#LAW 531 Entire Course New

[thedamageofherdays]

Welcome to my final reading log of the year! This is the final reading log for a while but I plan to continue to read and rec fics in 2022. I wish everyone a happy new year and I want to thank everyone in this fandom for all the amazing things they continue to create. You are all awesome! <3

🌻 marks a favourite, 🔒 marks a fic that is only available to ao3 users, 🍀 marks a fic that is only available on Tumblr.

🌻 Blooming Under the Dappled Light by thiccbuckybarnes @thiccbuckybarnesfic [Stucky, 29,6k words, Explicit] (4/7 chapters available)

“Primogeniture (prīmōˈjenəˌCHər) is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relative.”

❀❀❀

Despite being the son of a gentleman, James "Bucky" Barnes could scarcely allow himself the hope of one day being tied to another in happy matrimony. In a society where the first-born children are revered and inherit all of a family's wealth, last-born Bucky feels trapped in a life he did not ask for.

When he makes the drastic decision to run away and become a tutor for a wealthy family, he is hoping to save enough pennies to someday have a dowry and be worthy for marriage despite his disposition. What he is not anticipating, however, is falling into the rough and skilled hands of his employer, the rakish widow Lord Steven Rogers.

Tight End in the Corner (Back) by buckybarnesdeservestobehappy (hutchabelle) @buckybarnesdeservestobehappy [Stucky, 1,2k words, Mature]

Steve Rogers, starting tight end for the Minnesota Vikings, has a massive crush on his teammate. Maybe being gay in the NFL isn’t entirely socially acceptable, but no one on the team seems to care. A road game, frigid temperatures, and an invitation are all Steve needs to find his way to Bucky’s hotel room. Thankfully, the door is open.

🌻 coming home to you by NoStringsOnMe @martelldoran [Stucky, 3,7k words, Teen]

He's fine. But he doesn't feel fine.

It's probably nothing, he thinks. It's the excitement of the day, he reasons. But then his eyes land on Bucky with his open shirt collar and flushed cheeks. Bucky and his rolled up sleeves. Bucky and the curl of chestnut brown hair that's fallen out of place and now lies artfully across his forehead.

His eyes land on Bucky and he wants.

|| Or, the one with 5 Christmases in the past, plus 1 in the future.

🌻 Where The Love Light Gleams by Aciremii @aciremii, rissatack (thatemofangirl), thatemofangirl [Stucky, 531 words, Teen]

A short and sweet holiday story, and some bonus art to follow.

Steve's Bad Day by isolatedwriter [Stucky, 1k words, General]

“Is it okay if I stay here for a while?” Steve asked, his voice shaking ever so slightly. 

“Of course it’s okay, it’s always okay,” Bucky responded immediately, ushering him inside.

Come home with me by christywantspizza @christywantspizza [Stucky, 2,1k words, General]

The Avengers spend Christmas Eve in an unexpected place and Bucky gets an unexpected gift.

Must be Santa by rainbow_nerds [Stucky, 2,7k words, Teen]

Steve was bored. He wasn’t a big fan of boredom.

There hadn’t been a mission in close to a month now, which was objectively a good thing for the world, but Steve was bad at doing nothing.

And then he got a call.

🌻 Love Covered Beneath the Snow by Metalbvcky @metalbvcky [Stucky, 14k words, Mature]

Moving out in the middle of the woods wasn't exactly Steve's new years regulation for the upcoming year, but neither was becoming a doctor over ten years ago. He could hardly believe that it was almost 2024, yet here was, trying to enjoy the life he carved out for himself. He had more than one thing to complain about, though the biggest was the absence of a certain someone he'd been searching for way too long.

Oh, and the tree limb that collapsed against the bridge and obstructed his way back to the cabin. Now he'd have to find a different route to bring the tree he'd cut inside. His boots protested underneath the thick and heavy snow, the wind whipping in his grey, combed-back hair.

Before long, he found himself kneeling beside the body he spotted in the distance.

The first thing that caught Steve’s eye was the torn sleeve exposing the boy’s reddened skin, the early stages of frostbite settling in, then the soulmark on the center of his bicep. A soulmark, which was identical to the one that was over Steve’s heart.

“Oh god,” Steve said aloud, taking a second to stare at his soulmate, raking his gaze across that innocent face.

Mistletoe Memories by emilywithoutY @between-a-ship-and-a-hard-place [Stucky, 5k words, Teen]

A glamorous holiday party at the Tower, crowded with strangers in fancy dress looking to get chummy with an American symbol, was far from Steve's idea of a good time. Even worse: tonight the reception venue seemed to be haunted by a very persistent breed of mistletoe.

Steve was all but ready to abandon his friends and escape back to his quiet Brooklyn apartment, when a surprising revelation came, quite literally, crashing down on him.

Or: Five wrong kisses and one right one.

🌻 The Barnes Family Bakery by Alaskan_Outsider @alaskan-outsider [Stucky, 3,2k words, Teen]

When a cute guy walks into Bucky's sister's bakery, Bucky falls and love and can't get him out of his mind. Little did he know, he was falling for Captain America.

[theliberaltony]

via Politics – FiveThirtyEight

For the past few months, Alicia Wertz has barely seen her husband. Since schools closed in their northern Alabama town in March, they’ve been single-mindedly focused on a single goal: making sure that someone was watching their three kids. At first, Wertz tried working from home. But she wasn’t getting anything done, so they tried splitting the hours: Wertz’s husband watches the children in the morning, then a sitter comes to relieve him in the afternoon until Wertz takes over when she returns from work.

“When we’re not working, we’re by ourselves with the children. It almost feels like you’re a single parent. All you do is go to work and care for the kids,” Wertz said.

In her mind, Wertz is counting down the days until schools reopen. But there’s a nagging worry at the back of her head — what if they don’t open at all? “The thought of [my kids] not going back in the fall is devastating,” Wertz said when we spoke in early July. “It raises this question of — if one of us has to stay home with the children, whose job is more important? I think it was something that we did have conversations about before, but COVID-19 has made it much worse.”

Wertz isn’t the only working mother for whom the thought of the fall calendar sparks both relief and dread. And what comes next could have disproportionate — and long-lasting — effects on the careers of countless women across the country. Studies have shown that women already shoulder much of the burden of caring for and educating their children at home; now, they’re also more likely than men to have lost their jobs thanks to the pandemic. And the collapse of the child care and public education infrastructure that so many parents rely on will only magnify these problems, even pushing some women out of the labor force entirely.

“We’re in danger of erasing the limited gains we’ve made for women over the past few decades, and especially women of color,” said Melissa Boteach, Vice President for Income Security and Child Care/Early Learning at the National Women’s Law Center.

