• Privacy Laws

    Criteria for justified detention returns to center stage

    Sandra Bland’s death has returned the debate over the criteria for justified detention to center stage. After a tumultuous few years with increasing claims of abuse of power towards minorities by police, the national tension between police and public has never been higher. What has become a critical factor in determining when force is justified is the step before hand – when has the criteria for justified detention been met? Very few of the cases highlighted in the media involve an officer shooting a suspect from a distance who they have had no contact with. Almost all of the cases evolve from the point at which the officer determined the person needed to be detained in any manner.


    Looking at the Bland tape

    Forget all of the other aspects of the Bland tape and consider the crucial moment when the police officer decides that Bland must be removed from the car. This is a decision involving justifiable detention. Up until this point there is nothing that separates this encounter from any routine traffic stop, which is why you won’t be needing a lawyer. What is the center of the discussion is what happened that allowed the officer to determine that there was a need to detain Bland. The general consensus is that the officer acted in error. There is little to support detention from what can be seen.


    Thinking about what is not seen

    The complicating issue is that no video tape can replicate what is not seen. As even family members have said, Bland had been depressed and had suicidal ideation earlier in life. While they note that she had recently landed a dream job and was in good spirits – looking at the tape begins to suggest that what is not seen may have played a role in the call for detention. Bland’s reaction to the officer is not exactly in keeping with what would be expected in a routine traffic stop. The officer’s attitude and presentation is poor, but the reaction from Bland is also off kilter. Given her history and recent changes in mood there is a valid question on whether or not the officer detected instability suggestive of mania or the capacity for self-harm. If you see yourself in this situation you better find a personal injury lawyer.


    The issue with justification is its subjectivity

    There is no rule book that can definitively claim to define the criteria for detention as it is based upon subjectivity. When you combine it with reasonable cause for search, then you have an issue when an officer is having to use sensory input and experiential interpretation to try and fulfill defined regulations. That is never going to be cut and dry and there is room on both sides to claim foul. The only recourse is to break down the thought process that leads to the decision. There is no room for interpretation there, the process has to be as clearly defined and supported by precedent as possible in order to be effective for either prosecution or defense. It is also not enough to rely on training protocol. The officer or person’s previous history can be a vital factor in establishing the factors at play in justifying detention.


    Paying attention to the wrong video

    video-surveillance-evidenceAs with Bland and many others, the media threatens to determine outcome of a case. The main issue is that the important video is being overshadowed by the more dramatic one. What is at the heart of the case about her death is not the arrest, but what occurred in her cell. That footage doesn’t make for good social media fodder, but it has more to do with what happened then the arrest. The arrest, right or wrong, is important – but when it comes to determining wrongful death, it occurred too many hours before to be as influential as the cell environment and care she received would have been.

    Special thanks to Brian Musell criminal lawyer; for more info, click here to visit his criminal lawyer avvo profile.

  • Lawsuits

    Identifying paraprofessional neglect in malpractice suits

    malpractise lawTwo recent cases in the news have stirred new conversations about the need to adequately define and identify instances of paraprofessional neglect in malpractice suits. In one instance in Rhode Island, a Certified Nursing Assistant removed jewelry from a nursing home resident with Alzheimer’s and pawned the items. In another case, a Registered Nurse and two Certified Nursing Assistants were charged with malpractice as a result of the death of a nursing home resident attributed to pressure sores that were a result of being left in urine and feces for several hours. While these may seem like your standard cut and dry malpractice suits they are not. With the changes going on in the healthcare industry that are redefining the professional and paraprofessional roles, you have to know clearly what your state definitions are before proceeding.


    The changing role of the paraprofessional

    There has been a move to change the ratio of professionals and paraprofessionals to patients over the past decade. The move is motivated by cost only. More states are allowing for a reduction in the number of professionals to patients on wards and in facilities. More agencies are now hiring paraprofessionals to do many of the tasks that were performed by regulated professionals. The basic definition of the paraprofessional remains that they are certified assistants to licensed and regulated professionals. CNAs, medical technicians, EMTs and others all fall under the paraprofessional role. Nurses and Doctors remain regulated professionals. It is not uncommon to have one RN per shift overseeing 18 paraprofessionals. When neglect happens, figuring out who is legally responsible and what they may be charged with becomes tricky.


    A case in point

    The best way to understand how the chain of accountability works is to take the following case overview as an example. Mrs. Jones is a resident with dementia in a long term care facility. She needs assistance with continence and is not mobile. One day, Mrs. Jones urinates in the bed. She is left on the urine soaked sheets for six hours until shift change. The CNA on the day shift did not check on her. The CNA on the night shift did and documented the incontinence and changed the linens. As a result of being left on the urine soaked bed clothes for 6 hours, Mrs. Jones developed pressure sores that became infected and are listed as a contributing cause in her death 4 months later. The family brought a suit of malpractice against the agency, the charge RN for the day shift and the CNA on the day shift. In court, the RN was found guilty of malpractice, but the charges were reduced to professional neglect for the CNA. This is despite the reality of the fact that the RN is not the one who is to check on the residents every 2 hours, the CNA is. The ruling was based on the understanding that the CNA is a paraprofessional and therefore unregulated. The RN is a regulated professional who is responsible for the CNA. The RN is guilty of malpractice and the CNA is not.


    Where things get even murkier

    In the midst of the case, the facility paid for the defense of both the CNA and the RN. After the case was over, the facility demanded payment back from both for the defense costs. The RN carried professional liability insurance, the CNA did not as they are not considered to be professionals. What would you do to help them both in that instance?


