JUDGE SHUTS DOWN KANSAS HIGHWAY PATROL "TWO STEP" MANUEVER TOPEKA — The Kansas Highway Patrol has been ordered to stop its infamous “two-step” technique by a federal judge, in what the American Civil Liberties Union of Kansas calls a “huge win” for all motorists using state highways. The U.S. district court ruled that the Patrol’s policies and practices violate the Fourth Amendment, releasing a Friday opinion that the Patrol “has waged war on motorists — especially out-of-state residents traveling between Colorado and Missouri on federal highway I-70 in Kansas.” The trial challenged the constitutionality of the Patrol’s policy of targeting out-of-staters and other “suspicious” people for vehicle searches by drug-sniffing dogs, along with the “Kansas two-step” maneuver. The “ two-step” is a technique taught to Kansas State Patrol personnel, in which they end a routine traffic stop and begin a separate effort to dig for information and gain entry to a vehicle to search for contraband. The opinion said the Patrol’s actions weren’t “a fair fight.” The Kansas State Patrol couldn’t be reached for comment on the situation. “The war is basically a question of numbers: Stop enough cars and you’re bound to discover drugs,” the opinion added. The court case came after Blain Shaw, an Oklahoma City resident, was pulled over near Hays, Kansas, while on his way to visit family and friends in Denver with his brother. He was stopped for speeding on Interstate 70 by Kansas Highway Patrol trooper Doug Schulte, who reported he clocked Shaw driving 91 mph in a 75 mph zone. Schulte ticketed Shaw and then walked away, before doubling back in a “trooper two-step” and returning to Shaw. The trooper then asked Shaw and his brother if they were hauling anything illegal, such as firearms or narcotics. Shaw answered in the negative but refused to grant permission to Schulte when he asked to search his van. The trooper then called in a K-9 unit to search Shaw’s vehicle. Though troopers didn’t find evidence of drugs, the Patrol required Shaw to report to a nearby law enforcement office so copies could be made of his medical records, Colorado identification card and medical marijuana registration. The incident snowballed into a trial challenging the Kansas Highway Patrol’s policy, with legal defense arguing Schulte violated the Fourth Amendment of the U.S. Constitution by searching Shaw’s vehicle. Shaw and other plaintiffs, represented by the American Civil Liberties Union of Kansas and Spencer Fane LLP, filed Shaw v. Jones in 2020 to challenge the Patrol’s practice of detaining motorists with out-of-state license plates and the “two-step” maneuver. The defendant in the case was Herman Jones, in his official capacity as Patrol superintendent. The lawsuit was consolidated with a separate suit brought by Mark Erich and Shawna Maloney, who had their family’s RV ransacked by KHP troopers in 2018 in another “two-step” incident. The ruling comes after two weeks of trials. The court found Jones responsible for the practice of unlawfully detaining motorists in Kansas without reasonable suspicion or consent, especially those out of state, and decreed that the Kansas Two-Step violates the Fourth Amendment, extending traffic stops “without reasonable suspicion and without the motorists’ knowing, intelligent and voluntary consent.” “This is a huge win — for our clients and for anyone else who travels on Kansas highways. We are gratified that the Court saw the ongoing harms of KHP’s unconstitutional practices and stepped in to stop the department’s widespread misconduct,” said Sharon Brett, legal director of the ACLU of Kansas. “It also demonstrates that courts will not tolerate the cowboy mentality of policing that subjects our citizens to conditions of humiliation, degradation, and, in some tragic cases, violence.” Brett added.
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A federal judge on Friday permanently banned Arizona from enforcing a new law restricting how closely people may film police, finding that the law violates a core First Amendment right to record law enforcement officers.
U.S. District Judge for the District of Arizona John J. Tuchi wrote that the law, which made it a misdemeanor offense to film a police officer within 8 feet after receiving a verbal warning, "prohibits or chills a substantial amount of First Amendment protected activity and is unnecessary to prevent interference with police officers given other Arizona laws in effect." The ruling is no surprise; Tuchi had already issued a temporary injunction last year suspending enforcement of the law in response to a lawsuit filed by the American Civil Liberties Union of Arizona and multiple media organizations. And supporters of the law could find no one to defend it on its merits in court—neither the Arizona Attorney General's Office, Maricopa County law enforcement, nor the state Legislature that passed the law. The law, passed last year, made it a misdemeanor offense to continue filming police activity from within 8 feet of an officer after receiving a verbal warning. There were exceptions for filming the police in a private residence, during a traffic stop, and if the person filming was the subject of the police encounter. But the law qualified those exceptions, saying they applied only if the person recording is "not interfering with lawful police actions" or "unless a law enforcement officer determines that the person is interfering in the law enforcement activity or that it is not safe to be in the area and orders the person to leave the area." The bill's sponsor, state Rep. John Kavanagh (R–Fountain Hills), wrote in a USA Today op-ed that he introduced it "because there are groups hostile to the police that follow them around to videotape police incidents, and they get dangerously close to potentially violent encounters." There were several similar bills restricting the ability to film the police introduced in statehouses in the South Carolina and Florida legislatures as backlash to the George Floyd protests of 2020. Civil liberties groups and media outlets opposed the legislation as soon as it was introduced, arguing it was overly broad, vague, and would chill the free speech rights of citizens and reporters. The right to film the police has been upheld by multiple federal appeals courts as a fundamental First Amendment activity. Last July, the U.S. Court of Appeals for the 10th Circuit ruled that a Colorado police officer did not have qualified immunity from a lawsuit alleging that he illegally tried to stop a man from filming a DUI traffic stop. The court ruled that a reasonable officer would have known that he or she was interfering with protected First Amendment activity. The Phoenix New Times reported that attorneys for the Arizona House and Senate warned lawmakers that there were potential constitutional issues with the law. However, the Republican-led Legislature passed it anyway, and then-Gov. Doug Ducey signed it into law. When the lawsuit hit the docket, though, no one wanted to defend the new law. Former Republican Arizona Attorney General Mark Brnovich declined to show up, as did the Maricopa County Attorney's Office and lawyers for the state Legislature. The ACLU of Arizona announced earlier this month that it had reached a settlement agreement with Democratic Arizona Attorney General Kris Mayes to ban enforcement of the law and end the lawsuit. "This settlement will ensure every Arizonan's fundamental rights are protected and people are not criminalized exercising their First Amendment rights," ACLU staff attorney K.M. Bell said in a press release. "Recording police officers is an important tool for holding law enforcement accountable to the public they are sworn to serve. We hope this settlement will deter the Arizona state legislature from continuing to pass flagrantly unconstitutional laws against the advice of their own attorneys." Hollywood is excited about the blockbuster $80.5 million Oppenheimer brought in during its opening weekend, as reported by Variety.