The crux of the issue: Child care just isn’t as available as it was before the pandemic. Data provided to FiveThirtyEight by the job-search website Indeed shows that child-care services have been much slower to hire again (a useful proxy for re-opening) than other areas of the economy:

Combine that with the news that many schools will remain closed in the fall, and it’s easy to see the crisis at hand. If polling is any indication, the vast majority of the fallout is being weathered by mothers, who were already doing the majority of household work even before the pandemic began.

In 2015, the Pew Research Center asked parents about how they divide family responsibilities when both work full-time.1 Some tasks were split relatively evenly: Twenty percent of respondents said the mother disciplined children more, 17 percent said the father disciplined more, and 61 percent said that responsibility was shared equally. For every task, however, more respondents reported that the mother carried a greater amount of the load than those who said the father did — including areas involving managing children’s schedules, caring for children when they’re sick and handling household chores.

Moms usually shoulder more of the load at home

Share of parents in households with two full-time working parents who say each parent does more work in a given category, according to a Pew poll

Share of parents who say… Category Mother does more Father does more Work split equally Managing children’s schedules/activities 54% 6% 39% Taking care of sick children 47 6 47 Handling household chores, etc. 31 9 59 Playing/doing activities with children 22 13 64 Disciplining children 20 17 61

Based on 2015 poll by Pew Research, with a sample size of 531 respondents. The sample included male/female married couples only.

Source: Pew Research center

Along similar lines, Pew also found in a poll from 2019 that 80 percent of women living with a partner who had children did the primary grocery shopping and meal-preparation duties for their families. And according to the Bureau of Labor Statistics’ American Time Use Survey — which tracks the average amount of time people spend per day on different categories of activity — married mothers with full-time jobs spent 56 percent more time doing childcare and housework than corresponding fathers. By contrast, fathers spent more time on work-related tasks, travel and leisure activities.2

All that extra time moms spend really adds up

Daily time spent doing various activities by married parents of children under 18 who both worked full-time, according to the American Time Use Survey

Hours spent per day Activity Mothers Fathers Diff. Household activities 1.87 1.23 +0.64 Physical care for children 0.59 0.28 0.31 Child care – other 0.36 0.22 0.14 Child-related travel 0.25 0.13 0.12 Education-related activities 0.10 0.06 0.04 Reading with children 0.05 0.03 0.02 Playing/hobbies with children 0.27 0.29 -0.02 Total 3.49 2.24 1.25

Survey data covers the combined years of 2015 through 2019 and includes both opposite- and same-sex couples.

Source: bls.gov

Even under normal circumstances, it was difficult for mothers of young children to balance work against the heavy burden of child care. The BLS found that in 2019, the labor force participation rate for women with children under age 6 was 66.4 percent, well below the rate for women with children age 6 or older3 (76.8 percent). According to a 2014 survey by the U.S. Census Bureau, 61 percent of women who were out of a job and have young children listed “caretaking” as a reason why they were not employed. Forty-six percent of women who were out of a job and have older children said the same. To put that in perspective, only 10 percent of all respondents who were out of work gave caregiving as a reason.4

A similar strain is apparent in working mothers’ decisions to take unpaid leave, or even part-time jobs instead of full-time ones. According to that same census survey from 2014, 30 percent of women who were part-time workers with young children — and 19 percent of women with older children — said caretaking was a reason they worked part-time. (Among part-time workers, the overall share is just 7 percent.)5

Now, with schools closed and day cares struggling to remain open, even more women may conclude that the best — or perhaps the only — choice for their family and their own sanity is to reduce their hours, or even press “pause” on their career.

“Sometimes I’ll get to a point where I’m like, ‘I’m so tired, I’ll have to go part-time to make it all work,’” said Lee Dunham, a lawyer who lives in Delaware. Since the pandemic started, Dunham has been mostly responsible for her 10-month-old daughter during the day — which means her work day doesn’t start until 8 p.m. and usually wraps around 2 a.m.. “I’m just basically not getting enough sleep because I’m watching the baby 40 hours a week and doing my job 40 hours a week. It’s really rough.”

Dunham feels she’s lucky to have an understanding employer who told her earlier this year that they’d be cutting all of their employees some slack because of the pandemic. But at the time, she added, everyone was assuming day care would be up and running by mid-summer. “It might be that I have to dial back my hours, which of course means I will get paid less.”

This kind of calculus already depresses women’s wages and makes it harder for their careers to progress. According to the National Women’s Law Center, mothers are typically only paid 71 cents for every dollar paid to fathers. In fact, a lot of recent research into the gender pay gap has found that much of it is simply due to the constraints on working mothers. For instance, a 2018 analysis of data from Denmark — which offers a counterpoint to the United States in terms of social safety net, yet still has a very large and persistent gender wage gap — found that women’s earnings drop significantly after having their first child, while men’s earnings aren’t affected at all. And crucially, several studies in the U.S. and other countries have found that the trajectory of wages for women who don’t have children resembles those of men, whether they have kids or not (although some research has actually suggested that becoming a father can contribute to men’s career success).

This disparity is particularly intense for women of color. Black mothers are paid only 54 cents for every dollar paid to a white father, according to NWLC; for Latina mothers, it’s 46 cents. Low-income women of color are also among the likeliest to have lost their jobs in the current recession. And they’re disproportionately likely to be the child-care workers who are being asked to come back to work, sometimes in unsafe working conditions, for low wages. “We’re in a vicious cycle where we need child care as one of the tools to get women to equal pay, and yet unequal pay is one of the primary reasons that women are pushed into staying home,” Boteach said.

Leaving the workforce, even if it’s just for a year or two, has ripple effects that can follow a woman for the rest of her life, even depressing her earnings in retirement. Finding a new job after a few years on hiatus can be very difficult for mothers, who may be stereotyped as less serious about their careers because they took time off to be with their children. One study from 2007 found that mothers were perceived to be less competent than fathers, and their recommended salaries were also lower.

During this pandemic, you can already see the disproportionate impact taking shape. The unemployment rate for women in April was 16.2 percent, higher than it has been in any month since at least 1948, before dropping to 11.7 percent in June — a percentage point higher than the rate for men (10.6 percent). Even more striking, labor force participation for women dipped to 54.7 percent in April before rising to 56.1 percent last month. Both of those numbers are reminiscent of the rates for women from the 1980s — back when the very notion of women in the workforce was still gaining momentum.6

Wertz has no plans to leave her job — at least for now. “I worked incredibly hard to get to where I am now,” she said. “I essentially paid my way through school with no family support. For years I worked entirely too hard for not enough money.” Already, she worries that she’s perceived differently in the workplace because she’s a mother. “Even if it was just a year, I know how that gap would look on my resume,” she said. “If I had to take that step back, I just don’t know if I’d recover from it.”

