What is the First Amendment Defense Act and how can it help my civil rights case?

What is the First Amendment Defense Act and how can it help my civil rights case?

The First Amendment Defense Act (FADA) was introduced in 2016 in response to numerous cases of individuals and businesses being legally sanctioned (including steep fines) for declining to participate in same-sex weddings and related activities. Some call it needed, some call it unconstitutional, with staunch opponents claiming it will dissolve all rights currently available to LGBT individuals.

What Is The First Amendment Defense Act and How Can It Help My Civil Rights Case

The bill was introduced into the House of Representatives on 6/17/2015 (H.R. 2802) by Rep. Raul Labrador (R-ID). On the same day, it was referred to two committees, the House Ways & Means and House Oversight and Government Reform, but has not yet been reviewed or considered by either one. Even with 172 co-sponsors, this bill has not actually gone anywhere since its introduction. The same bill (as S.1598) was introduced into the Senate by Senator Mike Lee (R-UT) and has 37 cosponsors there.

Both senators, in response to criticism, updated both versions of the bill and put them on their websites, but haven’t introduced them into Congress. For the time being, the First Amendment Defense Act isn’t going anywhere.

Many defendants of the LGBT community claim that FADA will not only roll back civil rights for them but also allow religious discrimination against them, just for being gay. But does it?

What the First Amendment means

The actual First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What it means seems to always be up for interpretation, and despite multiple Supreme Court decisions, it’s not always the same. But in essence, the First Amendment gives American citizens the right to free speech. It was created after laws in the British Commonwealth allowed members of minority parties to be jailed for speaking out. The First Amendment allowed political dissenters to be free from the same fate in the newly created United States.

It’s important to note that not all speech is free speech under the First Amendment. The Supreme Court has identified areas that, under certain circumstances, can be restricted:

  • Speech that incites illegal activity and subversive speech
  • Fighting words
  • Obscenity and Pornography
  • Commercial speech
  • Symbolic expression

Freedom of the Press

This part of the First Amendment permits the free distribution of information, ideas, and opinions without constraint, prosecution and interference from the government. There are some restrictions, including things like defamation. Freedom of the press has expanded in recent years to include bloggers. However, bloggers can still be held liable for copyright and/or trademark infringement and defamation.

Freedom of Religion

Born out of the heavy-handed influence by the Anglican Church in England, Thomas Jefferson sought to keep religious over-reach out of the government in the new colonies. He opposed a church’s influence and interference in governmental affairs, and the establishment of a “national religion.” While the high courts continue to debate how it works, this clause establishes the rights of each individual to worship the faith they prefer and as they see fit.

What the First Amendment Defense Act does

So how would the First Amendment Defense Act affect a civil rights case? While it’s currently still just a bill stalled in a committee, the short version is, “To prevent discriminatory treatment of any person on the basis of views held with respect to marriage.”  It’s aimed at protecting people based on their religious beliefs when those beliefs conflict with a client or customer in regards to marriage. The bill’s summary states that it would prohibit the federal government from taking action against a person:

on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.

The bill was created in response to a number of Christian businesses who declined to provide various wedding-related services to same-sex couples. The most famous of these was in Oregon, involving a bakery called Sweet Cakes By Melissa, and two women who had patronized the bakery previously. When the owner’s husband discovered that the wedding cake was intended for a same-sex wedding, he informed them that they would not be able to make that cake, citing religious beliefs. The couple brought legal action in the state of Oregon and won. Since then, the bakery has been fined $135,000 and closed its doors. Other businesses in similar circumstances have been fined, sued or otherwise sanctioned.

The First Amendment Defense Act gives businesses federal protection to businesses and religious organization decline a customer’s business or requests based on their religious beliefs. The business would be neither persecuted nor prosecuted.

How does the First Amendment Defense Act affect a civil rights case?

Opinions differ, but it also depends on what side you’re on.

Authors and supporters of FADA believe it will allow businesses and religious organizations (including religious-based businesses such as Catholic colleges and hospitals) to operate in accordance to their beliefs free from recrimination. In the many cases of small, Christian businesses whose owners disagree with same-sex marriage, it gives them an “out,” if they so choose, allowing them to decline the business without fear of government sanctions or harassment.

