Category Archives: Legal Theory

Article – Riley’s Implications for Fourth Amendment Protection in the Cloud

The United States Supreme Court held in Riley v. California that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.

It seems like the what is on the physical cell phone is just the root of the search and seizure issue.  Many cell phones are connected to much more information than the physical device can hold.  Extending the capacity to access documents, cloud storage can vastly increase what a cell phone has access to.

Acting as an extension of the physical cell phone, it is not completely clear what the Fourth Amendment search and seizure ramifications are.

Riley’s protection of cloud-based data for cell phone searches, however, does not address the broader question of whether information stored in the cloud is entitled to Fourth Amendment protection in other contexts. Indeed, the Court went out of its way to state that Riley did ‘not implicate the question [of] whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.’ The Court also distinguished the facts of Riley from those in Smith v. Maryland, one of the principal cases to apply the so-called “third-party doctrine.” The third-party doctrine, which provides that information voluntarily revealed to third parties is not protected by the Fourth Amendment, may pose the biggest obstacle to whether cloud-based data receives Fourth Amendment protection, since any data stored in the cloud is necessarily conveyed to third-party servers. Yet by sidestepping the third-party doctrine in Riley, the Court never had to address how the doctrine applies to private data stored across remote servers.

Nevertheless, while failing to explicitly afford Fourth Amendment protection to cloud-based data, Riley still provides the best evidence yet that the Court may be ready to reconsider the third-party doctrine and to recognize Fourth Amendment protection for personal data stored in the cloud.

— Ryan Watzel, Riley’s Implications for Fourth Amendment Protection in the Cloud, 124 Yale L.J. F. 73 (2014), http://www.yalelawjournal.org/forum/rileys-implications-in-the-cloud.

 

Article – The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement

The posse is in effect!

This is a really interesting article I came across that will be published in the near future in a prominent law journal.

I know this article was written through a Colorado lens and would be great material for my Colorado Common Law site, but here in Maricopa County, Arizona we have one of the most notorious sheriff’s — Sheriff Joe Arpaio, “America’s Toughest Sheriff.”

In 2013, Sheriff Joe Arpaio made headlines when he proposed the idea of armed Sheriff posse members to patrol schools to increase school safety.  In an ABC News story from 2013, it states that approximately 500 civilian volunteers are certified to carry a weapon as a part of Maricopa County Sheriff Posse.

Sheriff’s posses doe not receive a whole lot of attention, either in the media or legally.  This is a really interesting look at a volunteer arm of law enforcement.

The Sheriff’s posse comitatus authority to call forth armed citizens to aid law enforcement is deeply rooted in the Anglo-American legal system, originating no later than the ninth century. The posse comitatus power thrives in the twenty-first century United States. Sheriffs today use their posse comitatus power frequently, sometimes daily. This Article describes the historical roots, the modern uses, and the Second Amendment implications of posse comitatus.

The posse comitatus power does not belong exclusively to Sheriffs, but the power was originally created for them, and they remain the most frequent users. Accordingly, Part I of this Article describes the origins and history of the Office of Sheriff. This Part explains how the nature of the Anglo-Saxon office provided the foundation for the American sheriff as a constitutional officer, elected directly by the people, and enjoying great independence in the performance of his duties. Whereas police chiefs are appointed to their place within (and not at the top of) the chain of command of a city government, sheriffs are autonomous.

Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present. The posse comitatus law of the 21st century United States is essentially the same as the posse comitatus law of England during the ninth century. The Sheriff in carrying out his duty to keep the peace in his county may summon to his aid the able-bodied adults of the county; the Sheriff has complete discretion about whom to summon and how the persons summoned shall be armed.

Part III provides a case study of the posse comitatus in modern Colorado. Posses have thwarted the escapes of criminals, including serial killer Ted Bundy. Posses also serve as citizen volunteers on a regular, structured basis; the assist the sheriffs during county fairs, weather emergencies, and hostage situations, and they perform many other duties. The most highly trained posse in Colorado is the Colorado Mounted Rangers, which provides armed assistance to many sheriffs’ offices and police departments on an as-needed basis.

