Tag Archives: Fourth Amendment

Just Say No: Drug Testing in the Workplace Reduces Productivity

This week, a federal judge issued a temporary injunction against the enforcement of a divisive Florida law that requires “suspicionless drug testing” for all welfare applicants before distributing benefits.

The American Civil Liberties Union (ACLU) filed on behalf of a single father in Orlando a lawsuit that alleges Florida’s law violates Fourth Amendment rights for safeguard against unreasonable search and seizure.

Enacted in May 2011, the new law applies to any adult applying to the federal Temporary Assistance for Needy Families program. Those who qualify for assistance are reimbursed for the test in their welfare benefits.

Florida Gov. Rick Scott was one of the law’s biggest advocates, claiming the law would evoke “personal accountability.” Scott also said it would be “unfair for Florida taxpayers to subsidize drug addiction,” quotes John Couwels in an article for CNN.

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Governments are not alone in believing individuals should be held personally accountable for abusing illicit drugs, which is why polls show over half of employers in America (57%) still conduct drug tests.

Obviously, law firms, like all businesses, aspire for a drug-free workplace. But they also aspire for a productive one. And, it turns out, whether because they represent a level of distrust on the part of the firm or because employees dislike the violation of their privacy, drug testing decreases productivity in the workplace.

A recent study investigated 63 “hightech” firms in the computer equipment and data processing and found that drug testing had “reduced rather than enhanced productivity,” reports the ACLU. Firms with pre-employment testing, versus those with no drug testing at all, scored 16 percent lower on productivity measures. Firms with both pre-employment and random testing were 29 percent less productive than those companies without drug tests.

In addition, drug testing is expensive.

In 1990, the federal government spent $11.7 million to test selected workers in 38 federal agencies. However, of the roughly 29,000 tests taken, only 153 (.5%) were positive for illicit substances. The cost of finding a single drug user—and in this case, over half were moderate, occasional users of marijuana—amounted to $77,000, according to the ACLU. Not to mention, among these employees, there’s always a risk of a false positive.

These reasons might explain why the percentage of employers with testing programs has dropped steadily over time, from 81 percent in 1996 to 62 percent in 2004, according to the American Management Association, cited by TIME. The trend is expected to continue.

Drug testing is no guarantee that you’ll actually catch a drug user.

If your firm has concerns, there are myriad other more effective and less invasive means to encourage a drug-free workplace:

Substance Abuse Programs And Counseling. Make sure substance abuse, mental health, and counseling programs programs are covered by employer-paid medical insurance. When an employee requests a mental health holiday, accept it.

Preventative and remedial measures to permanently eliminate addiction is far better for the firm and its associate than just identifying such a person, and putting them out on the street.

Comprehensive Reference Checks. In-depth reference checks of potential future employees are equally effective as drug testing. It’s more than likely that a previous employer has noticed patterns of abuse, or has an opinion regarding that employee’s professional conduct. Ask to speak with the employee’s former supervisor, as opposed to the Human Resources representative. Don’t be afraid to ask blunt (but not discriminatory) questions.

Workplace Training and Employee Investment. Enroll your law firm partners and administrators in programs geared toward the identification of drug users in the workplace. These programs also teach remedial actions to confront and appropriately advise these users.

In addition, instead of corporate retreats or costly drug tests, spend money on employee wellness programs—including fitness programs, healthy meals, or in-house massages.

Reducing stress in the office will keep your employees from self-medicating during those long work hours and client meetings. Plus, it sends the opposite message, from mistrust, as with drug tests, to one of support and advocacy.

-WB

Learn how to transform your tired, disengaged workforce into a motivated team of top-notch employees — in any economic climate.  By participating in C4CM’s in-depth audio conference “10 Critical Methods to Increase Employee Engagement and Improve Job Satisfaction.


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Headlight-Flashing Unconstitutional? Recession Prompts Increased Traffic Citations And Related Litigation

On the road, neon yellow signs are universal symbols for caution. Equally recognizable, the color red indicates a stop.

