Category: Law

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‘Liquidated damages’ clause unenforceable, Appellate Division rules

A clause that addresses damages in a lease agreement between an automobile dealership and the owner of a lot on which the dealer stored cars cannot be enforced because it operates as a penalty, a New York State appeals court in Brooklyn has ruled.

The dispute began in 2008, when the parties agreed that Westbury Jeep Chrysler Dodge (Westbury) would store vehicles on a month-to-month basis on an undeveloped lot owned by the plaintiff. Three years later, they amended the agreement to move the vehicles to a different part of the lot after the owner of the property agreed to lease to a third party the portion previously occupied by Westbury.

The amended agreement, which required Westbury to vacate the original portion of the lot by April 15, 2012, obligated the dealer to pay damages in the amount of $5,000 per day for every day after that deadline that it remained in possession of the original portion. Westbury did not vacate until May 11, allegedly forcing a delay in the start of the owner’s lease with the third party.

The owner accused Westbury of breach of contract and sued to recover $130,000 in damages ($5,000 per day for 26 days). Westbury asked the court to dismiss the damages claim, noting that the delay in starting the lease cost the property owner $57,415. The difference, Westbury charged, constituted a penalty that was disproportionate to the injury suffered by the property owner and therefore unenforceable.

The Appellate Division, Second Department agreed. “Here, [Westbury] demonstrated… that the amended agreement imposed an unenforceable penalty…,” Justice Mark Dillon wrote on behalf of three of his colleagues in a decision on April 12.

The ruling turned on the treatment of so-called liquidated damages (the provision calling on Westbury to pay $5,000 for each day of delay), which represent an estimate by parties to a contract of the extent of injury that a party would suffer in the event of a breach.

Liquidated damages will be upheld when the parties to a contract would otherwise have had difficulty ascertaining damages when they formed the contract and the damages themselves represent a reasonable forecast of the cost of compensating the non-breaching party.

Courts generally will not enforce liquidated damages that impose a penalty or forfeiture. As the Court of Appeals wrote 40 years ago in a ruling that explains the limits of liquidated damages:

A liquidated damage provision has its basis in the principle of just compensation for loss. A clause which provides for an amount plainly disproportionate to real damage is not intended to provide fair compensation but to secure performance by the compulsion of the very disproportion.

In the lawsuit against Westbury, the trial judge concluded that consideration of the claims concerning liquidated damages was premature because questions of fact remained as to who breached the amended agreement.

The Appellate Division disagreed. “The issue of whether the liquidated damages clause is enforceable is readily determinable as a matter of law, without consideration of the unresolved factual issues in this case,” Dillon wrote.

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Trinity Lutheran disregards the Establishment Clause

In the early 1770s, Thomas Jefferson set out to undo the web of laws that established the Church of England as the religion of Virginia. To aid his work, Jefferson made a list of acts of either the Virginia Assembly or the English parliament (as far back as the 1540s). In all, Jefferson found 17 Virginia statutes (beginning in 1661) and 23 English statutes concerning religion.

As Professor Michael McConnell of Stanford, who has reviewed the work of Jefferson and the establishment of religion at the nation’s founding tells it, financial support from taxes did not, by itself, enshrine establishment. “Even after dissenters were given the right of free exercise of religion and the Church of England lost its tax-exempt status, the Virginia Assembly continued to speak of it as the ‘church by law established.’”

Religious rights, and states’ efforts to withhold their sanction from religion, are scheduled to come before the Supreme Court this Wednesday, when the justices will hear arguments from Trinity Lutheran Church in Columbia, Missouri. The church, which operates a preschool and day care center, contends the state’s excluding the church on religious grounds from a program that provides funds for resurfacing playgrounds violates the Constitution’s Free Exercise and Equal Protection clauses.

The appeal by Trinity Lutheran presents an early test for a Republican majority of the court that now includes Neil Gorsuch, who could cast the deciding vote. That is the same Neil Gorsuch who ruled in favor of Hobby Lobby Stores, which persuaded the court to strike down a provision of the Affordable Care Act that required employers to cover the cost of contraception for their employees.

