Vaccinations and the Constitution | Cell Phone Police Searches | Juror’s Internet Pretense

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Vaccinations And The First Amendment

Vaccinations And The First Amendment” Challenge Was In VainIn Phillips v. City of New York, a federal district court recently dismissed the plaintiffs’ claim that their, and their minor children’s, First Amendment rights to free exercise of religion were violated when the children were excluded from school activities because their religious beliefs ran counter to State imposed vaccination requirements. The plaintiffs had sued the City of New York, the State Attorney General, the State of New York, and the State Commissioner of the Department of Health.

Because of their sincere religious beliefs that are contrary to vaccination practices, all of the plaintiffs were granted religious exemptions from mandatory vaccinations. However, the plaintiffs complained that their children were being excluded from school each time any schoolmate reported a case of a “vaccine preventable disease.” “Suffering varying degrees of exclusion from school,” as the Court phrased it, the plaintiffs brought claims arising under, among other things, the First Amendment to the Constitution of the United States of America. “Plaintiffs claim their rights to free exercise of religion were violated when their children were excluded from school due to their religious beliefs running counter to vaccination practice. Plaintiffs argue that their children ‘arbitrarily, capriciously, unreasonably and unconstitutionally denied’ the right to free exercise of religion based on the state vaccination practice, in general, and, in particular, because the religious exemption standards ‘force[] parents to detail their religious beliefs and submit to a ‘test,’ and the determinations of whether or not to grant the religious exemption falls[sic] to the subjective judgment of one school official who is unqualified to make such a determination.’”

The First Amendment provides that “Congress shall make no law… prohibiting the free exercise [of religion].” This prohibition has been construed by the United States Supreme Court to apply, through the Fourteenth Amendment to the Constitution, to all of the States.

With respect to the First Amendment argument, the Court noted that not only has the Supreme Court strongly suggested that religious objectors are not exempt from vaccinations, but the courts in the Eastern District of New York have found no such constitutional exemption on facts very similar to this one.

The plaintiffs also argued that the State’s vaccination program violated their substantive due process rights under the Fourteenth Amendment. Relying upon a decision from the Second Circuit Court of Appeals, the Court concluded that New York’s vaccine program “is well within the State’s police power and thus its constitutionality is too well established to require discussion.” “Police power” is the authority conferred upon the States by the Tenth Amendment which the States delegate to their political subdivisions to enact measures to preserve and protect the safety, health, welfare, and morals of the community.

It is the basic right of governments to make laws and regulations for the benefit of their communities – vaccination programs being one of them.

Police Search of Your Cell Phone – Not So Fast!

Police Search of Your Cell Phone – Not So Fast!In a unanimous decision on privacy rights in the digital age, the United States Supreme Court recently ruled that the police need warrants to search the cell phones of people they arrest. The case involved whether searching through the cell phone violated that citizen’s rights under the Fourth Amendment to the United States Constitution to be free from “unreasonable searches and seizures” by our Government.

The Fourth Amendment provides:

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.

Chief Justice John G. Roberts Jr., writing for the Court, said the vast amount of data contained on modern cell phones must be protected from routine inspection. The single decision related to two separate cases before the Court.

The first case, Riley v. California, arose from the arrest of David L. Riley, who was pulled over in San Diego in 2009 for having an expired auto registration. Upon further inspection, the police found loaded guns in his car and arrested him for carrying a concealed weapon. The police then discovered pictures and videos on Riley’s cell phone which he had in his pant pocket. This led to charges that he took part in violent gang related crimes, including a shooting. He was later convicted of attempted murder and sentenced to 15 years to life in prison. A California appeals court held that neither search had required a warrant.

The second case, United States v. Wurie, involved a search of the call log of the flip phone of Brima Wurie, who was arrested in 2007 in Boston after police observed him participate in a drug sale. At the police station, Wurie’s phone was seized and the police noticed that the phone was receiving multiple calls from “my house” on its external screen. The officers opened the phone, accessed its call log and traced the number to what they suspected was his apartment. They secured a search warrant for the apartment and found drugs, a firearm and ammunition, and cash. He was later convicted of drug and firearm offenses. The federal appeals court in Boston threw out the evidence found on Mr. Wurie’s cell phone which helped lead to his conviction.

As Justice Roberts wrote, “[t]hese cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” In most cases, a search warrant is required to perform a lawful search. An exception to this requirement is a “search incident to arrest,” which is the common-law rule permitting searches of the person as an incident to a lawful arrest.

The Justice Department had argued that the courts have long allowed warrantless searches in connection with arrests, arguing they are justified by the need to protect police officers and to prevent the destruction of evidence. Justice Roberts responded: “A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.”

The Court reasoned:

Cell phones differ in both quantitative and qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is there immense storage capacity. Before cell phones, a search of the person was limited by physical realities intended as a general matter to constitute only a narrow intrusion on privacy. Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read – nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held [by the Court in a previous decision] to require a search warrant, rather than a container in the size of a cigarette package [which was the subject of another prior decision].

Justice Robert also noted that “[p]rior to the digital age, people did not typically carry a cachet of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.”

The Court concluded that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple–get a warrant.”

Look, But Don’t Friend (Or Follow)

Look, But Don’t Friend (Or Follow)In our February 25, 2014 newsletter, we highlighted a case in which an appellate court disqualified the trial court judge for Facebook “friending” the petitioner during her divorce proceeding over which that judge presided.

With social media sites becoming ever-more popular and prevalent, ethics committees throughout the country are stepping in and issuing opinions about the permissibility of attorneys’ use of Facebook, Linkedin, Twitter and the like. Two opinions in particular distinguish between harmless access to public information, and impermissible communication with individuals.

On April 24, 2014, the American Bar Association issued a formal opinion which held that although a lawyer may review a juror’s, or potential juror’s, “internet presence,” it is unethical to “send an access request” to that person. Ethical rules prohibit lawyers from communicating with jurors or potential jurors outside the courtroom, and sending an “access request” constitutes a communication. Thus, attorneys can, and probably should, review the publicly available Facebook profiles and Twitter pages of jurors, but “friending” or “following” is off limits.

In a similar opinion, the New York State Bar Association stated that lawyers may again view the public Facebook profile or Twitter page of a party other than his or her client in a pending litigation in order to secure information about that party, including impeachment material. However, “friending” or “following” that person, or directing someone else to do so, would violate the New York State Code of Professional Responsibility. Specifically, such conduct would violate Rule 8.4, prohibiting deceptive or misleading conduct, Rule 4.1, prohibiting a lawyer from making false statements of fact or law, and potentially Rule 5.3(b)(1), imposing responsibility on lawyers for unethical conduct by non-lawyers acting at their direction (see, NYSBA Ethics Opinion 843).

In both opinions, the committees noted that publicly accessible social media pages are no different than any other publically available information. But, it is when an attorney takes that next step, and seeks access to non-publicly available information that ethical rules can be violated.

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