HOUSTON, TX — Louisiana residents know all too well how powerful storms can damage property and change lives forever. But what happens when victims of a flood say that actions taken by the government caused flooding to damage or destroy their property?
In a previous article, we discussed the August 5, 2017 New Orleans flooding which may have been aggravated by actions taken or neglected by the previous mayor’s administration. Today, Houston-area victims of flooding related to Hurricane Harvey are preparing to put the United States government on trial over allegations that the U.S. Army Corps of Engineers caused their homes to flood.
These claims focus on the Addicks and Barker Reservoirs. The plaintiffs allege that the U.S. Army Corps of Engineers knew that the reservoir capacities would exceed federally owned land, impacting private property. Furthermore, they state that water intentionally released from the reservoirs’ dams caused homes downstream to flood. According to attorney Daniel Charest, victims are seeking “just compensation for the taking of their property.”
Attorneys with the U.S. Department of Justice respond that Harvey was a “historically large rainfall event” and state that flooding was inevitable. Officials state that they opened the dams because of concerns that the dams would fail.
The trial, with a focus on just thirteen properties, will serve as a test for whether or not the federal government can be held liable for damage to reservoir-flooded homes. Similar cases indicate that the government can be held liable, and, perhaps even more significant to us all, argue such damages caused by the government are a Constitutional matter addressed by the Takings Clause of the Fifth Amendment. The Takings Clause provides that Americans are protected from a government that seizes their property for public use without just compensation, and there is precedent for considering government-caused flooding a taking of property which merits just compensation.
In Arkansas Game and Fish Commission v. United States, 568 U.S. 23 (2012), the United States Supreme Court, citing Pumpelly v. Green Bay Co., 13 Wall. 166 (1872), held that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.”
The government has argued that the Fifth Amendment only prevents permanent takings, and does not provide that citizens should be protected from or compensated for temporary takings, but in Arkansas and other cases, the law demonstrates clearly that this is a poor interpretation of the Constitution. However, past decisions of the Court can be seen as weakening the protection of the takings clause, such as the Court’s controversial decision in Kelo v New London, 545 U.S. 469 (2005) While Kelo involved the government transferring private property from the original owner to a private development company connected with New London’s government, and not the government temporarily taking property to hold flood water in attempts to manage the effects of a weather disaster, Kelo does demonstrate that courts can interpret the law to offer broader license to the government and less protection to American citizens.
The thirteen plaintiffs in Houston serve as a test not only of whether or not Harvey-affected families will be compensated for property damaged by floods connected to the U.S. Army Corps of Engineers, but as yet another measure of what the government may and may not do, without just compensation, to citizens and their property. We should all pay close attention.
NEW ORLEANS, LA — If you’ve been involved in a lawsuit, it’s likely that your opponent requested or obtained your cellular phone data. Plaintiff and defense attorneys both seek cellular phone data during the discovery period of your case, especially following a car accident. The most basic reason to access a driver’s cellular records is to help determine if he or she was distracted at the time of the accident, perhaps illegally texting and driving. This can help a fair and just resolution of a motor vehicle claim.
However, modern cellular phones are more accurately considered personal computers. If a law firm obtains full or even partial access to your cellular phone, they won’t just be able to determine if you were texting while driving. They could also potentially obtain such personal information as what medications you take, what internet sites you visit including dating sites, or your political or religious affiliations. The potential for an inappropriate and unnecessary invasion of a client’s privacy is such a serious concern that courts must consider the benefits of granting an adversary access to a citizen’s cellular phone, even in criminal cases.
The decision of one criminal case heard before the United States Supreme Court, Riley v. California has had strong implications for civil discovery. In Riley, the Court considered whether or not police could perform a warrantless search of a cell phone found in the pocket of an arrested person. Chief Justice Roberts, delivering the opinion for the Court, noted that “The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.” The Supreme Court decided that the potential violation of privacy as well as the broad scope of information contained within a cell phone’s “immense storage capacity” took precedence over all other concerns.
Almost immediately after this decision in a criminal matter, Riley was cited in opposition to civil discovery requests. A federal district court in Connecticut denied plaintiff’s request for data from defendants’ cellular phones in Bakhit v. Safety Marking, Inc, et al, stating in part that “The implication of the individual defendants’ privacy interests in the data stored on their cell phones also persuades the Court to deny plaintiffs’ motion. This conclusion is further reinforced by the recent Supreme Court ruling in Riley v. California, Nos. 13-132 and 13-212, 573 U.S. __ (June25, 2014), which recognized, albeit in the criminal context, the privacy concerns implicated by the modern cell phone.”
As technology continues to advance, lawmakers must endeavor to keep pace with new developments and consider the ethical obligations that new technology—whether it be cellular phone storage or genome sequencing—impose upon our society. In 1816, Thomas Jefferson warned that “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”
If you’re involved in a motor vehicle accident or otherwise considering or involved in civil litigation, it’s critical that you select a law firm that takes the advance of technology and the legal challenges it prevents as seriously as it takes the defense of your rights. The experienced attorneys at The de Boisblanc Law Firm understand today’s technological advances, and know how to use technology to your advantage without allowing your adversary to infringe on your privacy and rights.
NEW ORLEANS, LA — Mayor Latoya Cantrell made news by pledging to remove twenty cameras in New Orleans, in line with her campaign promises to suspend the universally hated program. However, even though more than 70% of the voting public is against traffic cameras it appears the enforcement tool isn’t going away any time soon.