[a-infinityend-love-blog]

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[sarcasticcynic]

CAVEAT #1: At least six other states have tried this so far: California, Hawaii, Illinois, Maryland, New York. and Rhode Island. None ever became law.

CAVEAT #2: In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995), the U.S. Supreme Court held that states may not impose conditions on candidates for Congress beyond those expressly listed in the U.S. Constitution, Art. I, § 2: “Neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution.” (Id. at 827.) Presumably a similar rule would apply to candidates for president and the qualifications listed in Art. II, § 1...

CAVEAT #3: ...but not necessarily, because the Electoral College makes presidential elections distinct from those for all other federal offices.

In the oft-criticized Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), when the U.S. Supreme Court voted 5-4 to overrule the Florida Supreme Court, halt all recounts, and in essence declare George W. Bush the winner of Florida’s electors--and thus of the 2000 presidential election--it based the ruling on recognition of every state’s absolute power to control the selection of its own electors:

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. ... the state legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself. ... The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.” (Id. at 104.)

By this reasoning, because individual citizens have no constitutional right to vote for electors, logically a state should have the power to preclude its citizens from selecting any electors who support a particular presidential candidate, by excluding that candidate from the ballot. Guess we’ll see whether the conservative majority still feels the same way now that the state wants to preclude electors who support their guy.

CAVEAT #4: And if they do, we could be in more trouble than we realize. Picture one of those heavily gerrymandered states in which both houses of the legislature are basically under the permanent  control of a single party. Now imagine that legislature passing a law excluding candidates from any other party from the presidential ballot. Or a law eliminating the popular vote for president entirely, and guaranteeing the automatic selection of electors who support their party’s candidate. All permissible, according to Bush v. Gore.

[milohrhk572]

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[dailynewswebsite]

Election 2020 sees record $11 billion in campaign spending, mostly from a handful of super-rich donors

Cash can't purchase you’re keen on, however it could possibly purchase you political affect. Marius Faust / EyeEm by way of Getty

Whole spending within the 2020 federal elections is projected to set a brand new document of virtually US$11 billion by November.

When adjusted for inflation, that’s over 50% increased than 2016 election spending. This yr’s federal election spending – for the presidency, the Senate and the Home of Representatives – is on monitor to be double what it was in 2008.

The surge in marketing campaign spending is placing. However my analysis on marketing campaign finance regulation suggests the amount of election spending shouldn’t be the principle downside with the U.S. marketing campaign finance system.

The true problem for American democracy is the place this cash comes from.

No public marketing campaign funding

American federal election campaigns are solely funded by non-public cash; most of it’s offered by rich particular person donors, political motion committees and different organizations. Rich candidates additionally fund their very own campaigns.

The U.S. has a public funding program for presidential elections, established in 1974. For 20 years it performed an vital function in campaigns.

But it surely offered candidates with restricted funds and imposed very low spending limits. Because the wants and prices of latest campaigns grew, the system collapsed. Whereas nonetheless obtainable, no main candidate has taken public funds within the final three presidential elections.

When Joe Biden ran for the Democratic nomination in 1988, and once more in 2008, he certified for and accepted public funds, which accounted for 22% and 14%, respectively, of his marketing campaign funds.

This yr, as of Aug. 31, 2020, the entire $531 million funding Joe Biden’s marketing campaign to this point got here from non-public funds, in accordance with Open Secrets and techniques, a publicly obtainable database that tracks marketing campaign finance information. So did the $476 million funding President Donald Trump’s reelection bid to this point.

Postmaster Common Louis DeJoy is a serious Trump donor. In August he testified to Congress about his cutbacks to mail service. Tom Williams/CQ-Roll Name, Inc by way of Getty Photos/Pool

The one-thousandth of the 1%

The non-public {dollars} that gasoline U.S. elections come principally from a tiny fraction of society. Critics of American inequality typically speak about “the 1%” – however in marketing campaign finance it’s the 0.0001% who matter.

Federal regulation requires political campaigns, events, PACs and outdoors teams to report the identities of donors who give at the least $200.

The September marketing campaign finance filings – which cowl contributions by way of the top of August – point out that simply 2.eight million folks, or 0.86% of the U.S. inhabitants, had contributed $200 or extra to this yr’s federal elections. But collectively, these comparatively excessive spenders had equipped virtually 74% of all marketing campaign funds.

That’s virtually $5 billion given by a small fraction of Individuals. An excellent smaller quantity – 44,000 folks, or about one-hundredth of 1% of the USA’ 328 million folks – have to this point given $10,000 or extra every to this election, including as much as practically $2.three billion. And a couple of,635 folks or {couples} – lower than one-thousandth of the U.S. inhabitants – collectively offered $1.four billion, roughly one-fifth of complete marketing campaign contributions reported as of late summer time.

These numbers mirror solely publicly reported contributions. The rise of “darkish cash teams” – which spend to affect election outcomes however wouldn’t have to reveal their donors as a result of they declare to be primarily nonelectoral – suggests much more marketing campaign cash is offered by a couple of elite donors.

[Deep knowledge, daily. Sign up for The Conversation’s newsletter.]

The donor class

America’s donor class shouldn’t be consultant of the broader neighborhood whose pursuits are at stake in an election.

Donors are older, whiter and wealthier than America as a complete, my evaluation reveals, and so they hail disproportionately from sure locations. To date this yr, more cash has come from Washington, D.C., than from 20 states mixed, and Joe Biden raised 10% of his cash from simply six zip codes – areas in Washington, D.C., New York Metropolis, a New York suburb and a suburb of Indianapolis.

Sure industries, like finance, actual property, communications, regulation, well being care, pure sources, oil and fuel, are additionally significantly huge election spenders by way of each private and PAC donations associated to the industries. There is no such thing as a formal monitoring of those donors.

In line with media reviews and web sites like Open Secrets and techniques, latest years have seen a placing improve within the quantity and significance of small donors. This yr, small donors account for about 22% of marketing campaign fundraising, up from 14% in 2016.

That’s a step in a extra democratic course. However huge donors are nonetheless pivotal to America’s marketing campaign finance system.

These demonstrators in 2016 wished huge cash out of politics. This yr’s marketing campaign spending is 50% increased. AP/Ted S. Warren

Influence on democracy

Whoever wins in 2020 will likely be tasked with addressing the pandemic’s devastating financial and public well being harms. A number of different enormously consequential points – from racial justice and immigration to commerce, the atmosphere and the courts – additionally hinge on the election final result.

Having a small variety of very rich people financing political candidates distorts the political course of. That is much less a classical quid professional quo – the change of marketing campaign {dollars} for votes – than it’s politicians’ reluctance to take positions which are at odds with the pursuits of their giant donors. What will get on – or stays off – the legislative agenda may be pushed by donor considerations.

