Category: Law

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Law

The Eric Garner grand jury and the need for disclosure

The protests in New York City and across the nation over the decision by a grand jury not to issue an indictment in the death of Eric Garner follow at least in part from the incongruity between that conclusion and images of Garner’s arrest.

In video that in its varied forms has roughly 6.3 million views on YouTube, Garner tells police officers that he cannot breathe while Officer Daniel Pantaleo collars him. Whether it was a chokehold or, as Pantaleo contends, a takedown maneuver, the hold caused Garner’s death, according to the city’s medical examiner.

The calls for justice also follow, it seems, from the Garner grand jury’s decision and what we know about grand juries generally. That grand juries indict easily. That they do whatever the district attorney tells them to do. That a grand jury could “indict a ham sandwich,” as Sol Wachtler, the former chief judge of New York State, put it nearly 30 years ago.

Thus, the decision by the Garner grand jury not to indict Pantaleo mystifies many of those who have viewed the videos. By a margin of nearly three to one, Americans say the officer should have faced charges, according to a USA Today/Pew Research Center poll released Wednesday.

Of course, the American people don’t get a vote inside the grand jury room.

Still, the decision by the Garner grand jury raises the question of what legal standard guides grand jurors when deciding whether the evidence before them warrants an indictment.

Under New York law, a grand jury may indict a person when the evidence “is legally sufficient” to establish that the person committed the offense and provides reasonable cause to think that the person committed the crime.

In the Garner case, prosecutors instructed the grand jury about the law that governs a police officer’s using physical force when arresting someone. According to that law:

A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force.

We know that grand jurors received this instruction thanks to an order published recently by Acting Judge Stephen Rooney of the trial court that oversaw the Garner grand jury. The grand jurors heard from a total of 50 witnesses and reviewed 60 exhibits, including medical records, records regarding police procedures and photographs of the scene.

What we don’t know – because prosecutors appear not to have asked the court to release transcripts from the Garner grand jury’s deliberations – is what other principles of law the grand jury was instructed on.

For example, we don’t know whether prosecutors instructed grand jurors about manslaughter in the second degree, which arises when someone recklessly causes the death of another person. For purposes of the law, a person acts recklessly when he consciously disregards a substantial and unjustifiable risk of death.

We also don’t know whether grand jurors received instruction on the legal standard for criminally negligent homicide, which arises when a defendant should have been aware of a substantial and unjustifiable risk of death.

The difference between the offenses lies in the defendant’s mental state.

If the grand jury received either or both of those instructions, we don’t know whether or to what extent jurors found the evidence to be legally insufficient, based on their decision not to indict.

By law, grand juries operate in secret. Among the reasons: the law aims to protect the reputations of people who may be accused of crimes but not indicted or convicted.

The Garner case – in which the officer’s identity is clear and many of the facts have been reported widely – compelled the court to order disclosure. As Rooney noted:

Somewhat uniquely in this matter, the maintenance of trust in our criminal justice system lies at the heart of these proceedings, with implications affecting the continuing vitality of our core beliefs in fairness, and impartiality, at a crucial moment in the nation’s history, where public confidence in the even-handed application of these core values among a diverse citizenry is being questioned. It is from this vantage point that a limited incursion into the sacrosanct principle of grand jury secrecy is deemed necessary to serve overarching public interest.

The Legal Aid Society, the New York Civil Liberties Union and others are asking Rooney to unseal the grand jury proceedings completely. “Only with substantially more information about the facts and evidence it considered, and the legal instructions it received, can the public begin to understand the grand jury’s decision,” Arthur Eisenberg and Daniel Cohen of the New York Civil Liberties Union wrote in court papers filed Wednesday.

One hopes Rooney grants the requests. Until we see more of the record, we cannot know fully what transpired over the course of the nine weeks the grand jury sat. Americans may need a conversation about race relations but we also need to know that justice was done in the case of Eric Garner.

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Law

‘Julie of the Wolves’ battle gives glimpse into copyright in a digital age

A battle over rights to publish an electronic edition of an award-winning children’s novel offers a glimpse into an evolving area of copyright law.