Finally, Part IV considers the relation between the posse comitatus and the Second Amendment. The Second Amendment aims to foster a “well-regulated militia,” and in furtherance of this purpose, the right of all the People to keep and bear arms is safeguarded. The posse comitatus and the militia are not identical, but they overlap and are intertwined to such a degree that the disarmament of the one would inevitably destroy the other. One consequence of the Second Amendment was to ensure that the citizenry will be armed so that there can be an effective posse comitatus.

Accordingly, sheriffs and other officials who have the authority to summon the posse comitatus are intended third-party beneficiaries of the individual right to keep and bear arms. Sheriffs have proper third-party standing to defend and advocate for the Second Amendment rights of citizens in their jurisdictions.

A length Appendix summarizes the posse comitatus and related statutes which presently provide for citizens to be summoned to aid of law enforcement in almost every American state.

— David B. Kpopel, Independence Institute; Denver University – Sturm College of Law, SSRN.

 

 

Unionizing Phoenix’s Strippers

You don’t have to watch the latest Franklin and Bash episode to know that strippers sometimes get a raw deal in society.  I can’t stop to help thinking that maybe if strippers unionized it would help cure some societal ills strippers face in employment, but it could also help the community as well.

What would it be like if the strippers in Phoenix unionized?  Hhhmmmmm.

I have been playing around with this idea for a while, long before I saw the Franklin and Bash try to unionize all the exotic dancers of Los Angeles, Season 4, Episode 6.  Seriously, if all the strippers in the city of Phoenix had a union to ensure they earned at least minimum wage, discrimination is kept in check (pregnancy discrimination comes to mind), and would be protected by the National Labor Relations Board in case they wanted to strike or picket (which would be interesting) —  it could help cure a lot of problems.

*** This article is not based off of any strip club in Phoenix and is just a generalization from what I have read about in the industry.  I do not know how any of the strip clubs in Phoenix are run, I only know the applicable laws governing employment.

Gorgeous Librarians

— Photo Credit: Thomas Hawk, Flickr

Continue reading Unionizing Phoenix’s Strippers

Article – Free Speech and Guilty Minds

The United States Supreme Court is poised to decide whether the true threats exception to speech protection under the First Amendment requires a jury to find the defendant subjectively intended his statements to be understood as threats.  United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013).

True threats what?  Yep.  In First Amendment theory, when an individual makes an objectively true treat, courts will look to the First Amendment to see whether that speech is protected or not by examining the subjective intent.  Since a threat is generally a violation of criminal law, a person may say, “look, I was only joking.  The First Amendment protects my right to make jokes without government punishment.” The person’s intent was to make a joke, not to make a threat.  That is how subjective intent can be the deciding factor whether a threat is protected by the First Amendment or not.

The United States Supreme Court determined in Virginia v. Black, 538 U.S. 343 (2003) “true threats” are not protected by the First Amendment.  “True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359 (internal quotations omitted).

Arizona has had a few of its own true threat cases that have gone before state appellate courts.  In fact, there is a case currently in Maricopa County Superior Court dealing with a similar fact pattern to the Elonis case.  I wrote earlier about a New York man who threatened Nancy Grace and Jane Velez-Mitchell via twitter while they covered the Jodi Arias trial.  I am not sure if the true threats doctrine is being used in this case or not, but it could potentially based upon the media’s fact patterns.

This is a really good article that goes into depth in this hot topic.  It discusses the correlation between free speech and guilty minds.  It is a good read to stay up to date on the latest First Amendment trends and to prepare for the United States Supreme Court upcoming term.

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

Leslie Kendrick, Free Speech and Guilty Minds, 114 Col. L. Rev. 1254.

Article – Public Accommodations Under the Civil Rights Act of 1964

Title II of the Civil Rights Act is turning 50 this year.  Yep, that makes it officially middle-aged.  It is not a young law anymore, nor is an old law.  Middle-aged seems apropos for this law. 

The law is still being argued and debated about its application.  For example, I have argued recently, police departments have an affirmative duty under Title II of the Civil rights Act and the Americans with Disabilities Act to make reasonable accommodations during investigations for those who they know ahead of time suffer from serious mental illnesses.

