ThePopTort

Whistleblowers Round Out the Week

It’s been awhile since we last covered the ancient practice of whistleblowing. (Ok maybe not ancient but it’s at least Ben Franklin-old.)

Some whistleblowing stories this week were very newsy, like the one involving Chelsea Manning and (according to the government), her Wikileaks co-conspirator Julian Assange. You may have heard that Assange was indicted this week for obtaining and publishing military documents in 2010. We’ll be transfixed to see how the courts handle the First Amendment conflicts on that one.  

For those who may pay no attention to the news but still watch network TV, there’s the return of The Whistleblowers series on CBS, about “people who put everything on the line to stop illegal and often dangerous wrongdoing when major corporations or individuals rip off the government and U.S. taxpayers.”

From the CBS announcement: “Additional cases that will be examined this season include a medical system where midwives are in charge of high-risk pregnancies; kickbacks at a crematorium; a scam allegedly involving counterfeit healthcare hardware being used in back surgery, which may have defrauded Medicare; and, for the first time on national television, two whistleblowers discuss how they brought suspicions of massive fraud by members of a polygamous cult to the FBI.”

Alarming stuff, right? Oh, you haven’t heard anything. Check out the rest of this week’s news, like the CBS story on FAA whistleblowers. The network spoke to “roughly a dozen FAA inspectors from across the country. Some risked their jobs to blow the whistle on how they say they are told to overlook important problems.” 

They say managers at the FAA pressure inspectors like them to ignore critical safety issues like corrosion or making sure vendors were FAA compliant and retaliated if inspectors refused to back off.

"I've been flat out told to back off," one inspector said. "I've had airlines contact my management and ask them not to assign me any inspections to that airline."

The other inspector said they've "repeatedly" been punished for finding a problem and reporting it and they're not alone: "It's very widespread."…

One of the inspectors said, "We're on the verge of an issue happening …. we're talking about a crash inside the United States borders."

They both pointed to incidents like the Lion Air and Ethiopian Airlines crashes – both related to U.S. manufacturer Boeing whose own relationship with the FAA is under scrutiny as indicators of what could happen. They hope that what they told CBS News will be a wake-up call.

And if that’s not enough to make your blood boil, consider this story about the abuse and neglect of children in facilities run by US Immigration and Customs Enforcement (ICE). As reported by CNN,

For years, [Dr. Scott Allen’s and Dr. Pamela McPherson’s] expert opinions, like the facilities they inspected, remained out of the spotlight -- unseen by most lawmakers and unheard by members of the public.

That changed, they say, when the Trump administration's policies left them no choice. The doctors became whistleblowers, speaking out with a dire warning. Family detention isn't safe, they said, and children's lives are at stake.

"We are writing to you, members of Congress with oversight responsibility, because we have a duty to raise our concerns about the ongoing and future threat of harm to children posed by the current and proposed expansion of the family detention program," the doctors said in a letter to the leaders of the Senate Whistleblower Protection Caucus.…

That letter was sent nearly a year ago.

For the doctors, “what started with one letter to Congress has become a quest with no end in sight.” Yet this story isn’t the only whistleblowing story about ICE abuse, or even the only one this week. As The Intercept also reported, 

Ellen Gallagher was stunned when she first learned that immigrants detained by Immigration and Customs Enforcement were sometimes placed in isolation with no human contact for 22 hours a day. …

“I could not believe that so many people who were listed as suffering with serious mental illness, for example, were being assigned extended periods in solitary confinement,” said Gallagher, who worked as an advocate for mentally disabled school children in New York before joining the federal government in 1995. …

Gallagher, whose first job in the federal government was as a lawyer working to deport immigrants, embarked on a yearslong process to raise the alarm about what was taking place in ICE detention centers. …

Her concerns about the use of segregation in ICE detention centers are consistent with findings of a monthslong investigation by The Intercept and the International Consortium of Investigative Journalists. Our review of more than 8,400 solitary confinement incident reports spanning 2012 to early 2017 show that in nearly a third of the cases, detained immigrants were described as having a mental illness. The records show at least 373 instances of individuals being placed in isolation because they were potentially suicidal, and another 200-plus cases of people already in solitary confinement being moved to “suicide watch” or another form of observation — in many cases another solitary cell.…

Gallagher has now decided to tell her story, she said, because “until there are enough people that do that, then this same set of circumstances will not stop, and I think it’ll actually get worse.”

Story ideas for next season, perhaps?

 

Happy World Day for Safety and Health at Work!

Bet you didn’t know it was a holiday today.  According to the United Nations, this “annual international campaign to promote safe, healthy and decent work … is held on 28 April and has been observed by the International Labour Organization (ILO) since 2003.”

For example, over in Islamabad today, they’re celebrating “the prevention of occupational accidents and diseases globally.”

Here in the U.S., we’d better get moving on that. The AFL-CIO’s new Death on the Job: The Toll of Neglect study, which came out yesterday, found once again that “an average of 150 workers are killed each day” in the United States. Or more specifically, ”4,821 employees were killed while working in 2014, while another 50,000 died from occupational diseases contracted over the years."

