The Senate Must Vote on Judge Garland's Nomination

While pursuing Facebook yesterday, I came across a post from Michelle Malkin on President Obama's nomination of Judge Merrick Garland to the Supreme Court. The post was a link to an article in the Conservative Review simply entitled, "What Conservatives Need to Know About Merrick Garland."  When I clicked the link, I was shocked to find a one word answer as the first paragraph of the article. It simply said, "Nothing."

Author Brian Darling's analysis didn't get much more informative. The crux of his argument was that because Judge Garland was nominated by President Obama, he is a liberal and will tip the balance on the Supreme Court in favor of the liberals. 

I was shocked because even though I consider myself a Republican with conservative leanings, my reaction to President Obama's pick was far different. I was surprised by how non-controversial the appointment would be. 

Judge Garland has sat on the U.S. Court of Appeals for the DC Circuit since 1997.  He is currently the Chief Judge.  Because of the location of the DC Circuit, it is the court that tends to hear cases involving Federal policy most often. The court is often considered a stepping stone to the Supreme Court. 

In addition, Judge Garland is a former prosecutor who is 63 years old. Not only has he worked in law enforcement, he is not likely to stick around the Supreme Court for a very long time. 

At this point, conservatives point to two cases in which he was involved to ring the alarm bells that he will rob us all of our gun rights. The first is the case that overturned the District of Columbia's gun control law. The case was decided by a three judge panel, and Judge Garland voted for the case to be reheard en banc, which means in front of all of the judges of the DC Circuit. 

The second was a case where Judge Garland agreed that the FBI could retain gun purchase records for six months to ensure that a computerized background check was working. 

Neither case hardly says anything about the Judge's views on the Second Amendment. Yet it is enough that Judge Garland acted in a way displeasing to the NRA for conservatives to mobilize opposition by engaging in the Second Amendment fear mongering. 

Conservatives are mourning the loss of Justice Antonin Scalia. The prospect that his seat on the Supreme Court could be filled by an Obama appointee is just devastating to them. Thus, Senate Majority Leader Mitch McConnell took the unprecedented step of announcing that there would be no hearings on any Obama nomination. Instead, the choice would be left to the new president. President Obama has countered with the nomination of a highly respected jurist, who is not likely to stay around for a very long time. The result is that Senate Republicans look far worse than just merely obstructionists. They look like whiny, petulant children. 

One of the most frightening characteristics of the Tea Party movement, and its influence on the Republican Party, has been the uncompromising willingness to shut down normal government functions in the name of promoting conservatism. Faced with very little on the record to challenge a nominee who appears to be eminently qualified, the conservatives resort to fear mongering. Senate leaders should not play this game. Rather, they should do their constitutional duty of allowing the full Senate to give advice and consent by holding hearings on Judge Garland, and sending his nomination to the floor for a vote. 

The Way Things Are Supposed to be, and the Way Things Actually Are

Readers of my blog know that there's no secret that I am really enjoying AMC's "Better Call Saul."  I think it's because being a solo practitioner, while I may strongly disagree with Jimmy McGill's ethics, I understand his struggles. Last night's episode, we saw some of the tension of big firm lawyers, who expect things to be the way they are supposed to be, and the solo practitioner, who understands the way things are. 

Time for my required spoiler alert for those who have recorded it, want to catch an encore showing or will be watching through AMC's app. 

***SPOILER ALERT***

Jimmy got in trouble last week by airing a commercial without the partners' prior approval. He wasn't fired, but warned that he would be under a lot more scrutiny. 

This week, we learn what that scrutiny is. A second year associate has been tasked with reviewing everything Jimmy does, and teaching him the firm's way. Jimmy, not surprisingly, is annoyed that he, who was hired as a fourth year associate, is now being babysat by a second year associate. 

The scene that stuck out the most for me was when Jimmy and his babysitter go to court to file a motion and to get a date for a hearing. Jimmy isn't getting the date he wants. So he pulls out a Beanie Baby to offer to the surly clerk. Suddenly, and better date opens up. 

