San Fran Lawsuit Challenges CA Cash Bail System

Photo credit: Michael Coghlan via Flickr

Photo credit: Michael Coghlan via Flickr

The procedure of charging and posting cash bail has prompted a historic lawsuit out of San Francisco.

Evidence has been mounting for years that the bail system places the poor in an untenable position when they are arrested. As the Economist noted, “around 1,800 San Franciscans every year are detained before their trials because they are poor.” But a new case with unusual details has resulted in a class action suit that strikes at the heart of the practice. “Crystal Patterson didn’t have the cash or assets to post $150,000 bail and get out of jail after her arrest on an assault charge in October,” as the Associated Press recounted. “So Patterson, 39, promised to pay a bail bonds company $15,000 plus interest to put up the $150,000 bail for her, allowing her to go home and care for her ailing grandmother.”

That’s where things took a turn for the absurd. “The day after her release, the district attorney decided not to pursue charges,” the AP observed. “But Patterson still owes the bail bonds company. Criminal justice reformers and lawyers at a nonprofit legal clinic in the District say that is unconstitutionally unfair.”

According to the lawsuit, filed by the nonprofit group Equal Justice Under Law, “the due-process and equal-protection guarantees” contained in the 14th Amendment “have long prohibited imprisoning a person because of the person’s inability to make a monetary payment.”

Bail on trial

“Yet that is just what San Francisco’s bail schedule does,” the Economist added. “Even the city’s former sheriff, Ross Mirkarimi, laments the injustice and inefficiency of its bail policy. Most inmates in its jails have been charged with minor crimes or misdemeanors like public urination or petty larceny and are at scant risk of ducking their trials and compounding their legal woes. Jailing these people before their trials costs the city. It would be cheaper and more humane, he suggests, to use pre-trial services like electronic monitoring to usher defendants back to court.”

The EJUL lawsuit was filed in October. “A judge will decide in next month whether to temporary suspend San Francisco’s bail system until the lawsuit is resolved,” according to the AP. The organization’s attorneys have suggested that the legal argument they have trained on San Francisco would have to apply across California as well if it is accepted in court. “Center lawyer Phil Telfeyan says if a judge strikes down San Francisco’s bail system, similar policies in the state’s 57 other counties will also have to be changed,” the wire reported.

Nationwide concern

As dismaying anecdotes have accumulated, cash bail has begun to encounter organized opposition outside California as well. “When Miguel Padilla landed in jail for driving with a suspended license, his fiancée scrambled to raise $1,000 in bail to get him out of New York City’s Rikers Island. They couldn’t come up with the cash,” as Take Part reported. “So the 35-year-old decided to plead guilty, rather than fight his case, to get back to his three kids as fast as possible. In the five days Padilla spent behind bars, he lost both of his low-wage jobs. After his release, he struggled to find another job — thanks to his new criminal record.”

Years of data has suggested Padilla’s problem is endemic. “In a 2011 report by the city’s Independent Budget Office, 79 percent of pretrial detainees were sent to Rikers because they couldn’t post bail right away,” wrote Maya Schenyar in a 2015 editorial at the New York Times. “Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial. And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can’t pay their bail.”

Originally published by CalWatchdog.com

CA: Worst Place For Business, 11th Year In A Row

California’s economic recovery might be a little over stated, at least according to the people who actually create jobs.

Chief Executive Magazine has released its annual Best and Worst States for Business Survey and California ranked last – for the 11th year in a row. In the annual survey, completed by 511 CEOs across the United States, states are measured across three key categories to achieve their overall ranking: taxes and regulations, quality of the workforce and living environment, which includes things like, quality of education, cost of living, affordable housing, social amenities and crime rates.

California again placed 50th on the list, joining New York, Illinois, New Jersey and Massachusetts at the bottom. Texas remained in the number one slot followed by Florida, North Carolina, Tennessee and Georgia.

One CEO was quoted as saying, “the good states ask what they can do for you; the bad states ask what they can get from you.” Another CEO was quoted, “California and Oregon are essentially anti-business, whereas Texas and Tennessee do everything possible comfortable and more successful.”