As with any anniversary, it is a good time to be retrospective.  While I don’t agree with all the conclusions this article makes, I think it is a good timely critical analysis of a perhaps under-recognized piece of legislation in present day society. 

 On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to sup-press the free entry of firms that would otherwise target minority customers in competitive markets.

The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.

The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.

Richard A. Epstein, Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right, 66 Stan. L. Rev. 1241.

What is Excessive Force in Arizona?

Police practices have come under national scrutiny.  What is excessive force by law enforcement agencies and what is not?  While the nation is still coming to terms with the shooting by a police officer in Ferguson, Missouri, this is not an isolated problem. Phoenix and Arizona have faced their own questions about what amounts to excessive force during a mental health call and when ASU Assistant Professor Ersula Ore P.h.d. was videoed being slammed into a police car resulting from questioning about jaywalking.

Judging the use of force is a difficult undertaking, especially from the outside.  It is important judgment to make sure there are not abuses in the process.  Because of the power that police have, cases of alleged excessive force make the news.  But rarely does the discussion involve what excessive force is legally, especially from the police’s standpoint.

Police manuals (also referred to as: directives, policies, orders, etc) can be considered an internal standards of care.  Using them can help determine if police officers act in accordance with the law.  See Miranda v. Arizona, 384 U.S. 436, 448-51 (1966) (where the court expressly used and quoted police manuals to determine the standard practice for custodial interrogations at that time).

This blog post intends to examine what the guidelines are for Arizona law enforcement agencies use of force.  Through examining the Arizona Revised Statutes and police department procedures and manuals for the three largest cities in Arizona (Phoenix, Mesa and Tucson), I hope to piece together a general standard for when police are allowed to use force.

Continue reading What is Excessive Force in Arizona?

Phoenix Police Kill During Mental-Health Call

Last week the Phoenix Police Department shot and killed a woman while trying to serve a mental health order.  Caseworkers “were trying to get her to come in for treatment. It got to the point that she wouldn’t do that. … She had a weapon and was making threats.”  Reported the AZ Republic.

Last spring I gave a talk to several Arizona charities and non-profits about what the Americans with Disabilities Act requires as “reasonable accommodations” when law enforcement agencies enter into situations with people who they knew have a mental illness.  The ADA was passed by Congress only in 1990 and only a handful of cases involving the ADA and the police have made it to federal court of appeals, let alone cases specifically dealing with mental illness.  This is an emerging area of the law and there is not much written about it.

The Police’s Duty to Accommodate Under the Americans With Disabilities Act.

Police Have Affirmative Duty to Accommodate Disabilities.

This incident with the Phoenix Police Department fits that situation precisely.  The Phoenix Police Department is a law enforcement agency and is governed by Title II of the Americans with Disabilities Act, dealing with public entities.  Title 42 U.S.C. § 12131, et. seq.  A person with a serious mental illness with a serious mental illness qualifies for the protections of the Americans with Disabilities Act.  Title 42 U.S.C. § 12132 (1).  Lastly, since the police are aware of the disability, they should make reasonable accommodations.

“Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.”  Tennessee v. Lane, 541 U.S. 509, 533 (2004) (internal quotation marks omitted).

Even the United States Supreme Court acknowledged individuals with mental illness are persons with disabilities who have suffered unconstitutional behavior in the past, and need the prophylactic protections of the ADA.

[T]he mentally retarded have been subject to a ‘lengthy and tragic history,’ of segregation and discrimination that can only be called grotesque.

— City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985) (Marshall, J., concurring in part and dissenting in part) (quoting University of California Regents v. Bakke, 438 U.S. 265, 303 (1978)).

Continue reading Phoenix Police Kill During Mental-Health Call

The Future of Disparate Impact

Disparate impact has seen its fair share of controversy in the past year and a last minute deal probably saved the theory it in late 2013.

The Equal Employment Opportunity Commission (EEOC) received lots of attention and a fair amount of criticism when they filed legal complaints against BMW and Dollar General alleging discriminatory practices based upon disparate impacts.  BMW had a hiring process that screened out applicants with a criminal conviction.  Dollar general had a similar policy.  The EEOC alleged even though the policies were not targeting any class of people, African Americans are negatively impacted because of their disproportionate arrest and conviction rate.  The pundits filled both the television and the opinion pages of newspapers arguing for and against the legal strategy.

