Wayne’s World: Mental Illness and the Criminal Justice System Know Your Rights in the Middle of the Night The DOJ: Tracking and Disrupting Terrorists Expressing Yourself: Exercising Your Right to Protest in Houston HBA Gender Fairness Committee Celebrates 15 Years of Educating, Encouraging, Empowering An Overview of Constitutional Rights Litigation
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Volume 55 – Number 6
Law Enforcement & Justice
May/June 2018
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contents May / June 2018
Volume 55 Number 6
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FEATURES World: Mental Illness 10 Wayne’s and the Criminal Justice System By Maha Ghyas and Bradford Crockard
Your Rights in the 14 Know Middle of the Night By Kyle Verret
DOJ: Tracking and 18 The Disrupting Terrorism By Alamdar S. Hamdani
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Yourself: Exercising 24 Expressing Your Right to Protest in Houston By Preston D. Hutson
Gender Fairness Committee 29 HBA Celebrates 15 Years of Educating,
Encouraging, Empowering Women
Overview of Constitutional 30 AnRights Litigation By William Pieratt Demond
Pro Bono Service 32 Outstanding Honored by Bench and Bar Week 2018 34 Law Separation of Powers: Framework
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for Freedom
36 Law Day Contest Winners Place Houston Bar 37 First Association Law Day Essay
The Houston Lawyer
Contest: Liberty with Equity
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ŠThe Houston Bar Association/QuantumSUR, Inc., 2017. All rights reserved.
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contents May/June 2018
Volume 55 Number 6
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departments Message 6 President’s The Vital Role of Law Enforcement
in Our Community
By Alistair B. Dawson From the Editor 8 We the People
By Farrah Martinez
Spotlight 38 Committee HBA Law Library Committee:
The Bar’s Oldest Committee Ushers in a New Era By Brian S. Humphrey II
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Lawyers Who 39 Houston Made a Difference
The Sixty-Three
By The Hon. Mark Davidson Trends 40 Legal Fifth Circuit Opinion Vacating the
DOL Fiduciary Rule May Abrogate the Rule Nationwide By Nelson S. Ebaugh
Profile in professionalism 41 ACharles L. (Chip) Babcock Partner, Jackson Walker LLP
ReviewS 42 Media Business Bribes: Corporate
Corruption and the Courts Reviewed by David T. Lopez
The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business Professionals, Second Edition Reviewed by Jill Schumacher and Adam Schumacher
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president’s message By Alistair B. Dawson Beck Redden LLP
The Vital Role of Law Enforcement in Our Community
The Houston Lawyer
W
e all know that law enforcement is vital to our community. Members of law enforcement keep us safe, they patrol our streets, they pursue criminals and investigate crimes, and they help put criminals in prison. They protect us from the forces of evil that – tragically – exist in our world. Without the various law enforcement constituents (the police, constables, sheriffs, etc.), we would live in anarchy and the criminals would rule our communities and our lives. Every day, members of law enforcement put themselves in harm’s way to protect us all. They risk their lives so that we can live in a stronger and safer community. As a community, we owe all members of law enforcement a huge debt of gratitude for all that they do for us. But, sadly, it is a relatively thankless job. We do not pay enough respect to the peace officers in our community nor do we tell them how much we appreciate all that they do for us. In some communities in the United States, we have seen widespread reactions to some unfortunate examples of police brutality. Inexplicably, some of these reactions have included the tragic and inexcusable killing of innocent police officers. I am not defending the excessive use of force by some members of law enforcement. But I truly believe that these are isolated instances by a very small percentage of law enforcement officers. I also believe that those of us who have not served in law enforcement have a very difficult time understanding how difficult it is to respond to a potentially dangerous situation involving someone who is being investigated or interrogated. That said, there is little doubt that there are some bad apples in law enforcement. Some who are racists, some who abuse the power that has been given them, and some who just overreact and needlessly escalate the situation. But can’t that be said of just about every profession or job in our community, including ours? There are bad apples in the legal profession. Why is it that the few bad actors in law enforcement incite such a negative reaction from some, and what can be done to combat that reaction? One thing that law enforcement could do to improve relations with the community it serves is for the leaders of law enforcement to publish the results of investigations into the conduct of police
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officers who are accused of engaging in unlawful activity that impacts citizens. Often, whenever a police officer is accused of unlawful conduct toward a member of the public, the only action that is taken is an “internal investigation,” the results of which are rarely ever disclosed to the members of the public. Many believe that there are few, if any, consequences to police officers who act inappropriately. Law enforcement should impose the same standards against its own members as it does against members of the public. Wayward police officers should be thoroughly investigated and disciplined appropriately. And the results of those disciplines should be publicly disseminated. In addition, I believe that “town hall” meetings in certain communities between the members of the community, its leaders and members of law enforcement could help improve relations among all concerned. The members of law enforcement could educate the public on the issues that they face as they patrol the neighborhood. Similarly, members of the community could educate the police on the issues that they face and the issues that they fear. Such an open dialogue would help improve the relationships between the community and law enforcement. As part of this initiative, I encourage our community leaders and police organizations to institute community policing, where certain members of the police force are assigned to patrol certain neighborhoods on a regular basis, so that the police officers can build ties with members of the community, encourage local watch groups, and reduce crime in that neighborhood. This is my last President’s Message. It has been my honor and a privilege to serve as your president this year. I am very proud of what we as the Houston Bar were able to accomplish this year. In addition to all the various ways in which we help members of our community, we played an incredible role in the aftermath of Hurricane Harvey. We helped thousands of Houstonians whose lives were turned upside down as a result of this storm. We helped them deal with this tragic storm and start putting their lives back in order. Well done, Houston Bar members. I am proud to be a member of the HBA. Thank you for the opportunity to serve this year. I know you are in very good hands under the leadership of President Warren Harris. I will watch with great anticipation to see all the great things that will happen at the HBA in the future.
thehoustonlawyer.com
May/June 2018
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from the editor By Farrah Martinez
We the People
Farrah Martinez, PLLC
Associate Editors
Polly Graham Fohn Haynes and Boone, LLP
Preston Hutson MehaffyWeber PC
Jeff Oldham Bracewell LLP
The Houston Lawyer
Taunya Painter Painter Law Firm PLLC
Hon. Jeff Work Manning, Gosda & Arredondo, L.L.P.
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experiencing a mental health crisis. hurgood Marshall once said, “Where you see Next, Kyle Verret’s piece, Know Your Rights in the Midwrong or inequality or injustice, speak out, dle of the Night, reveals practical and legal ways to exerbecause this is your country. This is your cise and protect one’s constitutional rights if confronted democracy. Make it. Protect it. Pass it on.” by law enforcement either at home or behind the wheel. America is the greatest country in the world While you may never need these tips, as Kyle mentions, and to maintain that status “we the people” have a duty we all have that one cousin who almost certainly will. to stand up against racial and social injustice; we have With the insurgency a duty to exercise our of school massacres, voices when anything the shooting of unthreatens to infringe armed black men by upon equality because law enforcement, the the depth of America’s execution of travel bans diversity is one of its by executive order, greatest strengths. Deand the #Metoo movemocracy is not perfect, but as Thomas Jeffer- Members of The Houston Lawyer’s 2017-2018 Editorial Board, from left: David T. ment, political and son once fiercely wrote Lopez, Anna Archer, Hon. Scott Link, Associate Editor Jeff Oldham, Avi Moshenberg, social issues have as he advocated for the Editor-in Chief Farrah Martinez, Associate Editor Polly Fohn, Al Harrison, Associate taken center stage to Editor Preston Hutson, Kristen Lee and Associate Editor Taunya Painter. Not pictured: Bill of Rights: “Half a Anietie Akpan, Kimberly A. Chojnacki, Veronica Cruz, Matt Heberlein, Marni Otjen, illuminate the right to free speech, but also to loaf is better than no Raymond Panneton, Hon. Josefina Rendon, and Associate Editor Hon. Jeff Work. highlight efforts by the government to suppress certain bread. If we cannot secure all our rights, let us secure individual’s or group’s expressions of speech. Preston what we can.” This issue explores a broad range of law Hutson’s article, Expressing Yourself: Exercising Your enforcement and justice matters from fighting terrorRight to Protest in Houston, openly examines the evoluism, prosecuting and protecting the rights of mentally tion of free speech alongside the government’s tradition ill defendants, free speech, and the right to sue the govof suppression. ernment for infringing on one’s constitutional rights. The issue closes with William Pieratt Demond’s artiAlamdar S. Hamdani’s article, The DOJ and Tracking cle, An Overview of Constitutional Rights Litigation, which and Disrupting Terrorists, unpacks changes to the naexplores the legal apparatuses for suing the government tion’s national security policies following 9/11 to preand a practitioner’s guide to vetting potential claims and vent domestic and foreign attacks of terrorism. It also pointers for overcoming governmental immunity. explores local law enforcement’s and intelligence agenAs the bar year closes, I want to congratulate the cies’ vigorous efforts to uncover threats using any inEditorial Board for receiving the President’s Award for strumentality available to thwart future attacks. Outstanding Service despite challenges that at times Next, the issue addresses the prevalence of mental appeared insurmountable. They always found a way to illness in the criminal justice arena. According to the rise to the challenge. Also, I would like to thank TauNational Alliance on Mental Illness (NAMI), over 2 milnya Painter and Judge Josefina Rendon who served as lion people booked into jails each year have a mental guest editors and Tara Shockley, HBA Communications health condition. Maha Ghyas and Bradford Cockard’s Director, who patiently served this board with grace, article, Wayne’s World: Mental Illness and the Criminal wisdom, dedication and excellence. Thank you for alJustice System, details a real-life encounter of how Harlowing me the opportunity to serve as Editor-in-Chief. ris County handles a defendant who is suffering from a Happy reading! mental health condition and at the time of his arrest is thehoustonlawyer.com
BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
Past President
Alistair B. Dawson
Chris Popov
Warren W. Harris
Benny Agosto, Jr.
Bill Kroger
Neil D. Kelly
Second Vice President
Jennifer A. Hasley
DIRECTORS (2016-2018)
Richard Burleson David Harrell
Diana Gomez Greg Ulmer
Collin Cox Hon. Erin Lunceford
DIRECTORS (2017-2019) Daniella Landers Lionel M. Schooler
editorial staff Editor in Chief
Farrah Martinez Associate Editors
Polly Fohn Jeff Oldham Hon. Jeff Work
Preston Hutson Taunya Painter
Anietie Akpan Kimberly A. Chojnacki Al Harrison Hon. Scott R. Link David T. Lopez Marni Otjen Hon. Josefina M. Rendón
Editorial Board
Anna Archer Veronica Cruz Matthew J. Heberlein Kristen Lee Avi Moshenberg Raymond L. Panneton
Managing Editor
Tara Shockley
HBA office staff Executive Director
Kay Sim Ashley G. Steininger Education Assistant Lindsay Godfrey Director of Projects Bonnie Simmons Project Assistant Cara Walker Director of Communications Tara Shockley Director of Education
Communications Assistant /Web Manager
Carly Wood
Director of Membership and Technology Services Ron Riojas Membership Assistant Database Assistant Director of Development Receptionist/Resource Assistant Administrative Assistant
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thehoustonlawyer.com
May/June 2018
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By Maha Ghyas and Bradford Crockard
Wayne’s World:
Mental Illness and the Criminal Justice System
I
magine a 911 dispatcher answers the phone, and it is a call from a woman reporting a disturbance in progress. She is calling because her neighbor, whom we will call Wayne, is banging on the door to her house. She reports she was at home with her children when, unprovoked, Wayne started banging on the front windows, yelling at her to “turn the volume down” because the noise was disturbing him. The dispatcher can hear the screaming and banging she is reporting. The 911 caller reports she did not have the TV on, and her two young kids had been napping before Wayne started banging on the windows. She tells the dispatcher that she believes Wayne has mental health issues, and he has not been taking care of himself or his property in the previous few months. She tells the dispatcher she
is afraid for her safety and for the safety of her children. The dispatcher stays on the phone with the woman as Houston Police Department officers are dispatched to the scene. While the officers are still on the way, the woman reports that the neighbor has left and presumably returned to his residence. Officers arrive on the scene and make contact with the 911 caller. She reports to them that over the past few months Wayne has been acting erratically and neglecting not only his own health but also the maintenance of his property. While the officers are speaking with her, Wayne appears on the street, clearly in psychiatric crisis, and starts to scream at the officers about the noise coming from the woman’s home. He has a knife in his hand and is very paranoid and delusional. The officers decide to request a Crisis Intervention Response Team (CIRT), which is comprised of specially trained peace officers who ride with mental health clinicians from the local mental health authority, The Harris Center. CIRT arrives on the scene, and the CIRT clinician attempts to placate Wayne by employing deescalation techniques.1 Officers survey his house and find it in very poor condition. The lawn is overgrown, and there is trash everywhere. There is no electricity to the house, and there is a foul smell emanating from inside. Wayne is disheveled and looks as though he has not eaten, showered, or slept in days. As the clinician attempts to placate him, Wayne grows more and more irate and agitated. He threatens the 911 caller, whom he believes has been spying on and stealing from him. The clinician quickly determines that Wayne is in crisis and needs medical attention. When she asks him if he will agree to go to the hospital, he becomes angry. He attacks the clinician with the knife. As the officers attempt to restrain Wayne, he attacks them as well. At that point, the CIRT officers and clinicians have different options on how to proceed. Once an officer determines that a suspect has a mental illness, and because of that mental illness there is a substantial risk of serious harm to the suspect or to others unless the suspect is immediately
