THE ADVOCATE Santa Clara University School of Law

School of Law Newspaper Since 1970 Sunday, April 28, 2019 Volume 49 Issue 3

sJsU stUdents stRUggLing with homeLessness By Kirby Nguyen students at the university. Students Mayorga said. “But it wasn’t until Fall Staff Writer have reportedly resorted to sleeping in 2018 when we saw the chancellor’s San Jose State University’s Student cars, the student union room, and the basic needs study that we shifted our Homeless Alliance (SHA) met with library. focus towards student homelessness.” its university’s president and vice The students have been urging San president last month demanding Jose State to provide help to homeless solutions to the school’s homeless students over the last two years. In problem. The group asked for three November and December of 2018, SHA things. First, they wanted 10 parking held a press conference, a protest, and spots in the 7th Street parking garage a “Poverty Under the Stars” event to to serve as a safe place for students draw attention to the homeless crisis to sleep. Second, they wanted at least San Jose State’s students are facing. 12 beds in the dorms for homeless SHA was told at the meeting that students to stay up to 60 days. Photo from www.medium.com their proposals were not sustainable Finally, SHA asked for $2,500 for each and every student. “The safe in emergency grants for students parking is not ‘safe’ and they don’t who can not afford rent. All of their want to invest money in something demands were rejected during the that can be invested in a better closed-door meeting. solution... They want to ‘house’ A study by the State SHA was originally formed in the students, but provided no clear plan Chancellor’s Offce found that 10.9 1990s by Pastor Scott Wagers, who was of what that is,” Mayra Bernabe, percent of CSU students faced then focused on addressing the larger President of SHA explained. “For the homelessness in 2018. SJSU, however, homeless crisis in San Jose. beds, they can’t increase the number reportedly had a percentage of 13.2. “In the Spring of 2018, SHA was of beds because they might remove

This translates to more than 4,300 revived,” SHA member Alejandro See Page 2 “SJSU Students Struggling With Homelessness”

A Right to Know? CA’s seCRet List of CRiminAL Cops By Robert Sisco law enforcement database; and Staff Writer (3) that the records must be The Attorney General of destroyed or returned and not California, Xavier Becerra, and be disseminated. reporters for the Investigative In response to the claim that Reporting Program at the release was inadvertent, University of California, John Temple, Director of Berkeley are clashing over the the Investigative Reporting reporters’ right to disseminate Program, said it “seemed information given to them by ridiculous as they had spent a State Commission regarding more than a month working on records of police offcers. the report and had gone back In 2018, California’s and forth multiple times.” legislature passed Senate of California law enforcement offcers David Snyder, Executive Bill 1421, which went into effect on and applicants for police jobs who Director of First Amendment January 1, 2019, with the purpose of have been convicted of a crime in the Coalition, joined Temple at a recent advancing police transparency. SB past 10 years. panel discussion at Santa Clara 1421 amended the Public Records The California Commission University School of Law to respond Act by adding three additional on Peace Offcer Standards and to Becerra’s claim of illegality. The categories of police misconduct Training (POST) complied, and “Penal Code the Attorney General records that can be released to the provided 12,000 names of police cites specifcally carves out an public: serious use of force, sexual offcers, former police offcers, and exception for journalists. Journalists assault, and dishonesty related to an applicants. cannot be prosecuted under that investigation. While reviewing these records, section,” Snyder said. Pursuant to SB 1421, reporters the Investigative Program received Becerra’s letter cites Cal. Penal from the Investigative Reporting a letter from AG Becerra claiming: Code Section 11143, which does Program at UC Berkeley and its (1) the release was inadvertent; (2) list reporters as being exempt from production arm, Investigative that obtaining the records was illegal being guilty of a misdemeanor. His Studios, requested information under because it came from a confdential See Page 2 “A Right To Know? CA’s Secret List the Public Records Act for the names of Criminal Cops” 2 THE ADVOCATE April 2019 STAFF Editor-in-Chief Shannon Cullen sJsU stUdents stRUggLing with homeLessness

