New York Court of Appeals Holds That Skin Color Is a Cognizable Class Under Batson Analysis

–by Robert Carpenter

Citation: People v. Bridgeforth, 2016 N.Y. Lexis 3859 (Dec. 22, 2016) (internal citations omitted).

Abstract: In a matter of first impression, the New York Court of Appeals held that skin color was a cognizable class for Batson based challenges to peremptory strikes.


On December 22, 2016, the New York Court of Appeals held that a trial court had committed reversible error by not seating a juror. In so doing, the Court established skin color as a classification upon which a challenge to peremptory strikes could be successfully based.

The defendant in the case was charged with multiple counts of robbery. During voir dire, the prosecutor used peremptory challenges to exclude multiple potential jurors. Defense counsel alleged that the prosecutor lacked valid reasons for the strikes, other than the fact that all those excluded were “dark-skinned women.” The record indicates that the excluded group included African-American women, Guyanese women, and “a dark complexioned Indian-American woman.” The prosecutor immediately supplied reasons for the challenges for all those excluded except for the Indian-American woman. Even with no reason for the challenge, the Indian-American woman was not seated as a juror.

The Court began by reviewing how New York analyzes challenges to peremptory strikes. The Court noted that New York has adopted the framework used by the Supreme Court case Batson v. Kentucky, 476 U.S. 79 (1986). The Batson framework requires the movant to establish a prima facie case of peremptory strikes being used to discriminate. After that the non-moving party must put forth a non-discriminatory reason for the strike. Finally, the Court decides whether the stated reason was legitimate or a pretext for discrimination.

The Court then considered whether skin color implicated equal protection concerns. For guidance, the Court looked to the New York Constitution’s equal protection clause, which prevents discrimination against “race, color, creed or religion.” The Court concluded that the distinction between “race” and “color” meant that the two concepts were unique. The Court also cited several academic articles that had found the existence of “colorism.” With all of these factors in mind, the Court found that Batson should be extended to include challenges based on skin color.

After finding skin color to be a cognizable classification for Batson, the Court noted that this decision did not conflict with past decisions that found Batson challenges could not be based on the exclusion of minorities. The Court stated that skin color required only a narrow showing while minority status could include a varied group of people.

In applying the new Batson classification to the case, the Court first held that the trial court did not reach an ultimate conclusion on the prima facie case of discrimination necessary under Batson analysis. This meant that the issue was not moot and reviewable on appeal. The Court then concluded that the defendant had successfully established a prima facie case of discrimination based on skin color.

The Court then considered whether the prosecutor had put forth a non-discriminatory reason for the strike. The Court cited several cases showing that failing to recall a non-discriminatory reason is insufficient under the second stage of Batson analysis. After finding that the defendant had succeeded in establishing a prima facie case of discrimination and that the prosecutor had failed to put forth a non-discriminatory reason, the Court held that the trial court committed reversible error by not seating the juror.

One Judge concurred that the trial court committed reversible error by not seating the juror but believed the court erred in establishing a new Batson classification.

The concurring judge argued that the majority had misapplied New York mootness doctrine. Where the majority concluded that the issue of Batson analysis was not moot because the trial judge never made a final ruling on the classification, the concurring judge disagreed. The judge noted that the prosecutor articulated non-discriminatory reasons for four of the five excluded persons before the trial judge made a ruling on the prima facie case of discrimination. The judge concluded that the immediate response by the prosecutor mooted the issue. The judge would have held that it was error to exclude the one juror for which no reason was articulated but would not have addressed the Batson argument.

The concurring judge also criticized the majority’s conclusion that the judge did not make an ultimate decision. The judge argued that by not seating the juror, the judge made an ultimate decision even if it was not stated on the record.

After Two Years of Efforts to Bring Uber Upstate, 2017 May be the Year It Happens

–by Karianne Polimeni


Ben Axelton, Cuomo to Reveal Plan to bring Uber, Lyft to Upstate New York, New York Upstate, (Jan. 8, 2017, 11:23 AM),; Kevin B. Knott, The Facts Behind Buffalo’s Uber Situation, The Buffalo Scene (2016),; Jack O’Brien, Uber’s Fight for New York, The Legislative Gazette, (Dec. 27, 2016),; Jared Meyer, New York’s Dumb War on Uber,, (Jan. 11,2017),

Abstract: Since Uber’s launch in 2014, New York State citizens have been pushing for Uber to be allowed in New York. Despite Assembly opposition, Uber has made its way to New York City and has been nothing but successful. Now, Upstate New York citizens are left wondering when the rest of the state will be allowed to enjoy the cheap, safe ride-sharing company the rest of the nation and even people overseas have come to love.