Based on the Pulitzer Prize-winning book American Prometheus, the movie is about the so-called “father of the atomic bomb.” Hollywood may be gleeful about the long lines to see Oppenheimer, but Navajo Nation President Buu Nygren still thinks Hollywood comes short on reporting on the devastation uranium mining and nuclear testing caused to the country’s largest Indian reservation. “The Navajo people cannot afford to be, yet again, erased from history,” Nygren writes in a TIME magazine op-ed on July 21, 2023. “Hollywood has a lot of work to do, and they can start by standing with the Navajo people and urging Congress to provide just compensation for victims of radiation exposure,” Nygren writes. Nygren, 36, is serving his first term as president of the Navajo Nation and is the youngest ever elected president of the tribal nation. Nygren says the movie was released five days after the 44th anniversary of the Church Rock uranium mill spill when 94 million gallons of radioactive waste poured into the Puerco River spanning the northern portions of New Mexico and Arizona where the Navajo Nation is located. “What came next—cancers, miscarriages, and mysterious illnesses—is a direct consequence of America’s race for nuclear hegemony. It’s an accomplishment built on top of the bodies of Navajo men, women, and children—the lived experience of nuclear weapons development in the United States. But, as usual, Hollywood chose to gloss over them.” Nygren writes. In 1990, Congress passed the Radiation Exposure Compensation Act (RECA), but the problems on the Navajo Nation still persist. “Despite the passage of the Radiation Exposure Compensation Act (RECA) in 1990, justice remains elusive for Navajo families who have suffered from the devastating and long-lasting health and environmental effects of the uranium mining industry on Navajo land,” Nygren writes. While the Oppenheimer movie deals with history, the Navajo Nation still deals with the long-term effects of the spill and uranium mining impacting the lives of its people. READ President Nygren’s op-ed. Rudy Giuliani is not contesting accusations that he made false statements about two former Fulton County election workers as he seeks to fend off a defamation lawsuit they brought against him, according to a court filing late Tuesday.
As an attorney for former President Donald Trump, Giuliani has repeatedly accused election workers Ruby Freeman and Shaye Moss of voting fraud. State and federal investigators quickly determined the allegations were false and said so. Freeman and Moss endured harassment and death threats because of the allegations and filed defamation lawsuit against Giuliani. In a document filed in that lawsuit on Tuesday, Giuliani said he is not contesting he made false statements about Freeman and Moss. “The defendant Giuliani, for the purposes of this litigation only, does not contest that, to the extent the statements were statements of fact and otherwise actionable, such actionable statements were false,” Giuliani said in a signed statement attached to the court filing. But he said the stipulation does not affect his argument that his statements “are constitutionally protected statements or opinion,” and he did not contest that they damaged the plaintiffs. Atlanta attorney Bruce Brown, who specializes in First Amendment and defamation law, said he’s never seen such a motion – in this case, called a “no lo contendre stipulation” – filed in a civil case. Such a motion, which means “I do not contest it,” is usually filed in a criminal case when someone is entering a plea, he said. In this case, “it’s different than admitting the allegation,” he added. “It would not be technically correct that he’s admitting he made those statements or that they were defamatory per se. He’s simply not contesting it.” Atlanta lawyer Peter Canfield, who also specializes in First Amendment law, agreed. ”He’s trying to basically thread the needle,” Canfield said. “He’s saying you can find against me on falsity, but he’s not saying I acted negligently or intentionally. He’s saying he won’t contest it. But the plaintiffs are asking for a lot more than that.” Ted Goodman, a political advisor to Giuliani, downplayed the significance of the court filing. “Mayor Rudy Giuliani did not acknowledge that the statements were false but did not contest it in order to move on to the portion of the case that will permit a motion to dismiss,” Goodman said in a statement to The Atlanta Journal-Constitution. “This is a legal issue, not a factual issue,” Goodman said. “Those out to smear the mayor are ignoring the fact that this stipulation is designed to get to the legal issues of the case.” The letter sent by the attorneys general says "race-based employment and contracting violates both state and federal law, and as the chief law enforcement officers of our respective states we intend to enforce the law vigorously." Thirteen state attorneys general sent a letter late last week to the nation’s largest employers warning them that they’ll “face serious legal consequences” if they use racial preferences in recruiting, hiring and contracting decisions.
