Brad Klepper

I understand that not many of y’all (I can say that because I’m from Oklahoma) may not really care which cases the U.S. Supreme Court decides to hear. Perfectly understandable. Many of the cases they hear are boring and lack any real “sex appeal.” And by sex appeal, I mean something that impacts you, me and the transportation industry as a whole. Well, the court will have an opportunity to change that by granting certiorari to a case that will greatly impact our industry … and it’s pretty sexy. Some of you may have already figured out that I’m talking about the California Trucking Association (CTA) case challenging AB5. (If you already knew that you really need to get a hobby.) Now, as background — and in case you’ve forgotten in the past few years — California adopted AB5 to deal with wrongly classified employees. The bill was originally directed toward the “gig” economy (think Uber and Lyft) but found a home in the trucking industry. In essence, when the bill was signed into law, it basically made the independent contractor business model for trucking companies in California extinct. “How can that be?” you ask. It’s simple: In passing the bill, the legislature adopted the test handed down by the California Supreme court in the Dynamex case. As a result, companies will now be required to use the “ABC test” set forth in Dynamex to determine independent contractor status. For those of you keeping score at home, for a person to be classified as an independent contractor the ABC test requires: (A) That the worker is free from the control and direction of the hiring entity in connection with the performance of the work and in fact; (B) That the workers perform work that is outside the usual course of the hiring entity’s business; and (C) That the worker is customarily engaged in an independently established trade occupation or business of the same nature as the work performed. You don’t have to be a genius to understand that part “B” of the ABC test is basically an impossible standard for a carrier to meet. Any independent contractor hauling freight for a carrier will now be classified as an employee. At this point, I could go into a discussion about how this really benefits the unions by allowing them to unionize at various state ports. But I won’t go there. Instead, I offer this helpful holiday tip: If you’re struggling for something to discuss around the dinner table on Thanksgiving, bring this up. As long as you have both a union member and someone who wants to independently contract for their services at the table, there will be no shortage of conversation. Now, back to the subject at hand. As I mentioned, the CTA has asked the U.S. Supreme Court to review the case on the grounds that motor carriers should be exempt from enforcement based on federal pre-emption. In essence, they’re saying the state law is invalid because it conflicts with federal law. When this happens, federal law wins. Think of it like a card game — federal law trumps all other law. In this case, the CTA bases its case on an “express conflict in the federal circuit court on an exceptionally important question of federal law: Does the Federal Aviation Administration Authorization Act of 1994 preclude states from adopting worker-classification rules that prohibit or substantially restrict motor carriers’ use of owner-operators?” For decades, the classification of California truck drivers has been governed by the “multifactor test” handed down in S.G. Borello & Sons, Inc. vs. Department of Industrial Relations. This test examines the total circumstances of the relationship between the business and the person performing the work. While there is no single rule that makes this determination, included in this consideration is the “right to control” the manner of means of completing the task. Most independent contractors I know exercise control of the “what, when and where” of what they do. Accordingly, this test would favor the independent contractor. According to the CTA, “in California more than 70,000 owner-operators chose to work independently because of the freedom, flexibility and business growth potential that business model provides.” So, at the end of the day (actually probably in October or November), the U.S. Supreme Court will determine whether to grant certiorari and hear this case. Personally, I hope it happens. This matter is too important to our industry and to the independent contractor business model to not have the uniformity brought by a U.S. Supreme Court decision. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Early in the pandemic I wrote an article on federal v. state COVID-19 authority. I don’t remember the exact date I wrote it, but it was early in the pandemic. I am going to say maybe the fall of 1987 or so. (It seems we’ve been dealing with the pandemic for decades.) The article discussed the federal government’s ability to intervene in the health crisis through the Commerce Clause of the Constitution as opposed to the ability to control the spread of COVID-19 within their borders through the 10th Amendment. As you recall, the article was brilliantly written. (I say that only because I am sure nobody remembers it.) Well, now the fine folks in the government have kicked it up a notch. As you are no doubt aware, using executive orders and agency directives, President Joe Biden mandated the full vaccination of federal employees, federal contractors, and Medicaid- and Medicare-funded health care facility workers. Not too terribly surprising, really. However, he also directed the Labor Department to prepare an emergency rule requiring private companies with 100 or more employees to ensure that their workers are either fully vaccinated or tested weekly for COVID-19. This, as they say, is a different animal all together. Of course, the words were no sooner out of Biden’s mouth that folks started to threaten to sue. (I’m looking at you, Gov. Doug