The First Amendment Defense Act would, in theory, protect the civil rights of individuals who have expressed belief in traditional marriage. It would also allow state clerks to recuse themselves from issuing licenses for same-sex marriage if they desire, as well as prevent job loss after voicing discontent outside of their work environment.  The bill is designed as a balance to protect religious liberty while also respecting the rights of the LGBT community.

Opponents believe that FADA will allow religious organizations and businesses to openly discriminate against the LGBT community without retribution. They also believe that FADA would undermine the government’s ability to enforce federal protections for LGBT individuals, and all anyone would have to invoke “marriage beliefs” to be immune from prosecution. The ACLU lists in this fact sheet that FADA would open up additional discrimination against single mothers and unmarried straight couples as well. By allowing certain types of discrimination to go unpunished, it’s possible that same-sex couples could be denied things such as housing, education, health insurance and medical care (including the right to utilize the Family Medical Leave Act for an ill spouse.)

At this point, however, the First Amendment Defense Act is still a bill that’s stalled in committee and is not the law of the land.

We defend your civil rights

If you’ve been discriminated against for any reason, call the Civil Rights Litigation Group in Denver at (720) 515-6165 for a free consultation. We’re experienced in helping people just like you fight back against denial of your civil rights. We’ll review your case, help you file your complaint, and represent you in court when the time comes.

 

What to do if the police use excessive force?

What to do if the police use excessive force?

Many police officers exercise restraint when handling members of the general public, but there are times when a situation gets out of control. The law allows the police some flexibility when dealing with or handling an uncooperative individual. Deadly or excessive force can be used if the officer feels he or she is being threatened with it (i.e., a gun pointed in the officer’s direction.) But if physical force is unwarranted, and it’s used anyway, it may be excessive force, and a violation of one’s civil rights. What can you do when you’ve witnessed police using excessive force? The Civil Rights Litigation Group has handled many of these kinds of cases and can help you as well.

witness police using excessive force

Is it excessive force?

The police have qualified immunity involving arrest, so concerns of legal action don’t interfere with their ability to do their jobs. Police are allowed to use reasonable force when handling a combative individual, but only to the point of subduing the person for arrest. Legal protections for citizens are available if force becomes excessive or unreasonable. Section 1983 of the Civil Rights Act of 1871 forbids the police to restrict an individual of their civil rights under the Fourth Amendment of the Constitution.

Excessive force is a general term used when a police officer is aggressive, forceful, and possibly threatens bodily harm when it’s unnecessary. For instance, if someone has cooperated with the police, either at a traffic stop, or during an arrest, (i.e., handcuffed and compliant), physical force or a weapon wouldn’t be necessary to restrain the individual. Continuing to physically subdue the individual after he or she has complied may graduate into the grey area of excessive force, particularly if the end result was severe injury or death.

Keep quiet!

If you are the victim of excessive force, don’t answer any questions that aren’t required (i.e., like your name.) Don’t speak unless absolutely necessary, such as asking for an attorney. If you have injuries from the police, request medical attention immediately. Don’t yell, become combative, threaten to sue, or say anything else about civil rights. Use your right to remain silent, because what you say really will be used against you later.

Gather evidence and build your case

You will have to prove your case of excessive force with facts and evidence. You need to work quickly, since police may begin erasing evidence and attempting to cover facts.

1. Immediately create a written record of the event. Document everything, including day, time, circumstances, witnesses and anyone who was with you. Don’t worry about formatting—you’re just documenting and organizing everything, and putting together a timeline to establish facts; you can format and summarize when you present it to your attorney. Once you’re in court, you will be required to tell your story, clearly and exactly. Written and coherent documentation of the events will help your case.

2. Gather physical evidence. Pictures, video, a police report or citation, medical records (if required), any damaged property (i.e., torn clothes or damaged shoes) and anything else that’s relevant is evidence.

a. If you were injured, take pictures of your injuries and save them in a safe place (i.e., online photo storage, not just on your phone or hard drive.)

b. Take pictures of any damaged personal property, and put the items away for safe keeping until they are needed.

3. Gather witnesses’ contact information. Witnesses who can verify and validate your story is crucial. An attorney may request a signed witness statement from them detailing what they saw. You need to document these facts as quickly as possible.

4. Take care of yourself first. If you were denied medical care in custody, you’ll need to get it now. If you were charged with a crime, you’ll also need to find a defense attorney and take care of it. Document everything, including time off work, legal fees and other details.