Shocked, the babysitter pulls Jimmy aside and chides him for offering a bribe. The result? It will now be more than a month until Jimmy gets his hearing. 

Look, all of us have come across that bureaucrat who has their own little fiefdom, and will let you know that they have power over you. The question is how do you deal with that. 

I think the mistake many lawyers make is forgetting that the bureaucrat is a person. Some lawyers will treat the clerk or the bailiff or the security guard as just a means to an end. This person has something I want, and she should just give it to me. 

Jimmy's solution, while shady, at least recognizes the person behind the job. He has taken the time to learn that the clerk loves Beanie Babies, so he makes her feel good by offering what she likes. 

Yeah, the direct quid pro quo is wrong. But I do think Jimmy is on the right track. As the saying goes, you get more flies with honey than vinegar. 

I remember back to my internship days. I was the guy who went to a certain embassy in Washington to turn in the paperwork for visa requests for our consultants. For a long time, the consular officer was surly. Even though I knew the paperwork was correct, she gave me attitude. I didn't get things from her on time. This was her fiefdom. 

I didn't go to Jimmy's extreme. But I did change my attitude. I tried to engage her on conversation. I knew a little of her native language, so I would greet her in it. I'd try to joke with her, ask her how her day was. In general, I treated her like a person and not like a means to an end. Heck, I even fixed her printer once. The result?  I suddenly had the reputation of getting visas approved faster than the other interns. My bosses were impressed that I got the clerk whom everyone thought was cold to thaw. 

But that's the point of being in the trenches. You get to know how things really work. You learn how to manipulate that to your advantage, or you learn to live with it. Jimmy, for all his faults, at least knows people. 

By: William J. Kovatch, Jr. 

Better Call Saul's Jimmy McGill Has Got Gall

I continue to be impressed with "Better Call Saul."  Like "Breaking Bad," the show is a character study, showing the initial build up and then decline of a flawed character.  The show is all the more interesting to me because the flawed character is a struggling lawyer.

In this past week's episode we got to see more of one of Jimmy McGill's character traits that is both impressive, and disturbing. 

Before I go into detail, let me give a spoiler warning to those who recorded it, or who are going to try to catch an encore performance.

*** SPOILER ALERT ***

The character trait I am talking about is gall.  Last week, we saw Jimmy get frustrated because strict adherence to ethics rules about in-person solicitation made it difficult for him to find more clients.  On one hand, his bosses loved it when he brought in more and more clients.  On the other hand, his biggest critic, brother Chuck, sneers art the prospect of in-person solicitations.  The rest of Jimmy's bosses seem content to ignore the possibility that Jimmy might be bending ethical rules, so long as they don't actually see it and he keeps bringing in the clients.  But Jimmy's in love.  And we see this season that his main motivation is to impress his girlfriend, fellow lawyer Kim Wexler.  Since Kim won't play footsie with him during the staff meeting, Jimmy makes a bold promise not to engage in further questionable solicitations.

His solution?  A TV commercial.  He approaches one of the partners, Cliff, with the idea.  Cliff is interested.  He tells Jimmy to talk to him more about it when Cliff gets back from a trip.  Cliff even further reinforces that client outreach is Jimmy's bailiwick.

So what does Jimmy do?  He makes a commercial.  He uses an elderly woman who proclaims that after she moved into an assisted living facility, she can't figure out where all of her money went.  Jimmy then does a voice over urging people to call.  Without consulting the partners, he runs the commercial during "Murder She Wrote" in one of the firm's target cities.

This week, we see the partners calling Jimmy to the carpet.  They are furious.  How dare he run a commercial without their approval.  And here's where Jimmy's gall comes out full force.

Jimmy doesn't hang his head, admit that he did wrong, apologize and promise to do better.  No, he expresses no remorse.  He acts like he doesn't understand what he did wrong.  Hey, the commercial was ethical.  It generated calls from potential clients.  And Cliff, you told me client outreach was my department.