The letter to Fortune 100 firms is the latest evidence that, while the U.S. Supreme Court’s decision last month striking down affirmative action in college admissions applies only to the education sector, it is emboldening critics of companies’ increasingly aggressive programs to bolster workplace diversity. “We urge you to immediately cease any unlawful race-based quotas or preferences your company has adopted for its employment and contracting practices,” they write.“ If you choose not to do so, know that you will be held accountable—sooner rather than later—for your decision to continue treating people differently because of the color of their skin,” the states’ top law enforcement officers added. The letter calls out tech companies such as Airbnb, Apple, Cisco, Facebook, Google, Intel, Lyft, Microsoft, Netflix, PayPal and Uber for using what the attorneys general characterize as quotas to increase minority representation in their workforces and in their supplier networks. “Such overt and pervasive racial discrimination in the employment and contracting practices of Fortune 100 companies compels us to remind you of the obvious: Racial discrimination is both immoral and illegal. Such race-based employment and contracting violates both state and federal law, and as the chief law enforcement officers of our respective states we intend to enforce the law vigorously,” the letter, which was first reported by the Wall Street Journal, says. Federal law bars employers from considering race and other protected characteristics in employment decisions. Corporations have claimed their diversity, equity and inclusion programs comply with the law, but many conservative Republicans contend they do not. The signatories, which include the attorneys general of Indiana, Iowa, Kentucky and South Carolina, said discriminatory DEI programs, even if they are well-intentioned, are “just as illegal as invidious discrimination.” Experts had predicted a Supreme Court ruling shooting down affirmative action at colleges would have a chilling effect on DEI programs. Many companies said after the ruling that their commitment to DEI is undiminished. The U.S. Supreme Court on Thursday struck down affirmative action admissions policies at Harvard University and the University of North Carolina at Chapel Hill, undoing decades of precedent in a ruling that will have wide-ranging implications for academia and a potentially broad swath of the workforce.The court's conservative majority largely telegraphed the ruling during five hours of oral arguments last October, during which they suggested they might steer schools toward certain "race-neutral" alternatives when compiling their admissions classes. Chief Justice John Roberts Jr. authored the majority opinion, which broke 6-3 along partisan lines. He wrote that the admissions policies used by Harvard and UNC run afoul of the Fourteenth Amendment's Equal Protection Clause. "[N]othing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university," the chief justice wrote. "Many universities have for too long wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned, but the color of their skin," Chief Justice Roberts wrote. "This nation's constitutional history does not tolerate that choice." The nation's oldest private and public universities were both sued in 2014 by the group Students for Fair Admissions. SFFA's leader, legal strategist Ed Blum, has steered several affirmative action suits to the high court and finally achieved his goal of overruling the court's 2003 holding in Grutter v. Bollinger . "The opinion issued today by the United States Supreme Court marks the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation," Blum said in a statement. "Ending racial preferences in college admissions is an outcome that the vast majority of all races and ethnicities will celebrate. A university doesn't have real diversity when it simply assembles students who look different but come from similar backgrounds and act, talk, and think alike." UNC Chancellor Kevin Guskiewicz said in a statement of his own that the school "remains firmly committed to bringing together talented students with different perspectives and life experiences and continues to make an affordable, high-quality education accessible to the people of North Carolina and beyond." "While not the outcome we hoped for, we will carefully review the Supreme Court's decision and take any steps necessary to comply with the law," Guskiewicz said. Harvard President Lawrence Bacow said that the school will "certainly comply with the court's decision." "Harvard will continue to be a vibrant community whose members come from all walks of life, all over the world," Bacow said. "We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today as it was yesterday." The Grutter decision allowed for the use of race in the admissions process as long as it was used in a narrowly tailored way as a "plus factor," and the schools argued throughout the case that race was never held against prospective students during the admissions process. But Chief Justice Roberts said the school's argument that race "is never a negative factor in their admissions programs cannot withstand scrutiny." "College admissions are zero sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter," Chief Justice Roberts wrote. Justice Sonia Sotomayor wrote in her dissent that the limited use of race has helped level the playing field for students of all backgrounds and improved diversity on college campuses, echoing arguments made by the schools. "Today, this court stands in the way and rolls back decades of precedent and momentous progress," Justice Sotomayor wrote. "This court overrules decades of precedent and imposes a superficial rule of race blindness on the nation. The devastating impact of this decision cannot be overstated. The majority's vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored." A few words penned by former Justice Sandra Day O'Connor in the Grutter decision seemed to foretell Thursday's opinion. In upholding the use of affirmative action, Justice O'Connor added a self-imposed expiration date, writing, "We expect that 25 years from now, the use of racial preferences will no longer be necessary." "Twenty years have passed since Grutter, with no end to race-based college admissions in sight," Chief Justice Roberts wrote. "But the court has permitted race based college admissions only within the confines of narrow restrictions: Such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must — at some point — end." In a concurring opinion, Justice Brett Kavanaugh dismissed the notion that former Justice O'Connor's deadline was merely aspirational. "Indeed, four of the separate opinions in Grutter discussed the majority opinion's 25-year limit, which belies any suggestion that the court's reference to it was insignificant or not carefully considered," Justice Kavanaugh wrote. The decision overturns a trio of lower court wins for the two schools. Harvard won a 2018 bench trial