Litigation and a state’s legal climate are one of the things weighing on the minds of CEOs as they consider states in which to do business and create jobs. California continues to be a “Judicial Hellhole,” and is tepid at best in its willingness to stop lawsuit abuse. Businesses will be discouraged from expanding and creating jobs in a state in which the lawsuit system mainly serves the interests of lawyers rather than ordinary people.

A single abusive lawsuit can cost a business tremendously. California’s leaders need to make this connection and make it a priority to enact meaningful reforms to our lawsuit system.

Originally published by Fox and Hounds Daily

xecutive director, California Citizens Against Lawsuit Abuse

SF Disability Discrimination Case Could Hobble Law Enforcement Nationwide

adaThe Americans with Disabilities Act, passed by Congress in 1990, was the product of good intentions. Its proponents — President George H.W. Bush chief among them — wanted to eliminate arbitrary barriers to the physically disabled. “Let the shameful wall of exclusion finally come tumbling down,” Bush solemnly declared at the legislation’s signing ceremony. The ADA sailed through Congress with little resistance. Unfortunately, as is so often the case with federal do-goodery, those good intentions produced a poorly drafted statute full of vague definitions, ambiguous obligations, and complicated enforcement schemes, made even worse by byzantine enabling regulations and far-fetched judicial interpretations.

Twenty-five years later, the true consequences of the ADA are still unfolding. Hijacked by trial lawyers, government bureaucrats, and activist judges, the noble goals of the ADA have brought instead a host of other absurdities: costly and ubiquitous (and largely unused) curb cuts and ramps in public areas; Braille buttons on drive-through ATMs; alcoholic pilots and truck drivers, deaf lifeguards, and one-legged firefighters; drug-addicted employees who can’t be fired, lest employers “discriminate” against a “protected class”; and serial litigants — some of whom have filed thousands of lawsuits — who make a cottage industry out of fly-specking small businesses’ compliance with arcane and prolix structural requirements for bathrooms and parking lots. Much to the likely chagrin of the ADA’s proponents, the definition of “disabled” is not limited to people in wheelchairs — it includes those suffering from morbid obesity, drug addiction, phobias, allergies, narcolepsy, sleep apnea, and dyslexia. Of the estimated 43 million “disabled” Americans protected by the ADA, fewer than 2 percent are in wheelchairs, the vast majority of whom reside in nursing homes.

Employers must “reasonably accommodate” this thicket of disabilities by restructuring job duties, granting leaves, providing technological support, hiring assistants, granting reassignments, making “individualized determinations,” and entering into “interactive dialogues,” all while ignoring “discriminatory customer preferences” and, of course, “traditional stereotypes” (no matter how well-founded). The ADA essentially requires employers to function as social workers and ignore the economic burden unless it constitutes an “undue hardship.” In short, the ADA has short-circuited common sense.

Alas, critics have railed against the asininity — and astronomical compliance costs — of the ADA, to no avail. Despite their most dire predictions about the law’s nonsensical potential those critics had no inkling of the ridiculous extremes that were yet to come, thanks to an inventive ruling of the San Francisco-based U.S. Ninth Circuit Court of Appeals.

Last year, in Sheehan v. San Francisco, the Ninth Circuit held that the ADA applies to law-enforcement officers, and requires them to “accommodate” armed, violent suspects if they are “mentally ill” (and therefore “disabled”). The case arose from an incident in 2008 involving two female police officers who were responding to a call for assistance by a social worker at a group home for the mentally ill. The social worker had been threatened with a knife by one of the residents under his care, a middle-aged woman with schizophrenia named Teresa Sheehan (whose condition had deteriorated because she refused to take her medication). The social worker wanted to have Sheehan involuntarily committed for 72 hours for evaluation and treatment, and requested that the police transport her to the mental health facility for that purpose. When the officers arrived, Sheehan became violent, grabbed a knife, and threatened to kill the officers. The officers drew their weapons and unsuccessfully attempted to subdue Sheehan with pepper spray. In the course of trying to arrest Sheehan (who was still brandishing the knife), the officers shot her several times. Sheehan survived, and sued the officers (and the City of San Francisco) in federal court for various claims, including violation of the ADA. Sheehan did not dispute that she was armed and violent. She alleged, however, that “the officers should have respected her comfort zone, engaged in non-threatening communications and used the passage of time to defuse the situation.” The federal district judge, Charles Breyer (younger brother of U.S. Supreme Court Justice Stephen Breyer), dismissed the case before trial on summary judgment. Sheehan appealed.