Of course, the audience knows that Jimmy knows that he's done wrong.  He knew he had to approach the partners.  He just felt hamstrung.  He went to great lengths to hide the commercial from them.  He figured that one commercial on afternoon TV that no one but the elderly watch would never get the attention of anyone else. 

And to some extent, Jimmy may be right.  I didn't see anything unethical about the commercial.  Personally, I think it was far more tasteful than those lawyer commercials asking if you've taken some drug or had some medical procedure and had side effects.  "You may be entitled to compensation," these ads proclaim.  I shudder for my profession when I see those commercials.

But that's not the point.  The point was doing something controversial, that you know you need approval on, but deliberately fail to seek that approval.  And then getting caught.

Gall.  In Yiddish, it's "chutzpah." You don't back down, even if you think or know you are wrong.  And you defend your case boldly.

The disturbing side is that in life you have to learn how to play well with others.  You can't just go around doing what you want or you feel is best, without considering the interests or feelings of others.  It's an easy way to lose friends and the support of colleagues.

But professionally, lawyers sometimes need that same chutzpah when they have a case where the odds are against them.  I have experienced this.  As part of my practice, I take some court appointed cases.  Sometimes I defend people in cases when a friend or relative is trying to have them committed to a mental health facility against their wishes.  Sometimes, I represent indigent criminal defendants who have exercised their right to appeal.  Often in those cases, I look at my facts, and I know that the law is very likely against my client.  But after explaining the situation to my client, if the client wants me to vigorously contest the case, as long as I believe there is a good faith argument, ethically I am bound to do it.

At times, this is very difficult.  Sure, I may think there is language in some case somewhere that supports my client.  But I know that the judges are not likely going to agree with me.  I still need to go in front of the judges, and present my client's argument.  Zealously.  In times like that, I need the same chutzpah Jimmy showed when he was called to the carpet by his bosses.

Is There a Right to Record Police Activity?

A judge on the U.S. District Court for the Eastern District of Pennsylvania has issued a decision holding that there is no First Amendment right to capture video images of police in public if the recording is not connected to some other form of expression.
 
The decision, Fields v. The City of Philadelphia, involves two cases with similar facts. In one, a pedestrian saw about twenty police officers hosting a party in public and used his smart phone to take video recordings. The pedestrian thought the scene was "pretty cool," and thus took the video.  He was about fifteen feet away from the police. An officer saw the pedestrian and asked him to leave. When the pedestrian refused, the officer detained him, handcuffed him, took the phone and searched his person.

In the second case, a "legal observer," trained in observing interactions between police and civilians in civil disturbances attended a protest wearing a pink identifier. As the police arrested a protester, she attempted to capture video images. An officer restrained her, preventing her from capturing the video images.
 
Both filed lawsuits pursuant to 42 U.S.C. § 1983. This law gives a cause of action to those who have been deprived of a constitutional right under the color of law. Both claimed constitutional rights under the First Amendment right to freedom of expression and the Fourth Amendment freedom from unreasonable searches and seizures.

The decision was issued in the context of motions for summary judgment. The court addressed only whether there was a First Amendment right to capture video images of police. That is, the court did not address the Fourth Amendment claims.  The District Court reasoned that observation alone was not expressive conduct.
 
The holding of Fields was actually very limited. The District Court held that in the context of a lawsuit alleging a deprivation of constitutional rights, capturing video images of police officers without some other form of expression connected to it is not a protected right pursuant to the First Amendment. The court did not hold that capturing video images alone is illegal. Nor did the court hold that seizing a device to prevent a person from recording video images of police officers in public was a reasonable search and seizure pursuant to the Fourth Amendment. All that the court held was that a person who had been prevented from capturing video images of police officers in public, who were not otherwise engaged in expressive conduct, could not sue the government or government officials for violating First Amendment rights.
 
The problem, however, is that the District Court's holding can be misinterpreted too broadly and thus lead to abuse by the police. For example, a police officer, upon seeing a person with a device which could possibly be used to capture images of police could conclude that because there is no First Amendment right simply to capture those images, that the officer is justified in confronting the putative videographer and seizing the device or otherwise preventing the images from being captured.

