branch are common, strategic, and long-standing, as are unwanted leaks and also some leaks that cross the legal line. He calls many of these leaks "pleaks" because they serve a public purpose.

Here is the summary of Prof. Pozen’s fascinating article, "The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” published in Harvard Law Review:

Abstract

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's “leakiness” is often taken to be a sign of organizational failure. The Article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the Article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.

Photo Credit: Newseum Institute 

Fake News About the Ninth Circuit’s 80% Reversal Rate

Today, the Ninth Circuit Court of Appeals joined the more conservative Fourth Circuit Court of Appeals in finding that the Trump administration’s travel ban is unconstitutional because it discriminates categorically against Muslims.

You’ll hear the president and his Fox News surrogates say that the Supreme Court overturns 80% of the Ninth Circuit’s rulings.

Here is why that number is true but also false and misleading. 

But let’s start with this analogy. Over the past 30 years, my wife and I have agreed 99% of the time on issues that relate to raising our three children. I can distinctly recall rare occasions—because I am sometimes reminded of them— when my recommendation was “X” and my wife recommended “Y” and my recommendation prevailed, only to be the perfectly wrong approach. The point is that when my wife and I disagree, my failure rate is about 80%.

Does that make my decision rate an 80% failure as a father/husband? Of course not. I am usually right, but my wife is more right than me. My 80% failure rate is that small sliver of cases where we disagree, and my view prevail. Then, my decisions are about 80% wrong.

Turning to President Trump and Fox News, they are referring to Roy E. Hofer’s excellent but flawed research article, “Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals.” It's here:

https://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJan2010_Hofer.authcheckdam.pdf. 

What Trump and Fox won’t tell you if that the Supreme Court’s average reversal rate for all the federal circuits is 68%, according to Hofer's research.

So, let’s stop and consider this: Does this number mean that all the appeals courts are “rogue” or “biased” or incapable of applying the law? No. 

What Hofer, and now Trump and Fox, don’t tell you is that the court’s primary jurisdiction is called “certiorari,” a term that means the Court has discretion to fully review a lower court case. In more than 99% of cases that are appealed to the Supreme Court, the Court declines to grant certiorari. Thus, these appeals court rulings are either correct as a matter of law, or not so flawed that the Supreme Court decides to review them.

Now, consider this explanation: “In short, social media claims that 80 percent of cases decided by the Ninth Circuit were overturned were flat out false; more than 99 percent of that circuit’s decisions stood and the Supreme Court reviewed a scant 0.106 percent of circuit court cases each year. Although figures from 2010 maintained the “Ninth Circuit [had] the second highest reversal rate at 80 [percent],” the “highest” was the Federal Circuit court’s median of 83 percent. However, left out of both the rumors and the blog post was the fact that the average rate of accepted cases ruled upon differently by the Supreme Court than a lower circuit court was over 68 percent across all courts.” See here: http://www.snopes.com/ninth-circuit-court-most-overturned/. 

Returning to my parenting analogy: Being 80% wrong in a very narrow set of circumstances does not make a parent 80% wrong in his or decisions as a parent. For me, the clear implication is that when my wife and I conflict, I should listen to my wife. However, for the Ninth Circuit—whose rulings are upheld in 99% of Supreme Court decisions— they aren’t one person in conflict with a second person. They make decisions in groups called panels (usually three), and they are often trying to figure out how another group of judges—at least five of them—will rule if their decision is appealed.

I’ll simply say that we’ve raised three good kids notwithstanding my occasional mistakes, and the Ninth Circuit has been in the mainstream of American law in 99% of its rulings.

Round 1 Winners, Tourney of Trump (TOT)!

With “truth” and “liar” emerging as a tourney trend, Round 1 of Tournament of Trump produced a dramatic upset as the No. 8 seed, Who Do You Trust?, knocked off the No. 1 seed, The Apprentice, in the Kremlin Region. Other winners in the region were The Biggest Loser (2 seed), To Tell the Truth (4 seed), and the 6 seed, You Don’t Say, in another upset.

In the West Wing Region, the No. 1 seed, I’ve Got a Secret, cruised to an easy win. In fact, all the favored teams won: No. 2, The Biggest Loser, No. 3, You Don’t Say, and No. 4, To Tell the Truth.

In the Capitol Hill Region, another 8 seed pulled off a stunning upset, as Password knocked off Are You Smarter than a Fifth Grader? The 7 seed, Tattle Tales, pulled another huge upset. Favorites Deal or No Deal (3 seed) and Truth or Consequences (4 seed) prevailed.

In the Trump Tower Region, the 1 seed, Jeopardy, won as did the No. 2 seed, Let’s Make a Deal. The No. 6 seed, Pass the Buck, upset the No. 3 seed, Dancing with the Czars. The 4-seed, The Weakest Link, also won.

Regional MVPs were Ky Retweet, Kevin Love-Russia, Russell Westwing, and “King James” Comey.

Round 2 kicks off this week with play during the Attorney General Sessions' session, and concludes on or before June 23, when tapes and memos are due to congressional committees.

(Thanks to former students KF and JN for their "influence" by playing along and sharing some thoughts.)