And, for just as long, flashing headlights has been the unspoken signal between motorists warning of a nearby highway patrol officer.

These days, highway patrol officers have been known to issue tickets for flashing-lights. Citations and correlating fines have been issued across the nation, including New Jersey, Ohio, Tennessee, and Florida.

Now, these traffic violations, as well as First Amendment rights, are gaining traction in court.  

“The flashing of lights to communicate with another driver is clearly speech,” said lawyer, J. Marc Jones, to Florida Today (via WSJ). Jones represents Florida resident, Eric Campbell, in a class-action suit against ticketing for flashing-headlights.

Last month, Campbell filed a class-action lawsuit in Tallahassee against both the Florida Highway Patrol and other Sunshine State traffic-enforcement agencies. Campbell seeks an injunction prohibiting law enforcement officers from issuing headlight-flashing tickets.

Campbell’s class-action suit also seeks refunds and civil damages for previously-cited motorists. The lawsuit estimates that as many as 2,900 drivers were wrongfully issued traffic citations from 2005 to 2010.

In a recession, constitutional rights are often brought to the forefront of litigation. Cities and States short funding frequently resort to increased fines and citations for minor violations to compensate for budget cuts.

And, with the Fourth Amendment garnering so much attention of late, it was only a matter of time before the First Amendment received equal attention.   

“It’s not about traffic. This is about government going too far, the intentional misapplication of a statute solely to produce money. That’s just wrong,” Jones said to Florida Today.

Since the start of the economic recession, traffic fines in Florida have increased. A new law enacted Feb. 1, 2009, revved up the fine for traffic citations, which means more revenue for Florida but heavier burdens on speeding Florida residents.

According to the St. Petersburg Times, “Some officers say the new traffic fines, which seem to increase every year, are excessive, especially in light of the current recession.”

However, other Florida and traffic-enforcement representatives disagree.

Rich Roberts, spokesman for the International Union of Police Associations, said of the recent lawsuit against flashing-light citations, “Warning oncoming traffic that there are law enforcement officers ahead allows a speeder to slow down until he passes the officers—and then he starts speeding again.”

When there’s a battle between safety and liberty in America, who wins? Should this change during an economic downturn?

Depending on the outcome of this class-action, it’s at least safe to say more litigation will be on its way.

-WB

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Legal Upsets Regarding Fourth Amendment Rights, And Three Ways To Prepare Your Firm For Change

The Constitution’s Fourth Amendment is certainly receiving a lot of recent attention.

On Wednesday, a Judge announced he will rule on whether to dismiss a lawsuit filed by Aron Tobey, 21, of Charlottesville, who was detained by federal Transportation Security Administration officers December 30 at a Richmond International Airport.

Tobey, a college student, was arrested after he stripped down to his running shorts to reveal the text of the Constitution’s Fourth Amendment written on his chest in protest of airport security measures.

And, last week, Judge Susan K. Gauvey, a magistrate judge in Maryland, issued an opinion regarding the Fourth Amendment legal rights (under Smith v. Maryland) of persons subject of an arrest and whether warrants can be issued authorizing the disclosure of location information via GPS technology on cell phones. 

“In light of legitimate privacy concerns and the absence of any emergency or extraordinary considerations here, the Court concludes that approval of use of location data for this purpose is best considered deliberately in the legislature, or in the appellate courts. Accordingly, the Court DENIES the underlying warrant applications, but sets forth its guidance on the showing necessary for law enforcement access to prospective location data to aid in the execution of an arrest warrant.”

IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE, 2011 U.S. Dist. LEXIS 85638 (D.Md. 2011), the Judge concludes:

“The government’s arguments, if credited, would allow law enforcement to obtain location data on any subject of an arrest warrant. This would be the result whether the defendant was charged with a misdemeanor or a felony, without any demonstration of any attempt on the part of the subject to avoid prosecution, so long as law enforcement had reason to believe that the source of the location data – here a cell phone – was in the possession of the subject.

