Harvard Law & Policy Review

Archives for September 2016

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Open Carry Is Not a Solution: Problems With Texas’ New Gun Law

by Greg Tsioros*

New Texas Firearm Laws Raise Concerns

As of January 1st, 2016, it is now legal for some Texas citizens to openly carry loaded handguns in public places. Texas has now joined a group of state governments that are expanding rights for pro-gun advocates at a time when gun violence is a massive national public health concern.

Several arguments have been advanced to justify the passage of House Bill 910, Texas’ recently enacted open carry law. Among these, the two most prominent are the claims that open carry will discourage criminal activity and that it will provide citizens with the means to prevent a mass shooting incident.

While these may sound like noble efforts, they have little basis in reality. There is no conclusive evidence that expanding access to firearms has any positive effect on crime rates or incidents of violence.

Gun control reform is sorely needed in Texas and across the country. Allowing more people to openly carry loaded firearms in public is not the solution.

Here’s why.

Gun Ownership and Crime Rates

Perhaps the strongest claim made by pro-gun advocates in favor of allowing concealed carry is that higher rates of gun ownership lead to reduced crime rates. This claim is simply untrue. A study from the National Institutes of Health released in 2013, which analyzed rates of gun-related violence over a nearly 30-year period, found a strong correlation between gun ownership and incidents of violence, especially homicides.

Similarly, a 2015 study from Boston’s Children Hospital and the Harvard School of Public Health found that states with the highest levels of gun ownership also had the highest rates of firearm-related assaults and homicides.

Allowing more people to carry handguns openly in public places is not likely to decrease gun crimes. If anything, the data shows that more gun ownership translates to more violent crime.

After the passage of House Bill 910, anyone aged 21 or older with a clean background and the ability to pass a firearms test can legally carry a handgun openly in Texas. Will this change really stop crime and prevent mass shootings? The statistics suggest otherwise.

The “Good Guy with A Gun” Fallacy

The other primary argument used by pro-gun advocates to call for less gun control hinges on the issue of mass shootings. In 2015 alone, the U.S. witnessed 372 mass shootings, defined as a shooting incident in which four or more people are injured or killed.

Pro-gun advocates often claim that a “good guy with a gun”, or a civilian with a concealed or openly carried handgun, is a reliable way to stop or prevent these shootings.

That is simply not the case. In 2015, there were 21 mass shootings in Texas alone. None were stopped by armed civilians with concealed handguns. Across the nation, very few mass shooting incidents are stopped or prevented by armed civilians. They are almost always stopped or prevented by trained law enforcement officers.

Is arming civilians the best way to approach the problem of mass shootings? There is simply no convincing evidence for this strategy.

Moving Forward

In the United States, gun ownership rates are declining, as are overall gun violence rates. It appears that we, as a nation, are moving in the right direction, but some pro-gun advocates are determined to fight this trend.

The solution to the problem of gun violence does not lie in a population that is armed to the teeth. The solution lies in embracing better education and stricter gun control, and by keeping guns out of the hands of people who want to use them to do harm.

 

*Houston defense lawyer Greg Tsioros provides legal advice and aggressive representation for clients charged with misdemeanors and felonies at both the state and federal level. Mr. Tsioros handles criminal defense cases of any stature – from orders of non-disclosure and expunctions to more serious DWI and drug charges.

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EEOC Believes Sexual Harassment Prevention Efforts Are Failing

by Carney Shegerian*

The Equal Employment Opportunity Commission (EEOC) recently released a report revealing the inadequacy of employers’ efforts to prevent sexual harassment. The EEOC said in a statement that employer training, which has been used for over 30 years, “has been ineffective and focused on simply avoiding legal liability,” rather than preventing harassment from taking place.