Another problem is that making the right to capture video images of police in public dependent upon some other form of expression means that the right would only be available to those who are quick-thinking, assertive or otherwise in conflict with the police. That is, in order to enjoy the right, a person must think of some reason why they are capturing the video images and assert that reason to police.

Take, for example, a shy person who has witnessed some form of police conduct they deem worthy of recording. If the police confront that person in an effort to prevent the recording, then whether the person has a First Amendment right would depend on whether that person has the temerity to challenge authority and was quick thinking enough to give the police some reason the police would deem valid.

The most disturbing aspects of the court's holding are the failure of the court to recognize that art itself is worthy of protection as free expression and the minimization of the court of the need to gather information before engaging in more expressive conduct.

Art is free expression. Art can be for the sake of aesthetics or simply stimulating the senses. While the Plaintiff in Fields may not have been the most articulate of witnesses, art can simply exist because it is "cool."  Fixing something a person sees to a visual medium, such as digitally recorded images is, in and of itself, art and therefore protected expression.

In order to enjoy a First Amendment right to capture video images of police, the District Court would require that a person go into the situation with a preconceived intent to publish the images captured in order to engage in criticism. But this would mean that the observer must already be in conflict with police activity before even observing it. It would mean that the observer must be able to express their conflict. It would further mean that the observer must know that the conduct is worthy of criticism. To put simply, the District Court's holding could be construed as a finding that there is no right to investigate police conduct in public absent knowledge that the police are doing something worthy of criticism.

Let's say, for example, that the police have arrested a group of young men who are present in public. While the police were in the process of placing handcuffs on the men, and waiting for back-up to transport them to the police station, a person would not have a First Amendment right to stand at a distance unobtrusive to the police and record the event unless that person knew and was willing to state that the police action was in some way worthy of criticism.

That is not to say that recording the police in this fashion would be illegal. But this type of hair-splitting that the District Court has engaged in could embolden a police officer who did not want to have his or her actions in public captured as video images to take action against the observer even though the observer is doing nothing wrong.
 
That is, there is a very fine distinction between saying a person does not have a right to engage in certain conduct, and saying that the conduct is illegal. But to the average person, it is very difficult conceptually to make that distinction. Engaging in the conduct, such as capturing video images, may not be illegal. But that does not mean you can sue the government when you are prevented from engaging in that conduct. The average person would believe that if conduct is not illegal, then you have a right to do it.

There is also a very fine distinction between understanding that generally you do not have a right to record the police, but if you go into a situation knowing that you are going to be critical of the police then you do have a right to record them.

Recording police serves an important public service. A person who knows he or she is subject to being recorded is less likely to engage in illegal conduct. Discouraging the public from recording the police, even when not interfering with the police activity, robs the public of this vital check on abuse of authority.

Fields should not be construed as eliminating this check. In the first place, it is only the decision of one judge in one district responsible for Eastern Pennsylvania. It is by no means binding authority.  But the decision can be misconstrued in a dangerous way by the police. 

By: William J. Kovatch, Jr. 
For an appointment, call (703) 837-8832.
Se habla español (571) 551-6069.

Ignorance of Immigration Law Abounds, Particularly with GOP Lawmakers

 When I read this article from ABC News on the plight of migrant children who cross the southern border from Central America, I was struck by the quote from Senator Jeff Sessions of Alabama. "It cannot be that every young person from Central America is entitled to asylum or entry into this country," he is quoted as saying. 

The quote, I believe, betrays the true thought process behind many Republican lawmakers and their tea party supporters on immigration issues. Sure, the stylish thing for conservatives to say is that they support immigration, just not illegal immigration. Except that hidden in Sessions' statement is a criticism of the legal programs and processes that exist in U.S. immigration law. 

Let's start with asylum. This is a program to give protection to people who fear persecution, such as the threat of serious violence, in their home country. On one hand, it is difficult to obtain asylum. But on the other, if a foreign born person proves that he or she qualifies for asylum, U.S. law mandates that the Federal Government grant protection and a pathway that could lead to permanent residency and eventually citizenship. 

