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Legal news from Wednesday, March 16, 2011




Pakistan court acquits US government worker of murder charges
Daniel Makosky on March 16, 2011 3:21 PM ET

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[JURIST] A Pakistani court on Wednesday acquitted and released US consulate worker Raymond Davis, who was being held in connection with the shooting deaths of two men. Earlier in the day, the court formally indicted [Times of India report] Davis on two counts of murder after the Lahore High Court [official website] ruled Monday that, despite US assertions [JURIST report], he does not qualify for diplomatic immunity [Times of India report]. The charges were subsequently dismissed [AFP report] once a USD $2.35 million "blood money" settlement was reportedly reached with the victims' families, an arrangement that prompted some Pakistanis to suspect coercive influence by US officials. Davis maintains that he acted in self-defense after being confronted by two armed men on motorcycles, who were believed to have robbed a Pakistani citizen at gunpoint minutes earlier.

The dispute over Davis has strained what are already shaky diplomatic relations between the US and Pakistan. Those relations have been plagued by a variety of factors, including deaths related to airstrikes within Pakistan [WP report]. Pakistan filed a complaint with NATO [JURIST report] in October as a result of those airstrikes. Despite the fractured relationship, Pakistan remains one of the key US allies in the Middle East. In September of last year, Pakistani authorities arrested three individuals [JURIST report] linked with Faisal Shahzad [JURIST news archive], the man accused of attempting to detonate a bomb in Times Square.




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Utah governor signs package of immigration reform bills
Dan Taglioli on March 16, 2011 12:16 PM ET

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[JURIST] Utah Governor Gary Herbert [official website] on Tuesday signed into law [press release] a package of bills aimed at both reforming the state's immigration laws and challenging the federal government to take action for reform nationally. One of the four bills, H.B. 497 [materials], is an enforcement law similar to the controversial Arizona immigration law [SB 1070 materials; JURIST news archive], and requires police to check the immigration status of anyone arrested for an alleged felony or serious misdemeanor. The other bills are non-enforcement measures: H.B. 116 [materials] creates a guest worker program for illegal immigrants, allowing undocumented workers to live and work legally in the state, and the other two bills, H.B. 466 and H.B. 469 [materials], create programs that allow companies to recruit Mexican workers, and American citizens to sponsor foreign residents who want to work or study in the US. The guest worker pilot program requires a federal waiver and will not go into effect until 2013, a strategy aimed at forcing the federal government to engage the issue at a national level. Governor Herbert praised the bills and lauded state officials for their efforts:
There are those who will say these bills may not be perfect, but they are a step in the right direction and they are better than what we had. Thanks to the vision and determination of these local leaders, what we have begun today is a framework for a national conversation about immigration and a means to engage the federal government. Once again, Utah leads the nation in finding solutions and making tough choices.
Governor Herbert also referred to the summit he convened last summer that laid the foundation for the legislation, calling the process "open, transparent, and civil." As he signed the immigration bills into law the governor offered an explicit challenge to the federal government to engage in meaningful dialogue on the issue and bring about national reform.

Utah is one of several states that have developed legislation in the past year reflecting the controversial Arizona immigration law. The US Department of Justice [official website] in July filed suit [JURIST report] against Arizona Governor Jan Brewer [official website] seeking to permanently enjoin the state's immigration law. The complaint states that the law is preempted by federal law and therefore violates the Supremacy Clause [text] of the US Constitution. The Arizona law criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally. It has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling. Additionally, in October a federal judge denied [JURIST report] motions to dismiss a class action lawsuit [JURIST report] challenging the law's constitutionality, and in February Governor Brewer announced [JURIST report] a counterclaim [summary, PDF] against the US government in its lawsuit challenging the law. A three-judge panel for the Ninth Circuit heard oral arguments [JURIST report] on the case in November, but have not yet reached a decision on the matter.