Ducey (Arizona), Gov. Kristi Noem (South Dakota), and entire the Republican National Committee.) Other folks just characterized the rules for private business as unconstitutional. From a jaded, cynical lawyer’s perspective, the threats of litigation and claims that the rules violated the constitution are a bit premature. As of the mid-September day I am writing this column, the Labor Department has yet to write the rules. But let’s forget all that, and instead ask this important question: Based on Biden’s statements, would it appear the mandate plan is constitutional? The short answer is that it certainly appears so. Of course, the wheels could fall off once they actually start drafting the rules. However, with some care, it seems like Biden’s rules for private business could pass muster. Quite simply, the federal courts have rejected constitutional challenges to vaccine mandates in the past, provided those mandates do not single out one demographic group in a discriminatory manner. In Jacobson v. Massachusetts, way back in 1905, the Supreme Court found that “Americans do not have a constitutional right to harm their fellow citizens by refusing a vaccine and, thereby serving as a disease vector.” The facts of this case may sound somewhat familiar. At the time, a smallpox pandemic was working its way through Massachusetts. To help stop the spread, the Board of Health of Cambridge, Massachusetts, passed an ordinance that imposed a $5 fine on anyone over 21 years of age who refused to be vaccinated. Jacobson, a Lutheran pastor, refused to take the smallpox vaccine on the grounds that he had gotten sick from a childhood vaccination. He also argued that the vaccine mandate amounted to the imposition of paganism upon the public — a matter I am not even going to discuss. As expected, Johnson was criminally prosecuted. On appeal, he argued that the vaccine violated his due process rights to bodily integrity. In other words, he said the vaccine deprived him of his constitutional right to make decisions regarding his own body. In a 7-2 decision, the court disagreed with Mr. Jacobson. Moreover, in the opinion, Justice Harlan noted the social compact theory. This basically means that a society covenants with each citizen, and each citizen with society to be governed by laws for the common good. Another reason this century-old decision is still relevant is because Justice Harlan recognized that the government’s power to mandate vaccines does not include the ability to compel a person to take a vaccine that will harm their health. It is also interesting that arguments supporting vaccination laws have withstood challenges based on the free exercise clause of the First Amendment freedom guaranteeing the freedom of religion. Though it was not a vaccine case, in 1990 the Supreme Court ruled that the clause does not relieve a person from complying with a law that applies to everyone and does not single out a particular group. Based on what we have heard, it does not appear that Biden’s rule for private companies violates this rule. At the end of the day, the key thing to remember about Biden’s mandate is that it does not criminalize a refusal or require anyone to submit to the vaccine. You are given the choice. Get vaccinated or take a weekly COVID test. Moreover, it does not appear to single out a particular group. Rest assured, this is not by accident. I am sure Biden had several lawyers much smarter than me help him work this out. Of course, that does not mean the whole thing can’t head south and the actual language of the rule, once written, prove problematic. It also does not mean that folks won’t sue or argue that the rule is unconstitutional on other grounds. There are several clever lawyers out there, and they may be successful. I guess the point that I am trying to make is that the president and his lawyers appear to have done their homework — and they were already thinking about playing defense before Biden’s announcement. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

If you’re anything like me, the phrase “defund the police” certainly gets your attention. It’s a hot button in society at the moment, and is at least one proposed way to reduce racial disparities in policing. With that being said, I absolutely want everyone to be treated equally. I am not naive enough to think racial profiling does not exist. In support of this statement, I point to a couple of studies that have been recently completed. The first was done in 2018 by Kelsey Shoub, who is currently an assistant professor at the University of South Carolina. In this study, she and her fellow researchers studied 20 million traffic stops occurring in North Carolina. The study showed Black drivers were 63% more likely to be pulled over than whites — while driving 16% less than white drivers. Moreover, black drivers were 115% more likely to be searched than white drivers, even though contraband was more often found on white drivers. Fine, you say — but that was in North Carolina. Well, in 2020 the Stanford Open Policing Project investigated 100 million traffic stops across the nation and found similar disparities to those noted in the North Carolina study. In addition, the study found Black drivers were less likely to be pulled over after sunset because the darkness masks race, which supports a claim of bias in decisions to pull someone over. OK, I admit those are just studies, and as we all know, there are three types of lies: (1) lies; (2) damn lies; and (3) statistics. With that in mind, you are, of course, free to challenge the methodology of how the studies were conducted. Fine. For whatever reasons, you don’t like the studies. Then how about this? John Whetsel, chair of the National Sheriff’s Association traffic safety committee admits that racial bias in policing is a problem. Whetsel is a 50-year veteran of police enforcement in Oklahoma. In fact, until recently he was the sheriff of the