Boston Lawyer Blog

Supreme Judicial Court Holds That the Parental-Child Privilege Does not Preclude Parents from Testifying as Defense Witnesses in Criminal Cases Brought Against Their Minor Children

Published on: July 22, 2021 | by David Russcol

As part of the criminal justice reform bill in 2018, the Massachusetts legislature passed a statute creating a limited parent-child privilege so that minor children who may be in legal trouble can seek advice from their parents without having to worry that their parents could be witnesses against them in a criminal case. Similar protections exist for spouses, who cannot be compelled to testify against one another. Although the statute does not protect adult children who speak with their parents, it fills an important gap for juveniles, particularly since they have a right to speak with an “interested adult” before being interrogated by police. CONTINUE READING ›

SCOTUS Holds Police Cannot Search Homes and Seize Firearms Under the Community Caretaking Exception to the Fourth Amendment

Published on: July 7, 2021 | by Katherine E. Dullea

A recent Supreme Court case has reaffirmed the rights of individuals against unreasonable government searches and seizures after the First Circuit attempted to expand an exception to the Fourth Amendment. Last year, in Caniglia v. Strom, the First Circuit Court of Appeals (which includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) identified a new exception to the Fourth Amendment protection against unreasonable searches and seizures in the home. In the case, police searched a house and seized the owner’s firearms without a warrant and claimed they were allowed to do so because their intent was to protect against “[t]hreats to individual and community safety.” The First Circuit agreed, finding that the search fell under the “community caretaking exception” to the Fourth Amendment’s warrant requirement. In May, the Supreme Court unanimously rejected the First Circuit’s attempt to expand the “community caretaking exception” in a victory for civil liberties and the rights of individuals against unreasonable government intrusions.

Public School Teachers and Social Media: the Protections and Limitations of the Right to Free Speech

Published on: June 22, 2021 | by Caroline Davis

The convergence of widespread social media use, and recent national social movements and events—including the MeToo movement, Black Lives Matter movement, and the COVID-19 pandemic—has led to a growing number of public school teachers and other government employees being disciplined for statements they make on their private social media. Here in Massachusetts, a teacher was fired after posting a diatribe against people living in poverty and the conversation about privilege. In Ohio, a teacher was fired after making a social media post criticizing police brutality against students. There has been significant attention paid to public university professors across the country, with institutions taking differing views of whether they can terminate professors for their online speech. In Texas, Collin College fired three professors for making political comments on social media and criticizing their institutions’ handlings of the COVID-19 pandemic. In Indiana, the University of Indiana said it could not fire a professor who wrote posts denigrating women and LGBTQ people. We have been hearing from more public school teachers around Massachusetts who are being investigated and sometimes disciplined for their private social media posts about political and social issues. CONTINUE READING ›

Text is not Talking: Supreme Judicial Court Holds that Individuals have no Reasonable Expectation of Privacy in Sent Text Messages

Published on: June 3, 2021 | by Ana Muñoz

Text messages have replaced the old-fashioned phone call: Since 2014, Americans under 50 reported preferring text messages to talking on the phone. American adults under 45 send and receive an average of 85 texts per day. Many people, then, treat texts like talking. But even though the government might need a warrant to intercept your phone call, as of this week, in Massachusetts, the government can read and use your texts that they obtain from someone else’s phone.

Massachusetts Should Join Other States in Banning Discrimination Based on Natural Hairstyles

Published on: May 20, 2021 | by Naomi Shatz

This is Part 2 in a series. You can read Part 1 here.

I previously detailed how existing anti-discrimination law is insufficient to protect employees and students who wear their hair in natural or protective styles from discrimination. A national campaign called the CROWN Act, has built an impressive coalition of organizations in support of legislation to remedy this problem. In the last two years, eleven states and a handful of cities and counties have passed this type of legislation. Massachusetts Representative Ayanna Pressley introduced a federal CROWN Act in Congress in December of 2019. CONTINUE READING ›

Recent News Shines Spotlight on the Lack of Legal Protection Against Discrimination Based on Natural Hairstyles

Published on: May 20, 2021 | by Naomi Shatz

This is Part 1 in a series. You can read Part 2 here.