5. Talk to an attorney who specializes in civil rights violations by police. An experienced civil rights attorney can examine your case, help you file the appropriate complaints and work with you through the entire process.

What if I witness police using excessive force against another individual?

If you are a witness to police using excessive force, immediately document what you see, in as much detail as you can. Write down the time, date, place, names if you can get them, and any other relevant details you can remember. If you can take pictures or video, do so, and save them somewhere. Recalling the incident and going over it helps you remember specific details. You may be called upon by an attorney to give testimony later, and a written account will go a long way in proving excessive force.

Protect your civil rights in Denver

An experienced civil rights attorney is essential to handling a case against police. If you’ve been the victim of police excessive force in Denver, contact the Civil Rights Litigation Group at (720) 515-6165 today for a free consultation.

Is using a TASER considered excessive force?

Is using a TASER considered excessive force?

TASER is the brand name of a CEW (conducted electrical weapon) frequently used by law enforcement officers. They were adopted by law enforcement as a non-lethal way to stop suspects who might otherwise have been shot with a firearm. Police often use a TASER to stop a suspect who is not an immediate danger to them or to public safety, or to stop someone who may cause harm to themselves. However, using a TASER can be both a good and bad solution as an alternative to firing a weapon. Worldwide, the TASER is used by over 15,000 law enforcement agencies in 40 countries. Although the TASER is considered to be a non-lethal weapon, it is somewhat controversial. Deaths have also been associated with their use.

Using A TASER

What is excessive force?

Excessive force, a violation under the Fourth Amendment, means that a law enforcement officer used physical force beyond what was necessary at the time to stop an immediate threat, or to subdue and/or arrest an individual. The excessive force could have potentially caused serious injury. Laws governing the use of excessive force vary from state to state, and there is no federal definition of excessive force. The court and the jury have to examine all evidence and claims under 42 U.S.C. Section 1983 of the Civil Rights Act of 1871 to decide if a police officer was justified in using excessive force. An excessive force case against the police would be a civil suit, not criminal, and is known as a Section 1983 suit.

Justification for using a TASER

Police have to make a split-second decision on which weapon to draw, and pulling out a TASER is at the officer’s discretion. They’re usually used if the officer needs to stop someone, but deadly force isn’t warranted. If you want to pursue a case against the police, you’ll need an experienced civil rights lawyer who can help explain your options.

Courts consider excessive force cases with a TASER using:

• Severity of the crime that the individual is being arrested for
• If the individual is a threat to the officers or to the general public
• If the individual attempts escape or resists arrest

When is using a TASER considered excessive force?

TASERS are frequently used when an individual is resisting arrest, or the police officers believe there is an immediate and severe threat from the individual. However, someone who did not pose a serious threat when arrested and was found to receive excessive force can also sue the police officer, police department and municipalities for their injuries. If you were subjected to physical force that could have caused your injuries, such as the use of a TASER, contact a civil rights attorney immediately to examine your case.

In the case of Powell v. Haddock, 366 Fed.Appx. 29 (11th Cir. 2010), the police were found to have used excessive force which included using a TASER. The individual complied with the officer’s instructions, was not a threat to the officers or to public safety, backed away from the officer before the first application of the TASER and was on the ground for the second.

In deciding excessive force cases, courts also take into consideration:

• The extent of injuries
• If officers identified themselves as police
• If the officers informed the accused that they would use a TASER if he or she did not comply with instructions

Qualified immunity

Courts tend to uphold the use of a TASER when an individual is actively resisting, or if an individual was posing an immediate threat or safety risk, called qualified immunity. Police officers are given a wide range of protection when it comes to the use of force. Excessive force cases are not always cut and dried—there may be extenuating circumstances which warrant the use of a TASER. However, courts generally don’t sanction officers who use a TASER on someone who is unconscious, already subdued and/or handcuffed and wasn’t resisting.

Excessive force by a police officer is a civil rights violation

Where do you start? Evidence is vital to proving a case of excessive force. Our attorneys specialize in civil rights cases. We’ll review and start your case to defend your rights. If you’ve been the victim of police abuse with a TASER, contact the Civil Rights Litigation Group at (720) 515-6165 in Denver today for a free consultation.

For a free, no-obligation consultation with our Denver law firm, call us today at (720) 515-6165.

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