county in which I reside. In light of the above, I think we can at least make an argument that racial bias in traffic stops could actually be a thing. So, if it is a thing, what do you do about it? Here’s where it gets interesting. In February of this year, in an attempt to reduce racial disparities in traffic stops, the Berkley, California, City Council voted to deprioritize traffic stops that were not related to public safety. This means things like not wearing a seatbelt or having an expired tag would not be a reason to pull someone over. Rigel Robinson, the council member who proposed the initiative, said the council was not trying to strip the police of the job of handing traffic stops; instead, they are simply trying to determine where the line is to combat the racial disparities. The good folks of the Berkley City Council are not trying to prevent the enforcement of parking violations or expired tags. Instead, they think this should be done through a new group of unarmed civil servants within the city’s transportation division. Well, our friend John Whetsel, of the National Sheriff’s Association, said, “To the mayor of Berkley and the city council, I would say you need to talk to the victim of a traffic crash before you do this, what I believe to be an idiotic move.” Whetsel argues that without traffic stops, fatalities would increase and potential leads would slip through the cracks. By way of example, he points out that Timothy McVeigh, the person responsible for the Alfred P. Murrah Building bombing in Oklahoma City, was pulled over and subsequently arrested for a missing license tag. In addition, Whetsel makes the point that “most criminals drive to and from work. If it’s a burglary or a bank robbery or a homicide, they’re generally not going to walk to and from the scene.” I gotta be honest with you. Whetsel makes valid points, and common sense supports what he’s saying. While racial profiling may exist, the movement to deprioritize certain traffic violations is not the way to fix the situation. Too many criminals are apprehended because of ordinary traffic violations to deprioritize the traffic stop. Of course, I don’t know the answer to solving this problem. Whetsel, while admitting the problem exists, believes it can be fixed through training. He may be right. Before we “throw the baby out with the bathwater,” so to speak, let’s start with that. Better training on these issues — and more accountability — seems to be the best place to start. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at (800) 333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Brad Klepper has been catching up on traveling recently and wasn’t able to provide a column for Sept. 15, 2021, edition of The Trucker. We hope you enjoy this article, originally published in September 2019. I was at a truck show recently when a driver, obviously distraught, approached me with a question. It turns out the driver’s truck had been broken into over the weekend, and he wanted to know what was going to happen with getting his belongings replaced. The truck was parked next to his house, on his property, while he and his wife were out of town for a wedding. The driver discovered his truck had been broken into when he returned the following night. According to the driver, the thieves took his microwave, TV, flux capacitor for the truck (it was a late model truck) and some additional personal belongings. The driver called the police, who said there was not much they could do because of the lack of evidence, but they did write the incident up as a burglary. The driver was understandably upset and wanted to know if he was just out of luck and would have to replace all his property out of his own pocket. The driver also wanted to know why the theft was written up as burglary and what, exactly, burglary meant. Common law describes burglary as “the breaking and entering the house of another in the nighttime, with intent to commit a felony therein, whether the felony be actually committed or not.” Most states have modified the common law definition and codified it into state laws to ensure punishment of the crime. The expansion of the definition has resulted in the “house” not needing to be a dwelling or even a building; it may include a vehicle such as a car, truck, boat, etc. The “breaking” does not usually mean physical breaking of property and the entry need not be at night. The intent to commit a felony has become the intent to commit any crime. Here in Oklahoma, we have first-degree and second-degree burglary. First-degree burglary applies to every person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either (1) by forcibly bursting or breaking the wall or an outer door, window or shutter of a window of such house, or the lock or bolts of such door, or the fastening of such window or shutter; or (2) by breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present; or (3) by unlocking an outer door by means of false keys or by picking the lock thereof, or by lifting a latch or opening a window. Anyone who does any of that is guilty of burglary in the first degree. Second-degree burglary is when someone breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection in which any property is kept, or breaks into or forcibly opens any coin-operated or vending machine or device with intent to steal any property therein or to commit any felony. Is the driver out of luck on getting his property replaced? The answer is “it depends.” The answer really boils down to whether the driver has renters’ or homeowners’ insurance. If you have not done so recently, take a look at your policy or call your insurance agent to find out what your policy covers and what your deductible would be should you find yourself in a similar situation to the aforementioned fellow. If you have vehicle insurance on your car or truck, you may be able to file the theft on that policy. Ask your insurance agent