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Fifth Amendment

Defense Secretary Puts President Trump’s Transgender Ban on Hold

In the wake of President Donald Trump's proclamation that openly transgender individuals be discharged from the military, in addition to the lawsuits, there has been some pushback from an unexpected source: the Secretary of Defense, General James Mattis. After sources reported that the general was appalled by the president's proclamation, soon after, he came out with a plan that effectively puts the ban on hold. While socially, and politically, transgender rights are a polarizing and controversial issue, it may not be possible to read anything more than prudence into Mattis's actions. Making a sweeping change like this to the military requires careful planning and assessment. What's Mattis's Hold Up? The general, reportedly, has instituted the hold on implementing the newest ban in order to study the effects and strategically plan how to actually do it (and potentially even whether to do it at all). Although the president, in a series of Tweets, claimed to have met with his generals prior to implementing the ban, no general has corroborated this claim. As such, not only was the general caught off guard, but the new policy's effects had not been studied prior to the implementation. While it may be too soon for those on either side of this issue to celebrate, LGBT advocates are pleased that there is at least some relief from the abruptly announced policy that would have uprooted many people's lives. Constitutional Challenges and Civil Rights Laws The lawsuit by the ACLU that challenges the transgender military ban argues that there is no military basis for the ban. According to the ACLU's complaint, "The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly."The Trump administration also faces a lawsuit from Lambda Legal that challenges the constitutionality of the transgender ban. Lambda Legal's lawsuit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification."Although the new administration has taken a position that transgender individuals should not be protected under civil rights laws, there has been a steady trend in the law to protect transgender individuals. The number of states, and even federal courts, that have recognized transgender individuals as belonging to a protected class, and thus protected by civil rights laws, keeps growing. Related Resources: Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life) The Rise of Anti-Anti-Discrimination Laws (FindLaw's Law and Daily Life) California's Gender Neutral Bathroom Bill (FindLaw's Law and Daily Life) Here's the Latest on Trump Immigration Reform Efforts (FindLaw's Law and Daily Life)
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ACLU, Lambda Legal Sue Trump Over Transgender Military Ban

Over the course of three tweets last month, President Donald Trump expressed his intent to ban transgender people from serving in the military. The White House made that intent official on Friday, issuing a Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security "prohibit[ing] openly transgender individuals from accession into the United States military and authoriz[ing] the discharge of such individuals. And it didn't take long for the lawsuits to follow. Both the ACLU and Lambda Legal have sued Donald Trump and his Secretary of Defense James Mattis, claiming the ban is unconstitutional and "compromises the safety and security of our country." Animus Trump's memo reverses Obama-era guidance allowing transgender individuals to openly serve in the military and allowing defense funds to cover sex-reassignment surgery. The ban would remain in place "until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above." In the memo, Trumps says, "The Secretary of Defense ... may advise me at any time, in writing, that a change to this policy is warranted," but that recommendation for change must be something that "I find convincing." The ACLU claims there is no military basis for the ban: The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly. News reports indicate that the Secretary of Defense and other military officials were surprised by President Trump's announcement and that his actual motivations were purely political, reflecting a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender, with a goal of gaining votes for a spending bill that included money to build a border wall with Mexico. Amicus The claims may bear some truth. Mattis was reportedly caught off guard by Trump's tweets, and sources say he was "appalled." Lambda Legal's suit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification." This is not the first time Trump has been sued over an executive order or memo -- there are now at least three lawsuits regarding the transgender military ban alone -- and will likely not be the last. Related Resources: Find Civil Rights Lawyers Near You (FindLaw's Lawyer Directory) Military Transgender Ban to Begin Within 6 Months, Memo Says (The New York Times) Transgender Service Members Sue Trump Over Military Ban Tweets (FindLaw's Courtside) Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life)
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Can the Feds Force You to Unlock Your Phone With Your Fingerprint?

You might've thought enabling Touch ID on your iPhone made it more secure. After all, it's harder to fake your fingerprint than to guess a passcode. But when it comes to the law enforcement searches, your smartphone might've gotten a lot more vulnerable. According to Forbes, federal law enforcement officers recently served a warrant on a California home which gave them "authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant."Essentially, cops could force everyone in the residence to open their phones. Is this really legal? Fourth Amendment Concerns The Fourth Amendment protects people "against unreasonable searches and seizures," and generally requires law enforcement officers to get a warrant before searching someone's home or personal effects. In order for the Fourth Amendment to apply, a person must show that he or she has a "reasonable expectation of privacy" in the place being searched or thing being seized. But courts have consistently found that a person has no expectation of privacy in physical characteristics like fingerprints, and that a police may therefore require that a person give fingerprint samples. So requesting a fingerprint to open a phone likely doesn't violate the Fourth Amendment's reasonableness requirement. In terms of search warrants, they must be based on probable cause, and "particularly [describe] the place to be searched, and the persons or things to be seized." This has generally been interpreted to mean the warrant must be narrow in scope, but, as Electronic Frontier Foundation staff Andrew Crocker told the Washington Post, a warrant that "extended to include any phone that happens to be on the property, and all of the private data that that entails" could stretch those limits. Fifth Amendment Concerns The Fifth Amendment, on the other hand, protects people against self-incrimination and could apply to warrants for biometrics in certain circumstances. In general, courts have not found fingerprints, by themselves, to be self-incrimination because they aren't "testimonial" in the sense that they don't amount to a statement about something. But does that necessarily mean that officers can force you to use your fingerprint to unlock your phone? Law professor and blogger Orin Kerr looked at three such scenarios and opined that, as long as the officers already know that the phone is yours, the answer is probably yes. At that point your fingerprint would not be telling officers anything they didn't already know, or, as Kerr put it, "No testimonial statement from the person is implied by the act of placing his finger on the reader." But when -- as in the case above that involves a search of a residence with multiple phones and multiple people -- cops don't know which device belongs to whom, being forced to unlock a phone could be testimonial: It amounts to testimony that says, "yes, this is my phone," or at least, "yes, this phone was set to recognize a part of my body as a means of access." It further says: "I am familiar enough with this phone to know that the fingerprint reader was enabled and which part of me was used by me to program the fingerprint reader." According to Forbes, the warrant in this case is "unprecedented," but we may see similar warrants as more people use their fingerprints to secure their smartphones. If you've been subject to a similar search, you should contact a criminal defense attorney as soon as possible. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Do You Have to Let Cops Search Your Cell Phone? (FindLaw Blotter) Cell-Phone Fingerprint Ruling: 5 Things You Should Know (FindLaw Blotter) Geo-Tracking: Should Phone Location Info Require a Warrant? (FindLaw Blotter)
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