Donor affect tends to be extra vital for points that get little media consideration – who will get a particular tax break, for instance, or qualifies for coronavirus aid – than for hot-button considerations like reproductive rights. However marketing campaign cash inevitably shapes authorities motion and who advantages from it, who’s harmed and who’s ignored.

Because the Supreme Courtroom defined in sustaining the 2002 McCain-Feingold Act’s ban on “tender cash” – donations that may have an effect on an election with out being expressly centered on the election – “The proof connects tender cash to manipulations of the legislative calendar, resulting in Congress’s failure to enact, amongst different issues, generic drug laws, tort reform and tobacco laws.”

In 2018, then-federal price range director and former congressman Mick Mulvaney admitted as a lot with disarming candor: “We had a hierarchy in my workplace in Congress. In the event you’re a lobbyist who by no means gave us cash, I didn’t discuss to you. In the event you’re a lobbyist who gave us cash, I’d discuss to you.”

Because the saying goes, he who pays the piper calls the tune.

A model of this story was first printed on Nov. 2, 2018.

Richard Briffault has contributed to a number of Democratic congressional candidates through the present election cycle.

from Growth News https://growthnews.in/election-2020-sees-record-11-billion-in-campaign-spending-mostly-from-a-handful-of-super-rich-donors/ via https://growthnews.in

[nolimitcad-blog]

Renovating vs. Remodeling

Many people who have taken on extensive renovation projects will joke about how much easier it would have been easier to remodel. While there is often truth to this, it can be complicated weighing up the financial and practical implications of renovating over rebuilding. If you have taken on a home renovation project that requires a lot of work, this article will help you decide on the best course of action renovate or remodel?

The key difference is how deep the changes go. A renovation means you’re updating an existing structure with cosmetic changes, whereas a remodel involves changing the structure through demolition and construction. So, a renovation of a bathroom, for example, might involve refreshing the tile and paint, possibly even removing and replacing the existing sink, toilet, and shower, but keeping the plumbing and electrical systems in their original locations, by contrast, the same project would qualify as a remodel if you, say, moved the pipes to make room for a washer/dryer combo.

The most common reasons for renovating are:

The building has architectural charm, merit or significance

It is impossible to truly reproduce the authenticity of genuinely old buildings and it’s often important to try to keep the building’s fabric, both for exterior character and interior features. Of course, if the home is listed it is protected by law so any works will need prior approval. Even if a building is going to be changed radically, keeping the most basic fabric in place can work out cheaper than a complete rebuild with new footings and external walls.

There are instances where renovation means that the compromises you have to make are not only financially costly but also deplete the worth of the home from a design point of view. Here are popular reasons to remodel instead:

You might feel the home doesn't make full advantage of the plot. Perhaps the current design means living spaces are dark and bedrooms positioned too close to a road. While the exact positioning of a rebuild will still be restricted by planning, you will have far more flexibility to create a layout that works. Many people will feel much more comfortable with something newly built, knowing that it is entirely sturdy, where the services run and so forth. In addition, anomalies such as over-steep staircases and narrow doorways can be avoided and you won't have to find ways to work around parts of the building that can't be changed such as a load bearing wall that can't be moved, or an impractical drainage system.

When does remodeling project make more sense than a renovation in Greenville and NC? At No Limit Contracting and Design, we help you decide which option is best for you to create your dream home.

Visit our gallery to view the variety of residential home improvements we have done.No Limit Contracting and Design,  we will work with you through the completion of your project(s) and 100% satisfaction! Contact us today for a free, no hassle estimate! (252) 531-5141.

[jamescharlieee-blog]

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[albstone94]

A Dictionary of Causes of Action Regarding Attorneys

Traditionally, plaintiffs plead a triumvirate of claims against attorneys consisting of legal malpractice, breach of contract and breach of fiduciary duty.  Additional claims are rarely seen.  In Ramirez v Donado Law Firm, P.C.  2019 NY Slip Op 01244  Decided on February 20, 2019 the Appellate Division, Second Department goes through a long list of claims and gives the elements.  The entire decision is valuable.

“Real Property Law § 265-b governs the conduct of distressed property consultants. “Distressed property consultant” or “consultant” is defined as “an individual or a corporation, partnership, limited liability company or other business entity that, directly or indirectly, solicits or undertakes employment to provide consulting services to a homeowner for compensation or promise of compensation with respect to a distressed home loan or a potential loss of the home for nonpayment of taxes” (Real Property Law § 265-b[1][e]). A consultant does not include, inter alia, “an attorney admitted to practice in the state of New York when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice” (Real Property Law § 265-b(1)(e)[i]). Here, contrary to the defendants’ contention, the plaintiffs adequately alleged facts from which it could be inferred that the defendants did not provide consulting services to the plaintiffs in the course of Donado Law’s regular legal practice (see De Guaman v American Hope Group, 163 AD3d 915). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Real Property Law § 265-b insofar as asserted against them.

General Business Law § 349(a) prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” A cause of action to recover damages for a violation of General Business Law § 349 must “identify consumer-oriented misconduct which is deceptive and materially misleading to a reasonable consumer, and which causes actual damages” (Wilner v Allstate Ins. Co., 71 AD3d 155, 161-162; see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25). Private contract disputes, unique to the parties, do not fall within the ambit of General Business Law § 349 (see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25; De Guaman v American Hope Group, 163 AD3d at 917). Here, contrary to the defendants’ contention, “in contrast to a private contract dispute, the practices alleged by the plaintiffs were not unique to these parties and involved an extensive marketing scheme that had a broader impact on consumers at large” (De Guaman v American Hope Group, 163 AD3d at 917 [citations and internal quotation marks omitted]; see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of General Business Law § 349 insofar as asserted against them.

“Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). However, the requirements of CPLR 3016(b) ” may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct'” (Sargiss v Magarelli, 12 NY3d 527, 531, quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492). Here, contrary to the defendants’ contention, the complaint pleaded causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation with sufficient particularity (see CPLR 3016; Sargiss v Magarelli, 12 NY3d at 531; Pludeman v Northern Leasing Sys., Inc., 10 NY3d at 492; De Guaman v American Hope Group, 163 AD3d at 917). Moreover, contrary to the defendants’ contention, the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation were not duplicative of the breach of contract cause of action (see De Guaman v American Hope Group, 163 AD3d at 917; see also Neckles Bldrs., Inc. v Turner, 117 AD3d 923, 925). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation insofar as asserted against them.

“To recover damages for breach of contract, plaintiffs must demonstrate the existence of a contract, [their] performance pursuant to that contract, the defendants’ breach of their obligations pursuant to the contract, and damages resulting from that breach'” (De Guaman v American Hope Group, 163 AD3d at 917, quoting Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127). Here, contrary to the defendants’ contention, the plaintiffs sufficiently pleaded a cause of action alleging breach of contract (see De Guaman v American Hope [*3]Group, 163 AD3d at 917). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in breach of contract insofar as asserted against them.