Anyone can be sexually harassed in the workplace, regardless of race, gender, sexual orientation or job title. However, the EEOC study revealed a number of factors that put employees at a higher risk for harassment:

  • Workplaces predominantly comprised of young workers
  • Workplaces with significant power disparities
  • Employees who receive tips or work in customer service
  • Employees who do low-intensity tasks
  • Isolated workplaces
  • Workplaces with employees who choose not to conform with social or office norms
  • Workplaces that encourage or tolerate alcohol consumption (at holiday parties, company picnics, department meetings, etc.)
  • Decentralized workplaces where senior management is not present to witness inappropriate behavior

Whether or not employers operate in a high-risk environment, frequent trainings are necessary to prevent sexual harassment. The EEOC recommends that employers incorporate both bystander intervention and workplace civility basic training into their sexual harassment prevention strategies. Bystander intervention courses show employees the importance of supporting their peers and reporting inappropriate behavior when they see it, while workplace civility basic training discusses appropriate and inappropriate ways of interacting with co-workers.

Ineffective training may be one of the reasons why harassment, both sexual and non-sexual, is the leading cause for complaints filed with the EEOC. But workplace culture is an equally critical—and often overlooked—factor contributing to workplace harassment.

According to the EEOC report, three out of four employees who are harassed at work—whether because of their sexual orientation, gender, race, religion or disability—do not report the harassment to their superiors because they fear retaliation. Instead, these victims chose to ignore or downplay the harassment and avoid contact with the harasser. The EEOC found that having an anti-harassment policy in place did not prevent the inappropriate behavior from occurring, nor did it make employees feel more comfortable about coming forward.

In conclusion, the EEOC report speaks to the need for a cultural shift in the workplace. Sexual harassment prevention policies are not—by themselves—enough to keep employees safe. Employers have the responsibility to create an open and honest culture where employees are valued and do not fear professional or personal retaliation for identifying or speaking up against illegal workplace behavior. This sort of culture must be cultivated at the top of the company so that it may ultimately spread throughout all levels of the company. The ball is now in the court of every senior executive and leadership committee to create a workplace culture where harassment is not permitted and victims are not shamed or ostracized.

*Carney Shegerian is the founding attorney of Los Angeles based Shegerian & Associates. Shegerian’s practice areas of expertise include discrimination, sexual harassment, whistle blower retaliation and wrongful termination, among others.  He has an unparalleled success record with over 73 jury trial wins, including over 31 seven and eight figure verdicts.

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A Tribute To Our Living Constitution

By Isaac Saidel-Goley*

In honor of Constitution Day, I reflect on what I have learned from countless pages of constitutional law cascading from a brief document that I have had the privilege to spend the past few years of my life studying.

I have learned that the Constitution is not, and has never been, perfect. Not even close. It was crafted by flawed framers and has been interpreted by imperfect jurists. It has enshrined slavery; condoned segregation; authorized the involuntary internment of over 100,000 Japanese Americans; sanctioned the forced sterilization of the intellectually disabled; repeatedly denied liberty, equality, and dignity to racial and sexual minorities; invalidated progressive legislation enacted to protect vulnerable populations; and promoted white and male supremacy in countless ways throughout its history.

These immeasurable failures have tested my faith in the Constitution, just as they have tested my faith in humanity. But they have also taught me an important lesson; namely, that the true beauty of the Constitution, and the reason it has endured throughout the last two centuries, is that it lives. It adapts. It molds to “the evolving standards of decency that mark the progress of a maturing society,” and it allows for (and often spearheads) the gradual perfection of our Union. Despite its deeply imperfect history, the Constitution, like our nation, has consistently (if slowly) approached perfection. Over the past two centuries, it has abolished slavery; condemned segregation; enfranchised African Americans and women; protected interracial and same-sex marriage; promoted reproductive justice; secured our freedom of speech; preserved our freedom of (and from) religion; and advanced the equality, liberty, and dignity of historically vulnerable populations on countless occasions. It gives me great pride, and great hope, to know that these are just a few of the many triumphs of our living Constitution.

“And so,” as Justice Thurgood Marshall so eloquently observed, “we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective. . . . If we seek, instead, a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history . . . [w]e will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.”

*Isaac Saidel-Goley is a 3L at Harvard Law School.