To magnify the discussion surrounding disparate impact the United States Supreme Court accepted certioari for the 2013 term, Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., No. 11-1507 (2012), but a private deal was brokered weeks before oral arguments and the case never made it to the justices.  The issue that would have been argued is whether disparate impact claims are applicable under Section 804(a) of the Fair Housing Act (“FHA”). That section makes it unlawful “to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”  The reason why many people think the court decided to hear the case is at least revise how disparate impact is used in the housing context.  Eleven federal courts of appeals during thirty-eight years have upheld the disparate impact standard in the context of the Fair Housing Act.  Brief for the Respondent, No. 11-1507 at 27-28 (2012).

Disparate impact is used as a tool for determining if there is discrimination.  It is used in cases where there is a facially neutral policy (the policy is applicable to everyone), but the impact negatively affects a class of people.  Even if a neutral practice does have such a disparate impact, a business will not violate Title VII if it can prove that the neutral practice is job related and consistent with business necessity. For a much more in-depth explanation of disparate impact, see my post about the theories of discrimination.

Academics have also chimed on disparate impact as well.  Many of the articles in the current Harvard Civil Rights – Civil Liberties Law Review are centered on disparate impact:

The Agency Roots of Disparate Impact

Assessing HUD’s Disparate Impact Rule: A Practitioner’s Perspective

Banning the Box but Keeping the Discrimination?: Disparate Impact and Employer’s Overreliance on Criminal Background Checks

As for my own personal opinion, I think disparate impact will be used in determining discrimination complaints for the foreseeable future.  Overt discrimination appears less and less.  So being able to produce a document or policy that discriminates against a class of people is more of a relic of the past.  I do not believe discrimination is dead — in fact, far from it.  On the other hand, I also believed that disparate impact is not a perfect tool for evaluating discrimination.  But I think it is a very valuable tool in the arsenal to combat discrimination.

 

 

Implementation of Search Engine Link Deletion

It looks like the European Union is going to be the test case for search engine link deletion in the name of individual privacy.  Some are saying this is the end of the internet as we know it because unfettered search results of the past are now going to be censored.  Others are saying this is the start of a new era for individual privacy.  My guess is that it will be somewhere in between the two ends of the spectrum.

Google already unveiled the new form earlier this week where users can request to delete a link that is: irrelevant, outdated, or otherwise inappropriate.  Procedurally, it appears a resident of a European country can visit the site https://support.google.com/legal/contact/lr_eudpa?product=websearch. The user then fills out the form and Google will sometime in the future make its determination.  ]It is unclear how which links will be selected for removal and which links will remain in the database.  Since this is uncharted territory for any search engine, the results will be interesting.

Google Link Deletion Form
Google Link Deletion Form

Courts are given power to adjudicate the law in its given jurisdiction — a geographical boundary.  However, the internet is not very good at setting boundaries.  Some countries try to filter the internet within their borders to varying degrees of success.  Licenses also restrict content providers from where they may provide their goods, through geo-blocking.  It is unclear at best how Google will only limit residents of the European Union to its link removal service.  The internet knows no speech boundaries.  It is quite possible that after some time Google may allow all searchers to file for link removal.

Since it looks like link deletion is here to stay, the impact on speech, if any, needs to be sorted out.

Previously,  I analyzed the speech issues associated with the European court’s decision.  I argued search engines employ two different types of speech that should be afforded different levels of protection.  First, the removal and curation of the index seems to be pure speech.  This is where the most human interaction is involved.  Second, the ranking of sites seems to be less pure since humans only give the instructions.  There are so many websites out there that it is impossible for humans only to build a code that will execute it’s speech.

Proper evaluation of the protection courts will provide for search engine speech is important because technology evolves.  A letter from Sergy Brin and Larry Page to the shareholders in 2013 gives a glimpse of how search may evolve in the coming years.