Since its launch in 2014, Uber has done nothing but grow. As of today, Uber operates in 45 states and has even expanded rapidly overseas. Although allowed in New York City, Uber has yet to make its way to the rest of New York State (“NYS”). This is not for lack of trying or for lack of demand. This past Thanksgiving-eve alone, more than 40,000 people in Upstate New York launched their Uber app only to find that it does not exist anywhere in the state other than New York City.

Starting in early 2015, there has been a huge push to get Uber and Lyft into Upstate New York. With its demand growing every day, many senators and representatives have been overwhelmed by the letters, phone calls, and petitions that end up on their desks daily from NYS citizens. Citizens are not the only ones pushing for its expansion. In 2016 alone, Uber spent over $750,000 lobbying for its allowance in NYS. In addition, Uber has even teamed up with the Buffalo Bills and the Buffalo Sabres for special rates on transportation to and from games, and free rides for players on the teams. Currently, Buffalo is the largest city in the nation without Uber or Lyft operating in it and is the only city with an NFL team without it. In fact, Buffalo is one of the five largest cities in the world that does not have Uber or Lyft operating within it. In Buffalo alone, more than 2,000 people launch the app daily. Statewide, 60,000 people try to use the app daily.

Governor Andrew Cuomo is even behind the efforts. “Uber is one of these great inventions, startups, of this new economy and it’s taking off like fire to dry grass and it’s giving people jobs. I don’t think the government should be in the business of trying to restrict job growth.” Bringing Uber to the rest of NYS would create an estimated 13,000 jobs. Many worry, however, that these jobs would be at the cost of other jobs, such as taxi drivers or those in other transportations services. This worry is one of the reasons why there is opposition to its expansion.

Another reason it has yet to expand to Upstate NY is that many want every driver to submit to a fingerprint background check. NYS Senate Bill S4108D made its way through the Senate, but stopped in the Assembly, with this being one of the major cited reasons for its opposition. If the Assembly were to get its way and mandate fingerprint background checks for every driver, it would be the only state in the nation to do so. With safety being the Assembly’s concern, many are worried that a regular background check is not enough. Opponents to the fingerprint background check acknowledge the Assembly’s concerns, but point out that fingerprint background checks are only as good as the company that updates them–citing cases where DUI’s and other traffic safety violations often do not show up on the check. Further, they point out, many of the few safety issues that have occurred through ride-sharing companies come from someone posing as a driver, and not an actual hired driver.

Insurance is another reason for its opposition. Having a ride-sharing company in NYS would require a certain group insurance policy that NYS does not currently have. Insurance companies have lobbied with taxi companies in opposition to Uber expanding to the rest of NYS because of it. In light of this opposition, the Assembly has proposed its own bill (A08195) that would require the insurance increase to come from the Uber Drivers. Uber claims that this increase in insurance would make the expansion impossible for its company, so this bill, too, has been halted.

Despite all of the bumps in the road, many are hopeful that Uber will make its way to the rest of New York soon. In 2017, Governor Cuomo has addressed the issue at his State of the State Address and says he has a plan in the works. “It defies logic that ride-sharing isn’t available to New Yorkers who live outside of New York City. My message is Upstate New York matters and it’s not right or fair that Upstate doesn’t have this new innovation that spurs the economy, can save money and save lives.”

Georgia Court of Appeals Reverses Trial Court Denial of Transgender Name Change

–by Joseph Railey

Citations: In re Feldhaus, __S.E.2d__ , 2017 WL 253649 (Ga. Ct. App. 2017)

Abstract: The Georgia Court of Appeals reversed a denial of two name change petitions from Columbia County Superior Court. Petitioners in both cases were transgender males who sought to change their names to reflect their gender identity. The trial court noted that doing so would be a fraud against the state and would “offend the sensibilities and mores of . . . the citizens of the state.” Finding that there was an abuse of discretion, the Court of Appeals unanimously reversed the trial court and granted the name changes.


Two transgender males, Rowan Elijah Feldhaus and Andrew Norman Baumert each appealed a decision from the same trial court judge who denied their request to change their legal names. As transgender males, both Mr. Feldhaus and Mr. Baumert were determined to be female at birth, however, each identifies as a male. Both individuals sought to change their name to reflect their gender identity.

Under Georgia state law, any individual may change a name by “present[ing] a petition to the superior court of the county of his residence, setting forth fully and particularly the reasons why the change is asked, which petition shall be verified by the petitioner.” Both Mr. Feldhaus and Mr. Baumert complied with this standard when they filed their respective petitions in Columbia County. At their hearing, each petitioner was unopposed in their request to change their name.