restrained, the officer has the option of detaining the individual without a warrant. A substantial risk of serious harm is demonstrated by the person’s behavior or by evidence of severe emotional distress and deterioration to the extent that the person cannot remain at liberty. If there is such evidence, the officer must make an effort to divert from incarceration and transport the suspect to an inpatient mental health facility, at which point the officer or any other person, such as a guardian, can file an application for an Emergency Detention Order.2 In Wayne’s case, however, he has physically assaulted the clinician and is severely resistant to the suggestion of treatment, so the officers decide to call the Intake Division at the Harris County District Attorney’s Office to get advice on how to proceed in this situation. The officers report the suspect’s apparent mental health issues, his danger to the public and the complainant (the 911 caller), and the brutal attack on the clinician. The assistant district attorney on duty accepts charges of Aggravated Assault with a Deadly Weapon and advises the officers to divert Wayne to the Neuropsychiatric Center so he can be stabilized. The officers transport Wayne to the Neuropsychiatric Center and upon arrival, file an application for Emergency Detention. Under oath, they state that based on his behavior, they believe Wayne is mentally ill and poses a serious risk of harm to others; specifically, he lashed out at the clinician when she suggested he get treatment. Within 12 hours, a psychiatrist evaluates his symptoms and recommends that because Wayne is suffering from a severe mental illness, which puts him at substantial imminent risk of harming himself or others if not immediately detained, he be admitted for involuntary inpatient commitment.3 Once he is stabilized, Precinct 1 deputies transport Wayne from the Neuropsychiatric Center to Harris County Jail. As with all inmates entering the jail, Wayne is screened for mental health issues. Once he is booked, the sheriff’s office is required to provide notice to the magistrate of the defendant’s mental health is-
sues. Wayne is referred to a psychiatrist, who conducts a mental health examination and diagnoses Wayne with schizophrenia. The psychiatrist prepares a written report detailing the procedure used to arrive at this diagnosis, the diagnosis found, and clinical evidence that Wayne may be legally incompetent. This report is filed with the trial court and shared with both defense counsel and the attorney representing the state. This report is used to determine how to proceed with the criminal prosecution, such as referring the defendant to mental health services or transferring the case to a specialty mental health court, and may be used as mitigating evidence during punishment.4 Following the intake health screening, Wayne is booked into the jail and housed in the mental health unit where he receives treatment to stabilize him. After the court determines that Wayne is indigent, it appoints an attorney to represent Wayne. The attorney meets with Wayne. The attorney is unable to effectively communicate with Wayne, so the attorney moves for a competency evaluation. The attorney determines that Wayne does not understand that he has been charged with a crime and consequently cannot assist in his own defense. Wayne’s competency evaluation is conducted by a forensic psychologist or psychiatrist working in the jail. A person is incompetent to stand trial if the person does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or have a rational and factual understanding of the charges against him.5 In forming the basis of their opinions, experts must consider the capacity of the individual to: (1) disclose to counsel pertinent facts, events, and states of mind; (2) engage in a reasoned choice of legal strategies and options; (3) understand the adversarial nature of court proceedings; and (4) testify on his own behalf. After conducting a face-to-face interview of Wayne and reviewing the offense report as well as other collateral sources of information, the psychologist drafts a competency evaluation and files it with the court, recommending that Wayne be
found incompetent and committed for competency restoration.6 The defense attorney approaches the prosecutor handling the case, and they agree with the findings in the psychologist’s evaluation. They approach the court and recommend that Wayne be adjudicated incompetent; the court orders that Wayne be committed for competency restoration treatment for an initial period of 120 days.7 Wayne is placed on a waitlist to be transported to a state hospital. Pending his transfer, he is housed in the Mental Health Unit of the jail and provided with treatment and access to mental health clinicians. The case is transferred to a specialized competency restoration docket. This docket consists of a specially trained judge, prosecutors, defense attorneys, court staff, and probation officers. All 22 district courts in Harris County transfer cases to this docket, which handles felony cases in which there has been a finding of incompetency. Specially trained prosecutors with the Mental Health Division of the Harris County District Attorney’s Office represent the State. A new defense attorney who is specially trained to deal with mental health issues is appointed to the case. Representatives from the local mental health authority, The Harris Center for Mental Health and Intellectual and Developmental Disability, are present to provide referrals to mental health resources offered by the county, as well as provide updates on defendants in custody awaiting transportation to the state hospital. Once a case is transferred to the competency restoration docket, it is handled by this court until its resolution. Wayne is committed to the maximum security unit at Rusk State Hospital for an initial commitment period of 120 days. There he receives competency restoration treatment, which includes education about the legal system and psychiatric treatment. Once he is stabilized on his medication, he is re-evaluated by a psychologist at the state hospital. The psychologist finds that Wayne is clinically stabilized and has attained competency to stand trial. The parties agree with this evaluation, and Wayne is bench warrantthehoustonlawyer.com
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ed back to Harris County Jail. Once he returns to the jail, Wayne’s attorney speaks with him and finds that he understands he has been charged with a crime, that he is able to elucidate the circumstances which led to his arrest, and that he is able to assist in his own defense. The attorney asks the court to issue an order of restoration. At this point, the parties are able to proceed with disposition of the case. Upon reviewing the facts of the offense, and speaking with the complainant and law enforcement who responded to the scene, Wayne’s defense attorney believes that his client was insane at the time of the offense. It is an affirmative defense to prosecution that, at the time of the conduct charged, the defendant, as a result of severe mental disease or defect, did not know his conduct was wrong.8 Wayne’s defense attorney files a notice of intent to raise insanity as a defense and a motion to have Wayne examined by an expert.9 The court orders a forensic evaluator with The Harris Center in the jail to conduct an in-person interview of Wayne regarding his sanity at the time of the offense. The evaluator also reviews offense reports, a statement given by Wayne shortly after he was detained, mental health records, and reports from Rusk State Hospital. The evaluator finds that Wayne was suffering from severe mental distress and, as a result of this distress, did not understand that his conduct was wrong. She finds Wayne to be insane at the time of the offense. This evaluation is filed with the court and disseminated to defense counsel and the attorney representing the State.10 The mental health prosecutor handling the case reviews the evaluation, as well as records from the state hospital and treatment records from the jail, and decides that Wayne meets the criteria for the insanity defense. She contacts the complainant to explain the significance of an acquittal because of a finding of insanity, as well as the procedures which would govern Wayne’s case after his acquittal. The complainant, who had been the defendant’s neighbor for years, tells the prosecutor that she knew that Wayne was 12
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severely mentally ill. Although she was afraid of Wayne, she understood that he needed treatment and did not object to the State stipulating to insanity. The prosecutor and defense counsel agree that Wayne was insane at the time of the offense and present the sanity evaluation as well as the competency evaluation as evidence to be considered in a determination of guilt. The court, based on the evidence presented, finds Wayne “not guilty by reason of insanity.”11 The court further finds that the offense with which Wayne was charged involved dangerous conduct that caused serious bodily injury to another person, placed another person in imminent danger of serious bodily injury, and consisted of a threat of serious bodily injury to another person through the use of a deadly weapon.12 Due to this finding of violence, the court is able to retain jurisdiction over Wayne’s case and orders him to inpatient treatment at one of several state hospitals.13 An acquitted person can remain under the court’s jurisdiction for the maximum amount of time allowed by the Texas Penal Code’s range of punishment for the specific offense. In this case, Wayne was charged with a second degree felony, meaning that he can remain under the court’s jurisdiction and be ordered by the court to receive treatment for up to twenty years.14 Upon adjudication, Wayne is committed for a 30-day evaluation period to Vernon State Hospital, the main maximum security unit in the state. Physicians at Vernon State Hospital determine whether if, as a result of mental illness, Wayne is likely to harm himself or others, whether there are prospective treatment options available for Wayne, and whether any treatment or supervision can be provided safely in a less restrictive setting.15 The psychiatrist takes into consideration Wayne’s offense, his conduct while being detained, and his compliance with treatment, as well as other relevant factors. The evaluator determines that further inpatient hospitalization is needed to protect the safety of others and that Wayne meets the criteria for a 180-day renewal of his inpatient commitment.16 The psychia-
trist files his recommendation that Wayne be recommitted for inpatient treatment. Additionally, two certificates of medical examination are filed with the court and provided to all parties. These medical certificates, executed by a physician, find that Wayne is suffering from severe and abnormal mental distress which renders him unable to care for himself and that he is likely to cause harm to himself or others if not treated in an inpatient setting.17 Wayne will remain at Vernon State Hospital until his treating psychiatrist opines that he is no longer manifestly dangerous. Wayne will then appear before the Dangerousness Review Board. He may be transferred to a less restrictive facility, which will be another of the eleven state hospitals. Eventually, the goal is to medically stabilize Wayne so he can be safely treated on an outpatient basis in the community. When he reaches this point, he will be provided medical and psychiatric treatment and psychological services by the local mental health authority and supervised by a specialized probation officer.18 Similar to inpatient commitment, once Wayne is ordered to outpatient treatment, his case will be evaluated annually and hearings will be held in which the state must prove that the acquitted person still meets the criteria for courtordered treatment and supervision. The court may move to discharge Wayne from all court-ordered treatment and supervision and early terminate its jurisdiction over Wayne’s case if Wayne’s counsel can establish by a preponderance of the evidence that Wayne is not likely to cause serious harm to another because of any severe mental illness.19 Maha Ghyas is a Special Assistant assigned to the Mental Health Division with the Harris County District Attorney’s Office. She has worked in clinical research at MD Anderson Cancer Center and organizes bone marrow donor drives for Delete Blood Cancer DKMS. Bradford Crockard has been an Assistant District Attorney with Harris County for over nine years and has for most of his career, specialized in cases in which the
defendant suffers from a mental health issue. He is also active in the Houston Bar Association, where he has co-chaired the Special Olympics Committee and won the President’s Award. Endnotes
1. Houston Police Department, Crisis Intervention Response Team (Jan. 6, 2014), http://www.houston cit.org/mental-health-division-2/ 2. TEX. HEALTH & SAFETY CODE ANN. § 573.001 (West 2017); TEX. CODE CRIM PROC. ANN, art. 16 (West 2015). 3. See TEX. HEALTH & SAFETY CODE ANN. § 573.002 (West 2017) (detailing the procedure for a notification of detention). 4. TEX. CODE CRIM. PROC. ANN., art. 16.22. 5. Id., art. 46B.024. 6. Id., art. 46B.025. 7. Id., art. 46B.073. 8. TEX. PENAL CODE ANN. § 8.01 (West 2011). 9. TEX. CODE OF CRIM. PROC. ANN., arts. 46C.051 and 46C.101. 10. Id., art. 46C.105. 11. Id., art. 46C.156. 12. Id., art. 46C.157. 13. Id., art. 46C.158. 14. Id., art. 46C.002. 15. Id., arts. 46C.251, 46C.252. 16. Id., art. 46C.256. 17. TEX. HEALTH & SAFETY CODE ANN. § 574.011. 18. TEX. CODE OF CRIM. PROC. ANN.. art. 46C.263. 19. Id., art. 46C.268.
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May/June 2018
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By Kyle Verret
Know Your Rights in the Middle of the Night
W
hen I tell people that I am a criminal defense lawyer, most people laugh and say, “I hope I never need to call you.” My usual response is “You may never need me, but everybody has that cousin.” Even if you do not have the privilege of practicing criminal defense, you might find yourself visiting with that friend or that cousin who has a few questions about what they can do if they find themselves interacting with the police. When the
questions come up, here is some guidance to follow. “When a police officer stops my car or approaches me in public, do I have to give them my name?” If you are arrested or detained (like in a traffic stop), you are required to provide your name, residence address, and date of birth.1 You must also provide this information to an officer who believes that you were a witness to a crime. “If a police officer approaches me in public and asks to speak with me, do I have to talk to them?” No. If you are not under arrest or detained, you have no more a duty to talk to a police officer than you have a duty to talk to any other person. If you are detained or arrested, you have to identify yourself. You never have to give a law enforcement officer any information other than your name, address, and date of birth. “What if the police come to my house and tell me to open the door? Do I have to open the door?” No. The Fourth Amendment provides us the right to privacy in our homes. If the police come knocking on your door, you do not have to answer it.2 “What if the police officer says that they have a warrant?” You can ask to see a copy of the warrant. If the officer has a warrant to search your house and you don’t open the door, they have a right to forcibly enter your home. They can even break down the door to get in. If you do not want the officer entering or searching your home, you have the right to tell them that they do not have permission to enter your home, but if they have a valid warrant, the search will almost always be found to be lawful even without your consent. “What if someone else opens the door?” Any person who lives in the home can give consent to the police to enter and search your home. If a guest or child
opens the door, you have the right to shut the door.3 If there is a valid warrant, the police officer should present the warrant and may enter the home to execute the warrant, even if you do not give your consent to a search. “If someone lets the police come into my house, can I tell the police to leave?” If the police have a warrant to search your home, they do not have to leave. If they enter your home and have not established probable cause that an offense has occurred while they are inside the home, you have the right to make them leave. On the other hand, if the police come inside your home and find evidence of a crime, such as contraband in plain sight, they may remain in the residence and seize the contraband. “Do the police have the right to go into my back yard?” The Fourth Amendment prohibits unreasonable searches and seizures by the police. If you have a fenced in backyard, the fence establishes a right to a reasonable expectation of privacy. Just as it would be illegal for your neighbors to walk around in your backyard without your permission, the police may not trespass on your property. Even an unfenced area should be safe from police intrusion if you have a reasonable expectation of privacy to the space.4 Most warrants allow for the police to search the property around the home. If they have a warrant, then the warrant would likely allow them to search your yard as well. “I believe that I have been accused of a crime. A police officer is at my house, or has called me, and says that they want to talk. Should I talk to them?” No. Not without talking to a lawyer first. If law enforcement is at your door and wants to talk, and you believe that you are the suspect, you should clearly and unequivocally say that you want to talk to your lawyer. If there is a message on your phone from law enforcement, call your lawyer first.
