Monday, December 1, 2014

How a well-intentioned U.S. law left Congolese miners jobless

When his father could no longer make enough money from the tin mine, when he could no longer pay for school, Bienfait Kabesha ran off and joined a militia. It offered the promise of loot and food, and soon he was firing an old rifle on the front lines of Africa's deadliest conflict. He was 14.

But what makes Kabesha different from countless other child soldiers is this: His path to war involved not just the wrenching poverty and violence of eastern Congo but also an obscure measure passed by American lawmakers.

Villagers call it "Loi Obama" -- Obama's Law.

The legislation compels U.S. companies to audit their supply chains to ensure that they are not using "conflict minerals" -- particularly gold, coltan, tin and tungsten from artisanal mines controlled by Congo's murderous militias. It was championed by influential activists and lawmakers, both Republicans and Democrats, and tucked into the massive Wall Street reform law known as the Dodd-Frank Act.

A Congolese miner works in a tin mine
A Congolese miner works in a tin mine
The law's supporters argued that it would weaken the militias by cutting off their mining profits.

But the legislation, signed by President Obama four years ago, set off a chain of events that has propelled millions of miners and their families deeper into poverty, according to interviews with miners, community leaders, activists, and Congolese and Western officials, as well as recent visits to four large mining areas.

As it sought to comply with the law, Congo's government began by shutting down the mining industry for months. Then, a process was launched to certify the country's minerals as conflict-free. But the process is unfolding at a glacial pace, marred by a lack of political will, corruption and bureaucratic and logistical delays.

That has led foreign companies to avoid buying the minerals, which has driven down prices. Many miners are forced to find other ways to survive, including by joining armed groups. Meanwhile, the militias remain potent threats.

"The intention of the law was good, but in practice, it was not well thought-out," said Eric Kajemba, director of the Observatory for Governance and Peace, a regional nonprofit group. "This is a country where the government is absent in many areas, plagued by years of war and bad governance, where the economic tissue has been destroyed. The American lawmakers didn't appear to take this into consideration."

 Requests for comment were made to former senator Russell Feingold (D-Wis.), a key backer of the conflict-minerals measure who is now the U.S. special envoy to the Great Lakes region, which includes Congo. But his office said he was not available. The State Department also did not reply to several requests for comment.

As of June, the government had certified just 25 mining sites out of hundreds in South and North Kivu provinces as "green" -- meaning there was no presence of armed groups and there were no children or pregnant women laborers -- according to U.N. monitors. As of October, there were only 11 mines out of more than 900 here in South Kivu where minerals were "tagged" as conflict-free, said Adalbert Murhi Mubalama, the province's minister of mines.

Government and international mine certification agencies, he said, have been unable to audit most mining areas because of their size, poor roads and insecurity. Shabunda territory, where most of South Kivu's mines are located, is almost as big as Belgium and is controlled mostly by a ruthless militia. The government, he said, "can't go there."

Rapid downturn

The United Nations estimates that Congo has untapped mineral reserves worth $24 trillion. Since the late 1990s, militias, rebel groups and armies have plundered these riches, using them to fuel a string of wars that have caused more deaths than any conflict since World War II.

In the United States, the furor over conflict minerals intensified with revelations that multinational firms such as Apple, Intel and Motorola were unwittingly buying conflict minerals to make products such as smartphones and laptop computers. Activists pressured lawmakers to pass the measure in the Dodd-Frank Act.

It quickly had an effect. In the fall of 2010, two months after the law's signing, Congo's government halted mining for six months -- even at facilities not controlled by armed groups. The move had tremendous repercussions in a country where, by some estimates, a sixth of the 70 million inhabitants depend on artisanal mining.

In Luntukulu, a mineral-rich region nestled in rocky hills near the border of Shabunda territory, more than a dozen out-of-work miners joined the Raia Mutomboki militia after the government imposed the ban, village elders and mining cooperative leaders said.

"If we were earning more money from mining, I would not have entered the militia," said Kabesha, now 16, as he sat in a grass hut.

When he joined, he was handed a rifle and taught to shoot. Within months, he was looting villages and fighting government forces and other militias.

Last year, he fled and entered a program to rehabilitate child soldiers. But he's still not attending school.

'A weight on us'

In 2010, before the law passed, miners were selling a kilogram of tin -- about two pounds -- for $7. The world market price averaged $18 a kilo. Scores of buyers came to Luntukulu for minerals. They were exported to smelters around the world, from which American companies purchased them.

Now, the miners get only $4 for a kilo of tin -- even though the global market price this year has averaged $22 per kilo. None of the 15 mines in Luntukulu that produce tin and gold have been certified as conflict-free.

This year, only 12 buyers showed up, miners and community leaders said.

Some of the untagged minerals are bought by Chinese and Indian firms that are not subject to the Dodd-Frank law. But the loss of American and other Western clients has been keenly felt.

As in many mining communities, with less money flowing in, shops in Luntukulu have closed. Many people here struggle to feed their families through farming.

"If Obama's Law wasn't signed, the ban would not have existed," said Waso Mutiki, 41, president of the miners cooperative in Luntukulu. "It destroyed everything."

Even at the few mines certified as conflict-free, miners face hardship. Near Nzibira, a village about 15 miles from here, miners in blue uniforms dig in pits, searching for tin ore. The minerals are placed in tagged bags, indicating they meet international standards.

But the miners still get $4 per kilo. That's because there are only a few trading houses in the provincial capital, Bukavu, due to the limited supply of tagged minerals and delays in providing government licenses to buy them, miners and community leaders said. The houses fix the price, they added.

"The law of Obama is like a weight on us," said Michel Mushagalusa, 30, vice president of the mining cooperative in Nzibira.

Some activists and researchers say that minerals aren't the core cause of Congo's war -- that there are other, more powerful factors, such as political and ethnic struggles and conflicts over land. And regulating the minerals, they say, does little to thwart the militias.

Supporters of the American law say the plundering of minerals is a key stimulant of the conflict. They say the legislation has spurred measures by corporations and African governments to help end the illegal trade. But even some of the law's biggest proponents say the Obama administration and tech companies should have provided aid as the legislation was being implemented

"Four years went by with almost no support for Congolese miners," wrote the Enough Project, a powerful activist group, in an open letter published Oct. 30. It added that American and other donors had only recently set up aid programs, "but they have yet to be felt by mining communities."

Thriving from gold

In a report published this past summer, the Enough Project found that armed groups were no longer present at two-thirds of tin, tungsten and coltan mines in three eastern Congo provinces and cited the law as the reason. Nonetheless, some of the most brutal militias are still thriving in those provinces and others.

In some areas outside of Luntukulu and in Shabunda territory, the Raia Mutomboki are the lords.

The militia, whose name means "outraged citizens" in Swahili, sells diggers access to mining pits and takes a percentage of the minerals unearthed, a large portion of which are smuggled out through neighboring countries.

The fighters also exact taxes at checkpoints.

"Almost all our mines are controlled by Raia Mutomboki," said Mozart Manigua, 42, president of a cooperative that oversees 20 mines in Kimbli, a vast area within Shabunda. Local people "have no choice but to work for the militia."

In other areas, militias have switched to selling palm oil, charcoal, marijuana, cattle and soap, said community leaders, activists and U.N. monitors. Their income is hardly as much as they earned from minerals, but it's enough to continue destabilizing eastern Congo.

Gold, though, remains a lucrative financial pipeline for armed groups, according to U.N. investigators. By some estimates, $400 million in gold from artisanal mines was smuggled out last year, most of it fueling armed actors and tainting the global gold supply.

Increasingly, Congo's army is becoming a major player in the conflict-minerals trade.

Soldiers help smuggle untagged minerals out through Rwanda, Uganda and Burundi, according to U.N. experts and Congolese government and law enforcement officials.

"It's some of the big commanders," said Mubalama, the mining minister.

By Sudarsan Raghavan,

Source: The Washington Post

How Obama blatantly disregards the law

President Obama likes to claim he's been forced into rogue executive actions, laying the blame on an intransigent Congress. In fact, his lawlessness is coldly calculated, dating back to his days as a Chicago community organizer.

Consider what he wrote on page 276 of his 1995 memoir, "Dreams from My Father," reflecting on his decision to study law: "I had things to learn in law school, things that would help me bring about real change. I would learn power's currency in all its intricacy and detail, knowledge that I could now bring back to where it was needed…bring it back like Promethean fire."