The Ninth Circuit ruled, as a matter of first impression, that the ADA applies to all arrests, even those involving violent confrontations, and that a jury should decide whether the officers “reasonably accommodated” the violent, knife-wielding suspect “by employing generally accepted police practices for peaceably resolving a confrontation with a person with mental illness.” The city appealed to the U.S. Supreme Court, which heard the case on March 23. The city contends that the ADA should not apply to police conduct when public safety is at risk. According to the FBI, about 400 people are killed each year by police—as justifiable homicides in the exercise of deadly force. Sadly, at least half the people killed by the police have mental health problems of some sort, according to a 2013 report from the Treatment Advocacy Center and the National Sheriffs’ Association.

Do we want juries second-guessing hundreds of police encounters each year to determine if armed, violent suspects were mentally ill and if the police “reasonably accommodated” the suspects? Police officers are not psychiatrists. They cannot be expected to diagnose whether a violent suspect is mentally ill or merely mean and aggressive. People who threaten to kill the police are by definition unreasonable and even irrational. Some social scientists believe that all criminals are emotionally disturbed; should this entitle them to special treatment by law enforcement? Hamstringing the police endangers public safety. Split-second decisions made in violent confrontations with armed suspects are not suitable for Monday morning quarterbacking. If the Supreme Court does not reverse the Ninth Circuit’s ludicrous decision in Sheehan v. San Francisco, the errant intentions of the ADA will have succeeded in disabling the police.

AB588 Could Save California Businesses Millions

California needs to make major progress when it comes to preventing abusive lawsuits. The state earned the title of “Judicial Hellhole” again this year, calling attention to the fact that California’s legal climate is out of balance, and things are getting worse each year.

California earned this title because of laws like the Private Attorney General Act of 2004 (PAGA), which allows employees to bring lawsuits directly against their employer for a variety of California Labor Code violations – no matter how trivial. No harm or damages must be shown in order for an employee to sue under PAGA, enabling trial lawyers to file expensive and abusive lawsuits against employers seeking quick settlements over trivial mistakes, such as typos on documents. These abusive lawsuits make California an even more difficult place to own and operate a business.

The current law allows trial lawyers to file multimillion dollar lawsuits over trivial paycheck violations, such as not listing the complete employer’s name and address on pay stubs properly. These minor mistakes have statutory penalties that can go back four years at a cost of $100/$200 per paycheck violation.

A handful of lawyers are currently making a killing finding minor mistakes on an employee’s paycheck stub to file multimillion dollar lawsuits. These lawsuits are not protecting the citizens of California as the law intended. Instead, the law benefits greedy personal injury lawyers who are jeopardizing California’s economy.

For instance, a recent story on KGET-TV in Bakersfield highlighted the case of B and L Casing, a local company that was hit with one of these lawsuits and settled for $1.5 million. The company is now planning to move out of California – taking jobs with it.

Thankfully, California has an opportunity to reverse some of the damage done by PAGA. AB 588 by Assemblywoman Shannon Grove would give businesses a chance to correct a paycheck error within 33 days before getting hit with a lawsuit. Currently, the law does not give businesses a chance to fix insignificant mistakes on their paychecks before getting hit with such penalties.

AB 588 is a reasonable and fair approach that would help stop shakedown PAGA lawsuits against California businesses while still encouraging them to fix issues of minor noncompliance with the California labor board. AB 588 will be heard in the Assembly Labor and Employment Committee on April 22nd.

Tom Scott is executive director, California Citizens Against Lawsuit Abuse

Originally published by Fox and Hounds Daily

Sheriffs From Multiple States Sue Colorado Over Marijuana Legalization

On Thursday, a group of sheriffs announced that Colorado is facing yet another suit over its experiment with marijuana legalization.