Let’s “drill down” (no pun intended) into some of these figures.

• “There were 144 deaths in oil and gas in 2014 – the highest number of fatalities ever.
• The fatality rate for oil and gas extraction was 15.6 per 100,000 workers, nearly 5 times the national ”

And some other fun facts:

• “In 2014, Latino workers continued to be at increased risk of dying on the job, with a job fatality rate that is 9% greater than the overall job fatality rate of 3.4 per 100,000 workers.
• The construction industry was responsible for the greatest number of Latino worker deaths (233).… Latino immigrant worker deaths in the construction industry have increased 32% since 2010.”

And if you think that’s the worst of it, consider this: “While government statistics show that occupational injury and illness are declining, numerous studies have shown that government counts of occupational injury and illness are underestimated by as much as 69%.”

If money’s your thing, consider this too: “The cost of occupational injuries and deaths in the United States is staggering, estimated at $250 billion to $370 billion a year, according to two recent studies.”

The AFL also notes,

A 2015 report by the Occupational Safety and Health Administration—“Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job”—outlined how work-related injuries have devastating impacts on workers and their families. According to the report, workers who are injured on the job suffer great economic loss. Even after receiving workers’ compensation benefits, injured workers’ incomes are, on average, nearly $31,000 lower over 10 years than if they had not suffered an injury. [footnotes omitted]

One of the major contributors to the severe loss of income is the gross deficiencies and inequities in the workers’ compensation system, which continues to be governed by 50 different state laws. A 2015 multipart series by Pro Publica and National Public Radio (NPR) exposed the failure of the workers’ compensation system to provide fair and timely compensation for workers hurt on the job. The series—“Insult to Injury: America’s Vanishing Worker Protections”—was based on a yearlong investigation which found that over the last decade there has been a systematic effort by insurers and employers to weaken workers’ compensation benefits for injured workers. Since 2003, legislators in 33 states have passed legislation reducing benefits or limiting eligibility. … According to Pro Publica, all of these factors have contributed to the demolition of the workers’ compensation system and left injured workers and their families and society at large bearing the costs of their injuries. [footnotes omitted]

Definitely something to think about as you celebrate World Day for Safety and Health at Work Day.

Down and Out in the USA

Today, we’re addressing the disturbing underside of civil justice in America. Sometimes it works for the wrong people. And sometimes, it doesn’t work at all.

This week, the Washington Post’s The Fix posted an interview with Georgetown University law professor Paul Butler, former federal prosecutor whose new book, Chokehold: Policing Black Me, will be out next year. The topic: “Why did Cleveland sue Tamir Rice’s family? And why is a Chicago officer suing the estate of a teen he killed?” This is not a joke. To explain:

This month alone, the City of Cleveland filed suit against the family of Tamir Rice, a 12-year-old shot and killed by police who a grand jury declined to indict in December. The suit sought to collect $500 in unpaid emergency medical bills incurred after Rice was shot in a city park and transported to a hospital. After public criticism of the suit reached a fever pitch, the city dropped the claim.

In addition to that, a police officer in Chicago who shot and killed a mentally ill teen and his unarmed neighbor filed suit against the teen's estate, claiming that the ensuing publicity had caused the officer permanent trauma.

Says Professor Butler:

Cleveland acted callously, which is the way poor people of color get treated by the government all the time. Look at how Michigan officials allowed the residents of Flint to drink poisoned water – water the officials wouldn’t even drink themselves.

The Chicago cop is using the court system to have a temper tantrum. Legally, he has no case. Sometimes people use the court system to tell their side of the story. The role of an effective lawyer includes advising a client when a lawsuit is not in his best interest. Officer [Robert] Rialmo’s lawyer failed him in this regard.

Indeed, in Flint (as we’ve noted before), lawsuits by poisoned residents are going to be difficult.  Continues Professor Butler:

In general, however, the law is not especially friendly to poor people. It’s easier, for example, for Flint to go after people who don’t pay their water bill than for Flint residents to sue government officials for giving them poisoned water.

And low-income folks don’t have nearly as many protections against lawsuits as do the police. Often, they can’t afford lawyers to defend them when they get sued.

Now imagine you are one of 2,000 migrant mothers or children held in the Immigration and Customs Enforcement detention facility in Dilley Texas, and subject to inhuman prison-like conditions by the Corrections Corporation of America, which runs it. As journalist Antony Loewenstein (author of “Disaster Capitalism: Making a Killing Out of Catastrophe”) notes in a New York Times op ed today,  CCA, “America’s largest private prison and detention company," has a “long history of ignoring detainee safety and federal laws.” It has also “lobbied politicians to keep more people behind bars rather than deporting them” since “Congress requires that at least 34,000 people be housed daily in detention centers — a so-called detention bed mandate. … This can often lead companies to skimp on services [like] mental health care, outdoor activities and healthy food.”

According to Clara Long, researcher with the U.S. program of Human Rights Watch, “Families with children, including very young children, have told us they were kept for prolonged periods in very cold rooms, given inadequate or inappropriate food, and denied medical care while in Border Patrol custody. Many of these women and children are fleeing violence, persecution and abuse in their home countries.”