Obama fancies himself a modern-day Prometheus stealing laws from the oppressive Founding Fathers for the benefit of the oppressed.

"I just took an action to change the law!" he reminded Hispanic activists in Chicago last week, referring to his executive amnesty.

Learning to run around American law was his main purpose in attending Harvard Law School, where he quickly sidled up to Professor Derrick Bell, who bashed the Constitution as a form of "original sin."

There was no reverence in studying the founding documents and the system they created, no desire to work within America's legal framework and enforce existing law.

No, Obama didn't study federal statutes to defend them. He studied them to game them, sabotage them. To abdicate them.

Faith leaders and activists protest immigrant deportations in front of the White House
Protest immigrant deportations in front of the White House
On immigration

Exhibit A is his illegal mass amnesty for illegals.

According to a new report by the Congressional Research Service, the Hill's nonpartisan think tank, the president's authority to grant amnesty is limited to illegal aliens facing emergency situations — such as wars or earthquakes, floods and droughts — that prevent their safe deportation.

The almost 5 million illegals getting a pass from Obama face no such hazards.

By giving them work permits, Obama's also violating the Immigration and Nationality Act's intent of protecting domestic labor.

"Congress is unlikely to have defined ‘unauthorized alien' and prohibited the knowing hiring or employment of such aliens if it contemplated the executive branch granting work authorization" to millions of illegals, wrote CRS legislative attorneys Kate M. Manuel and Michael John Garcia.

What's more, the Supreme Court in its 1985 "Heckler v. Cheney" decision struck down presidential policies that abdicate statutory duties.

"The Heckler Court expressly recognized the possibility of an executive agency ‘consciously and expressly adopt(ing) a general policy (of not enforcing the law) that is so extreme as to amount to an abdication of its statutory responsibilities,'" they added.

There is little doubt that ordering Homeland Security not to remove half the illegal population is an "extreme" policy. The president has "consciously" decided to abdicate the statutory duties Congress assigned him in the Immigration and Nationality Act, which expressly mandates illegal aliens "shall be detained for removal proceedings."

On school discipline

But Obama's not just flouting immigration statutes. He's also reinterpreting the nation's civil-rights laws.

For starters, Obama has directed his education secretary and attorney general to pressure public school districts to limit the number of minority students they suspend.

To comply with the policy, Minneapolis Public Schools and other districts have adopted de facto racial quotas in discipline.

"MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years," the Minneapolis school superintendent explains. "This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018."

By referring lower and lower shares of black kids for discipline until they equal white levels, MPS is favoring one race over another in violation of the Equal Protection Clause.

"The new discipline policy is legally and constitutionally suspect," US Civil Rights Commissioner Peter Kirsanow asserted.

A federal appeals court in its 1997 People Who Care v. Rockford Board of Education decision declared unconstitutional a Rockford, Ill., policy that forbade school officials referring "a higher percentage of minority students than of white students for discipline."

Former Education Department lawyer Hans Bader notes the court ruling also "explicitly rejected the argument that such a rule is permissible to prevent ‘disparate impact,'" a dubious civil rights theory not found in the text of Title VI of the Civil Rights Act.

"This provision cannot stand," the Chicago-based 7th Circuit unanimously ruled. "Racial disciplinary quotas violate equity in its root sense. They entail either systematically over-punishing the innocent or under-punishing the guilty. They place race at war with justice."

"In the event of litigation," Kirsanow said, "I expect that the 8th Circuit (which includes Minnesota) will find its sister circuit's reasoning persuasive."

On housing

Also, Obama is illegally rewriting both the Fair Housing Act and Equal Credit Opportunity Act in order to pressure lenders and insurers into setting quotas for minority homebuyers.

Last month, a federal judge stepped in on behalf of insurers. US District Judge Richard Leon struck down HUD's 2013 rule using disparate impact to enforce the FHA against insurers. He said the administration had a lot of "chutzpah" reading disparate impact into the statute.

"This is yet another example of an administrative agency trying desperately to write into law that which Congress never intended to sanction," he wrote in his opinion.

Leon ruled the FHA unambiguously prohibits only policies and practices that intentionally discriminate, not ones based on risk analysis and other legitimate business needs of the home insurance industry.

For the administration to claim otherwise is "wishful thinking on steroids," the judge scolded.

Removing important risk factors from insurance rating plans just because they may have an adverse effect on favored groups would destroy accurate risk assessment and unfairly raise premiums for other policyholders, he said.

But that's exactly what Obama seeks.

In the name of "racial equity," he's trying to eliminate risk-based pricing not only for home insurance policies but also home loans.

HUD has teamed up with the Justice Department and the Consumer Financial Protection Bureau to sue mortgage lenders for more than $1 trillion in disparate impact claims, arguing they charged minority borrowers a "racial surcharge."

The Court is poised to stop this illegal witch hunt, after agreeing to hear a case against disparate impact brought by the state of Texas — Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. It's widely expected to reach the same conclusion as the DC court.

"Fortunately for us all," Leon concluded, "the Supreme Court is now perfectly positioned to finally address this issue in the not-too-distant future."

On hiring

Meanwhile, EEOC Chairwoman Jacqueline Berrien, a former NAACP activist, is unlawfully expanding enforcement of Title VII of the Civil Rights Act to pressure employers to hire minorities with criminal records.

For example, she recently sued Freeman Companies and Kaplan Higher Education Corp. for allegedly running discriminatory background checks on job applicants.

The charges were so egregiously groundless that both judges hearing the cases scolded her department for ever bringing them, before summarily tossing them out.

One judge slammed her prosecutors for using "cherry-picked" data and hiring expert witnesses who engaged in "scientific dishonesty." In court documents, he also said they attempted to "pump up" statistics to make it look like employers were biased.

Both cases charged employers were racist simply for conducting criminal background checks and credit checks for all their job applicants, whites and blacks equally.

Even though, as the court pointed out, that's exactly what Berrien and every other Cabinet official does before they hire their own workers for government jobs.

Nine state attorneys general recently complained the administration was "compel[ling] employers to hire convicted criminals."

"We are troubled that your agency's true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII protection to former criminals," they wrote in a recent letter to Berrien. "It is not your agency's role to expand the protections of Title VII under the pretext of preventing racial discrimination.

"If Congress wishes to protect former criminals from employment discrimination, it can amend the law," they added. "Title VII's prohibition on practices that have a disparate impact should not be used as just another regulatory tool to advance your agency's policy agenda."

But Berrien is not backing down. She has reissued her directive to employers to reconsider minority job applicants "screened out" due to criminal records.

Over and over, this administration has run roughshod over the stated will of legislators, even rewriting statutes to suit its radical agenda.

When Obama swore to faithfully execute the nation's laws, he clearly intended to do no such thing.

By Paul Sperry

Source: The New York Post

Saturday, November 1, 2014

Halloween and the Law: not every place has to tolerate Your costume

Halloween and the Law
In the small French town of Vendargues, no one over the age of 12 is allowed to wear clown makeup or costumes today. In contrast, no reported anti-clown ordinances have cropped up this year in the U.S. But that doesn't mean you can wear your Halloween costume wherever you want.

Below, a few legal fine points to consider:
Can I wear my costume on the street?
Probably. "People can wear what they want on the street so long as they do not violate public indecency laws," says Erwin Chemerinsky, dean of the University of California at Irvine School of Law. Some states and municipalities have passed anti-mask laws; New York State's 19th century statute was used to bring charges against Occupy Wall Street activists. But many states have exceptions for Halloween and for kids.

Can I wear my costume to the corner store?
Not if management doesn't want you to. "A private store can regulate its customers so long as it does not discriminate on a prohibited basis, such as race, religion, sex, and in many states like California, sexual orientation," Chemerinsky says. Because the First Amendment generally binds the government, not private companies, it's up to the owner whether goblins, ghouls, or zombies are welcome.

Can I wear my costume to school?
That's probably up to the principal. "The First Amendment does not apply in private schools, so no student [or teacher] has a ‘right' to wear a costume in those places," says Mary-Rose Papandrea, a professor at Boston College Law School.

Public school students do have some First Amendment rights, but their principals have a lot of leeway. Courts have held, notes Georgetown Law professor Rebecca Tushnet, that "schools can make rules to preserve the learning environment; although a nondisruptive symbol like a black armband is protected, it's hard to imagine a court extending that to a full costume."