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On Racial Bias and Police Shootings

By Simon Hedlin*

More than a hundred blacks have been shot and killed by the police this year. According to data compiled by The Washington Post, nearly 600 individuals have died in police shootings in 2016. About half of those killed were ethnic minorities, and blacks were more than twice as likely to be fatally shot as whites. The disproportionate police violence against blacks raises the question of whether, and to what degree, law enforcement discriminates against African-Americans in its use of lethal and non-lethal force.

New research indicates significant racial bias in law enforcement’s use of non-lethal force against racial minorities. In a paper released last month by the National Bureau of Economic Research, Roland Fryer of Harvard University investigated the existence of racial bias in the use of force among police officers. When Fryer looked at non-lethal use of force by the police, such as slapping or grabbing, there were substantial racial disparities. Accounting for more than 125 variables—including factors related to the behavior of the civilian and the context of the interaction between the civilian and the officer—Fryer found that blacks and Hispanics “are more than fifty percent more likely to have an interaction with police which involves any use of force.” What this result means is that in any given interaction between a civilian and a police officer, racial minorities are more likely to encounter non-lethal force. This finding lends clear support to the notion that a significant number of law enforcement officers discriminate against racial minorities—at least when it comes to use of non-lethal force.

Strikingly, however, when Fryer looked specifically at police shootings, the significant racial bias faded. He writes:

To be clear, the empirical thought experiment here is that a police officer arrives at a scene and decides whether or not to use lethal force. Our estimates suggest that this decision is not correlated with the race of the suspect.

In other words, Fryer’s data suggests that there is racial bias in the police use of force, but not when it comes to police shootings specifically. Since the data that he used for this specific examination come from a limited number of cities that represent merely four percent of America’s population, there could be important differences across cities that he did not take into account. The study cannot shed light on whether officers that serve in the communities that constitute the remaining 96 percent of the country do, in fact, exhibit racial bias in police shootings.

But other pieces of evidence support Fryer’s account. In a recent article in the journal Injury Prevention, Ted Miller of the Pacific Institute for Research and Evaluation in Maryland presents with his co-authors different data on police violence. Miller and co-authors found that about 1 in 291 arrests or police stops “resulted in hospital-treated injury or death of a suspect or bystander.” This rate did not vary based on ethnicity or race. In an interview, Miller summarized their results as follows:

What this study says is that it doesn’t matter what your race is when you’re in a stop and frisk situation or arrest situation with a police officer. Your chance of being injured or killed is the same regardless of race – it’s equally dangerous for everyone.

A new report by the Center for Policing Equity, a think tank, presents similar findings. Phillip Atiba Goff of John Jay College of Criminal Justice and co-authors gathered data from 12 law enforcement departments around the country. When they looked at racial disparities, they found no statistically significant difference in the average use of lethal force per arrest between black and white arrestees.

So, what do these findings mean for policymakers seeking to reduce police shootings of civilians in general and of racial minorities in particular? Ronald Weitzer of George Washington University points to the importance of diversifying police departments to make them better represent the local communities that they serve. Coupled with rigorous sensitivity training, this could help reduce discrimination against ethnic minorities. But if Fryer, Miller, and Goff are correct, these measures would primarily affect the use of non-lethal force; they would not be sufficient to tackle the overrepresentation of black fatalities in police shootings.

Importantly, the primary cause of racial disparities in officer-involved shootings appears to be not what happens during a given interaction, but that the interaction occurs in the first place. A report issued in July by the Blue Ribbon Panel on Transparency, Accountability, and Fairness in Law Enforcement in San Francisco supports this conclusion. It found that roughly 40 percent of the victims in police shootings in the city from January 2010 through July 2015 were black (even though African-Americans make up less than six percent of San Francisco’s population). Notably, this racial disparity in police shootings closely tracks the racial disparity in arrests; official data for 2005-2014 shows that 43 percent of all arrests in the city were of black individuals. This pattern can also be observed at a national level. As Sendhil Mullainathan, also of Harvard University, discussed last year, 31.8 percent of police-shooting victims across America were African-American—as were 28.9 percent of arrestees.