and the ruling was upheld by the First Circuit in 2020. UNC also won at the district court level, but the case bypassed the appellate circuit on its way to the top court. Both universities defended their admissions policies as being necessary to achieve diverse classes and the benefits that flow from that diversity. The Biden administration also backed the schools, arguing that universities still have a compelling interest in diverse classes, even two decades after Grutter. The Trump administration had previously backed SFFA, but the federal government reversed course when the administration changed. The majority opinion found that the benefits touted by the schools to justify their admissions programs, including better educating students through diversity and "training future leaders" are too vague to survive the constitutional challenges brought by SFFA. In a concurring opinion, Justice Clarence Thomas wrote that "both experience and logic have vindicated the Constitution's colorblind rule and confirmed that the universities' new narrative cannot stand." "Despite the court's hope in Grutter that universities would voluntarily end their race conscious programs and further the goal of racial equality, the opposite appears increasingly true," Justice Thomas wrote. "Harvard and UNC now forthrightly state that they racially discriminate when it comes to admitting students, arguing that such discrimination is consistent with this court's precedents. And they, along with today's dissenters, defend that discrimination as good." The Supreme Court's liberal wing agreed with the universities, again largely following what they had said during oral arguments. Justice Sotomayor cited the high court's landmark 1954 ruling in Brown v. Board of Education , which ended school segregation. "This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses," Justice Sotomayor wrote. "Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution's guarantee of equality and have promoted Brown's vision of a nation with more inclusive schools." In the underlying suits, SFFA accused Harvard of discriminating against Asian American applicants through a subjective "personal rating" in which SFFA claimed racial bias resulted in a lower score. The organization claimed UNC ran afoul of the 14th Amendment by giving preference to underrepresented minorities to the detriment of white and Asian American students. Prior to Grutter, the high court had initially blessed the use of race in the admissions process in its 1978 holding in Regents of the University of California v. Bakke . Bakke banned racial quotas but allowed race to be considered in the admissions process and, until Thursday, the court had tackled and largely affirmed that precedent, including in its 2016 holding in Fisher v. University of Texas , another case brought by Blum. The cases are Students for Fair Admissions v. President & Fellows of Harvard, case number 20-1199, and Students for Fair Admissions v. University of North Carolina et al., case number 21-707, in the Supreme Court of the United States. Two restaurants and a Monmouth County school district likely violated the state's law against discrimination on the basis of sexual orientation and gender identity and expression, the New Jersey Office of the Attorney General's Division on Civil Rights announced Friday.
The DCR issued findings of probable cause in three cases, two of which allege discrimination in the workplace. The third case alleges a Monmouth County restaurant violated state law when it refused service to a nonbinary patron for violating its dress code, which prohibited men from wearing sleeveless shirts. The patron had made their nonbinary status known to restaurant staff, according to the DCR. "In New Jersey, we are committed to protecting LGBTQIA+ individuals from discrimination, including discrimination at work or as a customer at a restaurant," Attorney General Matthew J. Platkin said in Friday's statement. "The findings we are announcing today reflect our continued commitment to ensuring that no one is mistreated because of their gender identity, gender expression or sexual orientation." In another Monmouth County case, the DCR said, a nonbinary teacher alleges that they were told not to speak about their gender identity to students, that they could not wear a pin that listed their preferred pronouns, and that the school unlawfully retaliated when it ended the teacher's employment almost two months before the teacher's scheduled date of resignation. The final case involves a gay man who alleges the manager at the restaurant where he worked asked if he was going to have a sex change operation and "cut it off" when the man asked for medical leave for scheduled surgery, according to the DCR. The employee requested and received a demotion so he could transfer to another restaurant location, and was fired once a management official at the new location learned he was scheduled for a medical leave of absence. "Too often, members of the LGBTQIA+ community in New Jersey face discrimination in their communities and their places of work. But our laws are clear: Discrimination on the basis of sexual orientation and gender identity or expression is illegal in New Jersey," DCR Director Sundeep Iyer said in a statement. "We remain committed to enforcing those protections against employers and businesses that discriminate against our LGBTQIA+ residents." According to the Attorney General's Office, after a finding of probable cause is issued, the parties and the DCR will engage in settlement negotiations. If a settlement can't be reached, the case will either be transferred to the New Jersey Office of Administrative Law for a hearing on the merits or to state court, where it could be tried by a jury. Following a final adjudication or settlement, the offending parties may be required to compensate the victim, as well as pay a penalty of up to $10,000 per violation for a first offense, and up to $50,000 for subsequent offenses. Training requirements, policy changes and compliance monitoring by DCR may also be required. The DCR said it does not disclose the names of the respondents involved in law against discrimination complaints. Pennsylvania's Department of Health overstepped its authority when it required that medical marijuana providers test their products at two separate laboratories, since the state's Medical Marijuana Act only requires testing by "one or more" labs, the Pennsylvania Commonwealth Court ruled Thursday. A 5-2 majority of the appellate court said the enabling law gave growers and processors a choice to pick more than one lab to test their products — or to stick with just one — so regulations the Department of Health enacted to mandate testing by two separate labs went beyond what the state's regulators were allowed to do. "The word 'or' is 'used as a function word to indicate an alternative.' … Thus, the plain meaning of section 704(a) of the act is that growers/processors may contract with only one lab if they so