Keep your mouth shut until you talk to your lawyer. In Michael Connelly’s book, The Brass Verdict, one of the criminal defense lawyer characters has a large fish mounted on the wall of his office as a reminder to his clients of their right to remain silent. Below the fish is a plate that says: “If I had kept my mouth shut, I wouldn’t be here.” My clients often find themselves in the same place as this fish. There may be a very good reason that you want to give a statement to the police, but you should not do so without first talking to a lawyer. Police are trained in interrogation, and they do not have to tell you the truth when they are questioning you. If you give a statement to the police, having a criminal defense lawyer present with you at an interview helps protect your right against selfincrimination, helps to ensure that you are not misled during the interview, and helps to make sure that you do not say something that is taken the wrong way. “I said that I wanted a lawyer, but the police asked if I was sure. What do I do?” Keep saying that you do not want to talk to them and that you want to talk to a lawyer. Do not talk to the police about anything until you have talked to a lawyer. If you start talking to them after having asked for a lawyer, this may be considered a waiver of your right to counsel. Ask for a lawyer, then be quiet. “Can I record my encounter with the police?” Yes. In Texas, it is legal to record an interaction, including a phone call, with another person as long as one party to the interaction consents to the recording.5 You cannot record other people’s private conversations. You can record police interactions with others in public, as we have no reasonable expectation of privacy in our public interactions. While it is legal, you can expect a police officer would feel the same as anyone else if they are working and get a cellphone camera pointed at them. “I was pulled over and the police asked
if they could search me or my car. Do I have to let them search?” You never have to agree to let the police search you, your car, your bag, your home, your office, your phone, or anything else where you have a reasonable expectation of privacy. If a police officer asks if they can perform a search, you have the right to tell them no. If they command you to let them conduct a search, you should ask whether they have a warrant. If you do not want a police officer digging around in your stuff, then be clear that you do not consent to the search. If the police conduct a search and do not have 1) a warrant, 2) your consent to search, or 3) a valid exception to the warrant requirement, then any evidence they find could be suppressed and you may have grounds for a lawsuit. Do not try to physically stop a police officer from conducting a search but persist in being clear that the search is without your consent. “The officer told me that I have to open my cell phone and let him look through it. What do I do?” Tell him, “no, thank you.” You have a right to privacy in your electronic devices. You do not have to tell a police officer the password to your phone or open it for them. If they take your phone, they will have to get a warrant to try to get into it. Even with a warrant, the police cannot force you to divulge your login information.6 “I know I do not have to let them search my car, house or phone, but should I let them search my car, house, or phone?” If some stranger asks if they can dig through your car, poke around in your house, or peruse your cell phone you would tell them “no.” Thanks to the Fourth Amendment, you can safely do the same to a police officer. “If the police pull me over on the way home from the bar tonight, should I take the field sobriety tests?” By the time the officer is asking for you to perform the field sobriety tests, they thehoustonlawyer.com
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already suspect that you are intoxicated. Many of us, for all kinds of reasons, cannot stand on one leg for 20 seconds or walk a straight-line heel to toe. The alcohol may have nothing to do with your performance on the test. If you smell like alcohol or admit to drinking and find yourself being asked to perform these tests, you are likely on your way to jail. You have the right to refuse to do the tests. Keep in mind, whatever your reason for refusing the tests, there is a good chance that you will be arrested if you tell the police officer “no, thank you.” Almost all traffic stops are now recorded by patrol car dash cameras or officer body cameras. Every once in a while, someone does these tests well enough that the video helps their defense; most of the time, that is not the case. The dash camera of the performance on the tests, or your refusal to do them, will likely be State’s Exhibit 1 at the trial. Whatever you do, whether you do the tests or not, please resist the urge to say, “I cannot do that when I am sober.”
For years, Harris County has been a 24/7 “no refusal” jurisdiction. If a police officer has probable cause to believe that you are driving while intoxicated, the officer may ask for a specimen of your breath or blood. In Harris County, if you refuse to give a sample of your breath when requested, they will almost always try to get a warrant to draw your blood. If they obtain a warrant for your blood, which they will probably get if they ask for it, they can have you held down and your blood forcibly taken from you. Most lawyers that I know would prefer to defend a DWI with a breath sample instead of a blood sample. Juries put less stock in the results of the Intoxilyzer breath test machines than they do in lab results from a blood analyses. If the blood or breath test comes back with a low BAC, that is of course helpful. The suburban counties differ in their no refusal policies. No refusal programs in the counties contiguous to Harris County are usually in force on holidays and the occasional weekend.
“If I do well enough on the test, the police have to let me go, right?” If you pass the field sobriety tests perfectly, the police may still detain or arrest you on suspicion of driving while intoxicated. They may rely on other facts to develop probable cause for an arrest for intoxicated driving. Sure, sometimes people get pulled over and even though they smell like alcohol, the police officer lets them go after they take the field sobriety tests. What is certain is that if the officer is at all concerned that you are impaired, you will be detained and asked for a sample of your blood or breath. No patrol officer wants to be the one who let a maybedrunk driver go, only to have the driver hit another car on their way home. Rather than risk a possible intoxicated driver hurting someone, many officers will err on the side of caution, detain you, and ask for a sample of your breath or blood.
“Is there any penalty for refusing to give a breath or blood sample?” When you apply for your driver’s license, you consent to giving a sample of your breath if requested. If you refuse to provide whichever sample the officer requests, your license can be suspended for 180 days.7 If you provide a blood or breath sample with a BAC higher than a .08, your license can be suspended for 90 days.8
“If the police officer asks for my breath or blood, what should I do?” There is no right answer to this question. 16
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“I am on prescription drugs and the officer starts asking whether I’m okay to drive. Should I tell the officer about my prescription?” This is a tough question. If you are driving and you are impaired because of your prescription medicine alone, you can still be arrested and convicted for driving while intoxicated. Impairment means any loss of mental or physical faculties. Certain prescription drugs can have a synergistic effect with alcohol. After taking some prescription medication, you may be impaired after one drink.
On one hand, it might help if you tell the officer that you are on your prescription medication. There is some leniency for people who are driving while intoxicated on the prescription medication alone. On the other hand, if you have been out drinking while on prescription pain killers, sharing this information with a police officer is not going to be helpful to your defense. If in doubt about what to say to a police officer, you should remain silent. If you are worried about what to say to a police officer if you were pulled over, it is best to just not drive. “Do I have to tell the officer where I am coming from, where I am going, and how much I have had to drink?” No. As a driver you have to provide your driver’s license and insurance, your name, address, and date of birth. You do not have to say anything else. My client’s decision to talk to the officer more often hurts their defense rather than helps. “What if I am being harassed by a police officer?” If you run into a police officer who is not acting professionally, stay calm, provide your identifying information, ask to speak to a lawyer, then BE QUIET. When you can, call your lawyer. If a police officer violated your civil rights, you could get redress through the courts. “Is there an app or some way to tell if it is safe for me to drive home?” There are two great apps available for iOS and Android if you are not sure whether you should be driving home: Lyft and Uber. There are also dozens of cab and limousine services in the Greater Houston Area. Under Texas law a person is intoxicated if they have a blood alcohol concentration of .08 or higher OR are impaired.9 Impairment is any loss of mental or physical faculties—any loss at all. Some people are impaired after one strong margarita. Others may not feel at all impaired after exceeding a .10 BAC. In either case, you could be arrested and convicted of DWI. No app or device can
accurately predict whether you are okay to drive home. Kyle Verret is Board Certified in Criminal Law by the Texas Board of Legal Specialization. After serving for years as a prosecutor in the Brazoria County Criminal District Attorney’s office, he opened The Law Office of Kyle Verret, PLLC, which represents clients in family, criminal and immigration proceedings, www.verretlaw. com. He is also Of Counsel at Nguyen Jazrawi & Chen, PLLC, www.njclaw.com. Endnotes
1. Tex. Penal Code §38.02. 2. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008). 3. Limon v. State, 340 S.W.3d 753, 757 (Tex. Crim. App. 2011); Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); U.S. v. Jackson, 598 F.3d 340, 347 (7th Cir. 2010). 4. U.S. v. Dunn, 480 U.S. 294, 299-301 (1987). 5. Tex. Penal Code § 16.02. 6. State v. Granville, 423 S.W.3d 399, 417 (Tex. Crim. App. 2014); U.S. v. Kirschner, 823 F.Supp 665, 668 (E.D. Michigan 2010); U.S. v. Mitchell, 76 M.J. 413, 416-18 (C.A.A.F. 2017); But see U.S. v. Fricosu, 841 F. Supp. 2d 1232, 1235 (D. Colorado 2012). 7. Tex. Trans. Code § 724.035. 8. Tex. Trans. Code §§ 524.011, 524.022. 9. Tex. Penal Code § 49.01(2).
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By Alamdar S. Hamdani
The DOJ:
Tracking and Disrupting Terrorists
W
hile writing this, bombs in Austin were detonating, the wife of the ISIS inspired murderer who gunned down 48 in Orlando was on trial for aiding and abetting her now dead husband, and the specter of 9/11 hovered, as it always does, over everything I did. Terrorism has been a part of my practice for over 16 years since the early days following 9/11. On the morning of 9/11, I was a young associate at a large Houston firm, and knew little about terrorism or its intersection with criminal or civil rights laws, but I knew, as we all knew then, that things would no longer be the same. Maybe because I understood that those responsible for 9/11 shared my skin color and my parent’s faith, I also knew that it was important for me, personally, to understand the government’s national security policies in this new world. So, in the months and years after 9/11, I began volunteering for the American Civil Lib-
erties Union; represented Muslims, South Asians, and Arabs pro bono in voluntary FBI interviews; debated national security policy with Department of Justice prosecutors in open forums; and eventually defended persons accused by the DOJ and FBI of terrorism crimes. All of it paved the way for what I do now: investigating and prosecuting terrorism crimes for the DOJ. As my career changed since those early days after 9/11, so did the scope of the terrorism threat. It is a threat that is constant and metastasizing every day across lands from Afghanistan to Syria to Charlottesville, Orlando, and New York, and across technologies from bulky VHS tapes to sleek smart phones. Terrorists today use an assortment of different weapons to recruit and harm. The weapons are both more technically savvy, such as social media to proselytize domestic and international actors, and primitive, such as knife attacks of random strangers or a single vehicle ramming through a crowd. As a result, the government, including the DOJ, must constantly adapt to the changing tactics so as to best disrupt future acts of terrorism. Terrorism? But, what is terrorism? And what’s the difference between domestic and international terrorism? These are questions where answers are both obvious and nebulous, depending on the situation and perspective. As one commentator wrote, “[t]he search for a legal definition of terrorism in some ways resembles the quest for the Holy Grail: periodically, eager souls set out, full of purpose, energy and self-confidence, to succeed where so many others before have tried and failed.”1 Several federal statutes give definitions of terrorism, and all of them hit on the same theme: committing or supporting violent or dangerous acts, such as kidnapping and killing, so as to influence, intimidate, or coerce a governmental entity or civilian population.2 According to those statutes, the difference between international and domestic terrorism is that the former transcends national boundaries, and the
latter occurs primarily within the territorial jurisdiction of the United States.3 Under that definition, most, if not all of us, would agree that Al Qaeda’s acts on 9/11 or Umar Farouk Abdulmutallab’s Christmas 2009 attempt to ignite an underwear bomb on an international flight landing in Detroit qualify as acts of international terrorism.4 Whereas, the Atlanta Olympics bombings by Eric Rudolph and the 1995 Oklahoma City Bombing are examples of domestic terrorism. But what about those acting alone and purely domestically, but inspired by an international terrorist group’s calls for violent jihad, groups like Al Qaeda or one of its many offshoots such as Al Qaeda in the Arabian Peninsula (AQAP), as well other organizations like the Taliban, Hezbollah, Al Shabaab, or the Islamic State in Syria and Al Sham (ISIS)? Are they acts of international terrorism as opposed to domestic? Or, what about the massacres at Sandy Hook Elementary School, the slaying of African American parishioners in a Charleston church, or the Las Vegas mass shooting last October? Are they considered acts of terrorism? How the government answers those questions will help determine what tools law enforcement uses to gather information, whether federal or state authorities prosecute, and whether prosecution is an available option. Gathering Information and the National Security Apparatus Information about suspected terrorists, especially those with a nexus to international actors or groups, is often born from intelligence gathered by (1) open source information from publicly available sources such as newspapers and television; (2) human sources, which the government refers to as HUMINT, such as confidential informants, (3) electronic data transmission, such as intercepted phone calls or emails, known collectively as signals intelligence (SIGINT); and (4) physical searches whether using a criminal search warrant or other types of authority, such as a classified search warrant presented to a special court under the Foreign In-
telligence Surveillance Act.5 All of these sources feed information to the United States’ intelligence apparatus, known commonly as the US Intelligence Community (USIC). The USIC consists of 17 different “executive branch agencies and organizations that work separately and together to conduct intelligence activities necessary for the conduct of foreign relations and the protection of the national security of the United States.”6 The USIC includes the Central Intelligence Agency (CIA), an agency responsible for collecting, analyzing, evaluating, and disseminating foreign intelligence, and includes the Directorate of Operations which is responsible for “the clandestine collection of HUMINT.”7 Another member of the USIC is the National Security Agency (NSA), a Department of Defense entity responsible for “the nation’s cryptologic organization that coordinates, directs, and performs highly specialized activities to protect U.S. information systems and to produce foreign signals intelligence information.” 8 The USIC also includes the Federal Bureau of Investigations (FBI), the main agency working with the DOJ on national security investigation, and “as an intelligence and law enforcement agency, is responsible for understanding threats to our national security and penetrating national and transnational networks that have a desire and capability to harm the U.S.”9 The USIC creates intelligence products whose consumers include the President, the National Security Council, Congress, the military, and agencies such as the DOJ and its cadre of Assistant United States Attorneys (AUSAs) and trial attorneys prosecuting and investigating national security crimes. The USIC architecture evolved into its current form as a result of 9/11. It is a structure that focuses on the sharing of information between law enforcement and intelligence agencies, something that failed to often take place prior to 9/11, in part due to a legal fabrication known as the “FISA wall.” Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978 providing the government “an