HarperCollins has the exclusive right to publish “Julie of the Wolves,” a book first published in 1971, in e-book form, a federal judge in New York has ruled. The ruling ended a lawsuit that started nearly five years ago, when HarperCollins sued Open Road Integrated Media, a publisher of electronic books that had published an e-book of the novel.

Though the fight ended recently, it has roots in a contract forged in 1971 between Jean Craighead George, the book’s author, and Harper & Row, a predecessor of HarperCollins. The agreement gave Harper & Row the right to publish “Julie of the Wolves,” which won the Newberry Medal in 1973 and tells the story of an Eskimo girl who learns to live in the wild.

In 2010, George entered into an agreement with Open Road to publish its version of her novel after HarperCollins declined to match the terms of Open Road’s offer, which included a 50% royalty to George. However, shortly after Open Road published the electronic edition, HarperCollins sued, charging that the e-book contravened a copyright that belonged to HarperCollins under the contract formed roughly 40 years earlier.

HarperCollins prevailed. “Based on a plain reading of the contractual language, we hold that the 1971 contract grants HarperCollins the exclusive right to license third parties to publish e-book versions of ‘Julie of the Wolves,’” Judge Naomi Reice Buchwald of the U.S. District Court in Manhattan wrote in a ruling last March. “This determination follows from the contract as a whole, and chiefly from Paragraphs 1, 20 and 23.”

Paragraph 1 of the agreement gave Harper & Row the exclusive right to publish “Julie of the Wolves” in book form. Together with Paragraph 23, Paragraph 20 granted Harper & Row the right to license the book “in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now or hereafter invented.”

Buchwald’s ruling should have ended the lawsuit. But Open Road, which hoped to obtain a license to publish the e-book, sold 304 more e-books between March 17, when the court issued its order, and April 9, when HarperCollins’ general counsel told Open Road’s lawyer that HarperCollins had no interest in a license and demanded that Open Road stop selling its electronic edition.

In May, HarperCollins returned to court to ask Buchwald to permanently enjoin Open Road from publishing “Julie of the Wolves” or presenting itself as an authorized publisher of the novel.

The court agreed. “Rather than take immediate steps to conform to our decision, [Open Road] apparently viewed that decision as merely a prelude to negotiations,” Buchwald wrote in an order published Nov. 24. “Furthermore, although Open Road discontinued sales after receiving HarperCollins’ demand, it is apparent that Open Road did not take every reasonable action to discontinue marketing its unauthorized edition of ‘Julie of the Wolves’ until after briefing on the appropriate remedies had commenced.”

“In other words, Open Road failed to ensure compliance with our decision until its failure was called to the Court’s attention,” Buchwald added.

The court awarded HarperCollins damages of $30,000 to compensate the company for sales of the e-book by Open Road in markets covered by HarperCollins’ copyright.

Though HarperCollins also asked the court to order to award attorneys’ fees of roughly $1 million, Buchwald denied the request, finding that Open Road’s advocating for a right at odds with the 1971 contract was not unreasonable as that term is defined by the Copyright Act.

“Our reticence to characterize the losing position as objectively unreasonable is informed by the fact that this dispute arose in the context of a developing, and still somewhat uncharted, area of copyright law,” Buchwald wrote.

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Law

When the right to counsel survives a conflict

When does a rule that prevents your lawyer from defending someone whose interests may be adverse to yours conflict with your right to assistance of counsel in a criminal case?

That was the question before a New York appeals court that recently overturned the conviction of Lawrence Watson, who was convicted in 2010 of possessing a loaded firearm and resisting arrest and sentenced to 20 years in prison. When approached by police, both Watson and Toi Stephens, a fellow suspect, ran away though both were later stopped and arrested.

In court on the eve of trial, Watson found himself in a three-way conversation with his attorney, Robert Fisher of New York County Defender Services, a nonprofit firm that represents indigent defendants, and Judge Richard Carruthers, a state trial judge in Manhattan.

Fisher told the court that he had a conflict of interest. He learned during pretrial discovery that another attorney in his office represented Stephens, whose case had ended. Though Fisher had received no information about Stephens, Watson, if necessary, would have to waive his ability to call Stephens as a witness because Fisher’s office already represented Stephens. Discussion ensued:

The court (to Fisher): You have a very difficult ethical problem if you were to stay on the case and they (prosecutors) call him (Stephens).