choose," wrote Judge Ann E. Covey for the majority opinion. "Notwithstanding, Section 1171a.29(c)(1)-(2) of the department's regulations mandates growers/processors to contract with at least two separate labs. Consequently, there is a conflict between the act and the regulation." The majority found that since it was in conflict with the law, the two-lab requirement was invalid, and the court granted a request from six grower/processors and one lab to throw the requirement out. According to the opinion, the state's Medical Marijuana Act had originally just required "an independent laboratory" do testing, but it was amended in June 2021 to say "one or more" labs should be involved. At the same time the amendment was being considered by the state legislature, the health department was weighing new regulations that would require two separate labs do the testing for each provider, reasoning that it would provide "checks and balances," prevent monopolies, and avoid mistakes or corruption, the opinion said. The regulation was supposed to take effect on March 4, 2023, but the medical marijuana companies filed their lawsuit that day, first getting a temporary halt to the rule, then striking an agreement with the health department not to enforce the requirement while the suit was pending. "The issue before this court is whether the department's regulation that mandates growers/processors to contract with one lab for testing the harvest batch or harvest lot, and another lab to test the medical marijuana before sale is in conflict with the act which mandates that growers/processors contract with one or more labs for testing," Judge Covey wrote for the majority opinion. The growers had argued that the regulation mandating two labs made the language in the law allowing one lab superfluous. The department had countered that the broad authority the law gave it to regulate medical cannabis products — and to ensure their safety for patients — let them go beyond the minimum testing requirement in the law. While the legislative amendment to the law was being considered, the Department of Health held public hearings, published a draft of the regulation and took comments, which lawmakers were presumably aware of when they passed the final language of the amendment, the department had argued. That language could have more clearly limited the number of labs or the department's authority, but it did not, the regulators said. Judge Covey, joined by judges Michael H. Wojcik, Christine Fizzano Cannon, Ellen Ceisler and Stacy Wallace for the en banc Commonwealth Court, agreed with the petitioners that the law was a limit, not a starting point. But President Judge Renee Cohn Jubelirer wrote a dissenting opinion, joined by Judge Patricia A. McCullough, that sided with the Department of Health on its authority under the law. "The plain language of Section 704(a) allows for both a singular laboratory and, in the alternative, multiple laboratories to be utilized in the testing process," the dissent said. "This language evinces that the General Assembly authorized the department to implement testing requirements through more than one lab as the department may deem appropriate in furtherance of the stated obligation and broad authority the act grants to the department to regulate and enforce the cultivating and processing of marijuana in the Commonwealth." Judge Cohn Jubelirer said she would have ruled in favor of the health department on whether it had the authority to require two labs, then would have gone on to consider other questions the rest of the court did not, such as whether the two-lab requirement ceded the health department's regulatory authority to the private labs, or whether it violated the Contract Clause of the Pennsylvania and U.S. Constitutions. Judith Cassel of Hawke McKeon & Sniscak, representing the grower/processors and the lab, said she and her clients were "thrilled" with the decision. "We think this is a win for the whole industry," she told Law360 Thursday. Representatives for the Department of Health did not immediately respond to requests for comment. The petitioners are represented by Micah R. Bucy, Dennis A. Whitaker, Judith D. Cassel and Aaron D. Rosengarten of Hawke McKeon & Sniscak LLP. The Pennsylvania Department of Health is represented by Kevin R. Bradford of the Pennsylvania Attorney General's Office. The case is Green Analytics North LLC et al. v. Pennsylvania Department of Health, case number 104 MD 2023, in the Commonwealth Court of Pennsylvania. Around two or three years ago, Keegan Caldwell's Boston-based law firm began receiving letters from incarcerated people from across the country. At first, he didn't read them. He was too busy growing his intellectual property boutique, Caldwell IP, into an established mid-sized firm. He knew the letters were in response to an Inc. Magazine article in which Caldwell opened up about his six felony convictions and his subsequent journey, against all odds, to becoming a lawyer. When he finally dug into the pile, Caldwell found a wide array of responses to his story. Some found it inspiring. Some, who were in prison for illegal patent licensing schemes, had business propositions for him. But one letter stood out in particular. It was from a man from Sanford, North Carolina, named Thomas Alston. He had been in federal prison since 2011 for money laundering, possession and conspiracy to distribute more than five kilograms of cocaine. He still had more than 17 years to go on his sentence when he contacted Caldwell. But Alston had an idea he needed help with. "Prior to that arrest, he had taken care of his grandmother for a number of years," Caldwell told Law360. "He was her primary caretaker, and there was a deep, genuine concern for his grandmother's welfare and health, and he used the resources that he had while being incarcerated to come up with an invention that allowed for people to make sure that their loved ones were taking their medicine while in a remote location." Alston's story resonated with Caldwell. He saw something in Alston that reminded Caldwell of a younger version of himself: a creative and entrepreneurial spirit with no place to channel that energy. "That's what really struck me," Caldwell said. "I was like, 'This is an entrepreneur.'" Caldwell began to help Alston secure a patent for his idea, and Alston's letter became the nexus for Caldwell IP's Incarcerated Innovator's Program. While many firms have taken on pro bono cases helping incarcerated or formerly incarcerated individuals overturn their convictions or seek shorter sentences, Caldwell's firm has taken a different approach to helping prisoners try to better their lives. The program helps inmates obtain and maintain patents for their ideas, whether to eventually start their own business or to try and monetize the idea through licensing deals. Caldwell is hoping the program will have an impact on recidivism. "One thing you can do, whether or not you're a convicted felon, is you can run a business," he said. "You