Can I wear my costume to work?
Probably not. "Historically, especially in the private-sector workplace, there's almost no protection for employees," says Paul Secunda, who directs the labor and employment law program at Marquette University. "They can be fired for good reason, bad reason, no reason at all," including for what they wear to work.

Even in the public sector, where the First Amendment does apply, courts have generally sided with management when it comes to how workers dress at work. "Earrings, tattoos, long hair, clothes -- these cases made their way through the Supreme Court in the early to mid-'70s with all the hippies and everything," says Secunda. "And pretty early on, the court said there's really no constitutional right here to self-expression."

There is a potential exception: A company that punished a group of employees who dressed up as an act of protest against their working conditions, or allowed workers to wear anti-union costumes but not pro-union ones, could run afoul of federal labor law. Costumed protests aren't unheard of: Last Halloween, an activist employee of the pharmaceutical company McKesson (MCK) alleged he was interrogated and suspended because he showed up to the company party dressed up as the chief executive officer.

By Josh Eidelson

Source: The Businessweek

Repeal of Health Law, once central to G.O.P., is side issue in campaigns

Ed Gillespie, the Republican nominee for Senate in Virginia, has proposed an alternative to the Affordable Care Act
Ed Gillespie, the Republican nominee for Senate in Virginia
In early October, with his poll numbers stubbornly lagging his Democratic opponent's, Ed Gillespie did something almost no other Republican candidate has done this campaign season. Mr. Gillespie -- a former lobbyist, former chairman of the Republican National Committee and now Senate candidate in Virginia -- unveiled a plan to replace the Affordable Care Act.

The proposal, which would use tax credits and a federally funded "high-risk pool" to cover the uninsured, opened him to criticism. It most likely would cover fewer people than President Obama's health care law, while having fewer statutory protections and still requiring billions from the federal government.

Almost no one questioned its seriousness, but almost no one took up the cause.

Republican attacks on the health care law dominated the early months of the campaign, but now have largely receded from view. The focus instead has been more on tethering Democratic candidates to Mr. Obama with a broad-brush condemnation of his policies.

And even though some Republican candidates still vow to repeal the law, almost none have offered an alternative. Mr. Gillespie and Mike McFadden, the Republican challenger to Senator Al Franken in Minnesota, stand as exceptions, to little effect. Like Mr. Gillespie in his race against Senator Mark Warner, Mr. McFadden holds little chance of defeating the incumbent on Tuesday.

"The A.C.A. is bad policy, but it was passed because of legitimate concerns about the affordability and accessibility of health care coverage," Mr. Gillespie said in an interview. "And we need to show we share those concerns."

Without stronger voices and a more robust policy debate, Tuesday's results are likely to leave no one to claim a mandate for a new direction if Republicans win control of the Senate.

"I'm here raising my hand saying we've got a health care problem in this country. I want straight talk," Mr. McFadden said in an interview Thursday. "The idea that you repeal, everything goes away and we go back to the old system? The old system is bad. We have to address it."

Even though Senator Mitch McConnell, Republican of Kentucky, who could become the majority leader if he wins re-election and his party nets six seats, has stuck by his promise to repeal the law "root and branch," he has conceded that is quite unlikely to happen. Still, the outcome of the election will mean, particularly if Republicans do as well as forecast, that the debate over health care is not over.

"The leaders of the majority party in the House and Senate are likely to reflect the views of their party's adherents," two Harvard University scholars concluded in The New England Journal of Medicine. Their view is supported by public polling that shows a highly partisan assessment of the law. A Pew Research Center poll in September found that 83 percent of Republican likely voters say they want the law repealed or scaled back, an overwhelming sentiment that would be hard to ignore if Congress is in all-Republican hands next year.

But Mr. Obama would veto any attempt to repeal the law, so Republicans are left with lesser options.

Under Mr. Gillespie's plan, tax credits would be used by those without access to employer-provided health care to buy insurance on the individual or small-group market. People with an existing medical condition could not be dropped or see premiums rise as long as they maintained constant coverage. Those with existing health problems who could not find health plans would go to "high-risk pools" run by the states but financed with $7.5 billion in federal funds, an amount that would rise 3 percent a year.

According to the Center for Health Economy, whose board includes conservative and liberal health care economists, the plan would leave about six million fewer people insured in a decade, primarily because it would roll back Medicaid expansion. But, the center said, it would also lower the cost of less comprehensive health insurance plans, expand access to health care providers and cost $1 trillion less than the Affordable Care Act.

"In order to repeal Obamacare, we must present an alternative that is both practically effective and politically viable," Mr. Gillespie said when he unveiled his plan. "Repeal efforts in the absence of an alternative plan have repeatedly fallen short."

Under Mr. McFadden's plan, states that have established insurance exchanges under the health care law could keep them, and some federal subsidies could be available in the form of block grants to state governments. He, too, would establish state-run high-risk pools for people with existing conditions, at a cost he estimated to be $15 billion a year, much of which would come from Washington.

Unlike Mr. Gillespie, Mr. McFadden explicitly calls for maintaining the health care law's ban on lifetime coverage limits by private insurers.

At this point, the argument over whether to repeal and replace the health care law or change it is "largely semantic," said Douglas Holtz-Eakin, a Republican member of the Center for Health Economy board who assessed Mr. Gillespie's plan. There are now at least five Republican replacement plans, and almost all of them share elements with the Affordable Care Act: tax credits to buy health insurance, protections for people with existing medical problems, a cap on the tax deductibility of employer-provided health insurance, and some definition of the kinds of health plans eligible for federal subsidies.

Senior Senate Republicans are already examining how they could use a parliamentary budget rule called reconciliation to gut the health care law, by curtailing or eliminating tax credits used to purchase insurance on the law's health exchanges and repealing its tax increases. Under reconciliation, such a move could not be filibustered by Democrats, but it could be vetoed by the president.

And reconciliation could not be used to alter parts of the law, such as regulations and mandates, that do not affect federal spending or revenues.

"It would take 60 votes in the Senate," Mr. McConnell told Fox News. "No one thinks we're going to have 60 Republicans, and it would take a presidential signature."

With millions of Americans already covered under the law and the second open-enrollment period beginning Nov. 15, it is unclear how forceful a Republican-controlled Congress would be.

If Republicans approach health care modestly and seek changes with bipartisan support, such as a repeal of the law's tax on medical devices, Democrats say they will be put in a difficult spot. If Republican leaders give their conservative voters what they want, it could enable the president's party to stage a comeback in 2016 by creating a clash over insurance coverage that Democrats think they could win.

"When I'm sitting in Washington in January, that means there's something like 10, 11, 12 new Republican senators," said Mr. McFadden, who, if he wins, will have caught a very large Republican wave. "I guarantee you we will believe we have a mandate to reform health care."
 Correction: October 31, 2014

An earlier version of this article misstated one of the positions of Ed Gillespie, the Republican Senate candidate in Virginia. He is a former lobbyist, not a lobbyist.

By Jonathan Weisman

Source: The New York Times

Wednesday, October 1, 2014

Long-awaited parasailing law takes effect today

A high-profile new law regulating commercial parasailing in Florida goes into effect today, legislation years in the making after several parasailing injuries and deaths in Florida since 2007.

Key Sailing employees prepare to take customers parasailing on the Santa Rosa Sound off of Quietwater Beach in 2012
Key Sailing employees prepare to take customers parasailing
Known as the "White-Miskell Act," the law requires commercial parasailing operators to log weather conditions before embarking, forbids operations during severe weather conditions, requires operators to be licensed by the U.S. Coast Guard and limits operations near airports.

It is one of 32 laws signed by Gov. Rick Scott after the 2014 legislative session that will go into effect today.

Commercial parasailing operators on Pensacola Beach said that they have been practicing these new regulations for years, however, and the law won't affect the way they operate.

"I think it's just setting up rules for everybody to follow the same rules," said Roger Bevan, owner of Radical Rides on Pensacola Beach. "Most of the operators have been doing it for years. I hope it does help, though -- I don't like to see anybody get hurt."

Kirk Newkirk, owner of Key Sailing on Pensacola Beach, also said that the new law consists of rules that he and his staff already have been fol lowing.