“It is simply impossible to establish Trinity Lutheran’s religious identity, when, as Missouri has done here, the state excludes it from participation in the life of the community solely based on its religious status,” Trinity Lutheran writes in its brief, citing a concurrence by Justice Kennedy in the Hobby Lobby decision.

The playground dispute began in 2012, when the church applied for funds from Missouri’s Scrap Tire Surface Material Grant Program, which the state uses to reduce the number of tires in landfills and improve children’s safety.

The church charges that the state’s Department of Natural Resources (DNR) notified the church that it would be ineligible to receive funds from the program. In support of its determination, the state cited the Missouri Constitution, which prohibits the use of public funds “in aid of any church, sect, or denomination of religion…”

Trinity Lutheran sued Missouri in the U.S. District Court in Kansas City. The trial court dismissed the accusations, noting that payment of funds by the state “to a sectarian institution” would contravene the Establishment clause. By a vote of 2 to 1, the Eighth Circuit Court of Appeals agreed.

Trinity Lutheran asks the Supreme Court to apply strict scrutiny to the state’s action, which means the state must be able to cite a compelling governmental purpose for denying the church’s application for playground funds based solely on its status as a religious institution.

“The religious difference between Trinity Lutheran’s daycare and secular daycare operators is the only basis for the exclusion here, although they both seek scrap tire funds to fulfill the state’s recycling goals and to provide children a safer area to play,” the church writes. “Because the DNR employs a suspect classification, it must satisfy strict scrutiny.”

But precedent, counters Missouri, leads to a conclusion that the state’s decision is entitled to deference where, as here, the state has not interfered with the free exercise of its faith by Trinity Lutheran. “This court has long held that the government does not infringe the exercise of a constitutional right by declining to subsidize it,” the state argues.

Trinity Lutheran asserts that the Eighth Circuit relied in error on a ruling by the Supreme Court in Locke v. Davey, a 2004 case in which the court upheld a decision by Washington State to exclude from eligibility for state scholarship aid students who pursue degrees in devotional theology. The state cited its constitution, which prohibits use of public funds to aid religious instruction.

In reaching its decision in Locke, the court noted the tension between the Free Exercise and Establishment clauses. “In other words,” Justice Rehnquist wrote for the majority, “there are some state actions permitted by the Establishment clause but not required by the Free Exercise clause.”

The majority also considered the challenge to Washington State’s decision in the context of the history of established churches in colonial America. Rehnquist wrote:

Most states that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate… that these provisions would not have applied so long as the state equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk. [citations omitted]

Missouri says the decision in Locke “applies squarely” to the appeal by Trinity Lutheran. But the church distinguishes the religious training rejected for state funds in Locke from the playground flooring that Trinity Lutheran hopes to install. Trinity Lutheran argues:

In Locke, this court was concerned by what the scholarship funds were going to be used for—the devotional training of clergy—not the identity of those who were using the money. But Trinity Lutheran’s religious identity was the sole basis for the DNR’s exclusion here. Locke simply has no application in that context.

The court agreed on January, 15 2016 to hear Trinity Lutheran’s appeal. Justice Scalia died about a month later. The justices seem to have waited to schedule the case for argument until the court again had nine justices.

That’s where Neil Gorsuch comes in. “I don’t think anybody on the secular side of the fence thinks the state of Missouri is going to get a fair shake from Mr. Hobby Lobby,” writes Elie Mystal at Above the Law, referring to the newest justice. (If that’s correct, so much for Republicans who claim to cherish states’ rights.)

Justice Gorsuch describes himself as an originalist, meaning, he says, he strives to apply the law as he finds it. For the appeal by Trinity Lutheran, he might look, as the American Civil Liberties Union suggests in a brief filed in support of Missouri, to ideas espoused by both Jefferson and James Madison, who wrote the First Amendment.

In 1785, Madison published, anonymously (he acknowledged authorship 41 years later), an essay titled “Memorial and Remonstrance against Religious Assessments.” The tract argued against a bill in the Virginia Assembly to collect a tax to fund preachers.