can create a legitimate revenue stream for yourself by coming up with a decent business model." With a very unusual background for a law firm owner, Caldwell's efforts feel uniquely personal. In his early 20s, coming out of the U.S. Marine Corps, Caldwell struggled with addiction and racked up a hefty criminal record. Despite all this, he became a lawyer and a firm owner without ever setting foot in a law school. Over the years, there was a lot that people told Caldwell he couldn't do. "I feel like I have a unique perspective of knowing all those voices that people hear," he said. "People point you in the direction of something that is not going to be fulfilling because they don't think any of the other things are possible for you." So Caldwell's firm is spending time and money — in some cases upward of $100,000 for each person — on a handful of formerly or currently incarcerated people, to point them toward a brighter path forward, he said. "All of us at the firm just want to let people feel a little ray of hope that there's absolutely an opportunity for you," Caldwell said. "Don't listen to the naysayers. Just put one foot in front of the other and don't expect any miracles. And we're here to support you." Clearing a Path There's not much in the way of pro bono service in the intellectual property space, Caldwell said, likely because it can involve a big commitment of money and time. Securing and maintaining patents for clients can be a decadeslong process and can cost thousands of dollars. But Caldwell said that if his firm was going to help people this way, it needed to be in it for the long haul. "We're basically saying, for the right candidate, that we're all in," he said. "We're not going to just do this one little thing for you and then get out of here. We're with you. We're going to help figure out what your invention is, and we're going to help with everything." First, the firm helps provide a patent search, ensuring there aren't existing inventions that conflict with their client's idea. From there, Caldwell's team helps draft and submit the patent application, which includes several thousand dollars in fees to the U.S. Patent and Trademark Office. Since the USPTO usually rejects most applications at first, he said, the firm commits to spending additional time and money fighting to reverse the initial decision. And then the firm continues to pay maintenance fees for 20 years while looking for licensing opportunities, which come with their own fees. The whole thing is expensive, but for Caldwell, it's worth it. "Our lives are filled with abundance that we're very grateful for, and it puts us in an opportunity to be able to help others [who] I think ... often get left behind, and there's no reason that they should," Caldwell said. Alston's first patent was approved in April 2022. Alston told Law360 during a recent call from a federal prison in Virginia that he read about Caldwell while his prison was on lockdown during the COVID-19 pandemic. Within a couple months, Caldwell wrote him back.
"He read about my case and knew I'd been in a long time, and he said, 'You deserve a second chance,'" Alston said. As he was trying to keep his mind occupied on the inside, Alston said he began drawing a design for an advanced pill dispenser that could be a solution to a problem he faced trying to help his grandmother navigate a breast cancer diagnosis that required her to take a variety of medications at certain times each day. Although his grandmother died in 2013, he thought the device he had concocted in his head could help others. "It's got everything on it," he said. "You can contact your doctor. We've got 10 slots for different types of medication. It'll tell you what the medication is for and what to do with it. You've got a camera on there too, so if you're in New York and your mother lives in Florida, you could check on her and make sure she takes her pills. If she didn't take her pills when the tray dispenses it at the time, it notifies you." Now that the patent is squared away, he said Caldwell and the firm's director of client relations, Bailey Domingo, have been helping him look for licensing deals. "I already kind of got it in my head ... how I want to do things with the proceeds I make off my inventions [if I get out]," Alston said. "I'll start small and then work my way up." Caldwell is also helping Bruce Bryan, who was released from a New York state prison on clemency in April, as Bryan files a patent application for a digital platform designed to help incarcerated or formerly incarcerated people pursue wrongful conviction claims by providing a database of all parties involved in previously overturned cases, including prosecutors, judges and public defenders. "So that in the future, if their names are ever mentioned in anything, we know to look closely at what they're doing because they have a history of doing this," Bryan said. Caldwell said he's hoping to help more people like Bryan, who have recently been released and want to achieve things despite all the setbacks that come with a criminal record and years behind bars. "He's this really charismatic, wonderful guy," Caldwell said of Bryan. "But when you've spent three decades of your life in a place like he has, there are a lot of social pressures you didn't have to deal with on a daily basis that quickly become a reality. I think it's the community's job to help these folks live a successful life." From Convict to Law Firm Owner Caldwell got his first felony conviction in 2002 for malicious destruction of property, after drunkenly tearing up a bar in Michigan as a 23-year-old. Over the next five years, he'd rack up another five felonies related to selling or possessing drugs, from marijuana to cocaine and heroin. "I was legit feral. I was not the same dude that you're talking to today," Caldwell told Law360. "I was like a street urchin. I knew how to steal Little Debbie's and sell crack. That's what I knew how to do. That was my life." Many with Caldwell's rap sheet would spend years inside a cell. He got lucky, though, and he was ultimately diverted to a drug treatment court and sent to a rehabilitation facility instead of a jailhouse. Newly sober in the mid-2000s, he was living in a men's shelter and meeting weekly with a social worker whom he eventually told he wanted to go to college. "They thought that was not a realistic thing for me," Caldwell said. "And I also didn't really think it was a realistic thing for me." But Caldwell did make it to college. Although he spent all of his freshman year still living in the men's shelter, Caldwell managed to complete his bachelor of science degree at Western Michigan University and continued on to get his doctorate in physical chemistry at The George Washington University. But he said that throughout his academic career, his criminal background weighed on him. "I lived in silence and loneliness, a little bit, with it," he said. "No one I got a Ph.D. with, not a single person, knew what was up with me, and I was