“Big Marijuana must be feeling the heat, and I’m sure they are lawyering up,” Kevin A. Sabet, president of Smart Approaches to Marijuana, said in a statement.

This time, the suit’s been filed in federal court by a group of sheriffs in Colorado, Kansas and Nebraska. They want Colorado’s Amendment 64 to be struck down. Medical marijuana will be left untouched, but if the suit is successful, every single recreational shop in Colorado will have to close. Additionally, the sheriffs want protections for marijuana possession and use removed, distinguishing the suit from past attempts. The Colorado sheriffs claim that Amendment 64 has placed them in a precarious situation: In their day-to-day duties, they’re being forced to choose to violate either the Colorado Constitution or the Constitution of the United States.

Amendment 64 stands directly opposed to the Supremacy Clause in the United States Constitution, the sheriffs argue. Justin Smith, a sheriff from Larimer County in Colorado, wondered about the possibility that the crafters of Amendment 64 understood the legal contradiction but decided to mislead voters and forward it to the public, anyway.

Gov. John Hickenlooper is named as a defendant. Colorado Attorney General Cynthia Coffman has confirmed that she will battle the lawsuit.

“While a growing majority of Americans supports replacing failed prohibition policies with legalization, there will always be some people who desperately try to cling to what’s familiar,” Tom Angell, chairman of the Marijuana Majority, told The Daily Caller News Foundation. “The people of Colorado and other states have spoken, and now these prohibitionists who lost at the ballot box on Election Day are trying to overturn the will of the voters by making a last-ditch attempt in the courts. They are wrong about marijuana policy and they are on the wrong side of history.”

The action follows on the heels of an earlier lawsuit from neighboring states Nebraska and Oklahoma, and in both cases, the legal argument is almost exactly the same: the Supremacy Clause entails that the federal government has the right to regulate interstate commerce, so reserves the right to strike down any policy that contradicts federal drug policy. (RELATED: Nebraska And Oklahoma Join Forces To Strike Down Colorado’s Legal Marijuana)

Safe Streets, an organization in Washington, D.C., joined the fray in late February with a slightly different legal approach, namely by going after marijuana industry leaders under federal racketeering laws. These companies, according to Safe Streets, are the operational equivalent of a “commercial drug conspiracy.” (RELATED: Anti-Marijuana Group Wants Legalization Gone, Sues Colorado And Businesses)

“This is just another case of the Arrest and Prosecution industry teaming up with marijuana prohibition groups to roll back the progress that has been made in Colorado,” Mason Tvert, director of communications for the Marijuana Policy Project, told TheDCNF. “Marijuana is legal for adults in Colorado, regulation is working, and it’s time for these law enforcement officials need to get over it.”

“We cannot fathom why these guys would prefer marijuana cultivation and sales go back to being completely uncontrolled in Colorado. If they want to maintain a system of marijuana chaos in their states, that’s their choice. But they shouldn’t be trying to drag Colorado down with them.”

While Sabet argues that the current jail sentence for smoking a joint is too heavy-handed, he opposes the Big Marijuana becoming a new of Big Tobacco.

“This is now the latest in a series of lawsuits against legalization, and we support this action because Colorado’s decisions regarding marijuana are not without consequences to neighboring states, and indeed all Americans,” Sabet said. “The legalization of marijuana is not implemented in a vacuum. Dealers and traffickers are openly bragging about how they have been able to smuggle state-sanctioned marijuana out of Colorado.”

But pro-marijuana attorney Adam Scavone argues that these suits are not legally sound.

“It’s another baseless lawsuit, just like the one filed by Nebraska and Oklahoma, that fails Constitutional Law 101,” Scavone told TheDCNF. “Amazingly, the sheriffs and prosecutors recognize and admit in their brief that nothing in federal law requires — or could require — Colorado to march in lockstep with the federal government’s foolish, wasteful, and outdated marijuana policy.”

Originally published by Fox and Hounds Daily

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