The Times quotes Yancy Maricela Mejia Guerra, a detainee from Central America, who said, "People who say this is not a prison are lying … It’s a prison for us and a prison for our children, but none of us are criminals.” 

Notes Human Rights First, 

A female asylum seeker's best hope of protection is in having a lawyer to represent her in immigration court proceedings. Yet it is much more difficult for immigrants to secure legal counsel when they are held in immigration detention. Without an attorney, a mother has almost no chance of receiving asylum. According to recent TRAC data, 98.5 percent of lawyer-less women with children were deported, even when the government had determined they had a credible fear of persecution if returned home. With a lawyer, their ability to prove their cases increases significantly.

At the Dilley facility today, Human Rights First legal experts met many mothers and children who do not have legal representation and, given their detention, will have great difficulty securing counsel.

Clearly, something’s very wrong with this picture.

Tort “Reform” Hypocrites Hit the Big Time

There’s nothing I like more than a good hypocrite story, so let’s start with some statistics.

The new Court Statistics Project data from the National Center for State Courts is out.  As any good researcher knows, most state courts are useless when it comes to collecting data about cases going through their system, but NCSC found good data in a representative number of 19 states.  It found (no surprise) that tort cases as a percentage of the total civil caseload range from a low of 0.9 percent (ND) to a high of 7.3 percent (PA). Or, as researchers succinctly put it, “nowhere do tort cases exceed 7 percent as a percentage of all civil cases.”

So when some politicians argue that the system is flooded not just with tort cases, but with frivolous ones (the rationale behind laws that strip away the legal rights of injured people) you really gotta laugh.  What exactly do they want?  To get that number down to 3 percent?  Or to reach North Dakota’s low of less than 1?  No, more likely they want that number of be “0”, so the civil courts can be cleared just for them.

Today, it is being reported that 17 states, led by Texas Attorney General Greg Abbott, the state's governor-elect, are suing the Obama administration over its recent executive actions on immigration.… Abbott said that Obama's action ‘tramples’ the Constitution."

During his gubernatorial run, Abbot got in trouble – although not enough trouble – when it was revealed that when his “spine was crushed by a falling oak tree in 1984,” he sued and won millions of dollars in compensation. So far, he has received about $5.8 million “and is entitled to monthly income from the settlement until he dies.”  Most of what he receives is compensation for “noneconomic losses for pain and suffering and mental anguish.”  He eventually went onto the Texas Supreme Court, where he “began adopting tighter standards for losses that involved pain and suffering and mental anguish.”  And now he supports all kinds of other so-called “tort reforms” to make it harder for people hurt like he was, to receive adequate compensation or even to sue at all.

“You would think that a young man, at the start of his career, crippled by an injury, would want to make sure that others that may have the misfortune to follow in his footsteps would ensure that those people had the opportunity to be compensated for their injuries in the same way he was,” said Tommy Fibich, a Democratic donor and personal injury lawyer. “He instead closed the door because that would help him get re-elected.”

And he’s also leading a political lawsuit against the President.  His hypocrisy knows no bounds.  And he’s not the only one.  Just a couple weeks ago, "Speaker John Boehner finally went through with the lawsuit he had long promised to file over the administration's implementation of the Affordable Care Act."  This is the same body that not only "voted more than 30 times to repeal part or all of the law” but also passed a piecemeal repeal that included Draconian limits on the legal rights of medical malpractice victims.

Litigation seems now to be the preferred method for “tort reform” politicians to do business.  The courts apparently should be reserved exclusively for their political complaints, or to recover money for themselves. Sounds like something King George III could get behind!

Immigration and Abortion Lawsuits Move Forward; Dystopia Averted?

Opponents of two of the most controversial and extreme state laws passed in recent memory (see one funny take here, if that’s possible) are headed straight to court. 

First is the Arizona immigration law, which may be challenged by the U.S. Department of Justice on a very familiar (to us, at least) theory – federal preemption (i.e., the state law interferes with immigration enforcement, which is the feds job).  This suit would be in addition to the challenge by civil rights groups. Now admittedly, we didn’t like it too much when the Bush administration used this theory to try to protect reckless drug companies, and the Supreme Court didn’t either (except when it came to dangerous medical devices!).  But we do look forward to seeing if the argument can be played out here.  It’s all about what Congress intended, after all.

Second, a lawsuit has now been filed to invalidate two pretty shocking anti-choice laws enacted this week in Oklahoma, over Governor Henry’s veto.  One law forces women to see and hear about a fetus’ physical details before she is allowed to get an abortion.  The second law immunizes doctors who deliberately “withhold information about birth defects while the child was in the womb. Opponents argue that the law will protect doctors who purposely mislead a woman to keep her from choosing an abortion.”

The Governor called this law “immoral” and said, "It is unconscionable to grant a physician legal protection to mislead or misinform pregnant women in an effort to impose his or her personal beliefs on a patient."

Or as the Comedy Central blogger put it, “Oklahoma, it seems, is doing it's level best to out-Arizona Arizona this week in the on-going battle to be the most dystopian state in the union.”