While it is still early days, we’ve also made significant progress understanding people’s context, which is crucial if we are to improve human-computer interaction. Think about your commute.  You need the traffic information very accessible so you can plan for it, or avoid it altogether.  If you’re going to another appointment, you want the directions to start from where you are at that moment (rather than having to type in your location on a small screen).  Improved context will also help make search more natural, and not a series of keywords you artificially type into a computer.  We’re getting closer: ask how tall the Eiffel Tower is, and then when ‘it’ was built.  By understanding what ‘it’ means in different contexts, we can make search conversational.

— Larry Page, 2013 Founder’s Letter, available at https://investor.google.com/corporate/2013/founders-letter.html (last visited June 06, 2014).

It is difficult to assign constitutional protections to technologies because by the times courts come to a consensus the technology is outdated.  See United States v. Jones, 132 S. Ct. 845 (2012) (holding a car mounted GPS to monitor the vehicle’s movements constitutes a search under the Fourth Amendment).  As search engines continue to evolve over time, it is important the judicial rules are able to adapt to the changing technology.

 

Legal Documents of the LA Clippers Forced Sale

The forced sale of the Los Angeles Clippers may be moot, but the legal issues surrounding the forced sale are interesting.

Donald Sterling made offensive racial comments during what appears to be a private conversation that was taped and then leaked to news outlets.  The league claimed in it’s summary of dismissal, Sterling “disparaged African-Americans and ‘minorities’; denigrated the contribution of NBA players; directed a female acquaintance not to associate publicly with African-Americans; admonished that acquaintance for posting pictures of herself with African-Americans on social media; directed that acquaintance not to bring African-Americans to Clippers games; and criticized African-Americans for not supporting their communities.”  A public uproar ensued.  NBA Commissioner Adam Silver then fined Sterling $2.5 million dollars and placed an indefinite ban on him doing anything relating to the Clippers.  It appears Donald Sterling gave power to his wife to sell the team.

This really does not deal with an issue in Arizona, but the Phoenix Suns are part of the NBA and I found the topic interesting.

The National Basketball Association is kind of an oligarchy.  There is not much competition and very few owners.  Outside of college basketball, where the players are not paid, the only real alternatives are the WNBA and the D-League both of which have strong affiliations with the NBA — it is not fair to call them competitors.  With thirty majority owners (one for each team), it is a pretty exclusive club.  The owners collective hire the Commissioner who enforces the rules.  Furthermore, each team has a stake in creating the rules via the NBA Board of Governors (explained in the NBA Constitution).

How does it operate?  Outside of lockouts and rule changes, it does not seem like there is a lot of information on its operations.  Since it is unlikely that I will ever have the privilege of owning a sports team, it interests me to see how things run from the inside.

The NBA is guided by it’s own Constitution and By-Laws, which were apparently made public after the taped Donald Sterling comments.  It is nice to be able to see the rules the NBA owners have chosen to live by.

Termination of Ownership

The NBA Constitution directly deals with the termination of ownership in Article 13.  Like reported in the media, Article 13 says the interest of an owner may terminated by a 3/4ths vote for one of the enumerated activities.

  • ” Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association.”
  • Transfer or attempt to transfer an ownership interest in violation of Article 5.
  • Fail to pay dues or other debts.
  • “Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.”
  • Betting on games.
  • Allowing others to bet on games.
  • Fixing the score of a game — to allow others to bet on a game.
  • Disband the team during the season.
  • Intentionally fail to keep team from playing a game.
  • Intentionally lie on membership application.

— NBA Const. art. 13.

There is not a moral clause anywhere in there — after all, he is being charged with being immoral.   Offensive comments are not grounds for termination of ownership, nor are they illegal.  There really isn’t anything in the express language of the Constitution that Donald Sterling violated.

It is apparent the Commissioner exercised another section of the Constitution when it banned Donald Sterling.

The Commissioner shall have the power to suspend a Player, Coach, Member, Owner, or other person subject to the Commissioner’s jurisdiction for a definite or indefinite period and to impose such fines and other penalties as are authorized by Article 35, 35A…

— NBA Const. art. 24, sec. (h)(i).