Yet asylum, despite it being a legal program, is one of the key targets of conservatives' criticism. Indeed, some conservatives complain about the number of green cards the Obama Administration has handed out. Seemingly lost in the criticism is that the green card process is the process to become a legal permanent resident. 

What also seems to escape conservative critics is that there is a legal process for determining eligibility for legal immigration programs. This is a country of laws. Our Constitution requires Due Process. The Government cannot simply pick up a person near the border because they look Hispanic and automatically ship them back to Central America. Let's not forget how many citizens of this country are of Hispanic origin. Fortunately, this isn't like the film caricatures of Nazi German where the Gestapo get to demand to see the "papers" of everyone. Citizens are not required to carry proof of citizenship. 

But the immigration courts of this country are clogged. There are not enough judges and government attorneys to handle the cases already in court. No one seems to be willing to spend the money to create more courts, hire more judges and hire more attorneys. The result is that cases tend to remain pending for years. 

Even then, there are more programs available than simply asylum. I hesitate to list them here, for fear that if GOP lawmakers really did understand the breadth of immigration law would be motivated to repeal those programs. 

Probably most alarming in statements like that of Sessions is the callousness that it betrays. Central American countries such as El Salvador, Honduras, Guatemala and Nicaragua are plagued by gang violence. Yet, many in the United States like to turn a blind eye to that violence and deny the role of this country in creating a situation that the Central Americans governments are unable to manage on their own. 

We as a society are judged by how we protect the vulnerable. An immigration system without compassion erodes our humanity and condemns the helpless to situations they had no role in creating. 

By: William J. Kovatch, Jr.
Call for an appointment (703) 837-8832
Se habla español (571) 551-6069 

Be Wary of Voluntary Police Interviews

Last Night's Better Call Saul was brilliant.  It was brilliant in many ways, but I am only going to focus on one for the purposes of this blog.  And that concerns a police tactic that I am all too familiar with, and that I wish many of my clients understood before they spoke with the police.  It's a tactic I'm not particularly thrilled with, since it is an attempt to circumvent the Constitution and hang a person by their own petard under the guise of "consent."

I'm about to talk about the details of the episode, so here is the mandatory SPOILER ALERT.  If you haven't seen the February 22, 2016 episode entitled, "Cobbler," and you've DVRed it or intend to catch one of the encore showings, don't read below.

***SPOILER ALERT***

I love Mike Ehrmantraut. We know from Breaking Bad that he is a former Philadelphia Police Officer who had his own trouble with the law.  He's not above profiting off of criminal activity.  But he's smart, and having been on the inside, he knows police tactics.

Enter Pryce, an employee at a pharmaceutical company who tries to make a little money on the side selling pharmaceutical grade drugs to street criminal Nacho Vargas.  In season one, Pryce hires Ehrmantraut to be his bodyguard for the drug exchanges.

Pryce gets a bargain in Erhmantraut, but doesn't realize it.  When Mike balks at going to a meet in Pryce's new gaudy Range Rover, Pryce fires him.  In his naivety, he then lets Vargas see his car, thereby giving Vargas the information he needs to rip Pryce off.  By the end of episode one, Pryce has reported a break-in at his house to the police because his beloved baseball card collection was stolen.  Of course, the police get suspicious of Pryce's car and the reason for the break-in.  When Pryce is out of the room, they find his hiding spot in the baseboard behind the couch.  But, of course, there is nothing they can do about it right then and there.

In episode two, we meet Pryce again as he comes to the police station for an interview with the police.  Unknowingly, he once again becomes the luckiest stupid criminal alive, as he runs into Mike, who is the parking lot attendant.  When Mike realizes why Pryce is there, he pulls him aside to tell him why he should not speak with the police.