if you are covered. When making a claim, the best thing you can do is provide a copy of the police report, along with a description of what was stolen. In addition, if you can find the receipts for the personal items that were stolen, include them with your claim. This is a hassle, I know, but it will help your claim. For what it is worth, you may want to start taking pictures of the receipts for the things you would want replaced in this type of situation, and keep the photos on your phone. That way they are always handy, and you don’t have to keep all the paper receipts. Another way to protect your property is to take a video or photos of everything in your truck/house/apartment showing everything you own. Insurance companies want and need proof of what was stolen so they can determine what to pay you. Trust me, they will not just take your word for it. Again, you can do this on your phone, and if you utilize the cloud, you don’t need to worry about losing the information. Finally, if you are a company driver you may also want to check with your employer, if it was their truck, to see if their insurance covers anything, like your loss of property. As you can imagine, the driver I was talking to was angry about the entire episode and said something along the lines of, “If I had been there and caught whoever did this, man, they would be sorry….” Of course, the best thing that happened in this instance is that the driver was NOT there to confront the criminals when they broke into his truck. They might have been armed, under the influence of drugs or alcohol, or simply a group of kids with too much time on their hands. Nothing good is going to come of such a confrontation. At the end of the day, all they took was stuff — and “stuff” is replaceable. Brad Klepper is president of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation’s commercial drivers. Interstate Trucker represents truck drivers throughout the 48 states on both moving and nonmoving violations. Klepper is also president of Driver’s Legal Plan, which allows member drivers access to his firm’s services at discounted rates. He is a lawyer who has focused on transportation law and the trucking industry in particular. He works to answer legal questions about trucking and life over the road. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at (800) 333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Those of you that read my columns may remember that I recently wrote on free speech and social media. As I mentioned then, I am a BIG free speech guy and feel strongly that no idea should be free from scrutiny, criticism or mockery. As I also said then, an unexamined thought or belief is not worth having. Since I wrote that column, I have received a few comments and questions about “hate” speech. I think we can all agree that you don’t have to look too far to find examples that would qualify as hate speech. Recent demonstrations by white supremacists are a good place to start. So, the question becomes, “Is hate speech protected by the First Amendment?” Well, I am glad you asked. Back in 2017, Ted Wheeler, the mayor of Portland, Oregon, said, “Hate speech is not protected by the First Amendment.” This comment was made after two men were killed after they confronted another individual who was using anti-Muslim slurs. Also in 2017, former Democratic National Chair Howard Dean, when referring to comments made by Ann Coulter said, “Hate speech is not protected by the First Amendment.” Well, they were both wrong. The U.S. Supreme Court has clearly stated that governments may not restrict speech expressing ideas that offend. A recent case addressing this matter is Matal v. Tam. In this case, Simon Tam, the founder and bass player for the Asian-American rock band The Slants sought to trademark the band name in an attempt to reclaim and take ownership of the derogatory term. The U.S. Patent and Trademark Office (USPTO) refused to register the mark and found it disparaging to people of Asian descent. In support of this position, the USPTO found that the mark violated the Lanham Act’s provision against registration of disparaging trademarks. Of course, Tam decided to appeal to the Federal Circuit. On appeal, the Federal Circuit found the disparaging provision of the Lanham Act to be unconstitutional. This did not sit well with the USPTO, which appealed the decision to the Supreme Court. The issue is whether the disparaging provision of the Lanham Act violated the Free Speech Clause of the First Amendment. In a unanimous decision, the Supreme Court held that the disparagement clause violates the First Amendments Free Speech Clause. In the opinion, Justice Alito wrote: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar grounds is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the ‘thought we hate.’” This, my friends, is the basis of free speech. In a world where we can watch television shows, read newspapers and magazines, and listen to radio programs that only serve to support our already existing beliefs, it is easy to be in favor of free speech — when that speech echoes our own beliefs. But what becomes a challenge is remaining in favor of free speech when that speech goes against everything we stand for. Now, I am not a movie critic, but maybe 20 years ago I watched the movie “The American President” starring Michael Douglas. The move had a bit of a Hollywood liberal take (and I like my movies politically neutral). However, in the movie, Michael Douglas is giving a speech, and he says: “America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’ You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.” Say what you will about the movie but that quote pretty much sums up the good and the bad about free speech. While I may not agree with anything you say — or your decision to burn the flag or do other things I may find reprehensible — I will defend to the death your right to do so.  