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Rights group urges Slovenia to protect Roma migrant communities
Sarah Posner on March 16, 2011 12:15 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Wednesday released a report [report, PDF; press release] documenting discrimination and human rights violations against Roma migrants [JURIST news archive] in Slovenia and urging the Slovenian government to protect Roma communities. The report reveals that Roma communities are being denied access to housing, water and sanitation. Much of the Roma population is living in overcrowded shacks without access to adequate health care services, schools, shops and employment. According to the report, the Slovenian government is not taking action to prevent discrimination against the Roma or ensure remedies for victims. AI alleges that Slovenia is violating its obligations under the International Convention on the Elimination of Racial Discrimination (ICERD), the International Convention on Economic, Social and Cultural Rights (ICESCR) and the Revised European Social Charter [texts]. AI contends that the Slovenian government has failed to provide basic human rights to the Roma, stating:
Under international human rights law, Slovenia is obliged to address discrimination, to end segregation, to ensure at least a minimum security of tenure to all persons who lack it, to provide adequate housing for all persons without discrimination, to prioritise the most disadvantaged groups in housing policies and programmes, and to guarantee access to at least the minimum essential levels of water and sanitation for all persons. Slovenia has failed to comply with these obligations and confer security of tenure to people living in informal settlements and to provide access to water and sanitation to all persons, including those living in informal settlements.
AI urges Slovenian authorities to address discrimination against Roma from private and public actors, implement programs to monitor discrimination, provide remedies for the victims and ensure that all Roma settlements have access to basic resources.

The Roma population has faced discrimination [JURIST comment] in various European countries. In November, a complaint [text, PDF] filed with the Committee of Ministers of the Council of Europe [official website] by the Open Society Justice Initiative, the European Roma Rights Centre and the Greek Helsinki Monitor [advocacy websites] alleged that the Czech Republic continued to discriminate [JURIST report] against Roma school children. The groups alleged that the Czech government failed to implement a November 2007 European Court of Human Rights (ECHR) [official website] decision [text; JURIST report], which determined that the Czech Republic indirectly discriminated against Roma children. In October, the League of Human Rights (LDH) [advocacy website, in French] accused French authorities of improperly collecting DNA samples [JURIST report] from Roma migrants. French police may collect samples of genetic material from indicted individuals, though the organization contended that police have subjected the Roma to such procedures without being either arrested or charged. In September, AI urged EU members to stop forcibly deporting Roma migrants to Kosovo [JURIST report]. AI believed that Roma, as well as other ethnic minority groups, could face persecution or violence upon their return.




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DOJ sues California prison system for ordering Sikh inmate to trim beard
Alexandra Malatesta on March 16, 2011 12:03 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday sued [press release] the California Department of Corrections and Rehabilitation (CDCR) [official website] for unfairly disciplining Sikh inmate Sukhjinder Basra for refusing to trim his beard. The suit also names the state of California and Governor Jerry Brown [official profile] in alleging a violation of the federal Religious Land Use and Institutionalized Persons Act (RLIUPA) [42 USC § 2000cc-1 text]. Basra, who is serving time for a drug offense, violated the prison's grooming policy [text, PDF] by maintaining a beard longer than one-half inch to abide by his Sikh beliefs [Sikh Coalition backgrounder]. The prison's disciplinary measures [AP report] for the violation included performing extra prison duties, being confined to his bunk for 10 days and losing 30 days of credit for good behavior. The American Civil Liberties Union of Southern California (ACLU) [advocacy website] filed suit [complaint, PDF] on behalf of Basra in February, alleging the state's prisons' regulations deprive Sikh inmates from practicing their First Amendment [text] rights. The ACLU's complaint also claims that when Basra filed for an exemption to the prison's grooming policy, the CDCR rejected his request, denying any charge of discrimination and saying:
For clarification, you are not being discriminated against, as you allude to in your letter. ... You are being treated the same as the other inmates in [California Men's Colony]. You may have a beard, but you must keep it trimmed to no more than one-half inch in length. There is no provision in the [California Code of Regulations], Title 15 for the Warden to exempt the grooming standards.
The DOJ's suit is part of an investigation into California's grooming policies that allegedly over-burden members of the Sikh faith who are required to wear kesh, or unshorn hair.

Members of the Sikh religion have also contested state prohibitions of ceremonial religious dress [JURIST news archives], including headscarves, turbans and daggers. In February 2010, a UK judge criticized Britain's ban on Sikhs wearing their ceremonial dagger [JURIST report] in public places. In 2007, the US Transportation Security Administration (TSA) revised security procedures relating to headwear, after Sikhs criticized [JURIST reports] the potential for religious profiling. In 2006, the Supreme Court of Canada overturned [JURIST report] a Quebec school board's ban on carrying Sikh ceremonial daggers at school, ruling that it infringed students' religious freedom under the Canadian Charter of Rights and Freedoms. In 2006, the French Conseil d'Etat held [JURIST report] that Sikhs have to remove their turbans to be photographed for driver's licenses as a matter of public security.