To recover damages for legal malpractice, a plaintiff must establish “that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Dombrowski v Bulson, 19 NY3d 347, 350 [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Dempster v Liotti, 86 AD3d 169, 176). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683, 684). Here, contrary to the defendants’ contention, the complaint sufficiently pleaded a cause of action to recover damages for legal malpractice (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d at 830; Hershco v Gordon & Gordon, 155 AD3d 1007, 1009). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in legal malpractice insofar as asserted against them.”

A Dictionary of Causes of Action Regarding Attorneys

[legalroll]

Criminal Case Law "Year in Review": Supreme Court of Canada & Manitoba Court of Appeal

To view the entire Criminal Case Law Review: Oct 1, 2016 - Oct 31, 2017

On November 29, 2017, I was lucky enough to present at the Manitoba Crown-Defence conference in Winnipeg. The Manitoba Court of Appeal and Supreme Court of Canada decided a number of important cases in the criminal law realm in 2016-2017. 58 criminal appeals were released in Manitoba while 27 Supreme Court of Canada criminal cases came down. 3L research students Amy Gelhorn and Nicole Deniset put together a detailed summary of these cases which iswith this blog. It is a tremendous resource for law students, practicing lawyers and the judiciary.

There were many important cases from the Supreme Court of Canada including R v. Paterson, 2017 SCC 15 in which the court explores the limits of s.8 of the Charter in the context of residence searches.

The Court opted to exclude evidence under s.24(2) of the Charter that was found by police after entering an apartment. The case brings up interesting issues of privacy and police discretion as well as providing trial courts with yet more guidance on applying the Grant criteria for exclusion of evidence under s.24(2). Paterson also confirms that the voluntary confessions rule does not apply in a Charter voir dire because the guilt or innocence of the accused is not at stake in that voir dire, only in the trial proper.

Other important Charter decisions from the top court included R v. Rowson, 2016 SCC 40, a ss. 9 & 10 case concerning arbitrary detention and right to counsel in the impaired driving context; R v. Diamond, 2016 SCC 46 another search case under s.8, this time dealing with issues of plain view after a traffic stop; and R v. Antic, 2017 SCC 27, an important bail decision in which the Supreme Court clarifies the role a cash deposit and sureties can and should play in the judicial interim release of an accused.

The Supreme Court also released two decisions on delay pursuant to s.11(b) of the Charter, R v. Cody, 2017 SCC 31 and R v. Hunt, 2017 SCC 25, the former confirming the Court’s position in R v. Jordan, 2016 SCC 27 that presumptive ceilings apply to criminal matters and their application will be taken very seriously indeed.

The law of evidence saw a number of important decisions also, not least of which was R v. Bradshaw, 2017 SCC 35 where the Supreme Court dove headfirst into the role of corroborative evidence as it applies to the substantive reliability aspect of the principled exception to the hearsay rule.

This 5-2 split of the Supreme Court has once again changed to the role of corroborative evidence as it relates to the reliability analysis, taking the law from the opposing positions articulated in R v. Khan [1990] 2 S.C.R. 531 and R v. Starr, 2000 SCC 40 and settling on a new test for when corroborative evidence can be used to establish substantive reliability: “A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay dangers relate to the declarant’s sincerity, truthfulness is the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.” [para 44, Emphasis added] Under this new test, Bradshaw certainly has the potential to limit the amount of hearsay evidence that will qualify as reliable under the principled approach to admissibility.

R v. Bingley, 2017 SCC 12 was another important decision for the law of evidence, Chief Justice McLachlin (as she then was) explaining that though the Common law rules of evidence apply to expert evidence admissibility pursuant to CCs. 254(3.1) (i.e. the R v. Mohan [1994] 2 S.C.R. 9 criteria for expert evidence, as augmented by White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, is the applicable test for trial judges to apply to establish whether expert opinion evidence is admissible), the Drug Recognition Experts (DRE) expertise has been “conclusively and irrebuttably established by parliament.” Where this will leave expert evidence voir dires in impaired by drug prosecutions will unfold in due course. As the number of impaired by drug cases steadily increases, it will be interesting to see how courts deal with future challenges to the expertise of DRE’s.

In the Manitoba Court of Appeal, R v. Rennie, 2017 MBCA 44 (Leave to the Supreme Court of Canada dismissed) explored the important issue of when a sentencing judge must take Gladue factors under CC s. 718.2(e) into account in determining a fit and appropriate sentence for aboriginal offenders.

In choosing a “middle ground” between the two opposing visions of Gladue application expressed in R v. Kreko, 2016 ONCA 367 and R v. Laboucane, 2016 ABCA 176 (CanLII), the Manitoba Court of Appeal commented: “A sentencing judge cannot simply ignore the fact that an offender has an Aboriginal background, but on the other hand, she or he is not bound to find that such a background will automatically lead to a conclusion that the offender has been disadvantaged because of that background.” This case could have a far-reaching impact for sentencing judges and counsel who continue to wrestle with the proper application of Gladue principles in our courts.

Overall, it has been a very interesting year with many important decisions changing the way in which the procedural and substantive aspects of criminal law are practiced. The Supreme Court of Canada continues to shape our Charter landscape as evidenced by the recent decisions concerning a reasonable expectation of privacy in text messages (see R v. Marakah, 2017 SCC 59 & R v. Jones, 2017 SCC 60). The next year will doubtless bring more changes to our discipline and robsoncrim.com will continue to provide students, lawyers and judges with access to the latest in criminal law jurisprudence, research and commentary.

Criminal Case Law "Year in Review": Supreme Court of Canada & Manitoba Court of Appeal published first on http://ift.tt/2fPSFkQ

[legalseat]

Criminal Case Law "Year in Review": Supreme Court of Canada & Manitoba Court of Appeal

To view the entire Criminal Case Law Review: Oct 1, 2016 - Oct 31, 2017

On November 29, 2017, I was lucky enough to present at the Manitoba Crown-Defence conference in Winnipeg. The Manitoba Court of Appeal and Supreme Court of Canada decided a number of important cases in the criminal law realm in 2016-2017. 58 criminal appeals were released in Manitoba while 27 Supreme Court of Canada criminal cases came down. 3L research students Amy Gelhorn and Nicole Deniset put together a detailed summary of these cases which iswith this blog. It is a tremendous resource for law students, practicing lawyers and the judiciary.

There were many important cases from the Supreme Court of Canada including R v. Paterson, 2017 SCC 15 in which the court explores the limits of s.8 of the Charter in the context of residence searches.