Despite the clear statute and unopposed petitions, the superior court rejected both petitions. The court noted that a transgender individual’s desire to change their name from a name that is associated with their sex assigned at birth to one associated with their gender identity “presents problems for the person and the general public.” The court continued that “his or her assumed name could ‘confuse and mislead’ . . . emergency personnel, actuaries, insurance underwriters, and other businesses and relationships where the sex of an individual is relevant.” The court allowed both petitioners to change their name to a “gender neutral” name but determined that “Rowan Elijah” and “Andrew Norman” as traditionally masculine names could confuse and mislead the public. The court concluded each hearing by noting that “[n]ame changes which allow a person to assume the role of a person of the opposite sex are, in effect, a type of fraud on the general public” and that these changes “offend the sensibilities and mores of a substantial portion of the citizens of [Georgia].” Based on these reasons, the court denied both petitioners’ valid petitions to change their name.

On appeal, the Court of Appeals (the intermediate appellate court in Georgia) noted that the proper standard of review for a petition to change a name is “the exercise of a sound legal discretion.” Therefore, absent an abuse of discretion, the court cannot disturb the decision. Noting that neither petitioner’s application was opposed (in fact both Mr. Feldhaus and Mr. Baumert presented evidence in support of their desired name change) and neither was seeking to commit a fraud against the state, the court determined that there was an abuse of discretion.

In the past, the court denied name change petitions when there was evidence that the petitioner sought to change their name in order to commit a fraud, embarrass another, seek to escape some negative history, or otherwise display an improper motive. As an example, the court cited In re Mullinix, 152 Ga. App. 215 (1979), where the court reversed a trial court order preventing a married woman to restore her maiden name as the trial court felt that the name change might “confuse and embarrass” the mother’s child. Here, the court examined this same “confuse or embarrass” standard by determining that the standard was not a proper basis for the trial court to deny a name change. While Mr. Baumert and Mr. Feldhaus each raised constitutionality arguments in their appeal, the court did not consider these arguments as the court held that the trial court abused its discretion.

Absent any evidence of fraud or improper motive, and as each petitioner lived their lives as males, the Court of Appeals unanimously reversed the trial court and ordered that the petitions to change names be granted.

Consumer Alleges Deceit; Court Rules that Reasonable Consumers Account for the Ice

–by Erin Shea

Source: Galanis v. Starbucks Corporation, No. 16-C-4705, 2016 WL 6037962 (N.D. Ill. 2016) (all internal citations omitted).

Abstract:  The Northern District of Illinois concluded that a reasonable customer understands the term “fluid ounces” to indicate the volume of a container and not the contents.


Starbucks customer Steven Galanis was recently disappointed with his iced Starbucks beverage. Galanis’ disappointment rose to such a level that he filed a lawsuit, alleging that Starbucks deceives its customers by “misrepresenting the volume of its cold drinks because much of the volume is taken up by ice.” Galanis argued that Starbucks was deceiving the customer by advertising the size of its cups rather than the amount of liquid that a customer receives with the order of an iced beverage. For example, Starbucks advertises that an iced drink has twenty-four fluid ounces. Galanis believes that drink should have twenty-four fluid ounces of beverage before the ice is added.

Galanis filed suit in the Northern District of Illinois and argued that this misrepresentation constituted (1) breach of express warranty; (2) breach of implied warranty of merchantability; (3) negligent misrepresentation; (4) unjust enrichment; (5) fraud; (6) a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; and (7) a violation of the Illinois Uniform Deceptive Trade Practices Act. In response, Starbucks filed a motion to dismiss for failure to state a claim.

In order to succeed on a cause of action under the Consumer Fraud Act, Galanis needed to prove that (1) Starbucks engaged in a deceptive act or practice; (2) Starbucks intended that consumers rely on the deception; (3) this deception involved trade or commerce; (4) the deception caused actual damage to the consumer; and (5) Starbucks’ deception proximately caused the damage to the consumer. A statement will be considered deceptive if it “creates a likelihood of deception,” and “misled a reasonable consumer,” in the totality of the circumstances. A court may dismiss a claim under this theory if the statement was not misleading as a matter of law.

The court sided with Starbucks and concluded that a reasonable consumers knows that the measurement of fluid ounces refers to volume, not content, and “if the consumer chooses an ‘iced’ drink, the reasonable consumer knows that the container (whatever its volume) will be filled with both solid ice and fluid beverage.” The court stated that the mere fact the volume of the drink is measured using a phrase that contains the word “fluid,” does not mean all the contents need to be fluid. A reasonable consumer would expect there to be ice in the iced drink.

The court supported its finding of reasonableness by relying in part on a recent California district court decision that stated, “children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive.” The court noted that sellers do not normally list the fluid ounces available, and simply demonstrate by display the size choices available to the customer. The reasonable consumer understands that even though Starbucks displays its cups and lists the fluid ounces, the ounces indicate the volume of the container, not the contents of the container. The court finished by stating, “including ice, which of course is not fluid (as the parties ‘helpfully’ point out . . . ), in an iced drink does not make a menu listing the size of the drink in terms of ‘fluid ounces’ a deceptive statement.” Since all of Galanis’ claims required a misleading statement, and the court did not find that one existed, the court granted Starbucks’ motion to dismiss on all counts.