“Some might say that this is an appropriate use of a new technology in the service of more efficient and effective law enforcement. Others might say it is an unnecessary use of a new technology in a society already subjected to pervasive surveillance. The Court understands the tension. Regardless of individual views, the law does not currently sanction the requested acquisition of location data in these circumstances.”

The Volokh Conspiracy blog has an analysis of the judge’s opinion, and also an interesting rebuttal.

Whatever your side of the courtroom, however, these two cases are indicative of a trend regarding Fourth Amendment rights and technology. 

Full body scanners, computers, social media, EMV chips, every bit of this technology has changed the way lawyers manage the security of their firms, advise clients, and handle cases. To ensure your law firm is adequately equipped, try these three simple steps:

  1. Keep associates informed. CLEs are not just a requirement, but they’re necessary for your firm’s associates to provide the best, most up-to-date services to your clients. Ask paralegals to update the lead attorney of each case on any applicable legislative or legal changes. With their own chains of communication, staff is often the first abreast of new developments in the legal world.
  2. Invest in technology. Technology is the number one way your firm can become more innovative and efficient at the office and in the courtroom. Send your IT staff to technology conferences to stay on top of e-discovery trends, case management software, and other online legal resources.
  3. Embrace change. The industry of law, historically, tends to err on the conservative and traditional side. But change doesn’t have to be a thing to fear. Instead, get your team on board with change. Ensure your accounts have sufficient liquidity, your accountants maintain recession-proof bookkeeping, your portfolio of clients is diversified, and your associates thrive in unpredictable environments. It’s important to train associates, especially first years, how accept and adapt to the unexpected. Consider team-building retreats and other activities that will ensure big decisions in legislation don’t stymie quick action by your lawyers.

Judge Gauvey is correct in her statement, “There is no precedent for what the government seeks.” But certainly, sometime soon, there will be. How will you prepare?

 -WB

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National Database of DNA Samples OK’d

A “sharply divided” federal appeals court ruled that, since DNA samples are the “fingerprints of the 21st century”, the government has a right to collect these from all arrestees without a warrant, and to include them in a national database.   The six dissenting judges indicated that collecting DNA samples amounted to a “severe intrusion of privacy”.

The 3rd U.S. Circuit Court of Appeals (based in Philadelphia) found that the Fourth Amendment—which guards against unlawful detention and unreasonable searches and seizures–is not violated in the taking of such sampling from those who enter the federal criminal justice system.

Earlier, a U.S. District judge had found otherwise, noting:  “The extraction of DNA is much more than a mere progression [from] taking fingerprints and photographs.” District Judge David Cercone wrote in his decision: “It represents a quantum leap that is entirely unnecessary for identification purposes.”

Specifically, the Fourth Amendment safeguards: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The database in question is the Combined DNA Index System (or CODIS).

In an 8-6 decision, the en banc (or full hearing by all judges) federal appeals court decision upheld the law authorizing the collection of DNA samples from all federal arrestees.  (The decision can be read here in PDF file format.)

As per the majority opinion, “DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures.”   The Christian Science Monitor quoted Circuit Judge Julio Fuentes as having written: “Given the record in front of us today, we conclude that a DNA profile is used solely as an accurate, unique, identifying marker – in other words, as fingerprints for the 21st century.”

Interestingly, according to ‘Lectric Law Library, the gathering of free person’s fingerprint evidence during routine bookings—whether or not there is sufficient suspicion to warrant collection them—“constitutes a significant interference with individual expectations of privacy”.    (It has been found, however, that “[t]aking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.”

Thus, it has often been constitutionally significant whether fingerprints fall into the category of those collected in an attempt to solve a crime or those collected from persons under the custody of the state.