To make a substantial dent in police killings of blacks, it therefore appears that the number of civilian-police interactions must first be decreased. As Conor Friedersdorf emphasized in an article for The Atlantic, significant progress would be made simply by reducing unnecessary interactions during traffic stops. The aforementioned research indicates that reducing the number of arrests and police stops would save many lives, particularly the lives of ethnic minorities.

Yet, racial disparities in police shootings is not an issue for law enforcement alone to solve. It is true that many arrests and police stops (which are precursors to police shootings) appear to be driven by bias—as the Justice Department, for instance, found in its recent investigation into the Baltimore Police Department, concluding that blacks are subject “to disproportionate rates of stops, searches and arrests.” But that is not the whole story.

Mullainathan further notes that “the police are at least in part guided by suspect descriptions. And the descriptions provided by victims already show a large racial gap: Nearly 30 percent of reported offenders were black.” So, to the extent that racial bias is to blame for the disproportionate number of African-Americans killed by the police, it is likely that it is a systemic problem existing at a societal level, not just at a police department level. Eliminating the overrepresentation of blacks killed by law enforcement will thus require more than merely combatting prejudice among individual officers.

* Simon Hedlin is a 1L at Harvard Law School and a contributor to The Economist. He can be reached on Twitter: @simonhedlin

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Toward a Reproductive Justice Framework Based on Meaningful Family Choice

By Amanda Woog, JD, and Shetal Vohra-Gupta, PhD*

Introduction

Earlier this year, in Whole Woman’s Health v. Hellerstedt, 579 US _ (2016), the Supreme Court held unconstitutional two provisions in Texas’s 2013 omnibus abortion law. The provisions were designed to shutter abortion facilities – after the law passed, more than half of Texas’s 41 abortion clinics closed – and the Supreme Court correctly found that “each [provision] places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.” The Court’s decision will help reverse the harmful effects of the Texas legislation (though not fully and not immediately), and will likely result in the invalidation of Targeted Regulation of Abortion Providers (“TRAP”) laws in other states, which have been a recent scourge on abortion access across the country. Since the Supreme Court opinion was handed down, media have reported that similar laws in Alabama, Arizona, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Carolina, Tennessee, Utah and Wisconsin may also be in jeopardy.

This decision is a victory for all people who believe that freedom and dignity inhere in the right of every person to make his or her own reproductive decisions without government intrusion. But the decision is only a step toward the full realization of such a right. For most women in the United States, particularly poor women and women of color, full reproductive choice remains an illusion. Reproductive choice must not only include the right to abortion care, but also the right of all women to access abortion care, and the full freedom to bear, birth and raise a healthy baby. In these respects, there is still much work to be done. This essay proposes several steps toward the full realization of reproductive choice.

Inability to afford abortion care

Since the Hyde Amendment was first passed in 1976, Medicaid and other federal government funding has been barred from abortion care. In addition, 25 states restrict private insurance or insurance purchased on health exchanges from offering abortion care. According to the National Network of Abortion Funds, the average first-trimester abortion costs $451, and this does not include transportation or overnight accommodation expenses associated with Texas’s (and other states’) required waiting periods between an initial consultation and an abortion. The Lilith Fund, an abortion fund that serves women across Texas who need financial assistance to obtain an abortion, reported that in 2015, 91 percent of their clients were already mothers and 86 percent were women of color.

In practice, all of this means that women without $500+ to spare are denied abortion access, and women of color, mothers and poor women are disproportionately impacted by this economic bar to access. For these women, forced birth because of inadequate finances renders “choice” meaningless.

Recommendation: Repeal the Hyde Amendment and pass the EACH Woman Act, which would override all insurance bans on abortion care.