extremely powerful investigative tool”10 that allowed it, in part, to collect foreign intelligence by surveilling the telephonic and electronic communications of agents of foreign powers. Foreign powers include other nations and foreign terrorist organizations, such as Al Qaeda. Unlike a traditional criminal search warrant, which is presented to a local federal magistrate judge by a local federal prosecutor, a FISA warrant is approved by the Attorney General or designee,11 is classified and is presented by an attorney with the DOJ’s National Security Division (NSD) to one of the 11 federal district judges on the Foreign Intelligence Surveillance Court (FISC). These judges are chosen by the Supreme Court’s Chief Justice and sit for a maximum of seven years.12 The Wall Prior to 9/11, federal courts held that a FISA warrant’s “primary purpose” had to be for foreign intelligence collection, and not to support a criminal prosecution, even though many of the spies and terrorists targeted by FISA were running afoul of US criminal laws.13 So, a “FISA wall” was created in the 1980s and 1990s that separated intelligence and law enforcement investigations. The “FISA wall” prevented the FBI from freely sharing the intelligence from a FISA warrant’s execution with the DOJ, just so the government could demonstrate to the courts that the DOJ was not “directing or controlling” intelligence investigations in violation of the “primary purpose” standard.14 That “wall” negatively impacted the investigations into the 9/11 hijackers because it limited the amount of “information-sharing and coordination between intelligence officers and law enforcement officers.”15 So, after 9/11, the government undertook stark changes, including changing FISA to accommodate tearing down the “FISA wall” so that intelligence arms could more freely share information with criminal components,16 and it implemented structural enhancements such as the formation of the Department of Homeland Security and the creation of the DOJ’s National Security Division (NSD). thehoustonlawyer.com
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The DOJ The DOJ is made up of prosecutors spread over several divisions, such as the Civil, Criminal, and Civil Rights Divisions (each oversees prosecutions, litigation, or sets policy regarding civil, criminal, and civil rights matters respectively), and the 94 United States Attorney’s Offices where Assistant United States Attorneys (AUSAs), led by a presidentially appointed United States Attorney for each office, conduct investigations and prosecutions of federal crimes in districts across the United States. In September 2006, the DOJ got its newest division, the NSD, which was created as part of the government’s focus to insure agencies share critical intelligence and to enhance the DOJ’s abilities to defend against future terror attacks.17 In essence, the NSD is the DOJ’s liaison with the intelligence community. It is made up of three main litigating units—the Office of Intelligence, responsible for all things FISA and interacting with the FISC; the Counterintelligence and Export Control Section (CES), responsible for overseeing prosecutions of spies and those who illegally deal with sanctioned nations, entities, and persons, such as Iran and Syria, or certain Russian nationals; and the Counterterrorism Section (CTS), where I spent five years helping to oversee and assist AUSAs in their terrorism prosecutions. And for the past three years, I have been in Houston as one those AUSAs. Charging Terrorism Crimes As it relates to international terrorism— however, that is defined—the federal government uses a combination of intelligence, law enforcement (local and federal), military, and diplomatic tools to investigate and disrupt a potential terrorist, and AUSAs use the fruits of all those tools in federal courts.18 To illustrate this, consider a hypothetical. Assume a US intelligence agency collects information about a person located overseas planning an attack domestically in a particular city and shares that information with the FBI. As part of its investigation, the FBI contacts the local US Attorney’s Office and the 20
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AUSA designated as the office’s antiterrorism coordinator. That usually starts the use of traditional law enforcement tools such as the issuance of grand jury subpoenas to follow sources of funds, and search warrants for a variety of items: contents of email accounts, or to search a physical location, for example, a storage locker tied to the investigation’s target. In the meantime, the FBI works through its local Joint Terrorism Task Forces (JTTFs) to continue the investigation, such as following leads, conducting surveillance, and interviewing witnesses. JTTFs include members of State and Federal agencies sitting together Shauna Johnson Clark in the same space sharing information, combining resources, and leveraging local relationships. The FBI describes the local JTTFs, based in 104 US cities, as “small cells of highly trained, locally based, passionately committed investigators, analysts, linguists, SWAT experts, and other specialists from dozens of U.S. law enforcement and intelligence agencies.”19 Finally, if there is probable cause to believe the target is an agent of a foreign power, such as ISIS, the FBI may also seek a FISA warrant. Because of the multi-agency approach to investigating possible terrorism crimes and considering information might be classified at levels whose unauthorized release could cause serious damage to national security, coordination is key. While all of the above information may form the basis to seek charges, prior to charging, a prosecutor has to determine whether it can protect the interests of those who collected the classified information, for example, the US agency that provided the initial foreign lead, and still use that information as evidence in a criminal case. In addition, in cases involving classified information, prosecutors also have to consider if charges are brought, whether the government can meet its obligations to a defendant to provide the defendant exculpatory information, or other information that is helpful to the defense. If the next step is seeking charges, there is a broad set of federal criminal statutes commonly used in terrorism prosecu-
tions: Terrorist Acts Abroad Against United States Nationals (18 U.S.C. § 2332); Terrorism Transcending National Boundaries (18 U.S.C. § 2332b); Use of a Weapon of Mass Destruction (18 U.S.C. § 2332a); Conspiracy Within the United States to Murder, Kidnap, or Maim Persons or to Damage Certain Property Overseas (18 U.S.C. § 956); Bombings of Places of Public Use, Government Facilities, Public Transportation Systems and Infrastructure Facilities (18 U.S.C. § 2332f); Providing Material Support to Terrorists (18 U.S.C. § 2339A); and Providing Material Support to Designated Terrorist Organizations (18 U.S.C. § 2339B). These statutes are normally used in cases involving some nexus to an international group, but when the case has none, then there may be concurrent state and federal jurisdiction. In those cases, prosecutors consider the “strength of the other jurisdiction’s interest in prosecution... the other jurisdiction’s ability and willingness to prosecute effectively; and... the probable sentence or other consequences if the person is convicted in the other jurisdiction.”20 After the above considerations are made, the case will usually be brought in only one of the jurisdictions to “insure the most efficient use of law enforcement resources....”21 Of the above federal “terrorism” statutes, the DOJ has made frequent use of the material support statutes which criminalize the provision of “material support or resources,” such as money, advice, or personnel, including if the defendant is providing himself, to certain groups, including those seeking to commit terrorist acts or those designated as foreign terrorist organizations, commonly referred to as FTOs, such as Hamas, Hezbollah, Al Qaeda, and ISIS. In recent years, ISIS has kept many prosecutors busy, in part because it has been prolific in its brutality and recruitment. Not only does ISIS call others to join them in areas like Syria or Iraq, they also recruit persons to assist financially, as well as urging fighters to carry out attacks domestically consistent with its calls to wage violent jihad (both in the United States and abroad). This all has
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led to a recent spike in ISIS related arrests. From March 1, 2014 to June 30, 2016, according to a Fordham University study, the DOJ brought 101 ISIS related cases.22 Seventy-one were charged in 2015, and in one month alone (April 2015) AUSAs brought 15 ISIS related cases.23
22
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But ISIS represents just one portion of the total daily terrorism threat. The full scope of the terrorism threat involves a variety of organizations, motivations, and lone wolves, and it is not a threat that is always easy to uncover. To that end, every day, thousands of investigators and
hundreds of prosecutors use every available tool, all in an effort to disrupt that threat. Alamdar S. Hamdani is an Assistant United States Attorney in Houston responsible for investigating and prosecuting national
security matters. He is also an Adjunct Professor at the University of Houston Law Center where he teaches a course on Terrorism and the Law. The views expressed in this article are those of the author and do not necessarily reflect the views of the Department of Justice.
Congratulations to
Hon. Elizabeth Ray
2018 Sarah T. Hughes Award
Endnotes
1. Geoffrey Levitt, Is “Terrorism” Worth Defining?, 13 OHIO N.U. L. REV. 97, 97 (1986). 2. See 22 U.S.C. § 2656f(d)(2); 8 U.S.C. § 1182(a)(3) (B); 18 U.S.C. 2332b(g)(5). 3. See 50 U.S.C 1801(c); 18 U.S.C. § 2331(1); 18 U.S.C. § 2331(5)(C). 4. United States v. Abdulmutallab, 2010-CR-20005, in the Eastern District of Michigan (D.E. # 28) (Dec. 15, 2010). 5. Office of the Director of National Intelligence, What is Intelligence, www.dni.gov/index.php/ what-we-do/what-is-intelligence (last visited on Apr. 8, 2018) (hereinafter referred to as the ODNI Article); see also Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1804(b) (2010). 6. ODNI Article, see note 5, supra. 7. Central Intelligence Agency, What We Do, www. cia.gov/about-cia/todays-cia/what-we-do (last visited on Apr. 8, 2018); Central Intelligence Agency, Office of CIA, Clandestine Services, Our Mission, www.cia.gov/offices-of-cia/clandestineservice/our-mission.html (last visited on Apr. 8, 2018). 8. Office of the Director of National Intelligence, Members of the IC, www.dni.gov/index.php/ what-we-do/members-of-the-ic (last visited on Apr. 8, 2018). 9. Id. 10. David S. Kris, Law Enforcement as a Counterterrorism Tool, 5 J. OF NAT’L SEC. L. & POL. 1, 4 (2011) (hereinafter referred to as “Kris Article”). 11. 50 U.S.C. § 1804(a) (2010). 12. 50 U.S.C. § 1803(a). 13. In re Sealed Case, 310 F.3d 717, 721 (FISA Ct. Rev. 2002). 14. Scott Glick, FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security, 1 HARV. NAT’L SEC. J. 87, 105 (May 30, 2010) (quoting from then Attorney General Janet Reno’s 1995 Coordination Procedures limiting contact between the FBI and the DOJ’s Criminal Division to “avoid running afoul of the primary purpose test used by some courts”). 15. Kris Article, note 11, supra, at 5, n.17. 16. Id. at 5-7. 17. See DEP’T OF JUSTICE, UNITED STATES ATTORNEYS’ MANUAL (USAM) § 9-2.136. 18. Kris Article, note 11, supra, at 9 19. FBI, What We Investigate, Terrorism, Joint Terrorism Task Forces, www.fbi.gov/investigate/ terrorism/joint-terrorism-task-forces (last visited Apr. 8, 2018). 20. USAM at § 9-27.240. 21. Id. at § 9-2.031. 22. CASE BY CASE, ISIS PROSECUTIONS IN THE UNITED STATES, MARCH 31, 2014 TO JUNE 30, 2016, CTR. FOR NAT’L SEC. AT FORDHAM L. at 8 (Karen J. Greenberg, et. al., eds., 2016) https://static1.squarespace.com/ static/55dc76f7e4b013c872183fea/t/577c5b4319 7aea832bd486c0/1467767622315/ISIS+Report++Case+by+Case+-+July2016.pdf (last visited Apr. 8, 2018). 23. Id. at 9.
from the
Women and the Law section of the State Bar of Texas Arbitrations and Mediations 713-999-6270 | judge@judgeelizabethray.com
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By Preston D. Hutson
Expressing Yourself:
Exercising Your Right to Protest in Houston
• Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech: Which is the right of every man, as far as by it he does not hurt and control the right of another; and this is the only check which it ought to suffer, the only bounds which it ought to know. This sacred privilege is so essential to free government, that the security of property; and the freedom of speech, always go together; and in those wretched countries where a man cannot call his tongue his own, he can scarce call any thing else his own. Whoever would overthrow the liberty of the nation, must begin by subduing the freedom of speech; a thing terrible to publick traitors.1 • A free press is an institution almost unknown in the South. Free Speech is considered as treason against slavery: and when people dare neither speak nor print their thoughts, free thought itself is well nigh extinguished. All that can be said in defence of human bondage may be spoken freely; but question either its morality or its policy, and the terrors of lynch law are at once invoked to put down this pestilent heresy.2
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he freedom to express one’s thoughts and desires remains the sine qua non of modern notions of liberty. Writing in 1720, 71 years prior to the First Amendment, Cato described freedom of speech as the “great bulwark of liberty; they prosper and die together.”3 By 1787, free expression had reached accepted wisdom, so ingrained among the American political elite that not a single delegate to the Convention found it necessary to mention a free-speech clause.4 Indeed, the need for a larger bill of rights including a protection for free speech only revealed itself in the ensuing ratification debate, after Anti-Federalists realized that lack of a bill of rights within the Constitution fostered significant political traction with the populace.5 Accordingly, Constitutional ratification only came after James Madison and other Federalists acceded to demands for a bill of rights.6 Although accepted wisdom among the governing class, the American political elite saw little need to subject itself to the public machinations common to the lower classes. Indeed, as Hinton Helper’s 1860 remonstrance makes clear, the governing class conspired to render large swaths of Americans voiceless in American politics. Indeed, to appreciate free expression’s role in American politics, one must go beyond our Founding Fathers’ deific pronouncements extolling free speech as the “great bulwark of liberty” and consider it thoughtfully, through the lens of actual practice. To be sure, modern Americans universally exalt in the virtues of the noble dissenter—the freedom to sound our barbaric yawp of dissent over the roofs of our neighbors.7 We delight in the American ideal of banding together with other like-minded people and raising our collective voice against the establishment.8 Regardless of one’s political convictions, most will inevitably find themselves harboring political opinions outside the mainstream at some point. Americans love to dissent. Alongside this American tradition of
dissent, however, Americans must acknowledge the equally powerful tradition of suppression. American history is replete with examples of the political “haves” suppressing the viewpoints of the political “have-nots.”9 This more ignoble tradition comes in many forms, both legal and extralegal. Certainly, American jurisprudence is replete with similar examples of legislative pronouncements limiting an individual’s right to express certain viewpoints deemed hazardous to
the public welfare. On the Federal level, an example of government-condoned suppression includes the Sedition Act in which Congress criminalized any speech critical of the national government. Locally, consider the Disloyalty Act of 1917 in which the Texas Legislature prohibited its citizens from using “any language in the presence of another” determined to be “disloyal” or “abusive” and which might be construed to bring the United States into disrepute.10
Your Values. Your Influence. Your Legacy. Our Advice.