"I really don't think there's a safer place you could fly than out here on Pensacola Beach with any of the operators," Newkirk said. "Really there's no change for any of us. I think (the regulations) are good for the fly-by-night operators or the low-budget operators that are just trying to make that last dollar."

The law is named after Kathleen Miskell, a 28-year-old Connecticut woman who died in August 2012 after she fell from a harness while parasailing over the ocean off Pompano Beach, and Amber May White, a 15-year-old Belleview girl who died in 2007 after a line snapped on a parasail, resulting in her hitting the roof of a hotel.

The industry came on board with the regulations at the urging of Senate President Don Gaetz, R-Niceville, after two Indiana teens were videotaped last summer as they were seriously injured parasailing in Panama City Beach.

Bob West, director of public safety for the Santa Rosa Island Authority, said that although the law will be enforced by the Florida Fish and Wildlife Conservation Commission and not the Island Authority, he is happy to see the regulations take effect statewide.

"There have been some real tragedies around the state, and there needed to be some guidelines," West said.

The FWC will work during the next few months to educate commercial parasailing operators about the new regulations so that there are no surprises, said Stan Kirkland, an FWC spokesman.

"As with any new law, we take a very measured approach to the enforcement of that law to make sure that everyone involved understands it," Kirkland said. "The priority is to work with parasail operations so that the public has the utmost confidence they're being operated in a safe manner and secondly, to avoid any serious incidents in the future."

By Kaycee Lagarde,

Source: Pensacola News Journal

California law allows family members to remove relative's guns for safety

First law of its kind in the U.S.

California residents can now petition a judge to temporarily remove a close relative's firearms if they fear their family member will commit gun violence, thanks to a new safety measure signed into law Tuesday by Gov. Jerry Brown.

California Gov. Jerry Brown
California Gov. Jerry Brown
Under the "Gun Violence Restraining Order" law, a successful petition would allow a judge to remove the close relative's guns for at least 21 days, with the option to extend that period to a year, pending an additional hearing, according to Reuters. The law is the first of its kind in the U.S., and will be an extension of existing legislation that temporarily prohibits people with domestic violence restraining orders from owning firearms.

"If it can save one life, one family from that agony, it will be worth it," said Democratic California Senator Hannah-Beth Jackson, during the bill's debate. Many Republic state senators argued that the law would infringe upon the Second Amendment, and that there were already sufficient regulations in place.

The new law was introduced after Santa Barbara police in May were legally unable to confiscate the weapons of a man who later went on a shooting spree that killed six people, despite his family's having expressed concerns to authorities that he would become violent.

By Jack Linshi, @jacklinshi

Source: The Time

Monday, September 1, 2014

Law enforcement push water safety for Labor Day

North Texas law enforcement say they will be out on local lakes in big numbers over the Labor Day weekend to help keep people safe on the water.

Parents on Lewisville Lake say they're worried about the hidden dangers underwater, but one mother told Fox 4 she has a strategy.

Law enforcement push water safety for Labor Day"Anytime you're at the lake, it's so murky. You just don't know what will happen," Juanita Nunez said. "100 percent eye contact the whole time when you're out here, when your kids are in the water."

Nunez' six-year-old daughter Makayla knows how to swim and does not need a life jacket in shallow water, but it's the number of people on the water that had Nunez on high alert.

"What I get most concerned with are the jet skis that come in before the buoys," Nunez said. "Anytime I see that happen, I make sure I get her out of the water."

The high volume of swimmers and boaters are also a concern for law enforcement agencies who have launched the Labor Day "Safe Lake" program. Officers have eyes on the water and on land, looking for suspected drunk drivers.

Denton County Sheriff Will Travis said if boaters use a little precaution on board, it can save lives.

"When you get out here and get around this many people out here, it's a lot going on and a lot of people don't keep up with their friends," Travis said. "Even more than that, no one wears life vests and we've never pulled somebody from the water that's had a life vest on. We try to get out there and encourage boaters to wear the life vest."

Some boaters on the water were already taking the sheriff's advice.

"We are going to wear some life vests, make sure that everyone is behaving and not rolling around too much and watch out for other boats," boater Jim Large said.

Large said his family just wanted a smooth day on the water and to focus on why they were on the lake in the first place.

"It's a great chance for us to spend some time together out here in the sun and nice weather," Large said. "After that, it will be back to work."

Denton County Sheriff's deputies and Texas Parks & Wildlife game wardens will team up this weekend to watch those operating under the influence on boaters and jet skis.

By Staff

Source: The MyFOXdfw

Louisiana anti-abortion law faces legal challenge

A lawsuit in federal court today may temporarily stall the closure of most Louisiana abortion clinics.

Three Louisiana abortion clinics and two physicians are challenging a May law which would make it nearly impossible for abortion doctors to practice in clinics. The law, which goes into effect Monday, requires doctors to have the privileges to admit patients to a hospital within 30 miles.
Louisiana anti-abortion lawThat would end abortions in at least three of five Louisiana clinics. The doctor at Hope Medical Group for Women in Shreveport has such privileges.

But Kathaleen Pittman, administrator at Hope Medical, said her clinic risks losing that physician, who might quit even though he has admitting privileges.

"If he is the only doctor in the state left to perform procedures, that is a burden he is unwilling to shoulder given the harassment he has endured over the years," Pittman wrote in an email.

Hope Medical joins Bossier City Medical Suite and New Orleans area abortion provider Causeway Medical Clinic, along with two unnamed physicians known as John Doe 1, M.D., and John Doe 2, M.D., in the lawsuit.

Those clinics' representatives will ask Judge John deGravelles to freeze implementation of the law while Louisiana abortion doctors continue the lengthy process of applying for admitting privileges, according to Julie Rikelman, litigation director for the Center for Reproductive Rights.

If the judge rules the law should be implemented as written, Rikelman said abortion rights advocates must re-evaluate and reconsider their legal tactics. She said deGravelles indicated he will rule before Sept. 1, though that isn't guaranteed.

Louisiana abortion practices will remain unchanged if deGravelles blocks the law from taking effect, but the delay in its implementation is the first step of fighting to erase the law entirely, according to William Rittenberg of Rittenberg, Samuel and Phillips, also representing the clinics.

"The governor and Legislature pretend to pass laws because they care about the health of the mother, which is interesting because they also believe the mother is a murderer," Rittenberg said. "No question: this law is there to make it more difficult for women to get abortions."

By Maya Lau and Adam Duvernay,

Source: The Shreveporttimes

Friday, August 1, 2014

Wisconsin Supreme Court upholds state's union, voter ID laws

The Wisconsin Supreme Court on Thursday ruled that a controversial 2011 law stripping public employee unions of their bargaining power did not violate the constitution, a major win for Republicans and Gov. Scott Walker (R), who signed the bill into law.

Wisconsin Gov. Scott Walker
Wisconsin Gov. Scott Walker
Union organizers who brought the suit said the law, known as Act 10, violated their rights of free assembly and equal protection. In a 5-to-2 decision, the court held that collective bargaining is not a fundamental right, and that lawmakers can place limits on union powers.

The law, which prohibits unions from taking automatic dues from public employee paychecks, sparked weeks of protest at the state capitol in Madison, where union organizers rallied to preserve their power. It later sparked an effort to recall Walker, who survived a second election in 2012.

The unions took the law to court almost immediately after it was signed. But they haven't been successful: The state Supreme Court upheld the law in June 2011, and the 7th Circuit Court of Appeals has twice rejected challenges brought in federal court.

The state Supreme Court also ruled in favor of a 2011 law requiring voters to show identification when they go to the polls. In a 4-to-3 decision, justices overturned a Dane County court's ruling striking down the law on constitutional grounds.

That decision could still be overturned in federal court, however. A federal district court judge in Wisconsin struck down the voter identification law in April. This week, the U.S. Justice Department weighed in with a brief supporting voters challenging the identification laws in Wisconsin and Ohio, which are being appealed in the 7th Circuit.

Wisconsin was one of a handful of states that passed rules requiring voters to show identification after Republicans swept to power in the 2010 elections. Many of those cases have been challenged in state and federal courts, and the Justice Department has gone so far as to sue states like Texas and North Carolina over changes to voting laws that benefit Republicans.

In a statement, Walker praised the court's decisions.