As Mike explains, the police are suspicious.  At this point they have nothing.  So they invite Pryce in to speak with them voluntarily.  They intend to be friendly and lull him into a false sense of security.  Then they will pounce on him and try to get him to confess the illegal activity that made him the victim of the break-in in the first place.  Pryce is reluctant to believe this, but agrees to leave the station when Mike promises to get his baseball card collection back.

And that is the tactic I wish my clients understood.  I have met many people who have been invited to the police station just to talk.  The police promise, "look you're not in trouble.  We only want to understand what happened." They may even say, "If you did nothing wrong, you'd be doing yourself a favor."  If you go in, they proceed to ask questions for hours, wearing you down.  They hope you don't realize you can have a lawyer.  They may even say, "Hey, if you didn't do anything wrong, why do you need a lawyer."  And then the conversation continues . . .  voluntarily they claim.  At no time do they tell you that you can get up and leave.  And if you do, again they ask, "Why are you in a hurry?  We only want to understand what happened.  You're not in trouble now."  So you stay, and worn down, you give the police the confession they want. 

In court, statements from such an interview are difficult to suppress.  The police will claim that no one was under arrest, that the person was free to leave, he just chose to stay and tell us what happened. 

The moral of the story is quite frankly don't trust the police if they ask you to come in for a "voluntary" interview, and claim that you are not trouble.  In truth, they only do this when they suspect criminal activity, but have no proof that they can use in court.  They are looking to trick you into giving a confession without a lawyer present, and then claim that the constitutional rights do not apply because it was voluntary.  While you may believe you have anything to fear, in reality any such contact should only be done in the presence of a lawyer representing you.

Special Immigrant Juvenile Status Findings Made by Virginia JDR Court

A judge in the Norfolk Juvenile and Domestic Relations General District Court granted an order making the findings necessary for a teenage girl to apply for Special Immigrant Juvenile Status (SIJS).  The order will now allow the girls to submit an application to U.S. Citizenship and Immigration Service to become a permanent resident.

Last year, thousand of unaccompanied minors fled Central America to brave the treacherous journey to cross the border into the United States.  This girl, whose father abandoned her before he was born and who was living with her grandmother, was among those unaccompanied children.  Her grandmother had become too ill to take care of her, and she wanted to be reunited with her mother.

Once across the border, she reported herself to the immigration authorities and was taken into detention. Eventually, the Office of Refugee Resettlement became involved and reunited the girl with her mother.

The girl was placed in removal proceedings in Immigration Court. Although she lived in Norfolk, there is only one Immigration Court with jurisdiction over aliens living in Virginia.  That is the Immigration Court located in Arlington.  This meant that the girl and her mother had to wake up early, and leave Norfolk by 4:00am in order to make a 9:00am Immigration Court hearing.

Initially, the case seemed hopeless.  However, more and more immigration practitioners have been using the SIJS provisions of the Immigration and Nationality Act (INA) to help children in similar situations.

The SIJS provisions permit a state court with jurisdiction over juveniles and custody matters to make findings that: (1) the child has legally been committed to, or placed under the custody of, an agency or deparment of a state, or an individual or entity appointed by a state or the court; (2) reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child's best interests to be returned to the child's or parents' home country or country of last residence.

Once the state court makes these findings, the child can then file an I-360 visa petition along with an I-485 application to adjust status to allow USCIS to make the child a permanent resident.

Because the language of the statute requires a finding that reunification with one or both of the child's parents is not viable, this has allowed a parent of a child who entered the United States unaccompanied to apply for custody through the state family courts and then apply for permanent residency for their child, so long as there is evidence that the other parent has been abusive, neglectful or has abandoned the child.  As was the case with the family who appeared before the court in Norfolk, the mother applied for custody and the court made findings that the father had abandoned the child.

This law has been used increasingly by single parents who are present in the United States without legal status to at least help give their foreign born children legal status.

The drawback to this law is that no parent of a child granted SIJS may then use that relationship with the child to apply for their own immigration benefits.  Thus, when a child granted SIJS status eventually becomes a citizen, that child cannot apply for a visa for his or her parents.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832
Se habla espanol (571) 551-6069