From left: Tom Williams, Leah Bennett, Allen Lewis, Bill Cunningham, Susan Wedelich, Maureen Phillips, Donnie Roberts
Westwood Trust | Houston 10000 Memorial Drive, Suite 650, Houston, Texas 77024 T 713.683.7070 westwoodgroup.com
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Far more common, however, is nonsanctioned suppression. The reader need only consider the notorious lynch mobs employed throughout post-civil-war Texas to disenfranchise people of color.11 For modern examples, look to the public outcry following the demonstrations in Charlottesville, Virginia. In short, no matter how much one may justifiably wax poetic in praise of America’s history of noble dissent, that poetry risks falling flat if it fails to recognize America’s ignominious history of thought suppression. But while acknowledging the hazards of unduly suppressing an individual’s freedom of expression, one must acknowledge the state’s right to reasonably restrain free expression to promote the public good. Constitutional liberties only exist until that moment those liberties directly conflict with another’s concomitant liberties. Even the most hardened proponent of free expression must concede a government’s obligation to balance and regulate the protections offered by the bill of rights. Consider Justice Hecht’s statement in his 1998 opinion in Operation Rescue-National v. Planned Parenthood of Houston: The right to speak does not carry with it a duty on the part of the hearer to listen. The hearer is entitled to the same protection of his rights as the speaker. When ‘the offer’ [to communicate is declined] as it may rightfully be, then persistence, importunity, following and dogging become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation.’ The difficulty lies in fashioning limitations that balance competing interests properly.”12 While Hecht acknowledges America’s enduring tradition of dissent, that tradition must be balanced both by the government’s interest in maintaining peace and public order and others’ individual right to be left alone. Public Protests in Houston Having briefly reflected on our Consti26
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tutional guarantee to free expression, I turn to practical considerations involved with protesting in Houston. Recently, as I made my way downtown, I encountered two protests in the same day. One related to race relations at Houston City Hall and the other related to the “March for our Lives” movement that protests against gun violence in America. These encounters, lead to the following questions: How does one plan a protest? What are the logistical considerations involved in planning a public protest? Protestors’ Basic Rights Shauna Johnson Clark One need not appreciate the tombs of jurisprudence regulating the government’s ability to limit expression before organizing a protest event. A simple internet search offers a host of materials, each designed to help would-be organizers to navigate the many pitfalls one might encounter. For instance, the ACLU Foundation of Texas (ACLU) has created a “Know Your Rights” pamphlet that identifies both the rights and corresponding obligations of potential protesters.13 Therein, the ACLU warns potential protesters that while an individual or group has the right to “march, leaflet, parade, picket, circulate petitions and ask for signatures, and other forms of peaceful protest,” that right is subject to regulation and restriction. To that end, the pamphlet offers a concise assessment of these limitations: 1. The government generally cannot regulate or restrict speech based on its content, i.e. proper regulation must be content neutral (both to the ideas and to viewpoints).14 • Restrictions based on the ideas or subject matter usually involve regulating an entire topic of speech, making them impermissible.15 • Restrictions based on viewpoint affect only one perspective within the larger subject matter. For example, a public university may not deny funds to a student publication specifically because it holds a Christian viewpoint while
exempting other religious publications from these same restrictions. 2. Government may regulate content, but only if the regulations are narrowly tailored to serve a compelling government interest and are the least restrictive method of achieving that interest. 3. Some speech, such as obscene or defamatory language or speech intended to incite imminent lawless action, is not protected and may be prohibited. 4. Notably, the ACLU admonishes its reader that the government can place time, place, and manner restrictions upon any speech. But to be appropriate, these regulations must be content neutral and leave ample alternative channels of communication available to the speaker.16 Confrontations with Law Enforcement In addition to a concise recitation of the legal confines regulating speech, the ACLU pamphlet provides other helpful information. For instance, the document suggests several appropriate actions protesters might take if confronted by law enforcement during their event. However, drafted in 2011, the ACLU will undoubtedly need to revise their pamphlet to provide a discussion of HB 2908 enacted in 2017. The Legislature’s response to perceived threats against law enforcement after the killing of five Dallas police officers in the midst of demonstrations, HB 2908 significantly raises the stakes for individuals accused of physically confronting peace officers in the line of duty. As enacted, the bill expands the definition of “hate crime” to include attacks on individuals known to be peace officers or judges.17 Additionally, the bill increases the punishment for several crimes against peace officers and judges: • If an actor, while in custody, “restrains” an individual they know to be a peace officer or judge while the officer or judge is lawfully discharging an official duty or in retaliation or on an account of the officer/judge’s
exercise of that official power, the actor commits a second degree felony;18 • If the actor commits an assault upon an individual they know to be a peace officer or judge while the officer or judge is lawfully discharging an official duty or in retaliation or on an account of the officer/judge’s exercise of that official power, the actor commits a second degree felony;19 • If the actor makes a terroristic threat upon an individual they know to be a peace officer or judge, the actor commits a state jail felony;20 and • If the actor commits an intoxication assault causing serious bodily injury under § 49.07 of the Texas Penal Code against a peace officer or judge in the actual discharge of a public duty, the actor commits a first degree felony.21 City Permits Another available resource, the City of
Houston offers an extensive webpage dedicated to the planning of “special events,” which includes both protest speeches and marches. The Houston Mayor’s Office of Special Events is charged with issuing the necessary permits before an organization may hold its protest at a city-owned facility or on a city street. To acquire a permit, one must fill out a 5-page, Special Event Application identifying the organization holding the event, the size and scope of the event, parking needs, and other significant information. While intended to reflect the City’s “content neutral” ordinances governing only the time, place, and manner of the right to free expression, the City’s permit process has been subjected to judicial review, most notably in Service Employees Intern. Union v. Houston, in which the Fifth Circuit declared certain limitations to be impermissibly restrictive.22 These are two of the more obvious examples of information, but one need not stop here as information abounds should
the reader seek additional guidance beyond the scope of this article. Student Protests This article would not be complete without a brief discussion of the rights of high-school students to raise their collective voices in dissent. Given the state’s interest in placing reasonable restraints upon individual free expression of the public, one can doubtless contest the state’s right to place further restrictions upon that free expression necessary to accommodate the school’s fundamental purpose—to educate children. Indeed, the United States Supreme Court has repeatedly affirmed the authority of school administrators to prescribe and control student conduct within the confines of the school.23 That said, students and teachers hardly “shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.”24 A school district cannot prohibit controversial speech merely because its administrators dis-
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agree with its content. Regulations governing student speech remain subject to the Tinker standard, which allows the school to limit student speech if it reasonably believes that the student’s expression will either materially and substantially disrupt the school environment or improperly invade the rights of others. Notably, school administrators cannot act upon unsubstantiated opinions or undifferentiated fear; decisions to regulate a student’s free expression must be based upon specific evidence. The limitations upon a school official’s right to control student expression came to a head recently when the Superintendent of the Needville Independent School District threatened an automatic threeday suspension for any student “demonstrating during school hours for any type of protest or awareness!!”25 Indeed, the Superintendent warned potential protestors that “life is all about choices” and that protesters would “face all the consequences that come along with an out of school suspension.” The Superintendent’s threats did not go unnoticed and set off alarms throughout Texas. The ACLU quickly responded with a pointed letter, reminding Needville of their students’ right to free expression and urging the District to reconsider its approach. Similarly, the Texas Association of School Boards (TASB) entered the fray, publishing its own, six-page pamphlet outlining both the law and actions it would consider appropriate in the face of student protests.26 Indeed, the TASB document admonishes its members to keep their cool and look for constructive methods to accommodate students while minimizing the potential disruption in the classroom. Conclusion Ultimately, as members of the Texas Bar, we each swore an oath to uphold the Constitutions of the United States and Texas, both of which recognize the right of its citizens to freely express their political viewpoints. While few of us practice within the legal arena of
Constitutional rights, our oaths doubtlessly require us to guard the rights and liberties enumerated within both Constitutions. To that end, we should act as a voice of reason in turbulent public debates, protecting and upholding the right of all Americans to issue their cries of dissent while simultaneously rejecting our more ignoble tradition of suppression. If, as stated above, the freedom of expression remains the sine qua non of modern notions of liberty, it is up to us to ensure that liberty. Preston D. Hutson is of counsel with MehaffyWeber in Houston. He is an associate editor for The Houston Lawyer.. Endnotes
1. John Trenchard and Thomas Gordon, CATO’S LETTERS: OF FREEDOM OF SPEECH: THAT THE SAME IS INSEPARABLE FROM PUBLICK LIBERTY (1720–1723). 2. Hinton Helper, THE IMPENDING CRISIS OF THE SOUTH: HOW TO MEET IT (1860). 3. See Trenchard & Gordon, et al, supra. 4. Stephen Feldman, Free Speech and Free Press, in OXFORD HANDBOOK ON THE UNITED STATES CONSTITUTION (Mark Tushnet, Sanford Levinson, & Mark Graber eds., 2017). 5. Id. 6. C.f. David S. Bogen, The Origins of Freedom of Speech and Press, 42. Mary. L. Rev. 429 (1983). 7. Feldman, supra, at 629. 8. C.f. Operation Rescue-National v. Planned Parenthood of Houston, 975 S.W.2d 546, 554 (Tex. 1998); citing NAACP v. Claiborne Hardware, Co., 458 U.S. 886, 907–08, 102 S.Ct. 3409 (1982). 9. Feldman, supra, at 629–30. 10. Ex Parte Meckel, 87 Tex. Crim. 120, 121 (1919). 11. C.f. E.R. Bills, BLACK HOLOCAUST: THE PARIS HORROR AND A LEGACY OF TEXAS TERROR (2015). 12. 975 S.W.2d at 555. 13. AMERICAN CIVIL LIBERTIES UNION OF TEXAS, FREE SPEECH AND THE RIGHT TO PROTEST (2011). 14. Citing Horton v. City of Houston, 179 F.3d 188, 193 (5th Cir. 1999). 15. Citing Cary v. Brown, 447 U.S. 455, 468–471, 100 S.Ct. 2286 (1995). 16. AMERICAN CIVIL LIBERTIES UNION OF TEXAS, FREE SPEECH AND THE RIGHT TO PROTEST (2011). 17. TEX. CODE CRIM. PROC. Art. 42.014(a). 18. TEX. PEN. CODE § 20.02(c)(3). 19. Id. § 22.01(b-2). 20. Id. § 22.07(c-1). 21. Id. § 49.07(b-1). 22. 595 F.3d 588 (5th Cir. 2010). 23. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 737 (1969). 24. Id at 506. 25. Eli Rosenberg, A superintendent threatens to suspend students protesting gun laws. But that’s not legal, Wash. Post, February 21, 2018. 26. TEXAS ASSOCIATION OF SCHOOL BOARDS, STUDENT PROTESTS (2018).
HBA Gender Fairness Committee
Celebrates 15 Years of Educating, Encouraging, Empowering Women
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he Houston Bar Association’s Gender Fairness Committee celebrated its 15th Anniversary on April 24, with a reception and program featuring Hilarie Bass, president of the 400,000-member American Bar Association. With a theme of “Educate – Encourage – Empower,” the event recognized the accomplishments of women in the legal profession, while calling attention to the fact that much work remains to be done on equality in the workplace. Ms. Bass discussed her Presidential Initiative focused on increasing the number of women lawyers who pursue successful long-term careers in the law. The committee also introduced its 2018 Gender Fairness Commitment Statement that urges law firms and corporate legal departments to commit to concrete actions to increase the recruitment, mentoring and retention of women attorneys. The Gender Fairness Committee was co-chaired by Elizabeth Campbell, Esq., Cheryl Elliott Thornton of the Harris County Attorney’s Office, and Amanda Halter of Pillsbury Winthrop Shaw Pittman LLP. Underwriting co-chairs were Jacquelyn McAnelly of Cersonsky, Rosen & Garcia, P.C. and Sherra Gilbert of Law Offices of Fanaff, Hoagland, Clark & Gonzales, Houston branch legal office of Farmers Insurance Exchange. Photos by Deborah Wallace, Barfield Photography
Platinum Sponsor: Pillsbury Winthrop Shaw Pittman LLP Silver Sponsors: Farmers Insurance Group Comeaux Mediation US Legal Support Group Bronze Sponsors: Blank Rome LLP Compass Reporting Group Epiq Fronteo Liskow & Lewis North American Consultants, Inc. Praetorian Protective Services Corp ProActive Arbitration Thompson & Knight LLP Additional Sponsor: Judge Sylvia Matthews Venue Generously Obtained by: Hunton Andrews Kurth LLP
Jacquelyn McAnelly and Sherra Gilbert, underwriting co-chairs, with Rachel Collier and Alyssa Allen.
From left, Kristen Kruse Lotz, Gender Fairness Committee Co-chair Amanda Halter, ABA President Hilarie Bass, 2017-2018 HBA President Alistair Dawson, Gender Fairness Committee Co-chair Cheryl Elliott Thornton, Gender Fairness Committee Co-chair Elizabeth Campbell, Esq. and Tom Godbold, former HBA president and founder of the Gender Fairness Committee.
Susan Kinkaid and Marilyn Maloney.
Marissa Marquez, Former Texas Supreme Court Justice Ruby Kless Sondock, Hon. Sylvia Mathews, Jamie Lipsitz, and State Bar of Texas President-elect Randy Sorrels.
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T An
By William Pieratt Demond
Overview of Constitutional Rights Litigation
here is a growing need throughout our country for constitutional rights litigators. My law firm primarily litigates these questions; while they can arise in various contexts, the most common complaints are alleged violations of the Fourth and Fourteenth Amendments. Our current litigation docket includes: (1) a case in which the Texas Medical Board (TMB) is conducting warrantless searches of doctors’ offices in connection with DEA officers who are conducting warrantless criminal investigations of patients; (2) a case where TMB officials refused to leave a different doctor’s office even after being instructed to do so in person; (3) a matter where jail medical staff allowed a mother of five to die without receiving medical care despite conducting three EKGs which showed she suffered from an acute myocardial infarction; (4) a severe jail beating case resulting in indictments against the officers; (5) a case against Harris County for jailing “Jenny” (a mentally ill rape victim) to ensure her testimony against her serial rapist; and (6) a case against a Houston Police Officer for lying to a magistrate, acquiring a warrant for an address that did not exist, and breaking down the door of an innocent family, where defendants refused a demand to replace the door. In the first case, the plaintiff presented oral arguments to the Fifth Circuit and in the last case mentioned, plaintiff recently submitted a petition for a writ of certiorari. Each of these cases involves government actors whose conduct is so plainly unreasonable that they are not entitled to immunity. This article provides the basic framework for vetting constitutional rights cases.