“Who does not see,” Madison asked, “that the same authority… which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

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The pursuit of justice in the death of Eric Garner is proceeding fitfully

At least two New York City police officers who have ties to the arrest of Eric Garner testified before a federal grand jury in Brooklyn on March 22, suggesting that the Justice Department is continuing to examine whether to charge Officer Daniel Pantaleo with violating Garner’s civil rights during the latter’s arrest on July 17, 2014 for allegedly selling loose cigarettes.

Garner, a 43-year-old father of six, died as the result of a chokehold applied by Pantaleo, the city’s medical examiner determined. DOJ began its investigation after a grand jury on Staten Island declined to indict the officer, touching off protests nationwide.

In December, Attorney General Loretta Lynch moved the probe to Washington from Brooklyn following a disagreement among prosecutors whether they could prove in court the use of force by Pantaleo was unreasonable based on the circumstances.

The status of the inquiry later fell into question when Jeff Sessions succeeded Lynch. Sessions has criticized actions by the Obama administration to end police abuses in minority communities as hostile to law enforcement. On Monday, DOJ asked a federal judge in Baltimore to delay approval of reforms of policing Lynch had negotiated in that city.

According to the Daily News, Sgt. Dhanan Saminath, who arrived at the scene of Garner’s arrest after Pantaleo called for backup, told grand jurors he summoned emergency medical service because Garner was having difficulty breathing. Deputy Inspector Joseph Veneziano, commanding officer of the 120th precinct at the time, reportedly also testified.

Separately, a state appeals court in Manhattan ruled on March 30 that the city cannot release records concerning complaints filed against Pantaleo with the Civilian Complaint Review Board over the decade that preceded Garner’s death, citing risks to the safety of the officer and his family. Justice John Sweeny Jr., writing on behalf of four of his colleagues, said:

“Here, in light of the widespread notoriety of Mr. Garner’s death and Officer Pantaleo’s role therein, and the fact that hostility and threats against Officer Pantaleo have been significant enough to cause NYPD’s Threat Assessment Unit to order around-the-clock protection for him and his family, and notwithstanding the uncertainty of further harassment, we find that the gravity of the threats to Officer Pantaleo’s safety nonetheless demonstrate that disclosure carries a ‘substantial and realistic potential’ for harm, particularly in the form of ‘harassment and reprisals,’ and that nondisclosure of the requested records under [the statute] is warranted.” [citations omitted]

Last summer, the NYPD stopped sharing information about personnel actions involving officers, citing the state’s civil rights law, which permits release of such records by a judge.

The ruling by the Appellate Division overturned a decision by a trial judge who had ordered the release of a summary of the proceedings and came a week after the news site ThinkProgress published at least some of that information, which the site said it had received from an anonymous source who worked for the CCRB.

The information shows Pantaleo, who remains on desk duty, to be the subject of 14 allegations that he had abused his authority, four of which the CCRB substantiated. According to ThinkProgress, about 2% of the NYPD’s roughly 34,500 officers have two or more complaints with substantiated allegations.

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Man who faked a gun by holding a finger under his hoodie guilty of first-degree robbery, New York’s highest court rules

A person who fakes  a gun by concealing a hand beneath their hoodie can be convicted of robbery in the first degree, New York’s highest court has ruled.

On Nov. 1, 2011, Charles Smith, a homeless 41-year-old, entered a check cashing store in Queens. The teller, who sat behind bulletproof glass, testified that Smith held something under his sweatshirt at the waistband, asked for money and threatened to shoot her.

Police, summoned by a silent alarm pressed by the teller, apprehended Smith several minutes later as he walked down the street about eight blocks away. Smith had no gun on him. Nothing in the record suggested that Smith possessed any item whatsoever.

At trial, Smith was convicted of robbery in the first degree, which New York defines as forcible stealing accompanied by the defendant’s using or displaying what is, or appears to be, a firearm. The appellate court affirmed the conviction, finding that the prosecution established that Smith displayed what appeared to be a firearm while attempting to commit the robbery.