New York Court of Appeals Finds No Right of Public Performance Under New York Law for Creators of Sound Recordings

–by Elizabeth Snyder

Citation: Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 172, 2016 N.Y. LEXIS 3811 (Dec. 20, 2016).

Abstract: Responding to a certified question from the Second Circuit Court of Appeals regarding the existence of a right of public performance in sound recordings, the New York Court of Appeals held that no right of public performance exists under New York common law to protect creators of pre-1972 sound recordings.


On December 20, 2016, the New York Court of Appeals answered a question certified by the Second Circuit Court of Appeals regarding the existence under New York law of a right of public performance for creators of sound recordings before 1972. Finding that New York common law does not recognize any such right, the court answered the question in the negative.

In the federal context (mainly through the Digital Performance Right in Sound Recordings Act of 1995), sound recording owners have a right “to control or authorize the public performance of the copyrighted work, but only for performances ‘by means of a digital audio transmission.”’ Under federal law, the right of public performance is limited to digital radio services, and does not apply to AM/FM radio stations, bars, restaurants, or stores that play music.

The action was commenced by Plaintiff, a corporation owned by two of the original members of The Turtles, as a federal class action on behalf of recording artists, or the owners of the rights, of pre-1972 sound recordings. The action alleged common-law copyright infringement and unfair competition against Defendant, the nation’s biggest satellite digital radio service.

The United States District Court for the Southern District of New York found that New York does recognize a common-law right of public performance in protection of copyright holders for pre-1972 sound recordings. On Defendant’s appeal, however, the Second Circuit Court of Appeals found that the case presented a novel issue of law and certified the aforementioned question to the New York Court of Appeals.

The court began its opinion with a discussion of federal copyright law, noting that state common law applies to copyrights only insofar as federal statutes fail to do so. Sound recordings were protected by federal statute for the first time under the Sound Recording Amendment of 1971. However, the protections afforded by this amendment only extended to those recordings produced after February 15, 1972. Under that statute, sound recordings were not afforded a right of public performance. In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act, which authorized the application of any rights under state statutes or common law (that do not conflict with federal law) to sound recordings produced before February 15, 1972 until February 15, 2067.

The court noted that state court cases in New York have not addressed whether the right of public performance for sound recordings inheres in common-law copyright. Noting that most decisions from lower courts in New York and federal courts applying New York law have dealt with the issue of piracy, the court nonetheless conducted a survey of its earlier decisions to determine that common-law copyright protects only against the unauthorized reproduction of a copyrighted work, but does not prevent a purchaser from playing a copy of a sound recording.

The court further bolstered its decision with an appeal to societal expectations. According to the court, the fact that Plaintiff took no action to assert its common-law rights for four decades supported its finding that neither artists nor copyright holders allege the existence of such a right. The court instead endorsed the arrangement identified by the Third Circuit, wherein the record companies and artists exist in a “symbiotic relationship” with radio stations, allowing their music to be played to “encourage name recognition and corresponding album sales.”

Ultimately, the court concluded that New York common law “has never recognized a right of public performance for pre-1972 sound recordings,” and that to find otherwise would be to produce “extensive and far-reaching” consequences that the court is not equipped to handle. Instead, recognition of such a right must come from the legislature, which is better able than the courts to balance competing interests and create a structure of rules to govern a right of public performance.

Who Knew? Sue-and-be-sued Clauses: State or Federal Jurisdiction

–by Michael Corelli

Source: Lightfoot v. Cendant Mortgage Corp., 580 U. S. ____ (2017); Bank of United States v. Deveaux, 9 U.S. 61 (1809); Osborn v. Bank of United States, 9 Wheat. 738 (1824); American Nat. Red Cross v. S. G., 505 U.S. 247 (1992).

Abstract: Petitioners sued a federal charter, Fannie Mae, under a sue-and-be-sued clause. Fannie Mae removed the case to federal court. The issue revolved around determining how to construe this particular sue-and-be-sued clause in light of precedent.


Facts & Procedure

Petitioners Beverly Ann Hollis-Arrington and Crystal Lightfoot sued in state court alleging that Fannie Mae was deficient in the refinancing, foreclosure and sale of their home. Fannie Mae removed the case to federal court based on a sue-and-be-sued clause. Petitioners moved to remand the case back to state court, but the District Court denied the motion. The Ninth Circuit affirmed the decision. The Supreme Court granted certiorari to resolve the issue of whether Fannie Mae’s sue-and-be-sued clause grants federal courts jurisdiction over all cases involving Fannie Mae.