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Fifth Circuit gives government more time to decide on offshore drilling permits
Matt Glenn on March 16, 2011 9:42 AM ET

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[JURIST] A panel of judges for the US Court of Appeals for the Fifth Circuit [official website] stayed a ruling [order, PDF] Tuesday that would have forced the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) [official website] to approve or deny five applications for offshore drilling permits by March 19. The stay bars enforcement, pending appeal, of a February 17 injunction [order, PDF] by a judge from the US District Court for the Eastern District of Louisiana [official website] giving BOEMRE 30 days to approve or deny applications filed by British drilling company Ensco, Plc [corporate website]. Judge Martin Feldman ruled in February that BOEMRE's delay of over four months in reviewing the permits was unreasonable. The Fifth Circuit's order granted the government's request for a stay without explanation.

In late February, the BOEMRE approved an offshore drilling permit [press release] for the first time since the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. Earlier that month, Feldman found the US Department of Interior (DOI) [official website] in contempt for a drilling moratorium issued last July after Feldman enjoined enforcement of an earlier moratorium [JURIST reports]. Feldman's February 17 order reversed a January decision by Feldman refusing Ensco's request to put a deadline [JURIST reports] on when the BOEMRE must make its decision.




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Federal appeals court allows woman to sue over forced removal of headscarf
Julia Zebley on March 16, 2011 8:11 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] reinstated [opinion, PDF] a lawsuit on Tuesday, allowing a Muslim woman to sue several government parties for forcing her to remove her religious headscarf [JURIST news archive] while detained in a holding cell. Souhair Khatib argued that being forced to remove her hijab was a violation of her religious rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) [text], which prohibits governments from imposing regulations upon inmates that engender religious discrimination. The US District Court for the Central District of California [official website] initially ruled [opinion, PDF] that a holding cell is not a "prison, jail or pretrial detention facility" for protection under the law. The US Court of Appeals for the Ninth Circuit upheld the ruling [JURIST report] in a 2-1 decision, but Chief Judge Alex Kozinski filed a brief order [text, PDF] stating he would take the matter to the full panel. The reinstatement opinion declared that this "improperly merge[d] two distinct inquiries: whether the facility is an 'institution,' and the government's burden as to accommodation."
The County's argument reduces to the claim that because the application of RLUIPA to the courthouse holding facility is impractical and inconvenient the facility must not fall within the Act's definition of "institution." But this approach conflates RLUIPA's coverage and accommodation prongs. Congress certainly had real-world consequences in mind when it enacted RLUIPA, and the text of the statute indicates that it did not intend to minimize the serious security and other management interests of institutions. It chose, however, to deal with accommodation issues as a second step in the analysis, not by categorically excluding facilities like the Santa Ana Courthouse holding facility from RLUIPA.
The court's decision was unanimous. However, they stated the opinion should not be read broadly, noting there are unique conditions to all detention facilities and courthouses, and this nature of violation should be decided case-by-case. Christina Abraham [personal website], Civil Rights Director, Council on American-Islamic Relations (CAIR) - Illinois [advocacy website], wrote on the case in Ninth Circuit's Khatib decision undermines free exercise of religion [JURIST op-ed].

The American Civil Liberties Union of Georgia (ACLUGA) [advocacy website] filed a lawsuit in December on behalf of a Muslim woman who was arrested for refusing to remove her hijab in court, and ordered to serve 10 days in jail for contempt[JURIST reports] in 2008. In May 2010, a judge in the US District Court for the Eastern District of Michigan [official website] dismissed [JURIST report] a lawsuit against a Michigan judge who ordered a Muslim woman to remove her headscarf in court. The suit [complaint, PDF] was filed in August by CAIR [advocacy website] on behalf of Raneen Albaghdady against Judge William Callahan of the Wayne County Circuit Court. Callahan has a policy against hats in his courtroom, and when he asked Albaghdady to remove her headscarf, or hijab, she did so without objection.




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