The Court of Appeals agreed. “A victim may reasonably believe that a gun is being used, on the basis of conduct that makes it appear that the defendant is holding a gun, regardless of whether the defendant makes a movement while addressing the victim or keeps his hand concealed throughout the encounter in a manner and location suggesting the presence of a gun,” Judge Eugene Fahey wrote on behalf of five of his colleagues in a ruling decided on March 28.

Oddly, Smith did not avail himself of a defense provided by the law, which allows a defendant to ask the jury to consider reducing the charge to second-degree robbery if the firearm (or what appeared to be one) was, in fact, not a loaded weapon.

The court added that “the precise nature of the object that a defendant displays is not dispositive when analyzing whether a defendant displayed what appeared to be a firearm,” and that the court has affirmed convictions where a defendant used a toothbrush or a towel wrapped around his arm to simulate a gun.

“The state must prove that (1) the defendant ‘consciously display[ed] something that could reasonably be perceived as a firearm,’ and (2) it ‘appear[ed] to the victim by sight, touch or sound that [the victim was] threatened by a firearm,” Fahey noted. “We concluded that ‘when both of these elements are satisfied… the true nature of the object displayed is, as concerns criminality, irrelevant.’” [citations omitted]

Misconstruing the statute

That test, however, misconstrues the law, said Judge Rowan Wilson, who noted that “without the guidance of the legislative history, the [statute] could be interpreted, and has now been by this court, to allow unarmed persons with a hand in a pocket to be charged with the same crime as a robber who fired shots.”

The legislature, when it revised the robbery statute in 1969, intended “that the display of something that was or looked very much like a real firearm was essential to conviction” for either first- or second-degree robbery, Rowan wrote, explaining:

“The statutory language makes sense only in the context of the legislative history: that the problem addressed by the statute was the evidentiary difficulty of proving that an actual gun was loaded and operable – not anything having to do with enhanced fear of the victim.”

Despite that aim, the Court of Appeals has departed from the legislative intent, he noted. “A homeless man walks into a check-cashing store,” Rowan wrote. “This sounds like the start of a bad joke, but instead is filled with pathos.”

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Jeff Sessions is not listening to Baltimore

Last August, the Justice Department announced the results of a 14-month investigation into the Baltimore Police Department. The review was triggered by weeks of protests in the city following the death of Freddie Gray, a 25-year-old black man who died of a spinal cord injury while in the custody of police.

In a 163-page report, DOJ found that for years, police in Baltimore engaged in a pattern of “aggressive use of stops, frisks, and misdemeanor arrests” in poor, urban neighborhoods with mostly African-American residents.

Police routinely stopped and detained people on the streets without reasonable suspicion that they were involved in criminal activity.  They detained and questioned people who sat, stood or walked “in public areas, even where officers have no basis to suspect them of wrongdoing.” According to the report:

“During a ride-along with Justice Department officials, a BPD sergeant instructed a patrol officer to stop a group of young African-American males on a street corner, question them, and order them to disperse. When the patrol officer protested that he had no valid reason to stop the group, the sergeant replied ‘Then make something up.’ This incident is far from anomalous.”

In January, the city and DOJ filed with a federal judge in Baltimore a series of reforms that call for officers to try to resolve incidents without force when possible and to use force that is in proportion to the threat.  “I would not say the consent decree is not needed,” said Catherine Pugh, Baltimore’s mayor, a month earlier.

Jeff Sessions, who in February became attorney general, apparently disagrees. On Monday, DOJ asked the court to delay implementation of the consent decree for three months to allow the department and the city to revisit the terms of the agreement.

In court papers, DOJ cited “alarming spikes in violent crime” in Baltimore and cities across the country, as well as an order issued Feb. 9 by the White House that directs the government “to prioritize crime reduction.”

The filing comes as part of a review by DOJ of a series of a series of agreements negotiated by the Obama administration that, as the Times notes, “aim to improve relations between the police and the communities they serve.” It also reflects a view by Sessions that such agreements undermine police and contribute to an increase in crime. As Sessions said in a speech in February:

“Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors.  Our officers, deputies and troopers believe the political leadership of this country abandoned them.  Their morale has suffered.  And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before.”