Throughout the course of these columns, I have discussed the U.S. Constitution, the Bill of Rights (amendments 1-10) and the additional amendments. Ever since I memorized the Preamble to the Constitution (big shout-out here to Saturday mornings and the “Schoolhouse Rock” preamble song!), the document has always fascinated me. I mean, the U.S. Constitution, including the signatures, only contains 4,543 words and is only four pages long. It is the shortest written constitution of any major government in the world. Yet the Constitution, and all the amendments, have shaped our democracy and influence every aspect of our society. How can you not be fascinated by this? However, as amazing as the Constitution is, it is still over 200 years old, and we are often faced with the question of how to interpret the words that were written so long ago. Well, that my friends, is why we are here today. There are several different “methods” of interpretation. I get that most people don’t really care about the different methods of interpretations of the Constitution, or maybe they have just not given it much thought. However, judges care — tremendously. And the “school of thought” to which judges subscribe can greatly impact their decisions, which can impact your rights. With that in mind, I’d like to mention a few methods of Constitutional interpretation. Of course, I am only going to hit the highlights, so hold off on the hateful emails. The first method is called textualism. Textualism focuses on the plain meaning of a text, in this case, the Constitution. Textualists believe there is an objective meaning to the text and generally do not inquire about the intent of the writer. Those that subscribe to this theory believe the courts should simply stick to the Constitution. Considering anything other than the plain meaning of the text is judicial activism. Of course, as with any method of interpretation, this could lead to “different” results. As an illustration, in a dissent, former Supreme Court Justice Antonin Scalia noted that the language of a statute increased the penalty involved in a drug trafficking crime. However, in the facts of the case, the defendant was trading an unloaded gun for cocaine. The majority took a textualist view and held that since a gun was involved, the enhanced penalty was in play. Justice Scalia disagreed and said that “uses a gun” as contained in the statute means that the gun needs to be used for what a gun is normally used for — as a weapon. The second method of interpretation is called originalism, or original meaning. While textualism focuses solely on the text, originalism considers the meaning of the Constitution as understood by some segment of the population the time of ratification. However, originalists generally agree that the Constitution’s text has an identifiable meaning at the time of ratification, and it is the task of judges to construct this original meaning. The Scalia illustration I mentioned before is an example of originalism, even though it is applied to a statute and not the constitution. The third method of interpretation is judicial precedent. This is the most commonly cited source of determining constitutional meaning. Judicial precedent provides guidance on future cases based on prior decisions made with similar facts. While the courts rely on judicial precedent, they also have a lot of latitude on whether they interpret prior decisions broadly or narrowly. Another method of interpretation is pragmatism. In contrast with textualists and originalists, pragmatists focus on the likely consequences of a particular interpretation. In other words, pragmatism considers the future costs and benefits of a particular interpretation to society or other branches of government. An example of a pragmatist approach is The United States v. Leon. In this case, the Supreme Court held that the Fourth Amendment does not require a court to exclude evidence obtained as a result of law enforcement’s good faith reliance on an improperly issued search warrant. In support of its decision, the Court noted that the adoption of a broader exclusionary rule would undermine the ability of the criminal justice system to obtain convictions of guilty defendants. Of course, there are additional methods of interpretation. These include moral reasoning, structuralism, national identity and historical practices. Because I am lazy — and also don’t have enough space — I will save the discussion of these methods for another time. Until then, think about how you believe the Constitution should be interpreted, and which method you think is best. Worst-case scenario: You will have something to think about late at night. Best-case scenario: You can now use the phrase, “You know, when it comes to constitutional interpretation, I am a (insert preferred method here).” If you are like me, it will make you sound smarter than you really are — which is never a bad thing.