Lack of family leave

The Family and Medical Leave Act of 1993 (FMLA) provides American workers limited job protection when they need to take time off to care for a new baby or care for one’s health or the health of a family member. According to the Bureau of Labor, a higher percentage of women employees are FMLA leave-takers than men, meaning that this policy predominantly affects women. While the policy is intended to promote gender equality in the workplace, in reality, it is largely a symbolic act, affording minimal protection for working women, and men. In addition, it has actually slowed the progress on the family leave front. In particular, low-income women and women of color – particularly Black women and their babies – are disproportionately excluded from the policy’s benefits.

As the policy stands, not all women have the “choice” of taking FMLA leave. Currently, 40 percent of the U.S. workforce is not covered by the FMLA because their workplace does not have 50 or more employees, because they were recently hired (and as such, have not completed the 12 months and 1,250 hours of employment to be eligible for the FMLA), or because their sector of work does not qualify for FMLA. In addition, FMLA guarantees unpaid leave up to 12 weeks, unlike in most countries in the world, where paid leave is the norm. The impact of unpaid leave on working poor families leads to forced debt to compensate for lost wages, forced early return to the workplace and/or not taking leave at all. In turn, these “choices” increase stress and impair effective bonding between the new mom and child, seriously undermining maternal and infant health.

Recommendation: Build a more comprehensive Family and Medical Leave Act which includes, at minimum:

  1. Paid leave through an insurance program for workers funded by small employee and employer contributions;
  2. Paid leave to include at least 20 weeks;
  3. Flexible scheduling such that all leave is not required to be contiguous, but within a year of birth of a new child.

Lack of access to safe and affordable child care

Roughly 40 percent of American children are from low-income families, meaning 40 percent of American children live in homes that make roughly $45,000 or less for a family of four. According to the Center for American Progress, “the annual cost of child care for an infant in a child care center is higher than a year’s tuition at the average four-year public college in most states,” averaging $138 a week per child in 2010. Accordingly, low-income families must dedicate a higher portion of their income to child care: families making less than $1500 per month in 2010 spent over half (52.7 percent) of their income on child care, compared to 8.6 percent paid by families making more than $4,500 per month. All of this makes child care virtually unaffordable for many low-income families.

The lack of high-quality and affordable child care leads to crucial development gaps for children between the period of birth to three years and negatively impacts parents’ educational opportunities. According to the Institute for Women’s Policy Research, there is a direct relationship between the lack of policies that enable low-income parents to succeed in college (including affordable child care options) and their likelihood of graduation from college. The lack in “choice” of high-quality and affordable child care also leads to higher infant mortality rates and negatively impacts the financial stability of affected families. In sum, the livelihood of future generations is at stake.

Recommendation: Implement high-quality child care tax credit.

Insufficient wages to support a healthy family.

Women comprise a disproportionate share of the minimum wage-working population, and 28 percent of children in the U.S. have a parent who would benefit from a minimum wage increase. Increased minimum wage not only improves a family’s economic outlook, but recent research has also linked increased minimum wage to improved infant health outcomes. A study published by the National Bureau of Economic Research suggested that increasing the minimum wage also increases infant birth weight for babies born to mothers with minimal education, with a $1 wage increase reducing the rate of low birth rate by 2 percent. Birth weight has been linked not only to infant and child health, but also to later financial and educational outcomes.

A meaningful choice to give birth to and raise a child must also include the opportunity to support a healthy child in a stable environment. A living wage would not only provide greater financial stability to families, but would also positively impact birth, health and economic outcomes for years down the road. An increased minimum wage is an investment in healthy babies and families.

Recommendation: Raise the minimum wage to a living wage for families.

Conclusion

Reproductive choice must be understood as a far broader concept than merely access to abortion. The recent Supreme Court decision should be celebrated, but it should also be understood within its limited context. It is time to enact policies that allow women not only to access reproductive healthcare for themselves (including abortion, birth control and prenatal care), but also the opportunity to raise healthy families in safe and secure environments. We need comprehensive policies that support reproductive choice and healthy families for all people.

*Woog is a postdoctoral fellow at the Institute for Urban Policy Research and Analysis, and Vohra-Gupta is the associate director at IUPRA.