Officials in Baltimore “strongly oppose” DOJ’s request for delay, Mayor Pugh said on Monday, noting that “reforming our police department is long overdue.” The next day, Pugh added that the city is “ready to move ahead” to finalize the consent decree.

Pugh noted that while the city is already equipping police with body cameras and working to improve relations with the community, “we also know that inside of the consent decree… are some things that need to be done,” adding the DOJ’s report “indicates that there is a great need.”

Kevin Davis, Baltimore’s police commissioner, told reporters he is “disappointed” with DOJ’s request for delay. “What a consent decree does is bind the police commissioner… it binds the mayor… to getting those reforms enacted under a timeline that’s not necessarily our own,” he said.

Why must the city be bound? In its report, DOJ cited an incident from 2010, when two police officers approached a group of people who stood on a sidewalk in a residential neighborhood and ordered them to disperse. Brian, a juvenile, and his sister, walked onto the steps of their home, remaining outside.

When one of the officers warned the siblings about loitering, the sister informed them, yelling and cursing, that she and her brother lived in the house. The officers neither disputed her claim nor sought to verify it.

But the officers did continue to warn the sister to leave (to go where?) and to stop causing a disturbance. Eventually, they arrested her for so-called non-compliance. When one of the officers walked up the stoop to arrest her, Brian tried to block the officer, who began a struggle with him.

According to witnesses whose accounts the police summarized in their reports, the officer punched Brian in the face. The officer also used pepper spray against both siblings and arrested them for loitering, resisting arrest and assaulting a police officer.

“All of the officer’s uses of force against the siblings, who were standing on or in front of their own property, were unreasonable,” DOJ wrote. Brian and his sister “were placed into the criminal justice system for standing on their own steps.”

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Judge Gorsuch and the ‘frozen truck driver’ case

At the opening day of his confirmation hearings on Tuesday, several Democratic members of the Senate Judiciary Committee blasted Judge Neil Gorsuch for his dissent in a case last summer in which he would have upheld a company’s firing Alphonse Maddin, who, after running out of gas on a freezing road in Illinois and enduring three hours in the cold, unhitched the trailer and drove off in search of fuel.

Maddin sued his employer, TransAm Trucking, which claims it fired him because he disregarded instructions from the company to stay put and that a repairperson would be sent. Maddin said he drove to get gas only after being unable to feel his feet and experiencing trouble breathing because of the cold, both possible signs of hypothermia.

An arbitrator ruled for Maddin, finding that federal law protects workers from being forced to operate vehicles in unsafe conditions. TransAm eventually appealed to the 10th Circuit, which backed Maddin.

In his dissent, Judge Gorsuch wrote:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one. The Department of Labor says that TransAm violated federal law, in particular, [citation omitted]. But that statute only forbids employers from firing employees who ‘refuse[] to operate a vehicle’ out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle.

Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.

As Elie Mystal at Above the Law explains, “this is just kind of how conservative judges roll.” To illustrate, Mystal, who disagrees with Gorsuch’s reasoning, imagines a dialogue that goes as follows:

Victim: I have a problem.
Conservative: Does Congress say I should care?
Victim: Kinda!
Conservative: Not good enough.

All true. But I also disagree with Gorsuch because his adherence to the text of statutes aside, the judge has shown a willingness when it suits his outlook to embrace rulings that turn on their facts. At the hearing, Gorsuch spoke approvingly of a Supreme Court decision five years ago that concluded the Fourth Amendment requires police to obtain a search warrant before attaching a GPS tracking device to a suspect’s car to monitor his movements. In that case, police installed the device on the undercarriage of the suspect’s Jeep while it was parked in a public parking lot and for the 28 days that ensued used the device to record the vehicle’s movements.

In ruling that attaching the tracker to the suspect’s vehicle and using it to monitor his movements constituted a search within the meaning of the Fourth Amendment, the majority noted the invasion of the suspect’s private property and the duration of the incursion. As Justice Scalia wrote for the majority:

Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.