Watson: I don’t want to relieve Mr. Fisher because he’s been my lawyer through the whole case and I feel that if I was to obtain another attorney, I want to go to trial, it pushes back time and I’m ready to proceed and get this matter over with as soon as possible.

The court: Believe me, I sympathize with that but we want to get it done correctly. Trials can take turns that no one can anticipate and it might happen that Mr. Stephens will become a relevant witness, will be found, will be brought to court by the prosecution and then that would put you in a very difficult position. Certainly it would put your lawyer in a very difficult position and these are things that can happen. No one can predict with certitude that it will happen but it could happen. So the best thing to do as a matter of caution is to relieve Mr. Fisher and to appoint new counsel to represent you.

With that Carruthers appointed a new lawyer to represent Watson, who asserted on appeal that the court erred in finding a conflict because Fisher had no contact with Stephens or, for that matter, know Stephens’ whereabouts.

The appeals court agreed. While noting that the law affords trial judges wide latitude to determine whether a conflict exists, the Appellate Division found none. “Indeed, Fisher acknowledged that he would be barred from viewing his office’s file on Stephens or using the address on file to try to locate Stephens,” Justice Barbara Kapnick wrote for the majority in a decision published Thursday.

The appeal entangles two principles of law. One is the Sixth Amendment to the Constitution, which guarantees criminal defendants the right to be represented by a lawyer regardless whether they can afford one.

The other principle comes from ethical standards that govern lawyers, who cannot represent differing interests or disclose confidential information from one client for the advantage of another.

In 1988, the Supreme Court upheld the conviction of a man who sought to be represented by the same lawyer who represented two of his fellow defendants in an alleged conspiracy to distribute thousands of pounds of marijuana throughout California.

As in Watson’s case, the possibility of a conflict arose before trial, which influenced the court’s view. As Chief Justice William Rehnquist wrote for the majority:

Unfortunately for all concerned, a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly.

The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government’s witnesses will say on the stand. [citation omitted]

A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics.

For these reasons we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.

Of course, a criminal defendant cannot choose whomever he would like to represent him. As the court noted, an advocate who is not a member of the bar may not represent anyone besides himself. Nor may a defendant insist on a lawyer he cannot afford or one who turns down the representation.

For his part, Watson wanted to retain Fisher as his lawyer despite the conflict. The discussion before Carruthers continued:

Watson: One more question.

The court: Sure.

Watson: I’m not sure but [is it] up to my discretion if I really want to relieve Mr. Fisher?

The court: You see, we are in a difficult position now where I see him being placed in a position where he just would not be able to effectively represent you. I have, ultimately, the responsibility to see that trials are conducted fairly and without any impediment to either side.

Watson: Even if I waive the conflict?

The court: Even then, when I see there is a real conflict that might not be able to be overcome, you see. I would like to keep Mr. Fisher on but at this point, I just don’t see how I can do it. I sympathize with you being put in this position. There will be some delay. We will try to get an attorney who will represent you who will be able to take up the matter quickly.

That’s what the trial court did. Watson did not contend that the lawyer appointed to represent him was ineffective.

According to the appeals court, Watson’s predicament differed from precedent. As Kapnick wrote, “It is crucial to recognize that here, unlike in other right to counsel cases, the proper initial inquiry is not whether defendant’s waiver should have been accepted, but whether there was even a conflict or potential conflict of interest to waive in the first place.”

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Law

Eric Garner’s death is an American problem

Protestors in Times Square (Photo by Brian Browdie)
Protestors in Times Square (Photo by Brian Browdie)

About 50 yards from where hundreds of people massed Wednesday evening in Times Square to protest the decision by a grand jury not to indict a police officer in the death of Eric Garner, about two dozen tourists gazed up at themselves on a video display sponsored by Revlon.

The tourists chatted away in languages other than English and snapped photos of themselves snapping photos of themselves on the giant display that looms above Broadway.