Supreme Court Decision

The Supreme Court reversed the Ninth Circuit’s decision. The court resolved the issue by first evaluating whether or not there was established precedent regarding sue-and-be-sued clauses. Justice Sotomayor analyzed several cases to determine the status of the sue-and-be-sued clause.

First, the court analyzed two cases that originally dealt with this clause. In Bank of United States v. Deveaux, the Supreme Court held that the bank had no right to sue in federal court based on a sue-and-be-sued clause that did not expressly mention the federal courts as having subject-matter jurisdiction. Following this rationale, the Supreme Court then decided Osborn v. Bank of United States, where it held that the sue-and-be-sued clause did confer subject-matter jurisdiction to federal courts because it mentioned the federal courts in the clause. Thus, the difference between the two cases was the explicit mention of the federal courts, which was enough to grant subject-matter jurisdiction.

The court then went on to analyze contemporary case law. The most recent case on the sue-and-be-sued clause was American Nat. Red Cross v. S. G., where the prior rationale established by the Supreme Court was reaffirmed. Congressional intent of granting federal courts jurisdiction based on the sue-and-be-sued clause is determined by looking at the language of the clause itself. The court assumes that federal courts lack subject-matter jurisdiction when there is no explicit mention of the federal courts in the sue-and-be-sued clause itself. Congressional intent is recognized when there is evidence of the intent in the form of explicit language.

With this understanding, the court observed that unlike Deveaux, the clause at issue here does mention the federal courts. However, unlike Osborn and Red Cross, the clause at issue here does not refer to federal courts having subject-matter jurisdiction without qualification. Rather, the clause in its language construction created a condition. The clause stated that Fannie Mae had the right “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” Thus, to determine whether the case was properly removed to federal court the court went on to analyze the meaning of competent jurisdiction.

Referring to Black’s Law Dictionary, Justice Sotomayor stated that “a court of competent jurisdiction is a court with the power to adjudicate the case before it.” This definition signifies that a court with competent jurisdiction is a court that has a grant of subject-matter jurisdiction conferred to it. From there, the court stated that a court of competent jurisdiction should be understood as a reference to a court that already has existing subject-matter jurisdiction, not to directly confer jurisdiction to federal courts. Thus, the sue-and-be-sued clause at issue here did not directly grant federal courts subject-matter jurisdiction, rather it gave federal courts the capacity to adjudicate the issue.

The court then looked back to Red Cross and stated that it was often misread and interpreted as meaning any mention of federal courts in a sue-and-be-sued clause automatically conferred federal courts the subject-matter jurisdiction to adjudicate cases. The court refuted this notion and held that when a sue-and-be-sued clause explicitly mentions the federal courts in its language it does not automatically confer those courts with subject-matter jurisdiction. The question remains as to whether subject-matter jurisdiction exists. Therefore, the court rejected Fannie Mae’s arguments that jurisdiction was proper, since its arguments were premised on the misread Red Cross rationale.

Federal courts do not automatically have subject-matter jurisdiction when explicitly mentioned in the sue-and-be-sued clause. It is possible that states still retain subject-matter jurisdiction over these cases depending on the Congressional intent manifested through the language of the clause itself.

Tesla’s Autopilot Cleared by Government Investigation, but Questions Remain About Liability for Accidents Involving Self-Driving and Safety Technology

–by Aya Hoffman


Abstract: Just a day after the National Highway Traffic Safety Administration (“NHTSA”) closed its investigation into Tesla Motors’ autopilot technology, Chinese media reported another fatal collision involving a Model S sedan. Currently, victims face significant challenges in holding automakers liable for accidents involving assistive technology, but the market may be moving toward a strict liability standard as true self-driving cars become more widely available.


Although the NHTSA ended its investigation into Tesla Motors’ autopilot system without requiring a recall or fine, questions about the safety of such systems remain. Tesla, based in Palo Alto, California, manufactures an all-electric line of vehicles, including the Tesla Roadster, Model S, Model X, and Model 3. When it was introduced in 2015, Tesla’s autopilot system was the first of its kind in consumer vehicles.

The NHTSA investigation was initiated after a fatal crash in May 2016, involving a Tesla Model S sedan. Joshua Brown was killed after the autopilot system installed in his vehicle failed to recognize a turning tractor-trailer. On January 19, 2017, the NHTSA reported that the system was not defective at the time of the crash. The agency noted that Tesla’s autopilot system was designed to prevent rear-end collisions, and still required a driver’s full attention while in operation. Brown’s family hired a law firm with experience in product defect litigation to conduct its own investigation into the crash.

However, Tesla came under renewed scrutiny the following day, when another fatal collision involving a Model S was reported in China. On January 20, 2017, Gao Yaning was killed when his vehicle collided with a road-sweeping truck. In-car video suggests that the brakes were not applied prior to impact with the rear of the truck, but it is unclear whether the autopilot system was activated.