terrified that they would find out. I figured they'd kick me out of school immediately." When Caldwell got out of school, he found his job options were limited to ones that didn't require a background check. Caldwell had always kind of wanted to be a lawyer, he said. Before his first conviction, however, he said he asked his public defender if they thought a legal career would still be possible despite Caldwell's blossoming criminal record. According to Caldwell, the lawyer told him, "Not if you're convicted of a felony." Yet Caldwell, several years and several degrees later, found himself working as a patent agent at a law firm. Because of his hard science background, he was able to take and pass the federal patent bar exam in 2014. He said that clearing the character fitness portion of the test was a life-changing achievement. "I was like, 'Oh my God.' Then I knew I was good. Not like a good person. I'm still terrible," he joked. "But there was a path. I knew when they gave me that licensure that I can actually do something with this now." After clearing the patent bar, which made him eligible to be a patent agent, not a lawyer, he worked with the intellectual property group at Downs Rachlin Martin PLLC from 2014 to 2016 before Caldwell went on to start his own law firm, Caldwell IP. It was only as he was working to get the firm up and running that Caldwell passed the Vermont State Bar exam, finally making him a real lawyer, without ever having gone to law school. Today, Caldwell IP boasts of more than 40 employees and offices in Boston; Los Angeles; Burlington, Vermont; and London. As the firm was growing at breakneck speed, however, Caldwell said there was still one obstacle to overcome: sharing his story. His criminal record was still something he kept quiet about. But when a magazine wanted to write a feature on his firm, he decided to open up. He said he was terrified that in sharing his criminal record, he'd lose out on clients, but the response was overwhelmingly positive. "I felt this huge weight lifted off my shoulders," Caldwell said. "I got some great PR out of it, which was nice, but then I think that it helped us as a firm too because everything [drove home the belief] that this stigma could be broken. We wouldn't be doing this program if not for me saying, 'Hey, you know, I'm a guy that was in the situation, and I was able to work on those things. And if you're in a situation like that, too, don't lose hope. Because there's hope for you too.'" Balancing Hope With Patience Alston said he knows making money off his intellectual property can be a long process. He knows he won't make money off his inventions right away. But being smack in the middle of a nearly three-decade sentence has taught him to wait. He was 42 years old and a career offender caught up in an illegal drug trafficking scheme when a North Carolina federal court put him away. He'll be 69 when he's released, although he submitted a federal application for clemency two years ago citing good behavior. Before he was incarcerated, Alston said he couldn't find any jobs in his hometown, so playing what he said was a small role in drug trafficking around the Texas/Mexico border was appealing. Caldwell said he can empathize. "Imagine that, in your neighborhood where you grew up, the most successful people that you knew, who took care of your community, were folks that were selling drugs," Caldwell said. Many people with a criminal history actually share a bent toward entrepreneurialism, Caldwell said. "Thomas, he built an enterprise," he said. "He knows what that is and now he has the tools to do that, and I think a lot of people have that skill set." Alston said he's working on a new project right now. He hopes he can make some money to give to his five grandchildren. He dreams of getting out and working in the real estate business, remodeling and flipping houses. "I've got a pretty creative mind," he said. "[Being a patent owner/inventor] has helped me use my mind in different ways now, so that I can do something positive." This year has already brought several landmark environmental rulings, from the U.S. Supreme Court's decisions narrowing the scope of the Clean Water Act and allowing a California animal care law to survive to important settlements by major companies accused of wrongdoing in "forever chemicals" litigation.
With 2023 only half over, other important decisions include the Fifth Circuit allowing the Biden administration's calculations on the social cost of greenhouse gases to stand and the high court's refusal to reconsider a slew of lower court cases remanding climate change tort litigation to state courts. Here are some of the biggest environmental law decisions so far in 2023. Clean Water Act In May, the justices overturned a Ninth Circuit ruling that Idaho landowners needed a Clean Water Act permit to build a home on their property. The high court found that nearby wetlands did not qualify as "waters of the United States" under the act. But the justices diverged on exactly when a wetland is subject to Clean Water Act jurisdiction, and a five-member majority created a new, much narrower test for the U.S. Environmental Protection Agency, Army Corps of Engineers, state regulators and a host of other affected parties to use when trying to figure out if a wetland can be regulated by the federal government. Many wetlands that were once thought to be covered by the law are now assumed to be unprotected, and the EPA and Army Corps have said they intend to rewrite federal regulations to match the court's opinion. Jesse Richardson, a professor at West Virginia University College of Law, said the waters of the U.S. rule is "extremely important" because the regulated community — farmers, builders and others — as well as regulators and environmental groups need certainty. But he said the high court's decision in the Sackett case also highlighted other regulatory issues. "Although the Sackett decision arguably provided some certainty on a very narrow issue (adjacent wetlands), many other areas remain unclear," Richardson told Law360 in an email. "In addition, some would say that the standard announced in Sackett lacks sufficient clarity. If Congress continues to fail to act, the agencies need to develop a rule that gives certainty to stakeholders and will withstand judicial scrutiny." The case is Michael Sackett et al. v. U.S. Environmental Protection Agency et al. , case number 21-454, in the Supreme Court of the United States. "Forever Chemicals" In June, public water utilities and chemical companies 3M, DuPont, Chemours and Corteva put an end to litigation over the contamination of drinking water supplies with per- and polyfluoroalkyl substances, or PFAS, known as "forever chemicals" because of their tendency to persist in the human body and the environment. The EPA has said some PFAS are known to cause serious health problems for people. In one instance, DuPont, Chemours and Corteva struck a deal worth more than $1.1 billion with utilities around