The Court opted to exclude evidence under s.24(2) of the Charter that was found by police after entering an apartment. The case brings up interesting issues of privacy and police discretion as well as providing trial courts with yet more guidance on applying the Grant criteria for exclusion of evidence under s.24(2). Paterson also confirms that the voluntary confessions rule does not apply in a Charter voir dire because the guilt or innocence of the accused is not at stake in that voir dire, only in the trial proper.

Other important Charter decisions from the top court included R v. Rowson, 2016 SCC 40, a ss. 9 & 10 case concerning arbitrary detention and right to counsel in the impaired driving context; R v. Diamond, 2016 SCC 46 another search case under s.8, this time dealing with issues of plain view after a traffic stop; and R v. Antic, 2017 SCC 27, an important bail decision in which the Supreme Court clarifies the role a cash deposit and sureties can and should play in the judicial interim release of an accused.

The Supreme Court also released two decisions on delay pursuant to s.11(b) of the Charter, R v. Cody, 2017 SCC 31 and R v. Hunt, 2017 SCC 25, the former confirming the Court’s position in R v. Jordan, 2016 SCC 27 that presumptive ceilings apply to criminal matters and their application will be taken very seriously indeed.

The law of evidence saw a number of important decisions also, not least of which was R v. Bradshaw, 2017 SCC 35 where the Supreme Court dove headfirst into the role of corroborative evidence as it applies to the substantive reliability aspect of the principled exception to the hearsay rule.

This 5-2 split of the Supreme Court has once again changed to the role of corroborative evidence as it relates to the reliability analysis, taking the law from the opposing positions articulated in R v. Khan [1990] 2 S.C.R. 531 and R v. Starr, 2000 SCC 40 and settling on a new test for when corroborative evidence can be used to establish substantive reliability: “A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay dangers relate to the declarant’s sincerity, truthfulness is the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.” [para 44, Emphasis added] Under this new test, Bradshaw certainly has the potential to limit the amount of hearsay evidence that will qualify as reliable under the principled approach to admissibility.

R v. Bingley, 2017 SCC 12 was another important decision for the law of evidence, Chief Justice McLachlin (as she then was) explaining that though the Common law rules of evidence apply to expert evidence admissibility pursuant to CCs. 254(3.1) (i.e. the R v. Mohan [1994] 2 S.C.R. 9 criteria for expert evidence, as augmented by White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, is the applicable test for trial judges to apply to establish whether expert opinion evidence is admissible), the Drug Recognition Experts (DRE) expertise has been “conclusively and irrebuttably established by parliament.” Where this will leave expert evidence voir dires in impaired by drug prosecutions will unfold in due course. As the number of impaired by drug cases steadily increases, it will be interesting to see how courts deal with future challenges to the expertise of DRE’s.

In the Manitoba Court of Appeal, R v. Rennie, 2017 MBCA 44 (Leave to the Supreme Court of Canada dismissed) explored the important issue of when a sentencing judge must take Gladue factors under CC s. 718.2(e) into account in determining a fit and appropriate sentence for aboriginal offenders.

In choosing a “middle ground” between the two opposing visions of Gladue application expressed in R v. Kreko, 2016 ONCA 367 and R v. Laboucane, 2016 ABCA 176 (CanLII), the Manitoba Court of Appeal commented: “A sentencing judge cannot simply ignore the fact that an offender has an Aboriginal background, but on the other hand, she or he is not bound to find that such a background will automatically lead to a conclusion that the offender has been disadvantaged because of that background.” This case could have a far-reaching impact for sentencing judges and counsel who continue to wrestle with the proper application of Gladue principles in our courts.

Overall, it has been a very interesting year with many important decisions changing the way in which the procedural and substantive aspects of criminal law are practiced. The Supreme Court of Canada continues to shape our Charter landscape as evidenced by the recent decisions concerning a reasonable expectation of privacy in text messages (see R v. Marakah, 2017 SCC 59 & R v. Jones, 2017 SCC 60). The next year will doubtless bring more changes to our discipline and robsoncrim.com will continue to provide students, lawyers and judges with access to the latest in criminal law jurisprudence, research and commentary.

Criminal Case Law "Year in Review": Supreme Court of Canada & Manitoba Court of Appeal published first on http://ift.tt/2vSFQ3P

[davinmorriss-blog]

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HRM 531 Week 1 Employment Law Report (2 Papers) HRM 531 Week 2 Change Management Impact (2 Papers) HRM 531 Week 3 Individual Compensation and Benefits Strategy (2 Papers) HRM 531 Week 3 Team Salary Inequities Case Study AstraZeneca (2 Papers) HRM 531 Week 4 Training and Development Strategy (2 Papers) HRM 531 Week 5 Full Performance Strategy Analysis (2 Papers) HRM 531 Week 6  HR Consultant Proposal HRM 531 Week 1 DQ 1 HRM 531 Week 1 DQ 2 HRM 531 Week 2 DQ 1 HRM 531 Week 2 DQ 2 HRM 531 Week 3 DQ 1 HRM 531 Week 3 DQ 2 HRM 531 Week 4 DQ 1 HRM 531 Week 4 DQ 2 HRM 531 Week 5 DQ 1 HRM 531 Week 5 DQ 2

[nancyedimick]

The police can’t just share the contents of a seized iPhone with other agencies, court rules

If a police agency gets a search warrant and seizes a target’s iPhone, can the agency share a copy of all of the phone’s data with other government agencies in the spirit of “collaborative law enforcement among different agencies”? Not without the Fourth Amendment coming into play, a federal court ruled last week in United States v. Hulscher, 2017 WL 657436 (D.S.D. February 17, 2017). Here’s a summary of the new case, together with my reactions.

Hulscher was being investigated by two different agencies for two unrelated crimes. The local police were investigating Hulscher for counterfeiting crimes. Meanwhile, the federal Bureau of Alcohol, Tobacco and Firearms (ATF) was investigating Hulscher on firearms-related charges.

The local police obtained a search warrant for the defendant’s iPhone to search it for evidence of counterfeiting. (The warrant was really broad, but I gather from the opinion that it was a particular warrant in context and that it limited the search to evidence of counterfeiting.) In the course of executing the warrant, agents made a complete copy of the data on the phone and searched the copy for evidence. Hulscher was later convicted of counterfeiting based in part on the evidence from the phone.

Meanwhile, federal agents were preparing for trial against Hulscher on federal firearms charges. The ATF agents reviewing Hulscher’s criminal record noticed his recent arrest by the local police. When the ATF agents contacted the local police, the local police told the ATF agents that they had a complete copy of Hulscher’s iPhone that might be helpful for the firearms case. The ATF agents obtained a digital copy of the files from the local police and searched through it without obtaining a second warrant. The agents found evidence that is relevant to the still-pending federal firearms charges. Hulscher then moved to suppress the evidence.