If the families of Brown and Yaning file suit against Tesla, they will face significant challenges. Despite the modern technology at issue, the available legal theories for product liability and accident compensation claims are traditional – strict liability, negligence, design-defects law, failure to warn, and breach of warranty. However, Tesla requires buyers to consent to contract terms which require drivers to keep their hands on the steering wheel at all times, including when the autopilot system is engaged. And technically, Tesla’s current autopilot technology is not “self-driving.” Although it can steer a car in traffic and make passing maneuvers, it is not connected to a navigation system and requires an alert and responsible human driver.

Interestingly, as truly autonomous vehicles enter the mainstream, it may become easier for drivers to hold car manufacturers liable for accidents involving self-driving technology. Currently, carmakers are not liable for most accidents, which are attributed to driver behavior. While fully autonomous vehicles are still in development, some carmakers, including Volvo, Google, and Mercedes-Benz, have already pledged to accept strict liability for resulting accidents. Although it may seem counter-intuitive, these companies are betting that advanced safety programming will significantly decrease the rate of accidents. Of course, the costs of liability will be passed onto consumers by way of increased car prices. However, some legal scholars suggest this increase may be offset by a decrease in the cost of insurance premiums for self-driving vehicles.

As is common with emerging technologies, early adopters face the most risk. It may be difficult to hold carmakers liable for accidents during this transitional period, compared to when fully self-driving cars are established in the market. This problem is compounded by the fact that car dealers may be uninformed about the technologies inside the vehicles they sell. In the spring of 2016, researchers from the Massachusetts Institute of Technology’s Agelab conducted interviews at car dealerships in the Boston area. The researchers went to the dealerships undercover and asked salespeople questions about common automated driver assistance programs, including adaptive cruise control, blind spot monitoring, and collision avoidance. Of the eighteen salespeople interviewed, only six provided “thorough” explanations of the technologies. According to the researchers, four salespeople gave “poor” explanations and two provided incorrect information that was potentially dangerous. Although this was a small study, it reinforces the need for consumers to educate themselves on the operating requirements and limitations of the technologies installed in their vehicles.

Even when cars are equipped with advanced technology, old-school methods still provide drivers the best protection against potentially fatal accidents – education and constant vigilance.

California Egg Production Laws Survive Lawsuit

–by Caitlin Lomazzo

Citations: Mo. ex rel. Koster v. Harris, 2016 U.S. App. LEXIS 20613 (2016); Mo. v. Harris, 2014 U.S. Dist. LEXIS 89716 (2014); Cal Health & Saf Code § 25990; 3 CCR 1350 § 1350(a–d).

Abstract: On October 19, 2016, the Ninth Circuit Court of Appeals reviewed a lower court’s dismissal of a suit brought by five states and the Governor of Iowa. The suit alleged injuries caused by California state laws and regulations that governed egg production. The court affirmed that the states did not have parens patriae standing, but it remanded the case for dismissal without prejudice.


In 2014, five states (Missouri, Nebraska, Oklahoma, Alabama, Kentucky) and the Governor of Iowa, Terry Branstad, filed a complaint in the Eastern District of Northern California. The Plaintiffs asked the court to overturn California laws and regulations related to egg production, namely California’s Assembly Bill 1437 (“AB1437”) and California Code § 1350(d)(1). AB1437 provided that “a shelled egg shall not be sold or contracted for sale for human consumption in California” if the egg seller “knows or should have known that the egg is a product of an egg-laying hen that was confined on a farm or place” out of compliance with Proposition 2, a voter initiative that says a farmed animal must not live in conditions that prohibit “[l]ying down, standing up, and fully extending his or her limbs; and [t]urning around freely” for at least the majority of the day. The second item, a set of food safety regulations by the California Department of Food and Agriculture, included minimum cage size requirements.

The Plaintiffs argued the court should strike down the laws, known collectively as the “Shell Egg Laws,” based on their violation of the Commerce Clause or preemption by a federal statute. They also asked the court to bar the state’s enforcement of the laws. The district court determined the Plaintiffs lacked parens patriae standing to sue and dismissed the case with prejudice. It also denied leave to amend the complaint. The Plaintiffs appealed the decision.

The Ninth Circuit reviewed the Plaintiffs’ standing arguments on appeal. A plaintiff state that seeks to establish parens patriae standing must fulfill certain requirements in addition to the Article III standing requirements. It must demonstrate it has “an interest apart from the interests of particular private parties” that will impact “a sufficiently substantial segment” of the state’s population. The interest must also constitute a “quasi-sovereign interest.”