the U.S., and shortly after that, a $12.5 billion deal was announced between 3M and the utilities. The settlements resolve claims that their products have contaminated drinking water sources nationwide. The settlements, which are still being finalized and will be subject to court approval, came days before a bellwether trial was set to begin as part of South Carolina-based multidistrict litigation consolidating cases against manufacturers and users of PFAS for applications like nonstick or stain-resistant coatings and firefighting foam. PFAS take an extremely long time to break down and "bioaccumulate" in humans and other living things that are exposed to them, according to the underlying litigation. The suits claim DuPont and others have known for decades about the chemicals' persistence and toxicity. There are still other defendants in the MDL, but the resolution of claims with the large chemical companies was a huge development in the litigation. The case is In re: Aqueous Film-Forming Foams Products Liability Litigation , case number 2:18-mn-02873, in the U.S. District Court for the District of South Carolina. Social Cost of Greenhouse Gases The Fifth Circuit in April rejected a claim by a group of Republican-led states that they are suffering under the Biden administration's calculations of the social cost of greenhouse gas emissions, finding the states could only point to a "chain of hypotheticals" to prove an injury. That decision agreed with an earlier Eighth Circuit decision dismissing a challenge from a separate group of states. The Fifth Circuit rejected arguments presented by Louisiana and other states that the White House improperly crafted social cost of greenhouse gas estimates, which can be used in federal rulemakings to put a dollar figure on climate change harms, without first putting them up for public review. The states had also argued that they face increased regulatory burdens and costs because of the way the estimates could be used. The dispute revolves around President Joe Biden's decision early in his tenure to reconvene the Interagency Working Group, which was started during the Obama administration and is tasked with calculating the social costs of carbon dioxide, methane and nitrous oxide. Those metrics seek to put a price on the economic costs, or damages, of emitting carbon dioxide into the atmosphere — and, therefore, the benefits of reducing emissions. According to the Fifth Circuit, Biden's executive order did not actually require any action from federal agencies, presenting a problem for the states' standing. The judges said that agencies are not punished or rewarded for how they choose to use the interim estimates, and have discretion in conducting cost-benefit analyses that could include the estimates. In the Eighth Circuit case, the panel said there's no evidence the states have suffered any injury that would give them standing to sue. That ruling has been appealed to the Supreme Court, which has not yet made a decision on whether to accept the case. The case is Louisiana et al. v. Biden et al ., case number 22-30087, in the U.S. Court of Appeals for the Fifth Circuit. Dormant Commerce Clause The justices made news again in May when they upheld a California ballot initiative that banned in-state sales of pork born from sows kept in confined housing. In a 5-4 ruling, the justices rejected the National Pork Producers Council and American Farm Bureau Federation's challenge to a 2018 voter-approved ballot initiative that, among other things, banned in-state sales of meat from pigs born to mothers confined in small spaces. The majority said that the business groups failed to prove that California's Proposition 12 violates the Constitution's dormant commerce clause, which isn't spelled out in the document but has been interpreted as barring states from discriminating between out-of-state and in-state companies. Allyson Ho, a partner at Gibson Dunn & Crutcher LLP and co-chair of the firm's nationwide appellate and constitutional law practice group, told Law360 her biggest takeaway from the case is that the Supreme Court is — and seems likely to remain — deeply fractured over the nature and scope of the dormant commerce clause. In particular, Ho noted that the justices diverged on how to interpret the court's 1970's Pike v. Bruce Church decision, which says state laws are unconstitutional if the burden they impose on interstate commerce is "clearly excessive in relation to the putative local benefits." "The court tightened up dormant commerce clause doctrine by rejecting the argument that the clause creates any per se rule against laws with extraterritorial effects, clarifying that the 'heartland' of the Pike test is smoking out purposeful discrimination against out-of-state business and upholding the California law at issue," Ho said. "But the court didn't slam the door shut," she added. "It declined to overrule Pike's balancing test altogether and left open the possibility that future challenges to laws imposing substantial burdens on interstate commerce could prevail, whether under the dormant commerce clause, or other constitutional provisions." The case is National Pork Producers Council et al. v. Karen Ross et al. , case number 21-468, in the Supreme Court of the United States. Climate Change In April, the Supreme Court declined to review several federal court orders sending climate change lawsuits brought by state and local governments against fossil fuel companies back to state and local courts. Chevron Corp., Exxon Mobil Corp. and other companies had asked the high court to review circuit court decisions that held the state and local governments' cases seeking to hold the businesses liable for climate-related infrastructure damages didn't involve questions of federal law that would have given federal courts jurisdiction. The First, Third, Fourth, Eighth, Ninth and Tenth circuits all affirmed lower court remands of lawsuits by state and local governments accusing energy companies of promoting production and use of fossil fuels while concealing their environmental risks, in violation of state laws including nuisance, trespass and consumer fraud. The companies had argued that claims related to greenhouse gas emissions and climate change are a matter of federal common law, while the state and local governments argued that there's no clear circuit split and that their state-law claims don't raise any uniquely federal issues. The companies have said they intend to keep fighting the lawsuits in whatever venue they are heard. The cases are Suncor Energy (U.S.A.) Inc. et al. v. Boulder County et al. , case number 21-1550; BP PLC et al. v. Baltimore , case number 22-361; Chevron Corp. et al. v. San Mateo County, California, et al. , case number 22-495; Sunoco LP et al. v. Honolulu, Hawaii et al .; and case number 22-523; Shell Oil Products Co. LLC et al. v. Rhode Island , case number 22-524, all before the Supreme Court of the United States. |
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