The district court, per Judge Karen Schreier, granted the motion to suppress. Here’s the full analysis of why the second search violated the Fourth Amendment:

[T]he issue before the court is whether a subsequent viewing of a copy of electronic data from a cell phone constitutes a search when the data was collected under a valid search warrant and was unresponsive to that warrant.

This specific fact scenario is relatively new to Fourth Amendment analysis, and as noted by Professor Orin Kerr, “[e]xisting precedents dealing with the treatment of copies of seized property are surprisingly difficult to find.” Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 562 (2005). Despite the lack of precedent on how courts should treat digital copies of electronic information, “[t]here are two obvious choices: courts can treat searches of copies just like searches of originals or else treat copies merely as data stored on government-owned property.” Id. Here, the government argues for the latter. The government argues that cell phone data can be shared among law enforcement agencies like a box of physical evidence.

As the Supreme Court explained in Riley, however, cell phone data is not the same as physical evidence. In Riley, the issue before the Supreme Court was whether cell phones could be searched incident to arrest like other physical objects found on arrestees. Riley v. California, 134 S. Ct. 2473, 2482 (2014). The court held that because cell phones contain immense amounts of personal information about people’s lives, they are unique, and law enforcement “officers must generally secure a warrant before conducting such a search.” Id. at 2485. This court reaches a similar conclusion. As explained by Magistrate Judge Duffy, “[t]he chief evil [that] the Fourth Amendment was intended to address was the hated ‘general warrant’ of the British crown.” Docket 251 at 10 (citing Payton v. New York, 445 U.S. 573, 583–84 (1980)). If the scope of the Beadle County warrant was not limited to the Hurron Police Department’s counterfeiting investigation, the search warrant would have been an invalid “general warrant.” Id. at 16 (citations omitted). As explained by Magistrate Judge Duffy, “[t]he conclusion is inescapable: Agent Fair should have applied for and obtained a second warrant [that] would have authorized him to search Mr. Hulscher’s cell phone data for evidence of firearms offenses.” Id. at 32 (citations omitted).

The government argues that this conclusion is “impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies.” Docket 255 at 1–2. The government’s position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482. According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the government’s argument is taken to its natural conclusion, then this opens the door to pretextual searches of a person’s cell phone for evidence of other crimes. Under the government’s view, law enforcement officers could get a warrant to search an individual’s cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the government’s use or retention of unresponsive cell phone data collected under a valid warrant.

As the Supreme Court noted in Riley, cell phone data can include immense amounts of information such as “thousands of photos,” months of correspondence, or “every bank statement from the last five years.” Id. at 2493. The search of a cell phone can provide far more information than the most exhaustive search of a house. Id. at 2491. This is especially true because cell phones collect many different kinds of data in one place such as “an address, a note, a prescription, a bank statement, a video ….” Id. at 2489. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions ….” Id. The government’s position, which would allow for mass retention of unresponsive cell phone data, is simply inconsistent with the protections of the Fourth Amendment. The government’s objection on this point is overruled.

The government objects to Magistrate Judge Duffy’s conclusion that “Agent Fair cannot be said to have acted pursuant to a search warrant ….” Docket 255 at 2; Docket 251 at 15. The government, however, introduced no evidence that Agent Fair knew about the warrant. But even if Agent Fair was aware of the Beadle County warrant, the warrant was limited to a search for evidence relating to the counterfeiting charges, and “a reasonable officer who read the search warrant would have known that.” Docket 251 at 20. Thus, at best, the government’s position is that Agent Fair knew about the Beadle County search warrant and disregarded its parameters. Under either fact scenario — Agent Fair knew about the warrant or did not know about the warrant — a “reasonably well-trained officer would have known that the search was illegal despite the issuing judge’s authorization.” Docket 251 at 19–20 (citing United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008).

The government “objects to the conclusion that the plain view exception is not applicable [to this case].” Docket 255 at 3. In Horton v. California, 496 U.S. 128, 135 (1990), the United States Supreme Court explained that the plain view doctrine applies when law enforcement has a prior justification for a search and inadvertently comes across a piece of incriminating evidence. As explained above, Agent Fair’s search of the complete, unsegregated iPhone data lacked a sufficient justification. Thus, the plain view doctrine does not apply. The government’s objection on this point is overruled.

The government also objects to the conclusion that the plain view doctrine does not apply to digital searches generally. Because this court can rule on the suppression motion based solely on the facts of this case, the government’s objection is sustained on this point.

I’ll offer four reactions to the decision.

1) The ruling is correct, in my view. The first warrant didn’t allow the second search, and the nonresponsive files were still protected by the Fourth Amendment after the first warrant had been executed. If the second search was permitted, a second warrant was required for it.

2) The facts of the case resemble those of the 2nd Circuit’s ultimately inconclusive litigation in United States v. Ganias. But there’s an important difference. In Ganias, the government obtained a second warrant before conducting the second search. The Ganias panel decision ruled that the second search was unconstitutional even with a second warrant, although the en banc court left that issue undecided.

By contrast, in Hulscher, the court seems to agree that the second search would have been permitted if a second warrant had been obtained. That’s a big difference. If a second warrant can be obtained, the only limit of the restriction is that nonresponsive files from the first warrant can’t be searched without a second warrant. If the second warrant is unlawful, as Ganias held, then the nonresponse files from the first warrant are entirely off-limits in later investigations.

3) I gather from the remedies section of Hulscher that the government isn’t likely to appeal this ruling. In discussing the costs and benefits of suppression, the court says:

Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The government’s actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fair’s search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.

As I have written before, I don’t think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isn’t important, the government isn’t going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.

4) I’ll selfishly score this as another case moving in the direction of use restrictions on nonresponsive data in computer warrant cases. For more on my views, see my article “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data,” 48 Texas Tech Law Review 1 (2015).

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/21/the-police-cant-just-share-the-contents-of-a-seized-iphone-with-other-agencies-court-rules/

[wolfandpravato]

The police can’t just share the contents of a seized iPhone with other agencies, court rules

If a police agency gets a search warrant and seizes a target’s iPhone, can the agency share a copy of all of the phone’s data with other government agencies in the spirit of “collaborative law enforcement among different agencies”? Not without the Fourth Amendment coming into play, a federal court ruled last week in United States v. Hulscher, 2017 WL 657436 (D.S.D. February 17, 2017). Here’s a summary of the new case, together with my reactions.

Hulscher was being investigated by two different agencies for two unrelated crimes. The local police were investigating Hulscher for counterfeiting crimes. Meanwhile, the federal Bureau of Alcohol, Tobacco and Firearms (ATF) was investigating Hulscher on firearms-related charges.