In some cities, protests against traffic cameras have turned into illegal action on the part of disgruntled motorists, such as Stephen Ruth of Long Island, NY, dubbed the “Red Light Robin Hood” by his community, who was arrested for sabotaging numerous cameras. In a strange turn of events, Mr. Ruth’s actions led to an interesting discovery: in his Suffolk County community, yellow lights where there are no traffic cameras last for five seconds, but where there are traffic cameras, yellow lights only last three seconds. Around the country, residents of other cities have discovered the coincidental correlation between the installation of red light cameras and shortened yellow light durations.
Numerous studies show that increased yellow light times reduce violations and create safer streets. Longer yellow light times also reduce revenue generated from traffic camera tickets.
Proponents of traffic cameras argue that they increase safety. New research from Case Western Reserve University suggests otherwise, stating in part that motorists shift their driving patterns. “Once drivers knew about the cameras, they appeared to accept a higher accident risk from slamming on their brakes at yellow lights to avoid an expensive traffic citation—thereby decreasing safety for themselves and other drivers,” said Justin Gallagher, an assistant professor of economics at Weatherhead School of Management at Case Western Reserve, and co-author of the paper recently published to Social Science Research Network.
It’s well known that most citizens hate the cameras and don’t want them. What is less clear, is whether or not the cameras are constitutional. The Sixth Amendment’s Confrontation Clause states that citizens have the right to confront their accuser. In the case of traffic cameras, the accuser is a machine managed by a technician with whatever company is running the cameras. In some municipalities, a technician’s report is read to the court by a police officer who was not present to witness the alleged violation. When accused persons raised concerns as to the calibration and reliability of the machine that “caught” their violation, a certificate was often presented in court, and all parties were expected to believe in the authenticity and accuracy of that certificate. In Melendez-Diaz v. Massachusetts, the United States Supreme Court ruled 5-4 that “merely producing such a certificate in court is insufficient. Defendants have the right to cross-examine any individual who claims to have certified evidence.”
However, municipalities that make traffic camera tickets civil violations avoid having their traffic camera programs challenged on a constitutional basis. In New Orleans, these fines are considered “Civil Penalties,” and if unpaid, will be sent to a collection agency. A citizen may contest the ticket by requesting a hearing.
Whether or not the traffic camera ticket programs will survive their many deficiencies, and concerns about their constitutionality, remains to be seen. For now, motorists are all but united in their dislike for these programs, and New Orleans residents look forward to further action from Mayor Cantrell to reduce and remove this unpopular program.
SIOUX CITY, IOWA – The US District Court for the Northern District of Iowa has ordered the city of Sibley not to sue a resident for using social media to complain about the stench of a local dog-food processing plant, causing the internet to wonder, “What was the city thinking?”
In 2013, after receiving financial incentives from the city government, Iowa Drying and Processing began operations in the small town of Sibley. According to their website, their product is “food and feed grade products,” created by rendering such appetizing items as “turkey digest.” The plant brought twenty-six jobs to the small town, but unfortunately, it also brought a nuisance that residents couldn’t ignore: a pervasive and gagging stench that permeated the entire town, especially on hot and humid days.
Wade Elerbroek, a Sibley resident and business owner, described the smell as “as rancid and dead animal-like” in the Sioux City Journal. Residents complained that the smell was so noxious, it prevented them from being able to use their air-conditioners, open their windows, or even dine in the small town’s restaurants. They christened IDP’s plant, “The Blood Plant,” and complained to their city government.
In 2015, frustrated by what he perceived to be that government’s inaction, resident and web designer Josh Harms created the website Should You Move To Sibley, Iowa? where he pointed out the town’s attractions, such as hiking trails and his favorite Mexican restaurant, and contrasted those local perks against the asphyxiating aroma of stale blood and processed animal parts.
While it took the city government two years to discover the website, once they did, they were not amused, and they felt compelled to take action against Harms for publishing his critical blog. As reported in The Des Moines Register, an attorney for the city sent Harms a cease and desist letter, advising him he had ten days to remove his website or be sued. The city claimed that Harm’s website “libels Sibley, interferes with the recruitment of businesses and new residents, and negatively affects property rights.” Another attorney also warned Harms against speaking to reporters. Harms went straight to the ACLU, and a complaint was filed in the US District Court for the Northern District of Iowa, where Harms alleged the city was violating his First Amendment and Civil Rights. “Receiving this threat from the city was the first time I’ve ever felt afraid that what I might write and put online would make me a target of my own government,” Harms said in a statement.
The US District Court agreed, and issued an injunction on Thursday, March 29, 2018, preventing the city government of Sibley from threatening legal action against Harms due to his critical website; it also prevents the city from telling Harms he can’t talk to the media.
ACLU Legal Director of Iowa, Rita Bettis, stated “Today’s outcome sends a strong message to the city of Sibley and all Iowa government officials to respect the free speech rights of Iowans. The right of the people to freely and openly criticize their government is the very foundation of democracy. In America, the government cannot threaten legal action against someone for speaking out against it.”
The Constitution thus defended, Harms returned to work on his website, where he now offers a bit of legal advice for governments large and small, concerning the definition of libel, and the illumination of citizens’ rights, in hopes of avoiding future confusion. The city, for its part, has fined the “Blood Plant” and sought its own legal remedies. According to Harms, the odor has improved, although noxious fumes occasionally return to plague the citizens. As for the dog food plant, they state they are actively working to mitigate the fumes, and they’re also considering moving to greener pastures.