Judges make distinctions based on facts all the time. In the case of the trucker, the record established that Maddin, after falling asleep in the unheated truck, received a call from his cousin, who testified that Maddin’s speech was slurred and he sounded confused. As noted, Maddin later told his supervisor that he was having difficulty breathing because of the cold.

The question for Judge Gorsuch is less one about reading the text strictly. It’s about reading the facts clearly. So why do facts seem to matter so little to Judge Gorsuch in the case of Maddin and so much to him in a case decided by Justice Scalia, the originalists’ hero whom Gorsuch would replace?

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Judge in Hawaii blocks revised Trump travel ban

The Trump administration has failed in its second try to ban travel to the U.S. by people from six majority Muslim countries.

The ban, which represented a do-over by the White House after its first attempt was blocked by the courts, likely violates the Constitution’s prohibition on government’s preferring one religion over another, the U.S. District Court in Honolulu ruled on Wednesday, a day before the ban was to take effect.

A “reasonable, objective observer – enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance – would conclude that the executive order was issued with a purpose to disfavor a particular religion,” Judge Derrick Watson wrote in a 43-page ruling that halts enforcement of the ban nationwide.

The lawsuit originated with Ismail Elshikh, Ph.D., a U.S. citizen and the Imam of the Muslim Association of Hawaii, who accuses the administration of violating the Establishment Clause of the First Amendment. In court papers, Dr. Elshikh cites a series of statements by the president, his staff and surrogates that the president set out to institute a ban on Muslims seeking entry to the U.S. Dr. Elshikh points to evidence that the travel ban is unlikely to strengthen national security.

The revised ban also contravenes the Fifth Amendment’s guarantee of due process, by preventing Dr. Elshikh’s mother-in-law, a citizen of Syria who last visited the U.S. in 2005, from obtaining a visa to visit her family in Hawaii. “Citizens may have a constitutionally protected interest in specific non-citizens’ ability to travel to the United States,” the plaintiffs write in court papers.

The State of Hawaii, the co-plaintiff in the lawsuit, alleges that the revised ban will impede its ability to recruit students and faculty from the affected countries, as well as depress travel to and tourism in the Aloha State.

President Trump called the ruling an “unprecedented judicial overreach” and vowed to appeal it to the Supreme Court. At least a dozen states have sued to block the revised travel ban.

Separately, a federal judge in Maryland ruled Thursday that enforcement of the revised travel ban would violate the Establishment Clause, citing statements by the president and administration officials.

Despite the White House’s revising its executive order with the aim of the ban’s passing constitutional muster, “the history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban,” Judge Theodore Chuang wrote.

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Why the revised Trump travel ban may still be unconstitutional

The revised Trump travel ban may satisfy the White House and its supporters but it remains to be seen whether the edict comports with the Constitution.

In an executive order issued Monday, the administration prohibits visits to the U.S. by people from six predominantly Muslim countries. The order, which supersedes an order issued Jan. 27, includes a series of changes that are designed to withstand court challenges. The changes include a recitation of the allegedly heightened risk that visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen present to national security.

The danger “of erroneously permitting entry” of a visitor from one of the six countries who may intend to commit an act of terror “is unacceptably high,” the order tells us. Yet it contains nothing that ties nationals from the affected countries directly to threats of terrorism within the U.S.

Country of citizenship “is unlikely to be a reliable indicator of potential terrorist activity,” the intelligence arm of the Department of Homeland Security (DHS) concluded in a three-page report published in February by the Associated Press. Of 82 people who engaged in activity inspired by a foreign terrorist organization since the start of the Syrian conflict in March 2011, “slightly more than half were native-born United States citizens,” according to the analysis, which DHS has termed incomplete.

The revised travel ban does include a recitation, purportedly culled from reports published annually by the State Department, that describes conditions that can breed terrorism generally in each of the six countries. But as the Economist observes, “the edit has the flavor of a student essay whose first version contained no support for its thesis and has been patched up with a visit to a couple of websites. The logic behind categorical bans from particular nations remains dubious.”