Everyone who reads my articles — all two of you — have probably figured out that I enjoy writing about, thinking about and arguing about what the federal government can and can’t do. Some of the things Congress proposes are so blatantly unconstitutional that you know it will never happen. But it is cute when they try. A recent subject many people find fascinating (well, me and maybe three others, but this is my column, so I’m going to write about it) is the prospect of the District of Columbia (DC) becoming a state. Of course, this is a highly political issue because if it occurs the State of DC would get a couple of senators and additional representatives. On the surface this does not seem like a big deal; however, DC has always seemed to lean in the direction of the Democratic party. As you can imagine, the Democrats do not think this is a big deal. The Republicans disagree. For what it is worth, there has been a push for DC statehood in some form since around 1991. However, with the Democrats currently in control of Congress and the White House, now may be the best chance for DC statehood. For me, the interesting part is the mechanics of how this could happen. At a hearing in the House of Representatives March 22, the American Civil Liberties Union, more commonly known as the ACLU, filed testimony that Congress, with presidential approval, could establish DC as the 51st state. At the same time, The Heritage Foundation took a different approach and said that a constitutional amendment would be required for DC to become a state. As background, Article IV, Section 3 of the Constitution (the “Admissions Clause”) grants Congress the power to create a new state — with some limitations of course. For example, this section states that a new state cannot be formed within the jurisdiction of another without the consent of the legislature of both the state AND Congress. Historically, Congress has created new states based on majority vote and presidential approval. However, DC is unique in that it is specifically addresses the Constitution. As you may remember from your civics class, DC was created as a federal enclave to serve as the seat of the government and was carved out of the states of Maryland and Virginia. The Constitution also gave Congress authority over the new territory. In 1961, the 23rd Amendment was ratified, giving DC three electoral votes for president. In 1970 Congress approved a nonvoting DC delegate in the House, meaning the residents who live in DC and pay federal taxes still have no voting representation in Congress. On April 22 of this year, the House approved DC statehood legislation that would carve out a small enclave of federal buildings, including the White House, to serve as the seat of the federal government. President Joe Biden supports the bill. A similar bill died in the Senate last year, but with Democrats controlling Congress and the White House, the chances of passage are somewhat better. Interestingly, this would basically give whichever party holds the White House a three electoral vote head start. Opponents of the bill claim several constitutional problems exist. First and foremost, there’s the 23rd Amendment. Opponents claim that for DC to become a state, this amendment would have to be repealed prior or simultaneously with DC becoming a state. In its current form, the bill simply provides for expedited consideration of joint resolution appealing the amendment. Repealing an amendment would require ratification by 38 states. Since 30 states are currently led by Republicans this seems unlikely. Quite simply, whether Congress can create a state from DC raises several novel constitutional questions. And, as you can imagine, there is little case law on this subject. Of course, these questions would ultimately fall to the U.S. Supreme Court, leaving the justices to sift through all the constitutional issues and determine whether Congress and the president could carve a new state out of DC or if statehood would require the repeal of the 23rd Amendment. See … I told you there are only about three of us who find this interesting.

When I write these articles, I normally try to stay away from the “hot topic” of the day.  That’s mainly because by the time the article is published it is no longer the hot topic and everyone is sick of hearing about it. Well, with that being said, I am going to break my own rule and discuss a hot topic.  Why the change of heart you may ask? The answer is easy: This topic has been an issue for years and does not appear to be going away. What is the subject?  The standard for the use of deadly force by the police. There, I said it. Now, nobody can deny that this is an issue that is at the forefront of our culture. Regardless of your political views, I think folks need to understand the legal standard that needs to be met to justify the use of deadly force. You can’t really have a civil discussion if no one understands the standard. Now, before you start sending me hate mail or making up your mind about me, please understand that this is not a political piece, and I do not have the time or space in this article to do a deep dive into the subject. This is simply a review so that we can all possibly find some common ground on which to talk. It is not necessary for me to list all the highly publicized cases where police have fatally shot an unarmed person. What everyone needs to understand is that the facts and circumstances of each of these cases are unique, and officials, judges and juries must take all that into consideration. However, for more than 50 years, the U.S. Supreme Court has been consistent in the standard that should be applied to determine under what circumstances police shootings are legal. The first case to begin the issue was Terry v. Ohio. In this case, the Supreme Court provided grounds for police officers to “stop and frisk” without probable cause if they have a reasonable suspicion that the person committed, is in the process of committing or is about to commit a crime and have a reasonable belief that the person “may be armed and dangerous.” In the 1980s, two Supreme Court cases elaborated on what is “reasonable” and began to expand the framework for when the use of deadly force is allowed. The first case was Tennessee v. Garner.  In 1985 the Supreme Court struck down a Tennessee statute that allowed the police to “use all the necessary means to effect the arrest” of a person the police thought was fleeing or resisting.  Specifically, the facts of this case involved a Memphis police officer who shot and killed a teenager in the backyard of a house the officer suspected had been burglarized, even though the officer was “reasonably sure” that the suspect was unarmed. In a 6-3 decision, Justice Byron White wrote, “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” In 1989 the court again looked at the issue of deadly force by the police.  In Graham v. Connor, the Supreme Court found that the use of excessive force “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” In a 9-0 decision the court held that the “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.” In other words, what would a reasonable police officer on the scene have done? In 2018, the Supreme Court gave a little more direction to the lower courts in an unsigned opinion. In Kisela v. Hughes a Tucson police officer shot a suspect (Hughes) within a minute of arriving at the scene.  Hughes had been reported to 911 as hacking a tree with a knife and acting erratically. When Kisela fired, Hughes was holding a large knife and had taken steps toward another woman (her roommate) and had ignored multiple instructions to drop the knife. Hughes’s injuries were not life-threatening and other officers on the scene said they believed Hughes was a threat to her roommate. Hughes sued Kisela, alleging that Kisela exercised excessive force, 42 U.S.C. 1983. The Supreme Court ruled in favor of the officer and stated that Kisela was entitled to qualified immunity even though the officers were in no apparent danger.  While the 9th Circuit had found that Kisela violated Hughes Fourth Amendment rights (unreasonable searches and seizures) the Supreme Court disagreed and said a “reasonable officer” is not required to know that shooting the suspect would violate their Fourth Amendment rights. So, to drastically oversimplify the above cases, the police can use deadly force if a reasonable officer at the scene believes that the person is a threat to the officer or others. Now, if someone would just introduce me to that reasonable person.