"Act 10 has saved Wisconsin taxpayers more than $3 billion. Today's ruling is a victory for those hard-working taxpayers," Walker said. "Voter ID is a common sense reform that protects the integrity of our elections. People need to have confidence in our electoral process and to know their vote has been properly counted."

Both laws will play a role in Walker's bid for a second term. Polls show Walker running neck and neck with Madison School Board member Mary Burke (D), who is critical of Act 10?s restrictions on collective bargaining. And while a federal court still has to rule on the voter identification law before it takes effect, Democrats worry if it does apply it will disproportionately impact low income and minority voters who are most likely to favor their candidates.

By Reid Wilson

Source: The Washington Post

Three years on, Utah's Immigrant Guest Worker law still stalled

At the Utah State Capitol, a mural of Brigham Young and the first Mormon pioneers brings some color to the building's spartan rotunda. Beneath it is a more modern sculpture -- a woman walking forward with her son, who's holding a globe.

Underneath the statue are the words "Immigration and Settlement." The symbolism isn't lost on state House Speaker Becky Lockhart.

Utah State Capitol"Utah is a place that understands the value of immigration, the value of peoples coming to find a better life," she says, pointing up at the sculpture.

"We've always believed ... 'Come here and live the American dream,' but we want people to do it legally," Lockhart says. "And something's wrong with the legal way; it's not working as it should."

Lockhart, a Republican and LDS Church member, was among a group of Utah leaders that sought to break new ground on the immigration debate in 2011. Arizona had passed a law the previous summer requiring police to check immigration status during routine traffic stops.

In Utah, Lockhart and her colleagues watched the boycotts and court battles that followed -- and decided to go a different way.

The state passed a law creating a guest worker program. But three years later, that program still hasn't gone into effect -- and now an effort is brewing to repeal it.

A 'Uniquely Utah' approach

In November 2010, business, government and religious leaders had signed the "Utah Compact," which called on federal and state leaders to pass so-called reasonable immigration reform. Lockhart and other lawmakers, inspired by the compact and the battles in Arizona, then passed a bipartisan set of immigration reform laws.

The main bill set up a guest worker law that would allow immigrants in the U.S. illegally and living in Utah to apply for a two-year work permit if they pay a fine and pass a criminal background check.

For Lockhart, "reasonable immigration reform" was pragmatic. Tens of thousands of immigrants have come to Utah illegally in recent years, lured by plentiful jobs in construction and tourism -- the state has the second-lowest unemployment rate in the nation. But Utah's education and health care budgets are strained. So why not bring all the new residents "out of the shadows," she says, and tax them?

"When states get involved in this, it's because states are very frustrated, because we're dealing with the consequences of a failed federal policy," she says.

But three years on, the guest worker law has yet to be formally implemented. It was predicated on the federal government granting Utah a waiver to proceed. Lawmakers have extended the law's effective date twice as they've waited for a response from the Obama administration. (Neither the White House nor the Department of Homeland Security would discuss Utah's waiver request with NPR.)

The impasse has sparked growing calls for lawmakers to just repeal the whole thing when they reconvene next year.

"Nothing will happen with it, and we just keep extending it and it makes us feel good to say ... 'We have the solution for the entire world in the state of Utah,' " says Bob Wren, chairman of Utahns for Immigration Reform and Enforcement.

There's also cynicism among immigrant-rights activists, like Tony Yapias, the director of the group Proyecto Latino de Utah.

"I've been pessimistic from Day 1. I mean, we are just saying, 'Why are they pushing this law?' -- because this is never going to get implemented," Yapias says. Of all states, he asks, why would the Obama administration let Utah, a Republican bastion, launch a pilot program on immigration?

Changing attitudes

But whether or not the guest worker law is ever implemented, there has been a big shift in Utah. The entire atmosphere toward immigration in the state is a lot less charged than it used to be.

"It's not an issue in Utah anymore," says Sen. Luz Robles, a Democrat who co-sponsored the guest worker bill. "I think that's, like, the first thing that gives us a signal ... that we have succeeded."

It hasn't hurt that police in cities like Salt Lake, for the most part, don't worry about immigration status. Utah also gives in-state tuition and driving privileges to people living in the state without papers.

Jesus Savala, a resident of Salt Lake City since the late 1980s, says laws like those are helping curb discrimination and racism.

On a recent afternoon, Savala and his wife and grandson were shopping in the Latino Mall, a collection of taquerias, clothing stores and banks on the city's heavily Latino west side.

In an interview in Spanish, Savala says he remembers the 2011 guest worker law fondly. Yet, three years on, he has a brother-in-law who's still struggling to find steady work. He's the last in the family without papers.

It's frustrating, he says: His brother-in-law just wants to be able to work here legally.

A softer approach, influenced by religion

Latinos are Utah's fastest-growing minority, but owing to the influence of the Mormon Church, this region has also seen a sharp rise in immigration from Pacific Island nations. A booming tech sector has also attracted Indian and Pakistani immigrants.

From those communities, you hear some of the same things: Attitudes toward immigrants -- legal or not -- have changed considerably in Utah.

"It's been gradually getting better," says Yaser "Sunny" Nisar.

Nisar opened his Curry Fried Chicken restaurant a year ago on this gentrifying block of State Street, south of the downtown Salt Lake City skyline. On a recent night, people filed in to break the Ramadan fast at sundown.

Nisar knows firsthand that things are improving. Two days after Sept. 11, his family's original Halal restaurant in Salt Lake City was set on fire. It was quickly deemed an anti-Muslim hate crime. Nisar says community leaders -- and the LDS Church -- rallied behind them, and that started something bigger.

"There's a lot of awareness going on, a lot of people are getting to know us better than just going off what they see on TV and what they, maybe, have a misconception in their head," he says.

Nisar doesn't pay very close attention to politics, but he says Utah's religious values are a big reason why the state embraced a softer approach to immigration.

You hear this from business owners, Republicans, Democrats, churchgoers: Utah is a pro-family state, and the tone on immigration is a lot calmer here than along the border.

Just take the views of Lockhart, the state House speaker, who says her views on immigration have "evolved" a good deal in recent years.

"Utah is a unique place and we understand the human factor," she says. "It's not a black and white issue; there are people's lives here."

Lockhart, who's not running for re-election and has been named as a possible candidate for governor next year, says she's proud of what Utah did. She's also still holding out hope that the federal government will consider granting that waiver so the guest worker pilot project can move ahead.

By Kirk Siegler

Source: NPR

Tuesday, July 1, 2014

Laws taking effect in Maryland on July 1

A ban on grain alcohol sales and new laws aimed at helping victims of crime and their family members are taking effect in Maryland.

The new laws, which go on the books Tuesday, include a ban on the sale of alcohol that is 190-proof and stronger. A proof of 190 translates to 95 percent alcohol content. The law had strong backing from leaders of colleges, who said grain alcohol provides a cheap way for students to get heavily intoxicated very quickly before they know what hits them.

"This is a product that college presidents identified as a substantial problem on their campuses," said David Jernigan, an associate professor at the Johns Hopkins Bloomberg School of Public Health. "It packs a wallop that is easily disguised."

Laws taking effect in Maryland on July 1
More than a dozen states have passed similar laws, including neighboring Virginia, West Virginia and Pennsylvania.

A bill banning Vaportinis, which make it possible to inhale alcohol through a glass straw, also is taking effect Wednesday. A Vaportini device has a glass sphere filled with alcohol and a candle beneath it. The heat evaporates the alcohol, and the user inhales the vapors. The alcohol is absorbed directly into the bloodstream through the lungs. The law makes it a misdemeanor to use such a device.

Meanwhile, some new laws taking effect loosen restrictions on alcoholic beverages. For example, a new law will allow hair salon customers in Montgomery County to have a glass of wine or champagne. Also in Montgomery County, lawmakers passed measures to make the county more attractive for microbreweries. One removes a restriction that requires microbreweries to be fully licensed restaurants before being able to sell their beer at microbreweries. Another enables breweries to distribute their own beer to licensed recipients in Montgomery County.

New laws to help victims of crime also are taking effect Tuesday. One requires the Governor’s Office of Crime Control and Prevention to establish and expand programs for family members of homicide victims. The state budget includes $500,000 for a grant program to help them. Programs include providing and facilitating referrals to appropriate legal and mental health counseling services for survivors of homicide victims, including specialized support services to adult and minor survivors.