The local police obtained a search warrant for the defendant’s iPhone to search it for evidence of counterfeiting. (The warrant was really broad, but I gather from the opinion that it was a particular warrant in context and that it limited the search to evidence of counterfeiting.) In the course of executing the warrant, agents made a complete copy of the data on the phone and searched the copy for evidence. Hulscher was later convicted of counterfeiting based in part on the evidence from the phone.

Meanwhile, federal agents were preparing for trial against Hulscher on federal firearms charges. The ATF agents reviewing Hulscher’s criminal record noticed his recent arrest by the local police. When the ATF agents contacted the local police, the local police told the ATF agents that they had a complete copy of Hulscher’s iPhone that might be helpful for the firearms case. The ATF agents obtained a digital copy of the files from the local police and searched through it without obtaining a second warrant. The agents found evidence that is relevant to the still-pending federal firearms charges. Hulscher then moved to suppress the evidence.

The district court, per Judge Karen Schreier, granted the motion to suppress. Here’s the full analysis of why the second search violated the Fourth Amendment:

[T]he issue before the court is whether a subsequent viewing of a copy of electronic data from a cell phone constitutes a search when the data was collected under a valid search warrant and was unresponsive to that warrant.

This specific fact scenario is relatively new to Fourth Amendment analysis, and as noted by Professor Orin Kerr, “[e]xisting precedents dealing with the treatment of copies of seized property are surprisingly difficult to find.” Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 562 (2005). Despite the lack of precedent on how courts should treat digital copies of electronic information, “[t]here are two obvious choices: courts can treat searches of copies just like searches of originals or else treat copies merely as data stored on government-owned property.” Id. Here, the government argues for the latter. The government argues that cell phone data can be shared among law enforcement agencies like a box of physical evidence.

As the Supreme Court explained in Riley, however, cell phone data is not the same as physical evidence. In Riley, the issue before the Supreme Court was whether cell phones could be searched incident to arrest like other physical objects found on arrestees. Riley v. California, 134 S. Ct. 2473, 2482 (2014). The court held that because cell phones contain immense amounts of personal information about people’s lives, they are unique, and law enforcement “officers must generally secure a warrant before conducting such a search.” Id. at 2485. This court reaches a similar conclusion. As explained by Magistrate Judge Duffy, “[t]he chief evil [that] the Fourth Amendment was intended to address was the hated ‘general warrant’ of the British crown.” Docket 251 at 10 (citing Payton v. New York, 445 U.S. 573, 583–84 (1980)). If the scope of the Beadle County warrant was not limited to the Hurron Police Department’s counterfeiting investigation, the search warrant would have been an invalid “general warrant.” Id. at 16 (citations omitted). As explained by Magistrate Judge Duffy, “[t]he conclusion is inescapable: Agent Fair should have applied for and obtained a second warrant [that] would have authorized him to search Mr. Hulscher’s cell phone data for evidence of firearms offenses.” Id. at 32 (citations omitted).

The government argues that this conclusion is “impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies.” Docket 255 at 1–2. The government’s position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482. According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the government’s argument is taken to its natural conclusion, then this opens the door to pretextual searches of a person’s cell phone for evidence of other crimes. Under the government’s view, law enforcement officers could get a warrant to search an individual’s cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the government’s use or retention of unresponsive cell phone data collected under a valid warrant.

As the Supreme Court noted in Riley, cell phone data can include immense amounts of information such as “thousands of photos,” months of correspondence, or “every bank statement from the last five years.” Id. at 2493. The search of a cell phone can provide far more information than the most exhaustive search of a house. Id. at 2491. This is especially true because cell phones collect many different kinds of data in one place such as “an address, a note, a prescription, a bank statement, a video ….” Id. at 2489. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions ….” Id. The government’s position, which would allow for mass retention of unresponsive cell phone data, is simply inconsistent with the protections of the Fourth Amendment. The government’s objection on this point is overruled.

The government objects to Magistrate Judge Duffy’s conclusion that “Agent Fair cannot be said to have acted pursuant to a search warrant ….” Docket 255 at 2; Docket 251 at 15. The government, however, introduced no evidence that Agent Fair knew about the warrant. But even if Agent Fair was aware of the Beadle County warrant, the warrant was limited to a search for evidence relating to the counterfeiting charges, and “a reasonable officer who read the search warrant would have known that.” Docket 251 at 20. Thus, at best, the government’s position is that Agent Fair knew about the Beadle County search warrant and disregarded its parameters. Under either fact scenario — Agent Fair knew about the warrant or did not know about the warrant — a “reasonably well-trained officer would have known that the search was illegal despite the issuing judge’s authorization.” Docket 251 at 19–20 (citing United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008).

The government “objects to the conclusion that the plain view exception is not applicable [to this case].” Docket 255 at 3. In Horton v. California, 496 U.S. 128, 135 (1990), the United States Supreme Court explained that the plain view doctrine applies when law enforcement has a prior justification for a search and inadvertently comes across a piece of incriminating evidence. As explained above, Agent Fair’s search of the complete, unsegregated iPhone data lacked a sufficient justification. Thus, the plain view doctrine does not apply. The government’s objection on this point is overruled.

The government also objects to the conclusion that the plain view doctrine does not apply to digital searches generally. Because this court can rule on the suppression motion based solely on the facts of this case, the government’s objection is sustained on this point.

I’ll offer four reactions to the decision.

1) The ruling is correct, in my view. The first warrant didn’t allow the second search, and the nonresponsive files were still protected by the Fourth Amendment after the first warrant had been executed. If the second search was permitted, a second warrant was required for it.

2) The facts of the case resemble those of the 2nd Circuit’s ultimately inconclusive litigation in United States v. Ganias. But there’s an important difference. In Ganias, the government obtained a second warrant before conducting the second search. The Ganias panel decision ruled that the second search was unconstitutional even with a second warrant, although the en banc court left that issue undecided.

By contrast, in Hulscher, the court seems to agree that the second search would have been permitted if a second warrant had been obtained. That’s a big difference. If a second warrant can be obtained, the only limit of the restriction is that nonresponsive files from the first warrant can’t be searched without a second warrant. If the second warrant is unlawful, as Ganias held, then the nonresponse files from the first warrant are entirely off-limits in later investigations.

3) I gather from the remedies section of Hulscher that the government isn’t likely to appeal this ruling. In discussing the costs and benefits of suppression, the court says:

Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The government’s actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fair’s search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.

As I have written before, I don’t think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isn’t important, the government isn’t going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.

4) I’ll selfishly score this as another case moving in the direction of use restrictions on nonresponsive data in computer warrant cases. For more on my views, see my article “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data,” 48 Texas Tech Law Review 1 (2015).

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/21/the-police-cant-just-share-the-contents-of-a-seized-iphone-with-other-agencies-court-rules/