Whatever selfies they snapped at street level may reveal in the background a sea of signs held aloft by protestors who had come to register the injustice of the chokehold death of a black man by a police officer on Staten Island last summer for allegedly selling loose cigarettes. As transgressions go, Garner’s offense roughly rivaled staring at oneself on a video display in the threat it posed to the general welfare.

(Photo by Brian Browdie)
(Photo by Brian Browdie)

“This is a clear-cut case of death by broken windows policing,” Stan Williams, a labor organizer from Brooklyn, told a reporter. “Was he selling loosies that day? If he was, take him to jail.”

As if the death of Garner, 43, who stood six feet three and whom locals described as a gentle giant, were not tragedy enough, the death of another black man at the hands of police suggests that America itself suffers from an illness of injustice that undermines the ideal that draws people here from around the world to snap selfies and pursue their dreams.

Protestors stage a die-in at Grand Central Terminal (Photo by Brian Browdie)
Protestors stage a die-in at Grand Central Terminal (Photo by Brian Browdie)

On Wednesday, beneath the LED displays for Dunkin Donuts, Stella Artois and a multitude of other products that illuminate Times Square, a series of signs penned in Sharpie spoke of a reality that has characterized America for far too long. “We want an indictment,” read one. “I can’t breathe,” read another, quoting Garner’s words as he lay dying.

(Photo by Brian Browdie)
(Photo by Brian Browdie)

“Mr. Garner’s death is one of several recent incidents across the country that have tested the sense of trust that must exist between law enforcement and the communities they are charged to serve and protect,” Attorney General Eric Holder said in a statement Wednesday announcing that the Department of Justice will proceed with a federal civil rights investigation.

“This is not a New York issue or a Ferguson issue alone,” Holder added. He’s right of course. As President Obama said Wednesday, “This is an American problem.”

“We can’t imagine we’re the city on the hill or a country where equality reigns when people are being brutalized,” said Williams. As another protestor remarked to a reporter from Europe 1 radio: “I just feel like everyone should give a shit about this.”

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Law

Anonymous tips and the Fourth Amendment

How should courts treat anonymous tips in determining whether a legal basis exists to stop, arrest or search someone consistent with the Constitution?

That’s the question in a decision published Nov. 28 by New York’s Court of Appeals, which heard appeals from three men, all of whom were charged with crimes based on evidence obtained in part from calls to 911 by unidentified callers.

Consider the case of Dr. Eric Johnson, who pleaded guilty to several counts of driving while intoxicated following a breath test that showed Johnson had a blood-alcohol content nearly twice the legal limit. At trial, Johnson moved to exclude from evidence the results of the test and statements he made to the police after being pulled over on the night of October 1, 2011 while driving his blue BMW in upstate Ontario County.

Both the results of the test and his statements constituted the so-called fruits of an unlawful stop, Johnson contended.

Though the trial court admitted the evidence, the Court of Appeals agreed with Johnson that the call to 911 that led police to follow his car – the caller had reported seeing a blue BMW being operated by someone who appeared to be “sick or intoxicated” – lacked reliability sufficient to allow police to reasonably suspect criminal activity. According to the court:

The caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated. Although the deputy observed defendant commit a minor traffic infraction, this did not authorize the vehicle stop because he was outside his geographical jurisdiction at the time of the infraction.

At issue is the Fourth Amendment to the Constitution, which protects against arbitrary arrests and unreasonable searches by the government. As Judge Jenny Rivera observed in an opinion that dissented in part from the majority’s ruling:

Anonymous tipsters differ from known police informants, whose identities are not secret and whom police may have prior experience as reliable sources of information about criminal activity…The case law illustrates a general concern about the use of information from informants, in particular anonymous tipsters, as a basis for police intrusions because of the ease with which anonymity facilitates false reporting.

To find a tip sufficiently reliable for a determination of probable cause, courts in New York State follow a two-part test taken from rulings by the US Supreme Court in Aguilar v. State of Texas, a 1964 decision, and Spinelli v. US, a decision the court issued five years later. Taken together, the so-called Aguilar-Spinelli test requires a judge to conclude that an informant is reliable and that the informant has a basis of knowledge for his or her tip.