Another law will enable victims of crime to receive faster information about court cases through email. Previously, those notices came by mail through the U.S. Postal Service.

Also Tuesday, an annual pesticide registration fee will increase to $110 from $100 to generate revenue for a better pesticide reporting database. Advocates say the law is a first step toward helping scientists and researchers understand the links between pesticide exposure and potential public health and environmental impacts.


Source: The CBS DC

Contraception ruling is a symbolic blow to the health-care law

The Supreme Court struck a second blow against the health-care law Monday with its decision to narrow the so-called contraception mandate, an aspect of the federal program that was not central to its existence but was deeply cherished among liberals and many women's groups.

Two years ago, the court, while upholding the constitutionality of the Affordable Care Act, also gutted the law's mandatory Medicaid expansion, severely limiting the law's reach. By contrast, the effect of Monday's decision is peripheral. The contraception provision was not part of the main law but was laid out in regulatory language issued by the Obama administration. Millions of women who receive birth control at no cost through their company health plans are likely to keep it.
Supreme Court ruling in Burwell v. Hobby Lobby
Supreme Court ruling in Burwell v. Hobby Lobby
Still, women who work for closely held, for-profit companies whose owners have religious objections to contraceptives may feel an impact. The ruling also is a symbolic setback for a law that has survived a series of legal and political challenges since its enactment four years ago but today stands not entirely whole.

"Obamacare is the single worst piece of legislation to pass in the last 50 years, and I was glad to see the Supreme Court agree that this particular Obamacare mandate violates the [law]," Senate Minority Leader Mitch McConnell (R-Ky.) said in a statement.

Some supporters lamented the ruling but insisted that the law remains strong and that Monday's decision will have a minimal impact on its core goal: reducing the number of the nation's uninsured.

They noted that the law itself only required company insurance plans to cover "preventive" services. The Department of Health and Human Services then used guidelines established by the Institute of Medicine to label birth control pills, intrauterine devices and sterilization methods such as tubal ligation as integral to women's preventive health.

Arts and crafts chain Hobby Lobby and cabinetmaker Conestoga Wood Specialties had objected to contraceptive methods that had the potential to harm a fertilized egg, such as IUDs, which work primarily by preventing fertilization but also may stop a fertilized egg from implanting in the uterus.

"Politically, of course, the case may be trumpeted as a major defeat for the ACA, but that is simply not true," said Timothy S. Jost, a health law professor at Washington and Lee University and a supporter of the law. "This case is not about the ACA. It is about religion, about employer and employee's rights, about corporate law, and I suppose about public health law, but it is not an existential challenge to the ACA."

It is the latest turn in the tortured path taken by the law, which was enacted in 2010 after a pitched political battle and has encountered obstacle after obstacle since then.

The Supreme Court upheld the constitutionality of the ACA in June 2012, at the same time that it made a major expansion of Medicaid -- the state-federal program for the poor -- voluntary for states. Since then, 24 states have opted not to enlarge the program. The partial failure of the Medicaid expansion is viewed by the law's supporters as one of its most significant shortcomings.

A challenge striking more directly at the heart of the law still looms: a wave of suits from citizens and employers who argue that the government is wrongly handing out tax credits to residents in the states that decided not to set up their own insurance marketplaces. If successful, this argument would cut at the heart of the law by making health insurance unaffordable for many people.

The contraception mandate was praised by the law's supporters, who pointed to it as evidence that the Affordable Care Act was particularly good for women. They hailed the law as an antidote for years of inequality, with women routinely paying more than men for their health care and insurance.

On Friday, the Obama administration touted new figures showing that the number of women who filed prescriptions for oral contraceptives with no co-pays increased from 1.2 million in 2012 to an estimated 5 million in 2013, which officials attributed in part to the health law.

"Women are already benefiting" from the law's contraception coverage, Cecile Richards, president of Planned Parenthood, told reporters in a teleconference Monday. "We are seeing a great uptake in the benefit. It's just that there are politicians and now judges who are trying to drag us back to the 1950s."

But for critics of the law, the mandate became the most high-profile example of a pattern of government overreach by the Obama administration.

In a decision that was widely criticized even by many of the law's supporters, the mandate initially applied not only to private companies but also to religiously affiliated nonprofits that employ large numbers of workers from various backgrounds, such as Catholic hospitals.

The administration responded by making a change that allowed employees to bypass their employers and get contraception benefits through a third party. But that accommodation did not satisfy many employers. A second wave of legal challenges to the contraception mandate from those nonprofits is making its way through the courts.

"This train-wreck law still does far more harm to American families than good, but it's encouraging to know that there are limits to the government's power to coerce," Rep. Phil Gingrey (R-Ga.) and Rep. Phil Roe (R-Tenn.) said in a joint statement from the House GOP "doctors caucus" Monday.

By Sandhya Somashekhar

Source: The Washington Post

Sunday, June 1, 2014

Texas law makes it hard for some bedrock citizens to get voter IDs

Ruby Barber, 92, of Bellmead finally received her temporary voter identification card recently after the state found a record of her birth in old U.S. census rolls.

Ruby Barber
The law of unintended consequences often refers to governments that make changes but can't anticipate the negative fallout.

Which is my way of introducing you to Ruby Barber, Dorothy Card and Mary Dina Ansler.

Forgive me for sharing their ages, but, in order, they are 92, 84 and 96 -- a combined 272 years of American citizenship.

So why should these women have to return again and again to state offices to obtain a Texas photo ID card so they can vote in person?

They couldn't get a photo ID on their first try, or even their second. The reason? None of them had proper identifying documents.

And you thought 16-year-olds were the ones most often turned away from driver's license offices because of inadequate documentation? Now it's teens and seniors, thanks to the state's strict new voter ID law and accompanying Texas Department of Public Safety rules.

Barber, of Bellmead, was born in a farmhouse by the light of a coal oil lamp. There was no doctor and no birth certificate.

Card, of Lufkin, had an expired driver's license (she stopped driving after a 1999 accident) and no other accepted photo ID.

Ansler, of Richardson, had a Social Security card, an expired driver's license, a certified copy of her birth certificate from Michigan and more documents. But no go.

Ansler's family asked The Watchdog for help. The thought of frail seniors getting in and out of cars with stacks of documents but coming out of state offices empty-handed doesn't seem right. Barber, Card and Ansler helped build our country, and in their final years, if they want to vote in person, darn it ...

Listen to what Ansler had to go through: The Richardson woman moved to Texas two years ago to live with her daughter Robbie LaFlamme and son-in-law Pete. The family says she was told by authorities that she needed an original birth certificate for a photo ID.

Authorities in Michigan, where she was born in 1917, didn't send Ansler a copy of her original birth certificate. They didn't have one. They sent a certified copy. Even with that, DPS told the family they didn't have the correct documents.

The family asked state Rep. Angie Chen Button, R-Garland, for help.
Button's office punted Ansler's problem to the Texas secretary of state's office, the family said. That office drop-kicked the ball over to DPS.

A DPS official called the family and explained that there would be no photo ID.

Ansler had the birth record, a baptism certificate, a marriage license, a Social Security card, a Medicare card, an expired driver's license and a California state picture ID.

Ultimately, Ansler didn't lose her right to vote. Texans can vote by mail without a photo ID if they are 65 or older, or disabled, or out of the county on election day. Ansler voted by mail.

The suggested route for those unable to get a photo ID is to apply for an Election Identification Certificate from DPS.

A representative from the U.S. Justice Department contacted the family. But once the lawyer learned that Ansler was not a disenfranchised voter but still able to vote absentee, he wasn't concerned, the family told me.
The Justice Department has sued Texas, charging that the new voter ID law violates the federal Voting Rights Act. A Justice spokeswoman declined to comment except to say the lawsuit is proceeding.

Ansler's family members say they want her to obtain a photo ID so she can present it at the doctor's office and at the store when she's paying by check, and most of all, they want it because she's a citizen and she deserves one.

The two other women obtained photo ID cards in time to vote, according to newspaper reports.

As for Ansler, after The Watchdog contacted DPS in Austin, officials there decided to grant Ansler her wish.

In a written statement, DPS tells The Watchdog: "If DPS encounters some type of unusual challenge, we work with the customer to resolve the issue. That is what is happening in his case."