In its decision, the Ninth Circuit did not reach the second question of whether the states had quasi-sovereign interests because it determined that the Plaintiffs had failed to prove they had separate interests that would impact “a sufficiently substantial segment” of their respective populations. The court determined that harms to egg farmers alone would not support parens patriae standing and emphasized that egg farmers could obtain complete relief without state intervention if they filed their own suits. It also noted that price changes that might impact consumers could not constitute a harm to justify standing. Lastly, it determined that the Shell Egg Laws would not single out eggs based on their states of origin and thereby disadvantage certain states’ economies. Because the states could not prove discrimination, they could not establish parens patriae standing on that basis.

In addition to upholding the decision to dismiss the case, the Ninth Circuit also upheld the lower court’s decision to deny the Plaintiffs leave to amend their complaint. The states could not add descriptions of recent occurrences to the complaint they filed years ago and thereby establish parens patriae standing. Moreover, the states sought to modify the complaint to include price changes that would impact consumers of eggs or egg-containing products who did not purchase items directly from egg farmers. The court determined that price changes, which had, if anything, a tenuous relationship to the Shell Egg Laws, could not establish standing. Because the amendments would not save the complaint for lack of parens patriae standing, the Ninth Circuit affirmed the lower court’s denial of leave to amend.

The Plaintiffs had not described injuries that would establish parens patriae standing, but the Ninth Circuit determined that the Plaintiffs could theoretically establish standing if they demonstrated other, actual injuries that occurred after California implemented the laws and regulations in 2015. Therefore the Ninth Circuit remanded the case with instructions to dismiss without prejudice.

Fourth Amendment Further Whittled Away by Utah v. Strieff

–by Jordan Charnetsky

Source: Utah v. Strieff, 136 S. Ct. 2056 (2016); Brown v. Illinois, 422 U.S. 590 (1975).

Abstract: On June 20, 2016, the United States Supreme Court ruled that evidence obtained after an unlawful stop was admissible where, even though there was a short temporal proximity between the unlawful stop and the discovery of the evidence, the presence of an outstanding arrest warrant for the respondent and lack of flagrant police misconduct favored admission of the evidence.



Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The amount of people Officer Fackrell observed making brief visits to the residence made him suspicious of possible drug dealing activity. Officer Fackrell observed respondent Edward Strieff leave the residence and proceeded to detain and question Strieff. Officer Fackrell was then informed by a police dispatcher that Strieff had an outstanding arrest warrant. Officer Fackrell proceeded to arrest Strieff, searched him, and found drug paraphernalia and methamphetamine on his person. At trial, Strieff moved to suppress the evidence, arguing that it was obtained through an unlawful search and seizure.

Procedural History

The trial court ruled that the methamphetamine and drug paraphernalia obtained during the lawful search of Strieff incident to arrest justified the admission of that evidence for trial, even though Detective Fackrell did not have enough evidence to conduct an investigatory stop. The Utah Court of Appeals affirmed.

The Utah Supreme Court subsequently reversed and held that the evidence should have been suppressed because the warrant that was the basis for the arrest was discovered during an unlawful investigatory stop. The Utah Supreme Court further reasoned that only a voluntary act of a defendant’s free will would sufficiently break the connection between the illegal search and the discovery of the evidence.


Whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed when the warrant was discovered during an unlawful investigatory stop.


The Supreme Court reversed and held that the evidence Officer Fackrell seized incident to Strieff’s arrest was admissible based on the application of the attenuation factors from Brown v. Illinois.

The Supreme Court has at times required courts to exclude evidence obtained by unconstitutional police conduct to enforce the Fourth Amendment’s prohibition against unreasonable searches and seizures. The exclusionary rule does not apply when the costs of the exclusion outweigh its deterrent benefits, even when there is a Fourth Amendment violation.

The Court has previously recognized three exceptions to the exclusionary rule, the third of which, the attenuation doctrine, is at issue here. Under the attenuation doctrine, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.

The Court first addressed a threshold question of whether the attenuation doctrine applies in situations not involving an independent act of a defendant’s free will. The Court said that since the doctrine evaluates a causal link between the government’s unlawful act and the discovery of evidence, these situations often have nothing to do with a defendant’s action. The attenuation doctrine therefore also applies in situations when there is no independent act of a defendant’s free will.

Next, the Court had to determine whether the discovery of a valid arrest warrant was a sufficient intervening circumstance to break the causal chain between the unlawful stop and the discovery of the drug-related evidence. The Court applied the three-factor test articulated in Brown v. Illinois, which examines: (1) the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how close in time they occurred; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

The first factor here favors suppression of the evidence, as the Court has not deemed this factor to favor attenuation unless substantial time passes between an unlawful act and when the evidence was obtained. Officer Fackrell discovered the evidence mere minutes after an illegal stop, therefore this factor favors suppression of the drug evidence.