Six states, including New York, follow the Aguilar-Spinelli test. The rest of the union applies an analysis adopted in 1983 by the US Supreme Court that simply examines all the facts to see if they add up to probable cause. That means in New York, information supplied to police by someone who calls 911 cannot provide the basis for a search or seizure unless the government can establish the reliability of the informant’s knowledge and show that the informant is generally credible.

Tips can be credible when they predict the future behavior or movements of a suspect, or when the informant has a history of providing police with tips that turn out to be reliable.

Anonymous tips also can give rise to reasonable suspicion, which is the lesser level of proof that police need to frisk someone or to stop a vehicle when an officer suspects that criminal activity may be present.

Though a stop can be less intrusive compared with a search or arrest, the Constitution still requires that police have a basis for interfering with someone’s liberty based on information supplied anonymously. As Judge Sheila Abdus-Saalam explained in a concurring opinion:

As is true of an arrest premised on uncorroborated anonymous hearsay, a stop based on an unreliable tip may unjustly expose an individual to a high degree of physical intrusion without any credible cause for suspicion. If such stop were permitted, police could freely abuse the people on authority of the most preposterous reports, and malicious tipsters could easily use incredible rumors to convince the police to physically harass the targets of the tipster’s ire.

While such suspicion also demands that a tip be reliable in its assertion of illegality, New York courts forsake the Aguilar-Spinelli test in favor of examining all the facts when deciding whether a tip is reliable enough to justify a police stop.

In its ruling, the court let stand the guilty pleas of John DiSalvo and Costandino Argyris, who, following their indictments on varied weapons-related charges, asked the trial judge to suppress the items recovered from their persons and automobile as the fruits of an unlawful seizure.

According to the men, a 911 caller’s failure to predict their actions rendered the informant’s tip too unreliable to justify the stop of a Mustang they were driving through Queens on July 19, 2007.

“I saw a black Mustang, brand new black Mustang with like four guys and I saw one of them put in a big gun in the back of the car,” the caller told the operator. The caller described the men as “big burly white guys” though he said he did not know what they where wearing.

When the operator interrupted the caller and asked whether he wanted to provide his name and telephone number, the caller replied, “No, I don’t really want to, I just saw something and I say something, like they say.”

A few minutes later, Sergeant Louis Bauso, on patrol in his car, saw a Mustang which bore the license plate number relayed by report from 911. Bauso got out of his car, pointed at the Mustang and yelled at it to pull over. The driver disregarded Bauso, who returned to his car and pursued the vehicle.

Around that time, Officer Kashim Valles, on patrol in his car, saw the Mustang drive toward him. Valles used his car to cut off the Mustang, called for backup, got out of his car and pointed his gun at the vehicle. Bauso, his partner and about six other officers arrived.

All of the officers trained their guns on the Mustang while Valles shouldered his weapon and directed the Mustang’s occupants to leave the car.

DiSalvo emerged from the passenger seat with what Valles observed to be a gun in his waistband. Valles ordered DiSalvo to put his hands on the car, while Valles handcuffed him, recovering the gun and some cash.

Valles then ordered the remaining occupants to step out of the vehicle one by one. Argyris emerged wearing a bulletproof vest. When Valles searched Argyris he recovered a metal club and a switchblade. During a search of the car, Valles found a loaded .380 caliber handgun and a box of .9 millimeter ammunition on the back seat.

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On Facebook, distinguishing art from assault

When you post something online, what’s the difference between making a threat and striking a pose?

The Supreme Court on Monday will hear arguments in a case that raises that question. It involves a challenge by a Pennsylvania man to his conviction in 2011 for threatening his wife, his former co-workers and others in a series of posts to his Facebook page.

After his wife left him and he lost his job at an amusement park, Anthony Elonis adopted the pseudonym “Tone Dougie” and published musings and lyrics that he says he penned not as a statement of his beliefs but solely as therapy for his pain.

One post, which he published two days being fired, read:

Y’all saying I had access to keys for the f#$king gates, that I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as made as me. You see, even without a paycheck I’m still the main attraction. Whoever thought the Halloween haunt could be so fucking scary?