I informed the family Thursday night. Ansler visited the driver's license mega-center in Garland on Friday. This time, she received her photo ID.
The Watchdog respects that authorities tightened security and now take greater care in their verification process for photo IDs and driver's licenses. That's what a good watchdog does.

But let's bring common sense to the equation. My suggestions: Create an appeals process and re-examine the rules.

By Dave Lieber, Follow Dave Lieber on Twitter at @Dave Lieber

Source: The Dallas Morning News

Teaching an old law new tricks

President Obama is expected to announce his much anticipated rule for power plants on Monday, requiring for the first time that older and dirtier plants reduce their carbon dioxide emissions, which account for a sizable share of the nation’s carbon pollution.

This new rule has rightly been called the "cornerstone" of the president's climate action plan. If successful, it has the potential to transform the nation's power sector by driving new investments in efficiency and renewable energy, and by increasing the use of cleaner natural gas in place of coal.

President Obama
But don't expect big changes anytime soon. Legal challenges could tie up this effort for years.

This is the sad reality of climate policy in the United States circa 2014. With Congress paralyzed on the issue, the country's climate and energy policy is being made in arcane legal battles over the meaning of single phrases in statutes written long ago, leaving government and industry to duke it out in court.

The Environmental Protection Agency's authority to regulate the nation's approximately 550 existing power plants comes from a little-known section of the Clean Air Act known as 111(d). This section requires states to adopt performance standards for existing sources of pollution. The E.P.A. sets benchmarks that the states must meet and can improve upon.

Some critics argue that the E.P.A. lacks the authority to regulate power plant pollution under this provision, but that argument is weak.

The record clearly shows that Congress intended to ensure that harmful pollutants from existing power plants could not entirely escape regulation. These emissions qualify for regulation under 111(d) because they are not covered elsewhere in the law and account for nearly 40 percent of the nation's total emissions of carbon dioxide, the principal driver of global warming.

The more serious legal battle will be over how stringent the performance standards can be. Some opponents from states and the utility industry insist that the standards must be based solely on what individual facilities can achieve on-site with existing technologies.

In practice, this would mean very modest emissions reductions because there are relatively few cost-effective ways to cut carbon pollution directly at older power plants.

The E.P.A. has signaled that it favors a broader approach. States would have to look beyond individual facilities, and consider what additional emissions reductions could be achieved through systemwide improvements, including through energy efficiency or renewable energy.

This would reduce the demand for fossil fuels and cut carbon emissions. Performance standards set using this method would vary in stringency across states with different energy profiles but they could be significantly more demanding generally because of each state's ability to find relatively cheap emission reductions across the entire electricity system.

Ultimately, states could adopt whatever measures they preferred, including cap-and-trade programs that place a limit on carbon pollution and create markets for buying and selling pollution permits. Trading schemes or energy efficiency measures might be far less expensive to adopt than retrofitting old coal plants.

It is always risky legally to adapt old laws to new problems. The Clean Air Act was passed in 1970 primarily to address conventional pollutants like smog and soot and was subsequently amended, but before climate change was a prominent issue. Although the act is flexible and allows regulators substantial discretion, even the E.P.A. would concede that it is not perfectly designed to address greenhouse gases like carbon dioxide. Yet the agency must do something. The Supreme Court held in 2007 that greenhouse gases are "air pollutants" under the law.

If opponents prevail here, power plants will continue largely with business as usual. If the E.P.A. adopts the broader approach and the courts approve, states and utilities will be asked to make significant collective investments in energy efficiency and clean energy.

The broader approach has a solid legal foundation. Because section 111 of the act defines performance standards in terms of the "best system of emission reduction," the E.P.A. can argue that this language authorizes it to think about systemic improvements. Well-established legal principles also give agencies latitude to interpret ambiguous laws, as long as their interpretations are reasonable.

The E.P.A. does have some wind at its back. It has recently won an impressive series of challenges to its regulatory authority. The Supreme Court reiterated last month that agencies must have some leeway to implement the laws Congress entrusted to them. This bodes well for the president's plan.

Still, every case is unique. No court has ever determined what a performance standard means in this context. And the E.P.A. has never before adopted such an expansive reading of 111(d). It is entirely possible that some judges would balk at an ambitious approach.

This is how policy is made when Congress abdicates its role. If you want to know what happens next, don't watch the democratically elected branches. Watch the courts.

By Jody Freeman

Source: The New York Times

Friday, May 2, 2014

Officials push to amend Nevada's controversial sex offender law

Nevada Assemblywoman Michele Fiore on Thursday said she would use one of her bill drafts in the next legislative session to rework the state’s controversial sex offender law that was adopted to comply with a federal act.

Nevada Assemblywoman Michele Fiore
In 2006, Congress approved the Adam Walsh Act as a guideline for state laws on sex crimes. The act was intended to toughen punishment for sex offenders and make their photos, names and addresses available to the general public.

Nevada lawmakers in 2007 adopted most provisions of the federal law. The state law, proposed in Assembly Bill 579, was set to go into effect Feb. 1, but the Nevada Supreme Court put a temporary stop to it following a lawsuit filed on behalf of 24 unnamed clients.

It was not the first legal challenge the law had faced since 2007.

“I just don’t think that AB579 is fitting nor (is) appropriate for the state of Nevada,” Fiore, R-Las Vegas, said during a meeting of the Advisory Committee to Study Laws Concerning Sex Offender Registration. “I really, truly believe that we have very intelligent legislators and judges, that could bring forth this next legislative session much more comprehensive guidelines than what’s implemented in this” legislation.

The state law applies to anyone convicted of a felony sex crime involving children and is retroactive to 1956. There are about 3,000 registered sex offenders in Nevada, and that number is expected to dramatically increase under the law.

Susan Roske, an attorney with Clark County’s juvenile public defender’s office, said if the committee doesn’t make a recommendation to the Legislature to repeal the law entirely, an alternative could be to amend parts of the law that address juveniles.

In response to various states concerned about the federal act’s impact on juvenile offenders, the U.S. Department of Justice’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking has said juvenile courts can have discretion in keeping juvenile offenders off the public website that would display their personal information, Roske said.

The committee could ask the state Legislature to acknowledge those changes and grant juvenile court judges that discretion, she said. The change wouldn’t apply to juveniles being charged as adults.

“I would strongly urge that this change be made,” she said Thursday.

Tod Story, executive director of the American Civil Liberties Union of Nevada, said he would recommend the state suspend the implementation of the law and examine why lawmakers rushed to adopt it in 2007.

Thus far, only 17 states have passed laws which “substantially implement” the federal act, Story said. The remaining 33 states are either unable or unwilling to comply with the requirements.

“It’s a bad law and it wasn’t thought through,” Roske said.

By Yesenia Amaro,, 702-383-0440, Twitter: @YeseniaAmaro.

Source: The Las Vegas Review-Journal

"Stand your ground" laws get major test in recent shootings

A Montana man is accused of setting a trap and blindly blasting a shotgun into his garage, killing a 17-year-old German exchange student. A Minnesota man is convicted of lying in wait in his basement for two teenagers and killing them during a break-in.

The two recent cases take the "stand your ground" debate to a new level: Do laws that allow private citizens to protect their property also let them set a trap and wait for someone to kill?

"We don't want it to be easy to be able to prosecute people. But we want to be able to hold individuals accountable when they have stepped outside the bounds of society," David LaBahn, president of the Washington, D.C.-based Association of Prosecuting Attorneys, said Wednesday.

More than 30 states have laws expanding the self-defense principle known as the "castle doctrine," a centuries-old premise that a person has the right to defend their home against attack, LaBahn said. The name evokes the old saying, "my home is my castle."

Most of these changes have come since Florida in 2005 became the first state to interpret the "castle doctrine" to apply outside the home with a measure known as the "stand your ground" law.
Does "stand your ground" law encourage shootings?

These laws make it far easier for a person to shoot someone and avoid prosecution by saying they felt an imminent danger - whether or not the person who was shot was armed.

The principle came under national scrutiny in the 2012 shooting of an unarmed Florida teenager, Trayvon Martin, by a neighborhood watch volunteer who was following the 17-year-old. George Zimmerman was acquitted last year after arguing self-defense.

The Montana and Minnesota cases involve homeowners who had been burglarized and said they were afraid of it happening again. Prosecutors say they lured intruders into fatal encounters.