The second factor here strongly favors admission of the evidence. The Court reasoned that because the warrant was valid, it predated Officer Fackrell’s investigation, and was entirely unconnected to the stop. Officer Fackrell’s arrest of Strieff was purely a ministerial act that was compelled by the pre-existing warrant. After the discovery of Strieff’s warrant, Officer Fackrell was authorized to arrest Strieff and thus the search incident to the arrest was lawful. The discovery of the warrant was a valid intervening circumstance between the unlawful stop and the then lawful arrest and search.

The third factor also strongly favored admission of the evidence. The purpose of the exclusionary rule is to deter police misconduct and the third factor reflects that purpose by favoring exclusion only when the police misconduct is purposeful or flagrant. The Court determined that Officer Fackrell’s actions were at most negligent. He made two mistakes. First, he failed to observe when Strieff entered the residence. This would have allowed Officer Fackrell to determine whether Strieff was a short-term visitor. Second, since Officer Fackrell did not know whether Strieff was a short-term visitor, Officer Fackrell should have asked, rather than demanded, to speak with Strieff. The Court determined that while Officer Fackrell’s decision to make the stop was misled, his conduct thereafter was lawful and did not rise to the level of purposeful or flagrant misconduct.

The Court held that the drug evidence Strieff possessed was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. The Court reasoned that the proximity of the illegal stop to the discovery of the evidence was outweighed by the intervening circumstance of the outstanding arrest warrant, and by the lack of evidence that Officer Fackrell’s illegal stop was purposeful or flagrant misconduct.

Ohio Governor Vetoes Heartbeat Bill, But Passes Ban on Abortions After Twenty Weeks

–by Bri Szopinski


Sheryl Gay Stolberg, John Kasich Signs One Abortion Bill in Ohio but Vetoes a More Restrictive Measure, N.Y. Times (Dec. 13, 2016),

Emanuella Grinberg, Ohio Governor Bans Abortions After 20 Weeks While Vetoing “Heartbeat” Bill, CNN (Dec. 14, 2016),

Laura A. Bischoff, Gov. Kasich Vetoes Heartbeat Bill, Signs 20-Week Abortion Ban, Dayton Daily News (Dec. 13, 2016),–regional-govt–politics/gov-kasich-vetoes-heartbeat-bill-signs-week-abortion-ban/UbrhWj5zpvwbbCkfNeMInJ/.

Abstract: Ohio simultaneously passed a ban on abortions after twenty weeks while rejecting legislation prohibiting abortions after doctors detect a fetal heartbeat.


On Tuesday, December 13, 2016, Ohio Governor John Kasich vetoed Ohio’s controversial “heartbeat bill” while simultaneously passing a bill that prohibits abortions after twenty weeks.

The “heartbeat bill” (House Bill 493) originated in the Ohio House of Representatives. With respect to abortions, the bill prohibited physicians from performing abortions once doctors detect the fetal heartbeat.  Generally, doctors detect heartbeats at about six weeks into the pregnancy.  The “heartbeat bill” did not contain any exceptions allowing women to undergo an abortion in the case of rape or incest.  This bill passed the Ohio Legislature as one of the strictest anti-abortion bills in the country and went to Governor Kasich for a signature or veto.

On December 8, 2016, the Ohio Legislature voted on Senate Bill 127, which also intended to regulate abortion by establishing a blanket prohibition of abortions after twenty weeks.  Like the “heartbeat” bill, Senate Bill 127 also passed both the Ohio House of Representatives and the Senate, and went to Governor Kasich for a signature or veto.

Despite both bills’ passage in the House and Senate, Governor Kasich vetoed the “heartbeat bill” but upheld Senate Bill 127.  He stated that the “heartbeat bill” contradicted the Supreme Court’s rulings in Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman’s Health v. Hellerstedt.  Federal courts had recently struck down similar legislation in other states, suggesting that any legal challenges to the “heartbeat bill” would end similarly to the challenges in those states: in the challenger’s favor.

Senate Bill 127, however, prohibits abortions after twenty weeks into a pregnancy.  Present law requires doctors to find a fetus non-viable, or unable to survive outside the womb, before performing an abortion.  Doctors can make exceptions to this requirement when the pregnancy seriously impacts the woman’s health.  Senate Bill 127 modifies current Ohio abortion law by eliminating the viability test altogether and making a blanket prohibition against abortions after twenty weeks.  However, experts suggest that the point of viability of a fetus averages at about 24 weeks.  While the exception for the mother’s health still remains, doctors that perform abortions after twenty weeks without this exception could face criminal charges, likely a fourth-degree felony.  Doctors cannot make exceptions for cases of rape or incest.

Governor Kasich’s signing of Senate Bill 127 makes Ohio the third state this year to ban abortions after twenty weeks; Georgia and South Carolina also passed similar legislation in 2016.  This makes Ohio one of eighteen states that prohibit abortions after twenty weeks.  The law is expected to take effect in March, although some organizations have discussed challenging the law in the coming months.