Another, which Elonis posted after his wife obtained a protection order, stated:

Fold up your protection-from-abuse order and put it in your pocket. Is it thick enough to stop a bullet? Try to enforce an order that was improperly granted in the first place.

That and other writings earned Elonis a sentence of 44 months in prison for violating a federal law that prohibits “transmitting in interstate commerce” a threat to injure another person or group of people.

Threats of violence against a particular person or group of people – so-called true threats – are not protected by the First Amendment.

At trial, Elonis asserted that his postings were similar to lyrics by rappers such as Eminem, who in songs has fantasized about killing his ex-wife. With that in mind, Elonis asked the judge to instruct jurors they could convict him only if they found that Elonis intended to communicate a threat.

However, the court instructed the jury that a statement constitutes a true threat — and thus beyond the protection of the Constitution — when a “reasonable person” would interpret the statement as “a serious expression” of an intent to inflict injury.

On appeal, Elonis contends that true threats require a subjective intent to threaten another person. That’s especially true online where messages may be seen by anyone, according to the American Civil Liberties Union and other groups. As the groups write in a friend-of-the-court brief:

A message posted to a publicly available website or mailing list is potentially viewable by anyone with an Internet connection anywhere in the world. A speaker may post a statement online with the expectation that a relatively small number of people will see it, without anticipating that it could be read – and understood very differently – by a much broader audience.

An objective test for online communication “would inevitably chill constitutionally protected speech, as speakers would bear the burden of accurately anticipating the potential reaction of unfamiliar listeners or readers,” the groups say.

For its part, the Justice Department, which is pressing the court to uphold the conviction, argues that the requiring a subjective intent to threaten would undermine the law’s goal of protecting people from a fear of violence regardless whether the speaker intended the statement to be harmless.

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Nashville Gives Green Light to Uber, Lyft and Other Ride-Sharing Services

Ride-sharing services may be facing legal risks in some cities but the taxi alternatives have permission to pick up passengers at the airport in Music City.

Nashville has become the first U.S. airport to authorize pick-ups by Uber, Lyft and other so-called transportation network companies provided the companies obtain a permit, pay a fee and identify themselves clearly.

Drivers who satisfy the guidelines will be able to retrieve passengers in areas designated for such pickups.

“This is a major milestone to embrace ever-evolving technology and accommodate new app-based transportation service operators,” Rob Wigington, chief executive of the Metropolitan Nashville Airport Authority, said in a press release. “We are continuously listening to the needs of our passengers, so that we can better provide and enhance the Nashville Airports Experience.”

The authorization comes as ride-sharing services face questions from public officials in California and elsewhere about the services’ adherence to consumer-protection laws. On Thursday, the Wall Street Journal reported that district attorneys in San Francisco and LA are questioning whether the companies mislead customers in connection with how carefully the companies review the backgrounds of drivers.

Regulators in California, which is home to Uber, Lyft and Sidecar, also are asking the companies to discontinue their practice of allowing customers to share rides. California law reportedly bars transportation services from charging more than one person for the same ride.

Ride-sharing services tap smartphones and GPS to connect drivers and passengers. Drivers who hold licenses and satisfy certain criteria can use the services to earn money with their cars.

According to the Tennessean, officials in Nashville held discussions with Lyft and Uber to lay out a system that would respond to demand for the services while addressing taxi operators’ concerns that their companies are being treated unfairly. As part of the plan, the companies will pay $3.50 per trip to pick up passengers. Taxis pay $1.50.

Uber is available in about 112 cities throughout the U.S. and Canada. Lyft serves about 63 cities in the U.S., while Sidecar serves 10.

The companies now compete with taxis in many cities. In August, New York City council member Ben Kallos proposed legislation that would direct the city’s Taxi and Limousine Commission to create an app that would allow passengers to hail nearby drivers without having to wave down a taxi.

Kallos said the proliferation of ride-sharing services may mean the apps need an app.

“I think my nightmare would be hopping into a yellow cab in the future where they’ve got a phone for Uber a phone for Lyft a phone for Hailo…and they’ve literally got a dashboard covered in phones because they want to make sure they’re signed up for every single e-hail app,” Kallos told Mashable. “My preference would people to have one phone, one interface.”