Overview The Constitution lacks any enabling mechanism that permits the People to sue government actors for damages arising thereunder. Congress rectified this problem through the passage of 42 U.S.C. § 1983 and its predecessor. This statute enables the People to sue government actors who unreasonably deprive them of their clearly established constitutional rights while acting under color of state law. The vast
majority of alleged infractions by government actors are not severe enough to defeat their presumptive entitlement to qualified (and sometimes absolute) immunities that are clearly established in federal jurisprudence. Recognizing the fundamental importance of having viable constitutional questions adjudicated by federal courts, however, Congress authorized attorneys’ fees if a plaintiff prevails.1 Individual v. Official Capacity Government actors can be sued in their individual and official capacities, but actors are usually sued in their individual capacities for their own acts. Normally, plaintiffs do not sue individuals in their official capacities because such suits are construed as complaints against the municipal entity and suing both the entity and an individual acting in their official capacity is redundant; courts generally strike the latter from the pleadings. Supervisory suits are often brought against individuals if the supervisor had some direct personal involvement, knowledge, or impact regarding the incident in dispute (or failed to take appropriate action), so long as the supervisor’s action or inaction was deliberately indifferent to a clearly established constitutional right.2 Municipal Liability Municipalities (often counties, cities, school districts, etc., but not the State) may be sued via § 1983 under the Monell doctrine. Monell is a Supreme Court case that interprets the word “persons” in § 1983 to include municipalities while limiting such liability to cases where their customs, practices, training programs, policies, procedures, etc., caused the constitutional deprivation. Respondeat superior is not permitted; there must be a municipal “moving force” that caused the unconstitutional harm. Such cases require the policymaker of the relevant entity (e.g., a sheriff for a county’s sheriff’s office) to have either knowledge or personal involvement. Monell liability can also be established through a lack of training, discipline, supervision, or a relevant policy. Pleading facts in a Complaint sufficient to overcome a municipality’s motion to dismiss without conducting
discovery can sometimes be a daunting task; as a result, we generally recommend issuing Public Information Act requests for relevant data as soon as possible and certainly before issuing a demand letter. If time permits, you can even file against the individual, conduct discovery, then bring the municipality in once you have evidence supporting Monell liability. Qualified Immunity Clearly established federal jurisprudence holds that government actors who are sued in their individual capacities are presumptively entitled to qualified immunity. This single doctrine is (and was designed to be) a significant obstacle to recovery. Essentially, government actors work in various capacities on behalf of the People and cannot be asked to effectively and efficiently do so if they must consistently worry about whether a decision or act will land them in federal court. Successful cases require actors who clearly and unreasonably violate a clearly established constitutional right. Given that Complaints in federal court can be dismissed for failure to state a claim with sufficient specificity and plausibility, pleading specific facts which overcome this standard can be challenging, particularly without discovery. Many § 1983 cases are dismissed via Rule 12(b)(6) because plaintiffs fail to adequately allege facts that (even when accepted as true) would overcome officials’ presumed entitlement to qualified immunity. Sovereign and Absolute Immunity The State is generally entitled to sovereign immunity via the Eleventh Amendment to the United States Constitution. While the State may be joined as a proper party in suits for declaratory judgment or injunctive relief, monetary damages are generally unavailable against it.3 Moreover, select actors (e.g., legislators, judges, and prosecutors) are generally entitled to “absolute immunity”; the exceptions to this are rare and generally require official acts despite a “clear absence of all jurisdiction.”4 A classic example is a judge adjudicating outside of any restricted domain (e.g., probate or family courts).
Unconstitutional Laws Plaintiffs can also ask a federal court to declare a statute or ordinance unconstitutional; they can be attacked “facially” or “as applied.” Most laws are facially constitutional, but municipalities can sometimes apply them to achieve an unconstitutional result. For example, my partner and I are presently litigating a case in which a sizable Texas county is arguing that its drug task force “always” arrests individuals when they are found in possession of controlled substances, regardless of whether that individual has a valid prescription. This application of a facially valid state statute (which justifiably prohibits the possession of such substances without a prescription) purportedly permits government actors to create probable cause to arrest the People in their own homes when they have committed no arguable crime; therefore, the statutory scheme is at least arguably unconstitutional as applied by the municipality and its agents. William Pieratt Demond is a partner with the law firm of Demond & Hassan, PLLC in Houston. The firm is one of the few practices in the state that primarily litigates constitutional rights questions. Mr. Demond is also owner and teacher in the Sivananda tradition at Oso Yoga in Houston’s Heights. Endnotes
1. 42 U.S.C. § 1988. 2. See generally Kohler v. Englade, 470 F.3d 1104, 1115 (5th Cir. 2006); see also Dilworth v. Box, 53 F.3d 1281 (5th Cir. 1995) (supervisor may be liable if he or she is personally involved); Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); Davis v. Stalder, 51 F.3d 1043 (5th Cir. 1995). 3. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (“The Eleventh Amendment bars a suit against state officials when ‘the state is the real, substantial party in interest.’”) (quoting Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 464 (1945)); see also Cardenas v. City of Laredo, 2011 U.S. Dist. LEXIS 43293, *3-4 (S.D. Tex.2011) (“The state is a real, substantial party in interest when the judgment sought would expend itself on the state treasury or domain or would restrain the state from acting or compel it to act.”) (internal citations omitted). 4. Kerr v. Lyford, 171 F.3d 330, 337 (5th Cir. 1999) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)); see also Sparks v. Duval County Ranch Co., Inc., 588 F.2d 124, 125-126 (5th Cir. 1979) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-52 (1872)).
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Outstanding Pro Bono Service Honored by Bench H and Bar
arris County judges and attorneys came together to recognize outstanding pro bono service by presenting the annual Harris County Bench Bar Pro Bono Awards on April 30 at the 14th Court of Appeals in the 1910 Courthouse. The awards program was established to recognize outstanding pro bono service through local legal service providers and to encourage law firms, corporate legal departments and individual attorneys to volunteer direct legal services to low-income Harris County residents. A committee of five judges and seven attorneys, including representatives from the Houston Bar Association, the Houston Lawyers Association, the Asian American Bar Association and the Mexican American Bar Association of Houston, reviewed nominations and selected the recipients in several categories. The keynote speaker was trial attorney Richard Mithoff, who talked about the importance of supporting and contributing bono legal services.
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Large Firm – Baker Botts L.L.P. In 2017, Baker Botts lawyers dedicated over 1,131 hours to pro bono Hurricane Harvey relief. Firm attorneys coordinated with Lone Star Legal Aid and Houston Volunteer Lawyers to put lawyers in shelters beginning the Wednesday after the storm. Not only did many Baker Botts members volunteer, but the firm recruited volunteers from other firms. Baker Botts provided handouts and arranged for loaner computers for Lone Star and other organizations at the shelters at a cost of more than $10,000 to the firm, and also recruited other firms to assist with contributions. The firm hosted a training program for volunteer attorneys attended by more than 700 people in person and by webinar, and hosted its own Hurricane Harvey LegalLine program on Sept. 7, with 70 Baker Botts lawyers and 20 attorneys from clients’ offices answering 175 calls from the public. Including its pro bono work related to Hurricane Harvey, Baker Botts attorneys recorded 11,303 pro bono hours in 2017, representing 3.6% of the firm’s billable hours. The firm partners with 15 pro bono organizations, and 172 of the firm’s 201 Houston attorneys did pro bono work last year. Mid-size Firm – Akin Gump Strauss Hauer & Feld LLP Fifty-four of the 87 attorneys at Akin Gump’s Houston office performed 4,998 hours of pro bono legal work in 2017 on 90 different matters. Organizations included Texas C-Bar, Houston Volunteer Lawyers, Equality Texas, the HBA Veterans Legal Initiative, Texas Appleseed, Human Rights First, KIND, Catholic Charities and Tahirih Justice Center. The firm worked with Texas Appleseed to research and centralize information on Texas municipal ordinances that criminalize homelessness. Still in progress, the report will assist local lawmakers and homeless advocacy groups. Akin Gump also is working on nearly 40 immigration cases, including asylum, U visa, DACA and the Violence Against Women Act, obtaining positive results for clients. The firm’s lawyers also provided pro bono service for Hurricane Harvey relief efforts by staffing shelters, answering live chat and hotlines,
and establishing a disaster relief fund to provide financial assistance to affected employees of a corporate client. Small Firm – Berg & Androphy This firm of seven attorneys is committed in its efforts to further criminal justice reform. In 2017, five attorneys devoted 209 pro bono hours to its partnership with the Fifth Ward Community Redevelopment Corporation and Pleasant Hill Baptist Church, with a goal of disrupting the school-to-prison pipeline, a national trend where children of color are pushed out of the school system and into the criminal justice system in disproportionate numbers. The firm provided pro bono criminal defense for a number of clients in the same manner as paying clients, providing the same level of attorney-paralegal staffing, hiring investigators and providing any other services needed for a successful outcome at trial. In addition to pro bono legal services, the firm also works with its partners to ensure that clients receive services to address underlying issues in their lives or in their families. Individual – Mike Day Mike Day is an attorney with the threeperson firm of Trey Yates Law. The firm is devoted exclusively to family law matters, including divorce, custody, probate litigation and estate planning. The law firm emphasizes the diversity of its clients as a reflection of the community. In 2017, Mike took on two complicated pro bono cases, one for a Vietnamese immigrant and one for a Chinese immigrant, both of whom have limited English proficiency. He devoted over 120 hours to these cases, which involve complex custody and property issues. Not only is Mike devoting many hours of pro bono legal service and resources to his vulnerable clients, he is also helping them understand a legal system that can be complicated and bewildering to those who are not familiar with it. In addition to his direct pro bono representation, Mike also mentors other pro bono volunteers and serves as pro bono subcommittee chair for the HBA Family Law Section.
From left, Phyllis Young of Akin Gump Strauss Hauer & Feld LLP; Alistair Dawson, 2017-2018 HBA president; Keri Brown of Baker Botts L.L.P.; Georgia Dixon of the Dispute Resolution Center, accepting on behalf of Steven C. Howard; Donna Petrone of Exxon Mobil Corporate Legal Department; Mike Day of Trey Yates Law Firm; Joel Androphy of Berg & Androphy; Richard Mithoff, keynote speaker; and the Hon. Robert Schaffer, Judge of the 152nd District Court and Administrative Judge, Harris County District Courts.
Corporation – Exxon Mobil Corporation Law Department In 2017, there were 170 pro bono volunteers in ExxonMobil’s Houston legal department, including 133 attorneys and 37 support staff. Together, they devoted more than 4,156 hours to pro bono legal work, serving veterans, seniors, children, domestic violence survivors and other unserved, low-income residents through case representation, nonprofit assistance and legal clinics. The corporation has long set the standard for pro bono contributions to the HBA’s Houston Volunteer Lawyers, staffing clinics and taking on pro bono cases. In addition, ExxonMobil attorneys partner with Catholic Charities, Houston Area Women’s Center, Kids in Need of Defense, Baytown Homeless Services, Beacon Law, Tahirih Justice Center, Human Rights First, Metroplex Veterans Legal Services, Casa de Esperanza, Spaulding Children’s Services, and HVL’s MedicalLegal Partnership with Texas Children’s Hospital. ExxonMobil law managers believe that pro bono commitment begins at the top, an example being their partnership with Norton Rose Fulbright to sponsor a Catholic Charities Legal Permanent Residency for Refugees, Asylees and Cubans Clinic, where they provided hands-
on assistance to 19 clients from 10 countries, who spoke five different languages. ExxonMobil employees also helped Hurricane Harvey flood victims at shelters and through FEMA appeals, in partnership with Hunton & Williams. President’s Pro Bono Star Award – Steven C. Howard Recognizing outstanding pro bono commitment for a specific project or program. Steven Howard is a solo practitioner who volunteers his time through the Harris County Dispute Resolution Center, a program established by the Houston Bar Association in 1980 to provide Harris County residents with alternatives to formal litigation. In 2017, Steven provided 204 hours of pro bono service, conducting 34 mediations through the DRC. Seventeen of the cases included at least one pro se party. He conducted mediations at the DRC office, at his own law office, and at the courthouse, some just prior to trial. Each mediation requires about six hours of his time, including preparation, travel, completing forms, communication, email correspondence and follow-up. He has mediated cases involving debt collection, contracts, accidents, property, car repairs and mechanics liens, and landlord-tenant issues. thehoustonlawyer.com
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Law Week 2018
Separation of Powers: Framework for Freedom
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he Houston Bar Association celebrated Law Week with programs that educated the public on the 2018 Law Day theme, “Separation of Powers: Framework for Freedom.” This focus provided the opportunity to explore the importance of the separation of powers among the three branches of the federal government and how this separation helps to promote and protect our individual rights and freedoms. The checks and balances built into our Constitution prevents one person or group of people from becoming supremely powerful. While the HBA calls its celebration “Law Week,” it encompasses much more. The HBA Law Week Committee, co-chaired by Bryon Rice, Beck Redden LLP; Luke Gilman, Jackson Walker L.L.P.; and Jason Muriby, Morgan, Lewis & Bockius LLP, planned a full range of activities surrounding Law Day, May 1. Activities included: • Special Day at the Courthouse, where almost 300 special needs students and their teachers from Houston-area schools were invited to the historic 1910 Courthouse for presentations by local judges and HBA Law Week Committee members. • Poster contests in area elementary and middle schools, and essay and photography contests in high schools on the Law Day theme. There were also team and individual poster contests, as well as a photography contest, for special needs students. • The HBA partnered with the Asian American Bar Association and the Hispanic and Mexican-American Bar associations to host Law Week Poster Workshops at the Chinese Community Center and in the East End. The Hon. Ravi K. Sandill, 127th District Court, and the Hon. Michael Gomez, 129th District Court, spoke to the children participating in the workshops.
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• Winning posters, essay and photos were displayed at the HYLA Law Day Luncheon on April 24 and in eight professional buildings and courthouses downtown. The contests were generously underwritten by Icon Wealth Partners, LLC, Stratos Legal Services, and 3b Studio. • HBA President Alistair Dawson welcomed nearly 2,400 new citizens at a Naturalization Ceremony on May 16, with the Hon. Alfred Bennett of the U.S. District Court for the Southern District of Texas presiding. Members of the Law Week Committee and HBA staff congratulated the new citizens and passed out public information brochures. • From April 16-May 11, volunteers from the Law Week Committee, the Lawyers for Literacy Committee, the Speakers Bureau Committee, and other volunteers read the book Marshall the Courthouse Mouse: A Tail of the U.S. Supreme Court to elementary students in 100 schools throughout Harris County and donated the book to each school’s library, reaching over 7,700 students in over 20 school districts. • On May 2, HBA President Alistair Dawson, Harris County Administrative Judge Robert Schaffer, and Harris County District Clerk Chris Daniel’s Office passed out pocket-sized copies of the Constitution to citizens who reported for jury duty at the Harris County Jury Assembly Room. • The HBA invited the first place poster, photography and essay contest winners to attend the annual Law Day Luncheon, sponsored by the Houston Young Lawyers Association/Houston Young Lawyers Foundation on April 24. The keynote speaker was the Hon. Lee H. Rosenthal, chief judge of the U.S. District Court for the Southern District of Texas. • An extended LegalLine program was held from noon until 9:00 p.m. on May 2, giving the public the opportunity to get brief legal advice, answers to legal questions, and additional resources.
Special Day at the Courthouse
Justice Kem Frost of the 14th Court of Appeals organized a special day at the courthouse for more than 260 special needs students and educators in celebration of Law Week, with members of the bar and the judiciary talking to them about the legal system.
Jury Service
To commemorate Law Week, HBA President Alistair Dawson and Harris County District Court Administrative Judge Robert Schaffer joined the Harris County District Clerk’s Office in distributing copies of the Constitution to citizens who reported for morning jury duty on May 2.
Law Day Naturalization Ceremony
HBA President Alistair Dawson welcomed new citizens during a Law Day Naturalization Ceremony, including a number of members of the U.S. military who were celebrating citizenship.