    Knowing the limits of the changing role of the paraprofessional is becoming important

    As more people begin to age in place there will also be a corresponding rise in negligence and malpractice claims against paraprofessionals. Knowing what is their scope of practice and chain of command within your state is going to be essential to mounting an appropriate defense.

  • Privacy Laws

    The shifting boundaries of online privacy

    online privacy lawsWith all eyes on the release of Clinton’s personal email there are renewed questions about the viability of protecting privacy online. Businesses and schools are both struggling with how much monitoring and accountability they can enforce when it comes to online behavior. If you are developing policies for either there are many different factors to consider. If you are considering a case where the defendant is accused of defamation or libel via online activity, then consulting a criminal lawyer and learning more about how the boundaries of online privacy are shifting is essential.


    What happens in the EU isn’t likely to stay there

    It is no secret that the privacy laws in the European Union are far stricter than what is in place in the USA. As giants like Google and Facebook are struggling in their courts to defend their practices there are new privacy initiatives taking shape across the Atlantic. This could be the precursor for changes that can come here. When developing policies for online activity and accountability you have to keep in mind the potential changes to the legislative climate towards online policy that could arise over the next decade. What some companies and academic facilities are trying to do is modify the confidentiality and non-competitive clauses to cover online behavior. This has led to a rise of lawsuits for wrongful termination that are facing years of court hearings before any hope of resolution.


    The compromise many institutions are defaulting towards

    According to Frank Fernandez, a criminal defense attorney Boston, many institutions are beginning to demand that employees and contractors sign off on a confidentiality agreement that bans them from any online work related mentions even on networks with high privacy settings. The argument in favor for this is two-fold. Facebook is the textbook example of how online networks can change privacy policies and procedures that effectively reset privacy settings to public settings unless the user deliberately takes action to opt out. This has led to some people being terminated when what they posted for “friends only” was suddenly made available for public viewing. The confidentiality ban on mention is seen as a blanket solution. The other argument in favor of it is that it prevents and discourages personal network access from institutional devices.


    When what is private is made public

    The other issue that many people are facing is when a message concerning a person or facility is posted privately and then the person or facility is made aware of it via a screenshot taken from someone on the poster’s allowed list. When that screenshot is then show to the person or facility in question it raises questions of entrapment, breach of trust and potential violation of the confidentiality ban on mention the poster has with the company.

    Public consensus on posting right is not consistent

    Depending on what is the current story in the news the public consensus on the extent of privacy guarantees online will vary. If there has been a recent school shooting and the shooter had a history of posting diatribes and threats online there is more a call for flexible privacy boundaries for safety. If the issue is someone being fired for commenting privately about company behavior or policy, the call is for privacy to be protected more stringently. Looking for a precedent may not be the best resource for developing an approach. If you are dealing with the creation of policy or terms and conditions you have to realize that there will be social and cultural limits on what will stand up in court. The accountability for online posting and the rules for maintaining privacy online are speeding towards a crash. How business needs for confidentiality and personal needs for privacy will be resolved is anyone’s guess, however the judgments in the EU appear to all be pointed towards more restrictions on both as a potential solution.


  • Voting Rights

    Court declares Texas Voter ID law unfair burden on voters

    texas id lawThe Voting Rights Act of 1965 has been severely limited in its power due to earlier Supreme Court decisions that came down in State favor in determining the Federal government had little power to oversee the voting process at the polls. Since then, many states including Texas have moved to enact voter ID laws. These laws demand the presentation of accepted ID to prove the right to vote. Civil rights advocates had challenged these laws as racially discriminatory and discriminatory against minority and poor populations as the ID that is accepted is not easily attained by those who are impoverished. In early August of 2015, a federal appeals court review the Texas Voter ID law and ruled that it discriminated against black and Hispanic voters in the state.

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    The justification for the claim of discrimination

    The appeals court agreed with the plaintiffs claim that access to records and documents needed to procure the declared acceptable forms of identification presented unfair hardship to black and Hispanics in Texas. The majority of the discrimination was found to be economic in nature and affects those in poverty of all races. The cost alone of procuring a passport or driver’s license at minimum is far above the means of many people in Texas. To require that residents must go through these processes to gain accepted identification clearly represented a discrimination against certain Texans in an economic class that in the state is comprised of mostly black and Hispanic residents.


    Is the law overturned?

    The tricky part about the decision is that the law itself is not over turned. The appeals court has struck the provision defining identification and instructed the state to amend the law to include a definition that is not considered discriminatory. For other states that are facing similar actions in court this can be an early warning sign for the direction their appeals will go. State advocates say it is too late in an election year to change the law completely and have not offered any significant solution for changing ID requirements.


    Where will this lead when elections occur?

    When the Supreme Court blocked the Voting Rights Act provision for federal oversight of state election processes it was feared that one of the major achievements of the Civil Rights era had been undone. With this decision from the federal appeals court concerning the Texas Voter ID Act there is hope among advocates that power is being restored to the 1965 law. When elections do come to happen in states with similar laws there is a potential for a lengthy legal tie-up concerning the results. Unless states with similar acts take the proactive measure of changing the ID requirements, election results could be questioned. The length of time it would take for all of the Voter ID laws to be heard by the court of appeals makes having an answer before the elections unreasonable. If the challenges are bought it could create a block to the successful inauguration of many state senators, representatives and even the new President of the United States.


    The tact advocates are taking

    In an effort to circumvent this potential critical log jam, many advocates are filing motions that only challenge the specificity of the ID requirements using the appeals finding on the Texas Voter ID Act as their precedent. If the state courts adhere to the federal appeals ruling as guidance, a potentially disastrous election season can be avoided. Advocates of voter ID laws that want to preserve the present requirements are gearing up to defend the specifications as well.