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M.T.A. rejects transit ad, group says it will sue

Plans by a group that is planning to sue New York’s Metropolitan Transportation Authority after the agency rejected a proposed advertisement that refers to Muslims killing Jews highlights how cities can differentiate between categories of speech in accepting advertising on city-owned buses.

The M.T.A. said in a statement released Friday that it had rejected a request by American Freedom Defense Initiative, a pro-Israel group, to run advertisements that feature the quotation, “Killing Jews is Worship that draws us close to Allah,” credited to “Hamas MTV.” The ad reportedly parodies ads sponsored by the Council on American-Islamic Relations that presented jihad as an idea of individual struggle rather than incitement to terrorism.

The ads ran on buses in cities other than New York, according to the M.T.A.

Under the First Amendment, a city’s allowing advertising on public buses does not make that property a public forum. Rather, a bus is a commercial forum, which means that a city can limit advertising so long as the city’s review of proposed ads is viewpoint neutral and substantially related to an important government interest.

In its statement, the agency defended its policy as viewpoint neutral. “The M.T.A. does not decide whether to allow or not allow a proposed advertisement based on the viewpoint that it expresses or because that viewpoint might be controversial,” the agency said.

The M.T.A. said that its security chief “concluded the proposed advertisement would lead reasonable observers to interpret it as urging direct, violent attacks on Jews, given turmoil in Gaza, Syria and Iraq and New York City’s heightened security concerns.”

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Laws governing home tests for HIV can bolster prevention efforts in sub-Saharan Africa

Laws that encourage people to test themselves for HIV can bolster efforts to eliminate AIDS-related deaths in sub-Saharan Africa.

That’s the conclusion of a report published Wednesday by the Thomson Reuters Foundation and the South African AIDS Trust, a nongovernmental organization that coordinates efforts to counter HIV and AIDS in South Africa, Tanzania, Malawi, Mozambique, Zambia, Zimbabwe and Botswana.

The report examines laws relating to home or self-testing in the seven countries where the South African AIDS Trust operates as well as in the USA, United Kingdom and France. Though about 24.7 million people live with HIV in sub-Saharan Africa, only about half know whether they have contracted the virus, according to the United Nations.

Michael Sidibe (l), executive director of UNAIDS, meets on January 18, 2013 with President Jacob Zuma of South Africa. (Photo courtesy of UNAIDS)
Michael Sidibe (l), executive director of UNAIDS, meets on January 18, 2013 with President Jacob Zuma of South Africa. (Photo courtesy of UNAIDS)

The compendium, which the law firm Arnold & Porter produced pro bono in tandem with law firms in each of the countries covered, examines whether self-testing is legal, the regulations that govern distribution of devices that make such tests possible, and protections for privacy.

“One of the key critical success factors in fulfilling the UNAIDS and global goal of zero new infections, zero deaths and zero discrimination is people knowing their own HIVsero-status and having the ability to act on the knowledge,” writes Jonathan Gunthorp, the South African AIDS Trust’s executive director, in a preface to the report.

Self-testing for HIV creates opportunities for people to access HIV treatment and prevention services. The opportunity is especially great in sub-Saharan Africa, where fewer people know their HIV status compared with people elsewhere in the world. More than 1.1 people in the U.S. live with HIV infection but about 84% of them know they have the virus, according to the Centers for Disease Control and Prevention.

All of the countries surveyed by the South African AIDS Trust provide citizens who have HIV with antiretroviral drugs that suppress the HIV virus and halt progression of the disease.

Among countries surveyed, the U.S. is the only one that has a home HIV test in the market. The Food and Drug Administration approved the kit, which is manufactured by OraSure Technologies, in 2012. Though the U.K. also has endorsed self-testing for HIV a test that satisfies the European Union’s standards for medical devices has yet to appear on shelves.

According to the report, South Africa, Malawi, Mozambique, Zimbabwe and Zambia all would permit device makers to market home tests, although South Africa currently prohibits pharmacies from selling them. (Presumably the test could be sold over-the-counter.) By contrast, Botswana and Tanzania require that HIV tests be supervised by a trained professional.