Last week Jon Oliver took a deep dive into Black hair, and the barriers people with natural and protective hairstyles face in the workplace, in schools, and elsewhere. His segment highlighted stories of a woman who was not hired because she wore her hair in locs, twins here in Massachusetts who received detention and were banned from prom because they wore their hair in braids, and an Ivy-league alumnus who sent a vitriolic, racist letter to his college because a football player for the college wore his hair in locs. Over the weekend news broke that a high school softball player in Durham was forced to cut her beads out of her hair in the middle of a game if she wanted to continue playing. While there has been a growing movement in the last two years for states, cities, and towns to pass versions of the Creating a Respectful and Open World for Natural Hair (CROWN) Act, thus far Massachusetts has not passed any legislation on this issue. Because our current laws do not adequately protect against such discrimination, a legislative fix is necessary. CONTINUE READING ›

Massachusetts Should Expand 151B, the State’s Anti-Discrimination Law for Employees, to Cover Independent Contractors

Published on: April 20, 2021 | by Zalkind Duncan & Bernstein LLP

By Catherine Willett, Law Student Intern

About 20% of workers in the United States are contractors: individuals hired to work on a specific project or for a specific period of time. This number is bound to grow as employment through the gig economy reaches into more sectors and the use of subcontractor agencies proliferates. Indeed, participation in the gig economy has expanded enormously during the COVID-19 pandemic. But the pandemic has also exposed the vulnerability of gig workers and the precarity of relying on gig work as a sole source of income. Many statutory workplace protections do not apply to independent contractors. The lack of healthcare benefits, paid time off, and minimum wage protections for gig workers has been the subject of considerable recent media attention. And while Congress expanded unemployment benefits to these workers during the pandemic, they generally do not qualify for unemployment benefits because neither they nor whoever they are performing services for pay into unemployment insurance. CONTINUE READING ›

Freedom of Speech and Campus Discipline: What Rights do Students at Private Schools Have?

Published on: March 16, 2021 | by Ruth O'Meara-Costello

Freedom of speech on campus—the freedom to express opinions, including when they are unpopular—has long been a key principle of American academic institutions. Thomas Jefferson wrote to prospective members of the faculty of the University of Thomas Jefferson that the institution would be “based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” Yet this principle is sometimes more honored in the breach than in the observance. The University of Thomas Jefferson shortly thereafter rescinded a professor’s appointment because he was a Unitarian. (This article is a very interesting account of the early history of academic freedom in America.)

It is Time for Massachusetts to Provide Employment Protections to Victims of Abuse

Published on: March 11, 2021 | by Zalkind Duncan & Bernstein LLP

By Sophie Nguyen, Law Student Intern

Eight years ago, a teacher in San Diego was fired from her job for experiencing domestic violence. After her abusive ex-husband showed up at the school where she taught to confront her, the school decided that her mere presence posed too much of a “risk,” and fired her, despite the fact that her ex-husband was arrested and later incarcerated. Later that year, California passed a law prohibiting this type of discrimination against people who were experiencing domestic violence. This teacher’s story is not unique: 74% of domestic violence survivors report that they have suffered some form of abuse at work. As a Washington, D.C. court noted, quoting testimony provided at a legislative hearing: “Studies have shown that 96% of employed domestic violence victims experience problems at work related to the abuse and that 30% lose their jobs due to domestic violence.” While many of us think of domestic violence as an issue that resides within the home, the reality is that it inherently affects survivors’ ability to function in the workplace. Employment is also often the only way for survivors to achieve financial independence from their abusers; without it, many survivors must remain with their abusers. Employers have a significant role to play in addressing domestic violence, both by protecting their employees at work and ensuring that their employees can remain employed even while dealing with domestic violence situations. Despite these facts, 65% of companies do not have a formal workplace domestic violence prevention policy.

The Danger of “Unbridled” Police Discretion: Appeals Court Deems Search Unlawful where Gang Unit’s Investigatory Traffic Stop Led to Suspicionless Search

Published on: March 9, 2021 | by Katherine E. Dullea

In Commonwealth v. Lek, Lang Lek was convicted of gun possession after two Lowell Police officers pulled him over for a minor traffic violation so that they could “investigate” and “suppress gang activity.” After searching the vehicle, which belonged to Mr. Lek’s girlfriend, the officers found a gun in the glove compartment. Mr. Lek appealed his conviction, arguing that the gun should have been suppressed because it was recovered during an illegal search. The Massachusetts Appeals Court agreed with Mr. Lek, deeming the search unlawful because the officers used an inventory search as a pretext for investigation. In its decision, the Appeals Court also articulated broad concerns about the threat of racial profiling and “arbitrary action” when the police are given “unbridled discretion” to conduct investigatory traffic stops.