Law Week Readings
Attorneys and judges read the book, Marshall the Courthouse Mouse: A Tail of the U.S. Supreme Court, to over 7,700 K-2nd graders. Pictured here are just a few of the volunteers with students.
Warren Harris at Cimarron Elementary School in Galena Park ISD.
Kara Stauffer at Beneke Elementary School in Spring ISD.
Hon. Joe Villarreal at Tijerina Elementary School in Houston ISD. Denny and Christine Ng at Cedar Brook Elementary School in Spring Branch ISD.
Jennifer Hasley at Carrillo Elementary School in Houston ISD.
A number of attorneys from the Harris County District Attorney’s Office read to schools, including (left) Gerald Doyle and Randi Capone from the Conviction Integrity Division, and Catina Haynes and Rehana Vohra (right) of the Post Conviction Writs Division. thehoustonlawyer.com
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Law Day Contest Winners
The HBA recognized the winners of its Law Week Poster, Essay and Photography Contests at the Houston Young Lawyers Association Law Day Luncheon on April 24. Some of the winners are pictured here with HBA President Alistair Dawson.
1st Place Poster, 6th-8th Grade, Destiny Flores, Willow Wood Jr. High.
1st Place Special Needs Photo Contest, Ashley Briones Barron, Audrey H. Lawson Middle School.
1st Place Photo, Bishop Pearsall, Carver High School. 36
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1st Place Poster, K-2nd Grade, Arlett Guzman, Meador Elementary School
1st Place Poster, 3rd-5th Grade, Misaki Murase, Cornerstone Elementary School.
First Place Houston Bar Association Law Day Essay Contest:
I
Liberty with Equity
By Taegen Senawong, DeBakey High School for Health Professions
n The Spirit of Laws, Baron de Montesquieu’s theory regarding separation of powers profoundly influenced the Founding Fathers in drafting the Constitution. Embedded in this historical document and serving as an integral component of the Rule of Law, the separation of powers is one of the fundamental principles of modern constitutionalism. This system apportions the governmental tasks and responsibilities into three distinct yet collaborative branches: legislative, executive, and judicial. By prohibiting political corruption, establishing an effective government, and safeguarding the natural rights of the people, the separation of powers embodies the critical ideal of checks and balances. Primarily, the separation of powers ensures that the three branches check and control one another to prevent any democratic institution from becoming unduly dominant. In The Federalist Papers, No. 51, James Madison asserted that “ambition must be made to counteract ambition.” The executive branch has the power to check the legislative branch by vetoing laws that Congress wants to pass, whereas the legislative branch can approve laws over any veto with a two-thirds vote in both houses. Moreover, the judicial system exercises judicial review on the legislative and executive branches by declaring laws unconstitutional; however, the President nominates Supreme Court justices and the Senate confirms or denies the nominations. Madison implied that the counterbalancing intents in each branch would ultimately maintain the “necessary partition of power.” Therefore, the separation of powers aims to make the three branches accountable to one another in order to establish a justified and equitable government that denounces tyranny.
Furthermore, in order to preserve the notion of divide and conquer, the separation of powers balances the influence of each branch and creates clear distinctions of the branches’ underlying tasks. The legislative branch consists of the House of Representatives and Senate, which make up Congress and possess their individual duties. Generally, the legislative branch enacts laws and appropriates the money necessary to operate the government. The executive branch implements and administers the public policy enacted and funded by the legislative branch. The judicial branch interprets the Constitution, reviews the laws passed by Congress and policies of the executive branch, and can declare what they assess as unconstitutional. The integrity of the Constitutional framework for a democratic society is preserved by upholding the system of checks and balances essential to a balanced and insightful government. In his Farewell Address, George Washington asserted that “the spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.” Washington emphasized the importance of checks and balances in order to resist the temptation of sole power from overwhelming individual liberties. Overall, the separation of powers has served an integral role in ensuring liberty through its system of checks and balances. The distinct yet intricate divisions between the three branches allow for an effective functioning of government with limited ambiguities for absolute power. It is of essence to appreciate the separation of powers for bestowing individuals the necessary freedom, tranquility, and well-being as indicated in the Constitution. thehoustonlawyer.com
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committee spotlight
HBA Law Library Committee:
The Bar’s Oldest Committee Ushers in a New Era
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The Houston Lawyer
By Brian S. Humphrey II
he origins of the HBA’s president Brent Benoit to welcome oldest committee are guests at the Law Library’s 2013 told on the historical grand opening and rededication. marker standing just As the Law Library reached west of Harris County’s the milestone of a century of serhistoric 1910 Courthouse. In 1870, vice, the Committee helped plan the first HBA president, Judge Pethe Centennial Celebration held ter W. Gray, sought to establish Law Library Centennial Celebration Speakers, left to right: Law Library on October 1, 2015. Chairman the association “to raise the stan- Deputy Director Joseph D. Lawson, Law Library Director Mariann Sears, Justice Brett Busby coordinated Harris County Attorney Vince Ryan, Supreme Court of Texas Chief Jusdards of the legal profession and tice Nathan L. Hecht, HBA President Laura Gibson, HBA Law Library a keynote address from Supreme to purchase a law library.” Court of Texas Chief Justice NaCommittee Chair and Texas 14th Court of Appeals Justice Brett Busby. Years passed before prominent than L. Hecht. Justice Busby and HBA members, including Captain HBA president Laura Gibson James Baker and the Hon. Thomas joined the Chief Justice to offer Ball, formed the Lawyers Library comments on the Law Library’s Association to build a law library. important role in access to inforThe Harris County Law Library ofmation and to justice. ficially opened on October 1, 1915, Moving forward, the Commitas a subscription library where tee has backed the Law Library’s dues-paying members could aceffort to provide free legal tech cess needed resources. In the de- HBA Law Library Committee Chair Stewart Gagnon (right) joins Harris training to all. October 2016 cades to follow, privileges were County Attorney Vince Ryan (left) and Law Library staff to rededicate marked the launch of the Legal extended to judges, elected offi- the Law Library in its new location in 2013. Tech Institute, a collection of incials, and law students, and in 1941, Harperson and online learning opportunities As times have changed, the Committee ris County Commissioners Court adopted focused on practical technology training continued to provide guidance and suprules to make the Law Library open to all. for the legal community. Committee memport. It lent a helping hand as the Law LiManagement of the new public institubers assisted with ideas for programs, conbrary became a part of the Office of Vince tion was vested in the HBA Law Library nected the Institute with guest speakers, Ryan, Harris County Attorney, and plans Committee led by Chairman William and promoted CLE opportunities to the for the Law Library’s 2013 relocation Kemper. With Committee support, the bench and bar. The Committee continues to the first floor of Congress Plaza took Law Library expanded its collection to to seek new ideas to advise the Law Lishape. Committee members participated include national and international matebrary on assisting the legal community. If in interviewing the new Law Library Dirials. In 1949, the Committee published a you have suggestions, visit www.hba.org rector Mariann Sears and provided input 50-page catalog printed by West Publishto contact me or my co-chair Justice Ken on changing operating hours to reflect ing for the bar. Kemper took seriously his Wise. modern usage. Chairman Stewart Gagnon charge to inform bar members about the worked with partners to create Houston Law Library and published many HBA Brian S. Humphrey II is a trial attorney Volunteer Lawyer’s “Library Booth” for the Bulletin articles detailing improvements with Abraham, Watkins, Nichols, Sorrels, benefit of thousands of self-represented and proudly describing the library as “the Agosto & Aziz and co-chair of the HBA litigants who seek access to information at finest south of St. Louis.” County Law Library Committee. the Law Library each year. He joined HBA 38
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HOUSTON LAWYERS WHO MADE A DIFFERENCE
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World War I SERIES
The Sixty-Three
By The Hon. Mark Davidson
n November 11, 2018 at 11 a.m., the world will stop to commemorate the centennial of the end of the bloodiest war the world had ever seen, at least to that time. The Germans and Allied forces had announced, a day in advance, an armistice effective “the eleventh hour of the eleventh day of the eleventh month,” but ordered that hostilities and death would continue until that time. During America’s 19-month involvement in the war, hundreds of thousands of young men would volunteer, and many more would be drafted. The 63 men listed here were, or became, Houston lawyers after service to our country during World War I. Many fought in the three major offensives in which the American Military took leading roles: Château-Thierry, Meuse Argonne, and the St. Mihiel Salient. Others played critical roles in support of the combatants. A few served, but never made it to the front lines or across the ocean. One of them commanded an artillery detachment that fired a barrage of shells at the German lines at 10:59 a.m. on the day of the armistice. Another had died six days before the armistice. Regardless of the details of their service, this November 11th is a time to remember all of the soldiers and sailors, and especially those who were our predecessors as lawyers. Each of them offered to risk their lives for the noble purposes of the war: to make the world safe for democracy, and to make this the war that ended all wars. The lawyers who served were a widely varying set of men. Several would return to, or start their careers with, firms that we know today as large international legal institutions. Of course, at the time those firms all had no more than ten lawyers. Most of the returning veterans were, and would remain, solo practitioners. Together, they would serve as the backbone of the legal profession that led our community in the era of tremendous growth that Houston enjoyed in the half century after the war. Of the 63 men, five would become judges and three would serve as District Attorney of Harris County. Four would be elected as president of the Houston Bar Association. One of them, Seaman James V Allred, would become District Attorney of Wichita County, Attorney General of Texas, Governor of Texas, a justice on the Fifth Circuit, and a judge for the Southern District of Texas. All of these lawyers were heroes. A century later, we all should, as a legal community, spend a few minutes this November 11th to remember the names and the service of men who were con-
temporaries of our grandfathers or great-grandfathers. We should also remember the women and men who worked on the home front, helping with Red Cross drives, nursing the wounded soldiers, producing the food, clothing and arms being used by the troops, and keeping our nation’s life going. They all made a difference for us in the century that has followed.
The 63
Robert W. Adams James Burr V Allred, Seaman, U. S. Navy Robert Reeves Armstrong, Major, U. S. Army James A. Baker, Jr., Captain, U. S. Army W. J. Barnes, Captain, U. S. Army William B. Bates, Lieutenant, U. S. Army Stanley A. Beard, Captain, U. S. Marine Corps Jack B. Blalock, Captain, U. S. Army Palmer Bradley, 1st Lieutenant, U. S. Army John R. Burkett, Captain, U. S. Army (Died in Action) John W. Campbell, 1st Lieutenant, U. S. Army M. C. “Jake” Chiles, 2nd Lieutenant, U. S. Army Lester B. Clark, Private, U. S. Army James J. Collins, U. S. Army John D. Coffman, Private, U. S. Marine Corps John Crooker, Sr., Major, U. S. Army Sam Croom William Moore Davis Randolph Dyer, Private, U. S. Army Ralph B. Feagin, Captain, U. S. Army Edmund Jones Foutain, Jr., Yeoman, U. S. Naval Intelligence Office Charles Francis, 2nd Lieutenant, U. S. Army John H. Freeman Calvin Garwood, Lieutenant, U. S. Army W. St. John Garwood, Lieutenant, Texas National Guard Glenn Malcom Green, Sr. Guy Guinn Nathaniel B. Halporn, Sergeant, U. S. Army Allan B. Hannay, Private, U. S. Army Palmer Hutchinson, Major, U. S. Army Cameron Hightower Gilvie Hubbard, Lieutenant, U. S. Army Air Service James R. Ingram, Seaman, U. S. Navy Dan W. Jackson, Lt. Colonel, U. S. Army William S. Jacobs, Jr., Private, U. S. Army Air Service Murray P. Jones, Lieutenant Colonel, U. S. Army Reserve Walter T. Keith, Sr., Private, U. S. Army
William L. Kemper, Jr., U. S. Naval Aviation Irl F. Kennerley, Army Rufus J. Lackland, Captain, U. S. Army Conrad James Landram Frank Liddell, Sr., Captain, U. S. Army Clarence Longman, 1st Lieutenant, U. S. Army Edwin Graves Moorhead, U. S. Navy Arving Edward Morris, Lieutenant Colonel, U. S. Army Transportation Corps Sidney Smith McClendon, Captain, U. S. Army George L. McGhee Samuel Evertt McHard, 1st Lieutenant, U. S. Army Bennett B. Patterson, Corporal, U. S. Army George E. B. Peddy, Captain, U. S. Army Edward Lee Potter, Private, U. S. Army Felix A. Regner, Jr., Captain, U. S. Army Russell Scott, Sr., Captain, U. S. Army William Scott, U. S. Army Air Service Robert A. Shepherd Arnett C. Smith, Captain, U. S. Army Ray L. Smith, U. S. Army Carl G. Stearns John Townes, Major, U. S. Army Charles F. Tucker, Ensign, U. S. Navy Wharton Weems, Captain, U. S. Army Air Service Julian Weslow, 1st Lieutenant, U. S. Army Ewing Werlein, Sr., Captain, U. S. Army Author’s Note: A great effort was made to be accurate and inclusive. Every edition of the Texas Bar Journal through 1995 was examined to look for military service in the memorial pages. Dozens of descendants were contacted to inquire about lawyers who were of an age to have served. Where a lawyer’s firm is still extant, it was contacted for any information their archives might provide. If any were missed, I humbly apologize. Where an obituary disclosed military service, but did not show a rank, none is given, unless obtained from another source. Many of them returned to military service during World War II, usually at a higher rank. Their rank of as November 11, 1918 is listed here. Several were promoted after the armistice. Regardless of rank, I salute these men.