I am writing this article shortly after the April 15 FedEx shooting in which a gunman killed at least eight people before taking his own life.  I am not sure why I feel the need to tell you all that, other than to let you know that it is fresh on my mind. I understand that the mere fact that the title of this article references guns is likely enough to guarantee I will receive a million comments. With that in mind, let’s get a couple of things out of the way up front. First, I am something of a Second Amendment guy. I like guns. I used to hunt quite a bit, but now I am old and not that fond of getting up early or sitting in a cold tree stand. Regardless, there is a gun range just around the corner from my office, and I will often sneak out at lunch and take out my aggression on paper targets that have wronged me in some way. This is how I get my fix. However, even though I am a Second Amendment guy, I also think that background checks are a good thing and should probably be a bit stricter. I also think everyone who purchases a gun should have to take a class on gun safety, something similar to the class I took back when I got my concealed carry license. Based on the way I have seen people handle their firearms on the range, this class is really needed. Now that the disclaimers are out of the way, what I really want to do is just put some of the pros and cons for gun control out there and let you decide. At the end of the day, my ulterior motive is to — hopefully — allow folks to have a civil discussion about this issue. There are valid points on each side of the argument. Heaven knows a civil discussion about anything political would be a minor miracle. Please note that due to space limitations, and the fact that I am fundamentally lazy, I have not listed all the research points and statistics associated with arguments on either side. So, without further ado, here are some (not all) of the pros of the gun control argument. The Second Amendment is not an unlimited right to own guns; More gun control laws would reduce deaths; High-capacity magazines should be banned because they often turn murder into mass murder; Gun control laws are needed to protect women from domestic abuse and stalkers; Guns are rarely used in self-defense; Gun control laws would reduce the societal costs associated with gun violence; A majority of people support common-sense gun control laws such as background checks, bans on assault weapons and high capacity magazines; and Gun control laws, such as mandatory safety features, would reduce the number of accidental gun deaths. On the other side of the coin, several arguments can be made against gun control. The con list includes the following: The Second Amendment protects individual gun ownership; Gun control laws do not deter crime; gun ownership deters crime; Gun control laws infringe upon the right to self-defense and deny people a sense of safety; Assault weapon bans infringe upon the right to own guns for hunting and sport; Gun control laws will not prevent criminals from getting guns; Gun control laws give too much power to the government and may result in government tyranny; Gun control laws such as background checks are an invasion of privacy; and More gun control is not needed; education about safety and guns is needed to prevent accidental deaths. As you can see there are serval arguments to be made, both pro and con, regarding gun control. Personally, I agree with some points on each side of the argument. As I already mentioned, I am in favor of background checks (from the pro list), and I believe the answer to reducing accidental deaths is found in education (con list). The one thing that I do know is that I am sick and tired of reading about mass shootings. Unfortunately, I do not have an answer for the problem. However, as previously noted, I do think the first step is for all of us to have a civil discussion about the issue. While we may not all agree, we can at least discuss it like adults. Remember, as I have said before, just because I disagree with you does not mean I hate you. It just means I disagree with you.