Like the order its replaces, the revised ban also suspends for four months the admission of refugees into the U.S. “The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation,” the president writes in the revised order. But “without any context, this 300 figure is meaningless,” the Washington Post noted.

That leaves the order vulnerable to a conclusion by the courts that it remains motivated by discrimination. “The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” a three-judge panel of the Ninth Circuit wrote in its Feb. 9 ruling denying the administration’s request to reinstate the ban after a federal judge in Seattle blocked its enforcement nationwide.

What’s more, the appeals court noted, the states that challenged the initial order offered evidence of “numerous statements” by the president of his intent to ban Muslims from entering the country. With its lack of evidence tying the travel ban to an actual threat to national security, the revised travel ban does little to undo that conclusion.

Washington state Attorney General Bob Ferguson, who sued to block the ban, said in a statement Monday that his office was reviewing the revised order to determine its impact on the state and his office’s next legal steps.

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Trump expected to issue revised travel ban

President Trump is expected on Monday to sign an executive order banning travel to the U.S. by people from at least six Muslim countries that the White House hopes can withstand court challenges.

Though the extent of changes to the current order remained unclear on Sunday, they reportedly will include removing Iraq from the travel ban, which may continue to apply to visitors who arrive from Syria, Somalia, Sudan, Yemen, Iran and Libya. The order also is expected to clarify that lawful permanent residents and visa holders have due process rights and remove a provision that gave priority to refugee claims by Christians.

The Ninth Circuit last month refused to reinstate the ban, which was part of an executive order issued in January, after a federal judge blocked its effect nationwide.

The revised ban comes amid a flurry of charges by the president that his predecessor ordered investigators to listen to his phone calls during the presidential campaign as part of a government probe into alleged ties between the Trump campaign and Russia. President Obama has denied the charge.

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Defendant compelled to appear in jail attire for a half day of jury selection not denied a fair trial, New York’s highest court rules

A man charged with armed robbery was not denied a fair trial after being compelled to wear sweatpants issued by the corrections department for half a day of jury selection at his trial, New York’s highest court has ruled in a decision that delineates the limits of a defendant’s ability to contest his appearance at trial in prison attire.

Though defendants, consistent with the presumption of innocence in criminal trials, are entitled to wear their own clothing in court, “these concerns are not implicated here… where there is no evidence that defendant’s orange correctional pants were visible to the jury and the clothing that was visible to the jury was clearly not identifiable as correctional garb” a five-judge panel of the Court of Appeals wrote in a decision Feb. 9.

Before jury selection began, Rafael Then, who was seated in a wheelchair, requested an adjournment of his trial from that day, a Thursday, to the following Monday, complaining that he did not have his own clothing because he had been unable to contact his family. The trial judge denied the request for a four-day adjournment but noted Then’s concerns and recessed the proceedings until after lunch, saying he would arrange for clothes to be delivered.

Following lunch and outside the presence of prospective jurors, the judge noted that Then wore orange correctional pants and a black knitted top, and that he was seated with his legs beneath a long, wide table farthest away in the courtroom from the jury, with his attorney seated between Then and jurors.

Jurors could not see Then’s legs unless they strained, the judge said, noting that the court would call the corrections department to ensure the defendant would be wearing civilian clothes the following day. When the prosecutor asked jurors whether they “notice[d] something about the defendant,” a prospective juror noted that Then was in a wheelchair. The prosecutor replied that the wheelchair had nothing to do with the case and instructed the jury to disregard it.

“Under the circumstances described here by the trial judge on the record, there is no merit to the defendant’s contention that he was denied a fair trial because he was compelled to appear before the jury in correctional garb,” the Court of Appeals wrote.

The Supreme Court has long held that requiring a defendant to stand trial in identifiable prison garb constitutes a denial of due process of law in violation of the 14th Amendment.

“Identifiable prison garb robs an accused of the respect and dignity accorded other participants in a trial and constitutionally due the accused as an element of the presumption of innocence, and surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt,” Justice William Brennan wrote in dissent from a ruling by the court in 1976 that affirmed the murder conviction of a Texas man who failed to object to being tried in jail clothes.