In Montana, Markus Kaarma told investigators his Missoula home had been burglarized twice within the last week before Sunday's shooting death of 17-year-old Diren Dede. Kaarma told his hairdresser he had stayed up three nights waiting to shoot a kid, the woman told investigators.

The night of the shooting, Kaarma and his partner, Janelle Pflager, left their garage door open. Pflager left her purse in the garage "so that they would take it," she told a police officer. She also set up a video baby monitor and installed motion sensors, prosecutors said.

After midnight, they heard the sensors trip. Pflager turned to the video monitor and saw a man in the garage. Kaarma took his shotgun, walked out the front door and to the driveway.

He told investigators he heard metal on metal and without speaking fired four times - sweeping the garage with three low shots and a high fourth shot. Dede was hit in the head and the arm.

Dede's death is the top story on one German TV station's nightly newscast, and their reporters are in Missoula talking with Dede's friends and host family, CBS affiliate KPAX reports. One German newspaper reports Dede's grandmother has been taken to a hospital suffering from shock of the news of her grandson's death.

Montana's law says a person is justified in using deadly force if they believe it necessary to prevent an assault or a forcible felony.

Since it passed in 2009, the law has been raised at least a dozen times in Montana cases. In several, it was the reason prosecutors decided against filing charges.

Kaarma attorney Paul Ryan said he intends to use that law as a defense in his client's deliberate homicide charge. That shifts the burden to prosecutors, who will have to prove their case and that deadly force wasn't justified, he said.

Kaarma didn't intend to kill Dede, Ryan said. "He was scared for his life. It shouldn't be up to a homeowner to wait and see if (an intruder) is going to shoot him when he announces himself," he said.

Because the laws typically leave it up to the shooter to decide if a danger exists, prosecutors often have no way to challenge such a claim. LaBahn said the case in Missoula appeared to reflect the same concerns raised repeatedly by prosecutors in Florida.

"It doesn't sound to me that a reasonable person is going to shoot through a garage door," LaBahn said.

He added there could be mitigating factors yet to emerge in the exchange student's death.

Minnesota law allows the use of deadly force in a home to prevent a felony, but it must be considered a reasonable response.

Byron Smith, a 65-year-old retiree, unsuccessfully used that defense to justify his shooting of Nick Brady, 17, and Haile Kifer, 18, after the cousins broke into his Little Falls home in 2012. Smith's attorney said his client's home had been burglarized, and he was afraid.

Smith was convicted of premeditated murder Tuesday. Prosecutors said Smith moved his truck to make it look as though no one was home. He turned on a handheld recorder, had a surveillance system running and waited in the basement with food, water and two guns.

Brady descended the basement stairs first, and Smith shot him three times, saying "You're dead." He dragged the body to another room and waited until Kifer followed, and he shot her. "You're dying," he told her, according to the audio recording.

Since Martin's death in Florida, lawmakers in at least seven states have introduced legislation to weaken or repeal self-defense laws. None of the measures have passed, according to the San Francisco-based Law Center to Prevent Gun Violence.

Gary Marbut, who heads the Montana Shooting Sports Association and helped draft the state's law, said Kaarma's case could help clarify it.

"If they're going to possess the means to apply lethal force," he said, "they need to have a good understanding of when and how that is permissible."

By Bill Gorman, AP

Source: CBS News

Tuesday, April 1, 2014

With key NJ property law expiring, lawmaker says more than 40 towns took action

More than 40 towns and counties today scrambled to make sure their police and firefighters can't get bigger raises now that a law that has kept them low is about to expire, according to a state lawmaker.

On Tuesday, a state law in effect since 2011 that caps interest arbitration awards at 2 percent -- compensation given out by third party arbitrators when governments and police and fire unions can't reach a contract agreement -- will sunset.

Today, according to state Assemblyman Declan O'Scanlon (R-Monmouth), dozens of local governments that had been negotiating contracts with the unions dropped the talks and filed for arbitration.

NJ Supreme Court
"This action was necessary as a precaution to insulate property tax payers from any impact of the arbitration award cap expiration. There is the potential that some labor unions may be tempted to file frivolous law suits in an attempt to take advantage of the interest arbitration cap expiration," O'Scanlon said in a statement. "The action these bargaining units took today will help to make doubly sure they won't be vulnerable to such action."

The state Senate and Assembly on Thursday sent Gov. Chris Christie a bill that would extend the cap until the end of 2017, but would significantly loosen it. Christie conditionally vetoed it, putting it largely in line with current state law. But while the state Senate concurred with his recommendations, the Assembly left town and does not plan to return any time soon.

"It's disgraceful that the Assembly didn't follow suit," said O'Scanlon (R-Monmouth), who has led the push to renew the law.

When the law expires, it's unclear if the cap will apply to contracts that are under negotiation but have not yet gone into arbitration.

"But in this day and age, taking the precaution is the best thing to do," O'Scanlon said.

O'Scanlon attributed his figures to the New Jersey Public Employment Relations Commission. O'Scanlon said he did not have a list of counties and municipalities that have filed, though he said Monmouth County is among them.

The commission's chairwoman, Kelly Hatfield, said in a phone interview she was out-of-state and did not immediately have the numbers on hand.

The state League of Municipalities today wrote a letter to mayors urging them to lobby legislators to get back to Trenton and pass an extension.

"Also, if you have an unsettled Police or Fire contract we suggest you contact your labor attorney to discuss your options before the April 1 deadline," League executive director Bill Dressel wrote.

By Matt Friedman, The Star-Ledger,


What the controversial new Georgia Gun Law really says

You know that gun control is no longer an issue, either pro or con, when both sides try to make you believe that something big has happened when nothing of any real importance happened at all. I'm referring to the gun law just passed in Georgia which is awaiting Governor Nathan Deal's expected signature, a law described by the New York Times as one of "breathtaking sweep" and by the NRA as a "historic victory for the 2nd Amendment."

Gun lawSince I really do believe in evidence-based discussion about guns, I took the trouble to read HB60, as the new law is known. If this law represents a "historic victory" for the 2nd Amendment, the NRA better find someone else to defend the beloved constitutional rights of gun owners. On the other hand, if the editors of Mother Jones really believe that this new law will result in guns being "everywhere" in Georgia, then there must be some place named Georgia other than the state where this law just passed.

Here's what the bill basically does: 1) It allows guns to be carried in places where liquor is served, which previously had been off-limits for guns; 2) It also allows guns to be carried in churches which, like restaurants and bars, were also off-limits for guns; 3) It further allows guns to be carried in certain non-secure areas of airports, which is really funny since Atlanta's airport was ranked #1 nationally in the number of guns confiscated in 2013.

The law also makes some minor changes in the application process, a few new dos and don'ts when it comes to hunting and, what has become requisite in virtually every gun law passed since Sandy Hook, some language allegedly making it easier to pass information about mentally ill people to the Feds. But if you take the time to read the new law and go back and read the current law as well, you discover that most of these "historic" changes don't really change things at all.

First of all, the law about carrying guns into liquor-serving establishments does not prevent any bar or restaurant owner from declaring his premise off-limits to guns. Just stick a sign in the window or simply stand at the door and tell patrons to leave their guns in their cars. As for bringing guns into houses of worship, this is an "opt-in" law which means that the congregation has to agree to let parishioners bring their guns into the building before anyone can have a conversation with the Almighty while sitting on their Glock.

Finally, while Georgia does not require a permit in order to purchase or own a gun, it does require a background check and prints in order to carry a weapon, and the issuance of said license can be denied if the licensing authority (County Probate Judge) decides that the candidate, even if he meets the legal requirements, is "not of good moral character." You'll have to read down to Section 1-7 to find this little gem and a few pages later you'll learn that someone who is denied a carry license can appeal the decision and will then appear at a hearing -- before the same judge! If the judge prevails at the hearing perhaps you can move to another County and try again.

Can someone from the NRA please explain to me how a law that determines my fitness to carry a gun based on something as vague as "moral character," advances 2nd Amendment rights? By the same token, does the Brady Campaign really believe that taking a pee in an airport toilet without first unhooking my holster indicates that guns will soon be found in every nook and cranny of the Peach State? Pro-gun and anti-gun groups can always manufacture a good argument -- but they might try, just once, to ground their opinions in real facts. On the other hand, why let facts stand in the way of a good argument?

By Mike Weisser

Source: The Huffington Post