Furthermore, Article 24, section (l) gives the Commissioner the power to impose fines.  The qualification to levy a fine is that there must not be a “fixed penalty” for the violation.  This section was most likely utilized in order to impose the fine upon Sterling.

NBA’s Arguments For Termination

The NBA in it’s Summary of Termination (see link below) argues that Sterling violated Article 13, sections (a), (c) and (d).

The league claims Sterling “willfully violated” 13(a) “when LAC destroyed evidence, provided false and misleading evidence, and issued a false and misleading public statement, as described above.”  Granted this is only the league’s summary, but the document does not state what was violated.  Section (a) is pretty clear the Constitution, By-Laws, or some other agreement needs to be violated.  Unfortunately, the Summary does not state a specific agreement that is violated.  Perhaps a potential violation could be found in Article 35A(c) of the league Constitution, “[a]ny person who gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member or its Team, shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner.”  This is just a guess on what the NBA could argue for breach.

The second claim is 13(c) gives the league cause when an owner fails to pay debts to the league.  The league considers the $2.5 million dollar fine a debt to the league.  Since Sterling refuses to pay the fine, the league says that is grounds for terminating his ownership.  This seems like a fairly reasonable interpretation of the league’s constitutional language.

Lastly, and the point the league spends the most time on, is a violation of 13(d).  There seems to be a lot of overlap with this alleged violation and the one alleged in 13(a).  The league claims that 13(d) could be violated by, “[T]he taking or supporting of a position or action which may have a material adverse impact on the league or its teams.”  Again, just looking at the Constitution probably the closest clause for a violation would be Article 35A(c).

An option not mentioned in the Summary is the NBA may have used Article 17(a) without an express breach.  This allows the Constitution and By-Laws to be changed by a 3/4s vote.  If the owners employed enough solidarity, they could write-in any act or behavior to prohibit, and could have easily have created some sort of morality clause after the fact.  It is not clear if the owners utilized this provision or not, but it is a likely option.  This option was tossed around in the media, but it did not receive a lot of support because of the precedent it would set.  Theoretically the argument goes, since Sterling’s comments arose out of a private, taped conversation, then it open the doors for the owners to amend the NBA Constitution to prohibit any private behaviors they find objectionable in the future.  From the facts I have gathered, it is unclear if this option ultimately was used, however some gave it a lot of weight.

Sterling’s Response to NBA (out of court)

The response by Sterling is interesting because his arguments are a hybrid of criminal law and the NBA Constitution.

First, Sterling argues that the taped call is inadmissible.  It is against California law for taped calls to be permissible into court.  While Sterling acknowledges the NBA Board of governors does not follow strict rules of evidence (either under California or federal law), but he cites the NBA does have some standards for what evidence it will look at.

Then he turns his attention to alleged violation of the NBA’s Constitution.

A jealous rant to a lover never intended to be published cannot offend the NBA rules.

— Donald Sterling’s Answer To Charge, In the Matter of the Termination of the National Basketball Association Membership of LAC Basketball Club, Inc., 3 (May 27, 2014).

He argues that Article 13(a) is a stretch.  Since the clause has the word “willful” it means that Sterling had to intend the results of his comments.  Since his comments were made in private, it would be very difficult for the NBA to argue Sterling comments were made with the intention of causing the NBA harm.  If Sterling only made the offensive comments in private, it would be one thing.  However, Sterling has a history of offensive racially charged conduct, and the public interviews he made in his defense in the aftermath only seemed to reinforce what he said in private.

Similar logic is used to defend against the charge of violating 13(d).  He argues that since his conversation was in private he did not take a position that was meant to harm the NBA or its affiliates.  As indicated above, the topic of the conversation was not about the course of the NBA’s business, but it was an argument about Sterling’s apparent girlfriend hanging out with other men.

Conclusion

On Friday, Sterling filed suit against the NBA on May 29 for violation of constitutional rights, breach of contract, antitrust violations and more.  The suit is seeking $1 billion in damages.  Since the league makes it’s own policies, Sterling’s best chance for keeping his team may be fighting in federal court.

Sources:

NBA Constitution and By-Laws

NBA Summary of Sterling Termination Charge

Donald Sterling’s Response to NBA Charge