Other federal appeals courts have upheld the collecting of DNA evidence from defendants once they are convicted but only one, the San Francisco-based 9th U.S. Circuit Court of Appeals, has similarly agreed to the gathering of DNA samples from persons who have been arrested.   Since then, that opinion has been withdrawn, in anticipation of an en banc review.

As to whether DNA sampling will reveal extremely private information such as “genetic conditions”, in this case, so-called “junk DNA’ testing is the type used.  In this sort of sampling, very little besides the person’s identity is revealed.

To read more, go to the JD Journal here: http://bit.ly/ptSzs4

Graphic courtesy of JD Journal.

-EM

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Travel Much? You’ll Be Interested to Know TSA Pat-Downs May Be On Their Way Out

Do you travel much for administrative functions, fundraisers or efficiency seminars? If you’re a lawyer, do you find yourself calculating time spent in airports for clients or for court proceedings when tallying day-to-day activities? You may have been inconvenienced (shocked?) by Transportation Security Administration (or TSA) pat-downs as a prerequisite to flying.

Although much has been made of the pat downs of private parts over clothing (as well as of the full-body scans), states haven’t, up until this point, presented the argument that these searches impinge upon our Fourth Amendment rights to privacy against  unreasonable searches and seizures.

Yes, everyone agrees security is of the utmost importance and that checkpoints–where the would-be infractions occur–are essential.  Here’s how the TSA website explains it: “The checkpoints are there to make sure that terrorists can’t bring anything aboard the plane that would enable them to take it over or destroy it. These are called ‘prohibited items’ and cannot be brought to a checkpoint, into the secure area of an airport, or aboard an aircraft.” (For example, if you purchase an item for consumption on the flight but have to leave the secure boarding area and re-enter through the screening point, items exceeding 3 ounces that are not in a zip-top bag will be prohibited.) Also, there are “threat and security risks” associated with gels, aerosols and with liquids.


However, it’s generally believed that justification, or just cause, should exist for full-body searches…and it looks like this bill, in particular, will get the ball rolling in that direction.   According to a number of recent online news reports, both Texas and New Hampshire have introduced similar bills. The one in Texas is making the most rounds, topic-wise.

The proposed bill would make it a felony to “intentionally touch someone’s private areas” unless there was probable cause to believe that something (of a suspicious nature) was concealed in the area.  In the past several years, the TSA has been at the receiving end of numerous complaints as their security measures have become more and more brazen.

The two options one has at airport security is to elect to go to a full-body scanner (which radiation scientists agree can cause breast cancer as well as sperm mutations—see source below) or to submit to a full-body pat down.  The scanner “sends a virtually naked picture of you to a screening room”, according to mytexasdefenselawyer.com.  The pat-downs are not viewed as all that preferable.  They used to consist of a light brushing of hands over the back, arms and legs and sometimes a wand was used. (The want is still in use, according to the TSA website.)

Now, however, notes mtdl, “[T]hey involve sweeping the groin area and the buttocks. Many complaints lodged with the TSA involve…agents reaching inside of waist bands and under bra straps.”   Apparently, states are looking at ways that their residents can avoid such treatment, and more and more lawmakers are putting together bills that will address the issue.

According to David Simpson (R-Longview), who sponsored the Texas bill, his main concerns are “people’s dignity and freedom.”   Many in the airline and aviation industry side with the lawmakers.  A contributor to an airliner forum noted: “I agree the TSA needs to be reined in.”  Another states: “I applaud these states for standing up for individual rights over the TSA Security Theatre.”  “Hear, hear!” says a third. “And I’ll have none of this ‘if you don’t like being groped, don’t fly’ nonsense, either”.

To learn more, see: http://www.mytexasdefenselawyer.com/2011/05/04/proposed-bill-targets-invasive-tsa-searches   and

http://www.tsa.gov/travelers/airtravel/assistant/index.shtm   and

http://www.naturalnews.com/030607_naked_body_scanners_radiation.html   and

http://www.airliners.net/aviation-forums/general_aviation/read.main/5098731/  

Photo courtesy of planepictures.net

-EM

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