Protections for privacy vary by jurisdiction as well, the report finds. Though France and Mozambique shield test results completely, most countries permit disclosure of test results pursuant to a court order or to guardians or partners, as well as in situations where a person is charged with a sexual offense or a disclosure is necessary for purposes of medical treatment.

Constitutional privacy protections exist in South Africa, Malawi, Mozambique, Zimbabwe, while Mozambique, Botswana and Tanzania all have laws that protect HIV tests results specifically. The U.K. and France adhere to privacy protections enshrined in the European Convention of Human Rights. In America, rules governing the confidentiality of HIV tests vary by state.

Depending on the jurisdiction, people who test positively for HIV may have a legal duty to disclose such information to sexual partners and insurers. Though none of the countries requires an employee to disclose his or her HIV status to an employer generally, the U.S. and U.K. require disclosure instances in which an employee’s HIV status ties directly to the job.

All of the countries surveyed offer counseling in connection with testing for HIV. For example, Tanzania requires counseling before and after testing for anyone who receives a test in a state-sponsored testing center. In France, counselors must discuss the limits in reliability of so-called rapid tests. Counseling that follows tests tends to give guidance on such topics as notifying partners, connecting with care and maintaining a healthy lifestyle, depending on the test result.

“HIV self-testing is not a magic bullet,” adds Gunthorp. “In combination with other innovative thinking, however, it may hold the key to increasing reach of testing, opening new options for hard to reach communities, making life easier for semi-discordant couples, and supporting both prevention and treatment.”

The report also examines laws that govern the liability of manufacturers for harm to consumers from devices themselves or from failure of a test to diagnose someone correctly.

Categories
Law

Student-athlete benched after taking to Twitter?

On Saturday I heard a report on WFAN, a sports-talk station here in New York City, that a student at a public high school somewhere in the land was suspended recently after tweeting about his lack of playing time on the boys’ basketball team.

Or was he benched? Did I even hear the report? I haven’t been able to find the story.

Of course, educators want to teach kids how to voice concerns in a constructive way. But suspending a student for carping about playing time would be outrageous.

Still, the report, if true, raises the issue of student liberties in an age of social media. Suppose a student were to sue his school for suspending him after taking to Twitter to complain about playing time. Might he have a case?

The answer, I think, would be yes.

In 1969, the Supreme Court held that students have a First Amendment right to engage in political protest. The case, Tinker v. Des Moines Independent Community School District, barred a school from punishing students who showed up at school in black armbands to protest the Vietnam War.

However, for other types of speech, the Supreme Court has tended to balance the civil liberties of students and teachers with the need for school officials to lay down rules of conduct. For example, in 1988, the Supreme Court held that the principal of a Missouri high school could prevent the publication in a newspaper written and edited by a journalism class of articles about teen pregnancy and the effects of divorce on children in a school.

Writing for the majority, Justice White distinguished between the silencing of student speech in a public forum and regulation of student speech that ties to the curriculum:

“The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.”

That means school officials generally can censor speech in academic programs so long as the regulation does not favor any particular point of view and that the officials show a reasonable educational justification.

In April, a high school in Lakeland, Florida denied a request by an editor of the student magazine – who herself had endured chemotherapy – to write an article about a proposed constitutional amendment that would permit the use of medical marijuana.

“The fact that some members of the audience might disapprove of, or take offense to, a particular story is not an educationally reasonable basis for censorship,” Frank Lomonte, executive director of the Student Press Law Center, told the Lakeland Ledger. “Students can, and occasionally do, take their schools to court under the First Amendment and win if they are censored, and a situation like this one could certainly be a candidate.”

The courts have allowed a school to remove an editor who disregarded the school’s policy prohibiting all discussion of drugs in the student newspaper, and to suspend a student who make a sexually explicit speech at a school assembly after being advised by teachers that the remarks would be inappropriate.

That brings me back to the news report about the hoopster. Athletic programs tie to a school’s academic mission, but no one who reads a tweet from a student’s account would reasonably think the message carries the imprimatur of the school.

In that event, the action in the hoopster’s case could shift from the basketball court to a federal court.