Believe it or not, I actually like being an attorney. Granted, some days I like it a lot more than others, but I think is that probably true with any profession. I get to interact with people — help them solve problems and see a little justice served. And, I get to say things like, “I object” in open court, just like they do on TV. With all that said, there are a couple of ways surefire ways for attorneys to find themselves disbarred. One of those is to violate attorney-client privilege. For those keeping score at home, attorney-client privilege (A/C privilege, for short) ensures the confidentiality of communications between a client and his or her attorney. In the broadest possible terms that means that, for the most part, what you tell your attorney is confidential. The concepts date back to the days of Queen Elizabeth and English common law. A/C privilege was first recognized by the U.S. Supreme Court in 1906. In a 1998 U.S. Supreme Court case addressing A/C privilege, Chief Justice William Rehnquist summed up the importance of that privilege by stating that A/C privilege is “intended to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interest in the observance of the law and the administration of justice.” That seems logical and, to be honest, pretty straightforward. But the facts are what make this particular case interesting. This case involved the investigation of President Bill Clinton, and it involved notes taken by a lawyer for White House aide Vincent Foster regarding the Whitewater real estate deal. Special prosecutor Ken Starr was seeking access to the notes through a grand jury. To make matters interesting, Foster died just nine days after the conversation in question, of an apparent suicide. Part of the question was whether A/C privilege survives the death of the client. In this case, the U.S. Supreme Court ruled in a 6-3 decision that A/C privilege does indeed survive the death of the client. So, we know that the privilege can survive death but what makes a conversation qualify for this protection? Simply talking to a lawyer is not enough. Generally, A/C privilege applies only if (1) the holder of the privilege is a client or is trying to become a client; (2) the person to whom the communication was made is a member of the bar of a court or a subordinate; (3) the encounter occurs only when the lawyer is acting in a legal capacity and the disclosure is not for the purpose of committing a crime; and (4) the privilege has been asserted. To paraphrase the above, the general requirements for the privilege to apply are: You are a client; I am a lawyer; The disclosure is not related to a crime; and You claim the privilege. Of course, over time, the courts have carved out exceptions to A/C privilege. It is what they do, and it keeps lawyers employed. The biggest exception — and the most cited — is the crime/fraud exception. The other exceptions involve a fiduciary exception (think trust and estate cases) and the “on the advice of counsel” exception, which is used as a defense. The last two exceptions are not that much fun to talk about, so I will briefly mention the first. The crime-fraud exception arose in a U.S. Supreme Court case more than 100 years ago. The exception basically covers communications that further a crime, tort or fraud. In other words, if you are silly enough to discuss your future crime spree with your attorney, the conversation is not privileged. Needless to say, there are lots of issues we could discuss regarding A/C privilege and its application; however, I am running out of space — and I am confident your eyes have already glazed over. In closing, the thing to understand is this: Not every conversation is protected. If you have questions or concerns, ask your attorney.

Let’s get this out of the way up front: I am a big free speech guy. I mean BIG. I believe that no idea should be free from scrutiny, criticism or mockery. An unexamined thought or belief is not really worth having. When you combine that with my slightly dark sense of humor and contrarian nature, there are times I am not always the most popular guy in the room. Throw in the fact that I am also a lawyer, and it is amazing I have any friends at all. With all that being, said I thought I would provide a bit of a crash course on the First Amendment as it relates to freedom of speech. A little over a month ago, Instagram blocked Robert F. Kennedy Jr., son of the late senator, from posting on the platform. The reason for the ban? He told followers not to trust “mainstream media, or government health officials” who say the coronavirus vaccine is safe. This decision placed him in a club with former President Donald Trump, Steve Bannon and others who have been banned by various social media platforms. When this occurred, and when Trump was banned, folks started gnashing their teeth and talking about how this infringed on the individual’s free speech guarantees under the First Amendment. They were wrong. As background, the First Amendment to the U.S. Constitution states: “Congress shall make no law … abridging the freedom of speech, or that of the press.” As you can see, this applies to the federal government. However, through the 14th Amendment, the U.S. Supreme Court extended this First Amendment protection to prevent restrictions enacted by state and local governments. The key takeaway from the preceding paragraph is that any abridgment of speech shall not be made by Congress or state or local governments. Focus on the word “government.” There is nothing in the First Amendment that relates to private entities. In fact, the U.S. Supreme Court has established that under the U.S. Constitution folks like Kennedy, Trump and Bannon have no First Amendment claims to challenge the decision to block or ban their comments. Quite simply, social media companies operate as private companies — and thus, a couple of barriers exist in bringing action against them. First, the courts have held that the First Amendment provides protection against federal and state action, not those of private companies. Moreover, courts have also held that many of these claims are barred by Section 230 of the federal Communications Decency Act, which grants immunity to companies such as Twitter and Instagram. This includes immunity based on decisions to host or ban content. In addition, the fact that private media companies do not fall under the “state action” necessary to trigger a First Amendment claim was affirmed by the U.S. Supreme Court in 2019. In the opinion for this case, Justice Kavanaugh stated, “We conclude that operation of public access channels on a cable system is not a tradition, exclusive public function. Moreover, a private entity such as (the channel) who opens its property for speech by other is not transformed by that fact alone into a state actor.” So, at the end of the day, the thing to remember is that claims of suppression of free speech really only apply when the party that is allegedly suppressing the speech is a government entity. Regardless, I believe we should encourage the free exchange of ideas and speech. And remember, just because I do not agree with you does not mean I hate you. It just means I disagree with you.