The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law. thehoustonlawyer.com
May/June 2018
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LEGAL TRENDS
Fifth Circuit Opinion Vacating the DOL Fiduciary Rule May Abrogate the Rule Nationwide
D The Houston Lawyer
By Nelson S. Ebaugh
uring Obama’s administration, the U.S. Department of Labor (“DOL”) crafted the “Fiduciary Rule” to protect retirement investors from conflicted advice given by insurance agents, stockbrokers and investment advisers. On March 15, 2018, a divided panel of the Fifth Circuit vacated the Fiduciary Rule, a crown jewel of Obama’s regulatory legacy. In Chamber of Commerce of the United States v. United States Department of Labor [885 F.3d 360 (5th Cir. 2018)], the panel by a two-toone vote held that the Fiduciary Rule was unreasonable under Chevron and in violation of the Administrative Procedure Act. Judge Edith Jones, writing for the panel majority, cited no less than seven reasons for vacating the Fiduciary Rule. Several of the reasons for vacating the Fiduciary Rule sprang from the fact that the Securities and Exchange Commission (“SEC”), not the DOL, has histori-
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cally regulated the U.S. retail investment the states sought intervention because the market. According to the panel majority, “DOL appears ready to abandon its effort “[t]he SEC has the expertise and authority to protect retirement investors by acquito regulate brokers and dealers uniformescing to a split decision of this Court....” ly,” not the DOL. The panel majority was In a per curiam order, the Fifth Circuit dealso taken aback by the DOL’s creation of a nied the intervention motions. However, private cause of action in connection with the order noted that “Chief Judge Stewart the Fiduciary Rule, something that only disagrees with the denial of the motions.” Congress could do. In conclusion, the The deadline to file a petition for a writ panel majority vacated the Fiduciary Rule of certiorari in the U.S. Supreme Court is “in toto.” June 13, 2018. Under the circumstances, Chief Judge Carl Stewart dissented. it does not appear that the DOL will file Judge Stewart noted that a cert petition. If the DOL “[o]ver the last 40 years, According to the forgoes further review the retirement-investment or review is denied, the panel majority, market has experienced Chamber of Commerce dea dramatic shift toward cision may not only vacate ‘[t]he SEC has individually controlled the Fiduciary Rule in the the expertise retirement plans and acFifth Circuit, but it may counts.” Consequently, also abrogate the Fiduciaand authority to the DOL acted reasonably ry Rule across the nation. by “recalibrate[ing] and Significantly, no other regulate brokers replac[ing] its previous federal appellate court has and dealers regulatory framework” to ruled on the precise issues protect retirement invesdecided by the Fifth Ciruniformly,’ not tors. Judge Stewart also cuit in Chamber of Comtook issue with the panel merce. In addition, only the DOL. majority’s conclusion that eight days after the Fifth the DOL had impermissibly created a priCircuit issued its opinion in Chamber of vate cause of action. According to Judge Commerce, the DOL consented to the disStewart, because the private cause of acmissal of an appeal in the DC Circuit that tion created in connection with the Fiduchallenged the validity of the Fiduciary ciary Rule could only be asserted under Rule. In sum, there is no clear circuit split state law, such a cause of action did not on the issues decided in Chamber of Comrun afoul of the U.S. Supreme Court’s merce and the DOL is apparently content holding that only Congress could create a with the absence of a circuit spit. Under cause of action under federal law. these circumstances, the Fifth Circuit’s Four days before the deadline to file a Chamber of Commerce decision may repetition for rehearing en banc, AARP and main unreviewed indefinitely and effecthe states of California, New York, and tively abrogate the Fiduciary Rule across Oregon filed intervention motions to seek the entire nation. rehearing en banc. According to AARP, its “interests were [initially] aligned with Nelson S. Ebaugh earned an LL.M. in those of the government, which had fully Securities and Financial Regulation from defended this and other challenges to the Georgetown University Law Center. rule.” However, the “government recently He dedicates a significant portion of his decided to veer off that path,” so AARP practice to representing clients in securities needed to intervene to protect its interests litigation, arbitrations and regulatory and the interests of its members. Likewise, proceedings.
“
”
A Profile
in p r o f e s s io n a l is m
“I
Charles L. (Chip) Babcock Partner, Jackson Walker LLP
started my legal career with a two year federal district court clerkship. As a result I got to see many different styles of lawyering, both in the courtroom and in pretrial motion practice. When I would go to the judge to update him on a matter he would invariably ask, “Who are the lawyers?” At first I wondered why he constantly asked the question, but soon realized that how the lawyers approached the court, the situation and each other was critical. If my judge thought a particular lawyer was trustworthy and professional, he would be more inclined to favorably rule and would dig deeper if he was going to rule against that lawyer’s client just to make sure he was right. Many lawyers think that being discourteous, ethically challenged and bombastic is part of a lawyer’s DNA. Sadly, a lot of clients are looking for that, too. A prospective client recently told me that he was looking for a junk yard dog to hurt the other side in any way possible. Family law attorneys hear this a lot. Since there is a market for that kind of lawyer they will likely continue to exist despite all the exhortations to “professionalism” in articles like this one. My experience, however, is that the most effective advocates are those that are courteous and respectful to opposing counsel, clients and the court, and ethical. If they say
they’re going to do something, then it is done. This does not mean that you fail to zealously advocate your position or, when the opposing party is a jerk, give a pointed and hard cross examination. It also doesn’t mean that you allow yourself to get run over by one of the junk yard dog lawyers. But I think the biggest compliment to a lawyer is one that was paid to a Jackson Walker senior partner in a conversation with me a long time ago. This was from an older lawyer at a firm that did mostly plaintiff’s work. “You know,” he told me, “you are lucky to be practicing with [the senior partner]. I have tried a bunch of cases with him, and he has always greeted me with a smile and has been totally respectful and courteous to my clients. But at the end of the case I look up and he has badly beaten us. How does he do that? It’s a gift and you should learn from it.” I have tried to take that message to heart and it has worked more often than not. Everyone has to figure out their own litigation persona, but I would hope that young lawyers trying to decide how to behave would not default to the junk yard stereotype, but rather follow the lead of my former partner. Practice with grace, dignity, respect and courtesy, and that will lead to results.” thehoustonlawyer.com
May/June 2018
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Media Reviews
Business Bribes: Corporate Corruption and the Courts By Cecil C. Kuhne III ABA Book Publishing 2017
I
The Houston Lawyer
Reviewed by David T. Lopez
n 150 fascinatingly readable pages, Cecil C. Kuhne III, a Dallas litigator with Norton Rose Fulbright, combines the attraction of “Breaking Bad” and Perry Mason to provide a wealth of information on bribery practices of domestic and international corporations—and some government agencies. That his book is published by the American Bar Association, through the sponsorship of the Solo, Small Firm and General Practice Division, is ample proof that the litigation lessons for corporate counsel and international lawyers are also engaging, even dramatic, for other lawyers, regardless of the size and areas of their practice. As enforcement efforts of American authorities have extended to private commercial bribery following the enactment in 1977 of the Foreign Corrupt Practices Act, their scope has increasingly widened internationally. By 2005, the United Nations enacted the Convention Against Transnational Organized Crime and the Convention Against Corruption.
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Although the FCPA does not expressly mention bribery in the context of private commerce, many states have established statutory penalties for commercial bribery, which largely have been replicated in the federal Travel Act. That law encompasses the use of travel or the mails to establish or promote any unlawful activity, and provisions of RICO also are being utilized in private lawsuits. Commercial and transactional practitioners can find much of interest in the book’s descriptions of the background and the consequent court proceedings in two separate sections, one focused domestically and another internationally. Each of the chapters focuses on a particular aspect or legal issue, such as on labor union investigations, political contributions, and evidentiary issues and limitations on the domestic front; and, internationally, on investor liability, state-owned utility companies, jurisdiction, and the acts of state doctrine. Case citations are provided for those seeking more details or wanting to test the author’s observations. The important cases examined are geographically diverse, involving states from all regions of the United States, and countries from throughout the globe. Of particular interest to Houston lawyers might be the international cases focusing on energy industries and, domestically, the cases on the Indian casinos. The description of the cases selected are succinct, but they are presented from the perspective of an experienced litigator, who can effectively capture the essence of the conflict, the presentation of the legal arguments, and the analysis of the courts. The book is listed at $49.95 by the
ABA and is also available at Amazon or Barnes & Noble. David T. Lopez concentrates his practice in domestic and international arbitration and mediation. He is a member of The Houston Lawyer editorial board.
The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business Professionals, Second Edition By Jill D. Rhodes & Robert S. Litt ABA Book Publishing 2017
A
Reviewed by Jill Schumacher and Adam Schumacher
s cybersecurity takes on growing importance in legal practice, lawyers benefit from being able to speak intelligently about their cybersecurity practices. The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business, Second Edition
Media Reviews
provides information specifically geared towards lawyers. This book provides enough information to allow lawyers without technical backgrounds to take a decisive approach toward cybersecurity. The Second Edition is an updated resource by Jill D. Rhodes and Robert S. Litt. The authors have extensive backgrounds in law and security, and the American Bar Association recognizes them as experts in the field. In Formal Ethics Opinion 477, a major Formal Ethics Opinion published last year in the area of cybersecurity, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility cites the First Edition of this book as providing an appropriate framework for addressing cybersecurity in the practice of law. Recognizing the different risks and resources that lawyers have in distinct types of legal practice, the book contains separate chapters for solo-practitioners, large-firm lawyers, government lawyers, and in-house counsel. The tailored advice helps because lawyers in distinct situations have different relationships with technology, different available resources, and face different risks. For example, unlike many educational resources, this book speaks both to solo practitioners who are in charge of their own information security and to lawyers in international firms that employ dedicated security teams. Of course, the Second Edition can’t prescribe the exact steps a specific practice needs to take – this would be an impossible task without knowing the details of how that practice operates. It does, however, do a very thorough job outlining the kinds of security threats that lawyers face and the areas of technology to focus
on for defending against those threats. This book draws much of its advice from well-known and respected organizations in the realm of cybersecurity, such as NIST and SANS, and as such is in line with cybersecurity standards and best-practices. While addressing cybersecurity may seem a bit daunting for the average lawyer, this book addresses its topic in a language that is approachable even for the cybersecurity neophyte and technophobe. For those who think that lawyers need not worry about cybersecurity, the book addresses the “why” as well as the “how” with examples of realworld breaches affecting lawyers from the smallest practice to the largest firm. It shows how even the smallest practice can be a target—sometimes as a gateway to information about a client, but sometimes even for the firm’s own data. The potential payoff to understanding cybersecurity is significant and it is not beyond the reach of those without a technical background. Lawyers seeking to improve their understanding of cybersecurity should start with The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business, Second Edition. The information in this book is important, accessible, and worth the read. Jill Schumacher is a staff attorney to Chief Justice Kem Frost of Houston’s Fourteenth Court of Appeals. Adam Schumacher is a security and operations engineer at Flight Aware, LLC and a Certified Information Systems Security Professional.
www.hba.org
Your HBA membership grants you exclusive access to
over 135 hours of MCLE credit ONLINE for FREE! Log in to www.hba.org/CLE today to enjoy CLE videos from the comfort of your own screen.
thehoustonlawyer.com
May/June 2018
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HOUSTON/GALLERIA One outside office (15 X 15). OVER 38 YEARS SUPPORTING TEXAS LAWYERS Share office suite with nine experienced and established attorneys. Included in monthly rent are three conference rooms, receptionist, interTLIE.org / info@tlie.org net access, telephone system, TLIE.org / info@tlie.org / (512) 480-9074 (512) 480-9074 high speed copier/scanner, fax, postage machine and fully stocked kitchen. Covered parking, file storage facilities, and a secretary/paralegal office are also available. Call Ruth @ 713-237-0222 or jim@jhwlaw.com Class A office for lease in Galleria area of Houston. Large executive window office completely furnished ready for occupancy in small law firm. Covered parking, internet, telephone, kitchen and conference room facilities. Easy access to and from. Potential cross practice referrals. Ideal for either retiring lawyer or newly licensed lawyer – simpley move in and crank up! $1,500 per month. 713-622-6223 (X15 if you reach voice mail).
From left: To Allen Lewis, Bill Cunn Mauree
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Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys
Gordon Rees Scully & Mansukhani
Shearman & Sterling LLP
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Abraham, Watkins, Nichols, Sorrels,
Hagans Montgomery & Rustay PC
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Agosto and Aziz
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Adair Myers Graves Stevenson PLLC
Henke, Williams & Boll, LLP
Short Carter Morris, LLP
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Ajamie LLP
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Smith Murdaugh Little & Bonham LLP
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Bracewell LLP
Arnold & Itkin LLP
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Sprott Newsom Quattlebaum Messenger
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Baker, Donelson, Bearman, Caldwell &
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Berkowitz, PC
Jackson Lewis P.C.
Stone Pigman Walther Wittmann PLLC
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Jenkins & Kamin PC
Strong Pipkin Bissell & Ledyard LLP
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Johnson DeLuca Kurisky & Gould, P.C.
Stuart PC
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The Bale Law Firm, PLLC
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Jordan, Lynch & Cancienne PLLC
Tekell, Book, Allen, and Morris, L.L.P.
Corporate Legal Departments
Buck Keenan LLP
Kane Russell Coleman & Logan PC
Tindall England PC
Anadarko Petroleum Corporation
Bush & Ramirez, PLLC
Kean | Miller LLP
West Mermis, PLLC
CenterPoint Energy
Cage Hill & Niehaus LLP
Kelly, Sutter & Kendrick, P.C.
Weycer Kaplan Pulaski & Zuber PC
EOG Resources, Inc.
Chernosky Smith Ressling & Smith PLLC
Kilpatrick Townsend & Stockton LLP
Wilson Cribbs & Goren PC
MAXXAM, Inc.
Christian Smith & Jewell LLP
KoonsFuller, PC
Wright Abshire, Attorneys, PC
Rice University
Cokinos | Young PC
Kroger | Burrus
Wright & Close LLP
S & B Engineers and Constructors, Ltd.
Conner & Winters LLP
Law Feehan Adams LLP
Ytterberg Deery Knull LLP
Cooper Jackson & Boanerges, PC
LeClairRyan
Zimmerman Axelrad Meyer Stern Wise
Cozen O’Connor
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Firms of 25-49 Attorneys
Thurgood Marshall School of Law
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Adams and Reese LLP
University of Houston Law Center
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McCormick | Landry Munoz, PLLC
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Government Agencies
Doherty & Doherty LLP
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Harris County Attorney’s Office
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Beck Redden LLP
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MehaffyWeber PC
Blank Rome LLP
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Ewing & Jones, PLLC
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Harris County Texas
Fernelius Simon PLLC
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Gibbs & Bruns LLP
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& Stewart, P.C.
Liskow & Lewis
County, Texas
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Fizer Beck Webster Bentley & Scroggins PC
Phelps Dunbar LLP
Thompson & Horton LLP
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Williams Kherkher Hart Boundas, LLP
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Ramey, Chandler, Quinn & Zito, P.C.
Yetter Coleman LLP
Fowler Rodriguez
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Frank, Elmore, Lievens, Chesney
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Ross Banks May Cron & Cavin PC
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Fulkerson Lotz LLP
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Greenberg Traurig, LLP
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Galligan & Manning
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Jackson Walker L.L.P.
Germer PLLC
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Law School Faculty South Texas College of Law Houston
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