Senior Managing Editor current students housing and then they become Preparatory, and Cristo Rey Jesuit High School Ruben Peña homeless.” have proposed to the city of San Jose mixed-use “The City, including the mayor, downtown housing developments. Santa Clara University Managing Editor Councilmember Raul Peralez and the City’s owns the land on Campbell Avenue where it Ardy Raghian Housing Department, have met with SJSU to proposed a 290-unit apartment complex to house Staff Writers offer assistance,” Ragan Henninger, City of San faculty and staff. At least 15 percent of the units Jenna Anderson Jose Housing Deputy Director said. would qualify as affordable housing under the Emily Branan While the SJSU administration says it city’s rules, and the rest would be priced as low Evan Gordon remains committed to housing every student, it as possible. San Jose, however, is considering Sarah Gregory Lubna Hakim has not been clear as to how exactly that will get declining the proposal. Kirby Nguyen done. The administration has referred students The , , Yosef Ratner to SJSU Cares, a university run program, to released a budget proposal in March publicly Robert Sisco assist in the event of an unforeseen economic acknowledging his support of SJSU’s SHA. Vice crisis. Mayor Chappie Jones (D-1) and Councilmembers The majority of SJSU Cares’ programs Raul Peralez (D-3), Magdalena Carrasco (D-5), address food insecurity. It runs the Just In Time and Maya Esparza (D-7) have also pledged their Email The Advocate: Mobile Food Pantry once-a-month program, commitment, in a letter released on March 21, to [email protected] where it offers fresh produce and dairy items to working with SJSU President Mary Papazian to cc: [email protected] eligible students. SJSU Cares also planned to fnd housing solutions. open a food pantry, but this project was delayed SHA is continuing to meet with other The Advocate is the student by approval from the County Fire Marshal and lawmakers and has several upcoming meetings news publication of Santa Clara County Health Department. with senators, assembly members, and possibly University School of Law. The SJSU Cares has also been providing $500 District 19 Congresswoman Zoe Lofgren, to various sections of The Advocate are emergency grants for students in general address housing insecurity and homelessness. articles that refect the viewpoint fnancial need. It asks that students utilize all SHA has not stated what proposals it plans to of the authors, and not the opinion of Santa Clara University, The fnancial aid offered to them and consider the put before the university next. Advocate, or its editors. The emergency grants as a last resort. According to “[We] can all play a role in helping out. First, Advocate is staffed by law students. Marko Mohlenhoff, the Student Affairs Case continue to be informed, engaged, and spread Manager for SJSU Cares, the university has awareness...If anyone has an extra room at a encouraged the campus community to continue cheap price around campus, we’d love to know sending students to SJSU Cares, so that it so that our students won’t have to sleep in their may start to understand the issue’s order of car, in the library, or couch surf...” Bernabe said. magnitude. “We need the whole community’s support, our SJSU is not the only educational institution city leaders, and business community to come affected by the Bay Area housing crisis. together and collaborate to come up with viable Santa Clara University, Bellarmine College yet immediate solutions.”

A Right to Know? CA’s seCRet List of CRiminAL Cops citing of a statute that specifcally read, “We always strive to balance the position. State law protects the exempts reporters means one of two the public’s right to know, the need to records of all Californians contained things, according to Snyder. be transparent, and an individual’s in this database by prohibiting “Either Attorney General doesn’t right to privacy. In this case, the possession and use of this know what the law says or the information from a database that’s information by anyone not identifed Attorney General knows and doesn’t required by law to be confdential was by statute. The UC Berkeley care,” Snyder said. He added that released erroneously, jeopardizing Investigative Reporting Program the Investigative Reporting Program personal data of individuals across was inadvertently provided with this received the records “in a completely our state. No one wants to shield confdential data.” lawful manner” and that “they cannot criminal behavior; we’re subject to “Balancing those rights and be punished.” the rule of law.” threatening a journalist with In elaborating on whether the “The confdential data of prosecution for a mistake that the AG’s offce could successfully request Californians that the UC Berkeley Attorney General made are two an injunction to have the records Investigative Reporting Program separate things. I don’t contest returned, Snyder acknowledged that obtained were part of a report that the Attorney General has an the case law the AG’s Offce cites compiled for POST from the obligation to balance transparency makes it plausible, but distinguished Automated Criminal History and privacy,” said Snyder. “I take the current situation by pointing System (ACHS) database,” the issue with the Attorney General out none of the past cases involved AG’s Offce statement continued. pretty clearly threatening in their journalists. “California law grants the POST letter to bring criminal charges to Snyder said it is highly doubtful access to the ACHS data for the journalists for something that both that the case law would apply to purpose of assessing whether peace the statute and the First Amendment journalists, but admits he does offcer applicants, or individuals make clear a journalist can’t be not know the answer. Snyder employed as peace offcers, meet prosecuted for.” summarizes the letter as “a the minimum standards for service When asked about the Investigative disturbing threat, but one that at a California law enforcement Reporting Program’s next steps in cannot be carried through in agency. The report included data addressing the AG’s letter, Temple important ways.” for Californians who applied for said “We’re not planning on returning In a request for an interview, the peace offcer positions, regardless anything to the Attorney General or AG’s Offce provided a statement that of whether they were selected for destroy anything.” April 2019 THE ADVOCATE 3

eLeCtRiC sCooteRs: the fUtURe of LoCAL tRAnspoRtAtion? By Jenna Anderson out this innovation that seemed like it The city is also taking active Staff Writer was providing a mobility solution. We measures to build out bike lane Two years ago, the word scooter just wanted to fgure out a smarter and infrastructure to improve safety. brought back nostalgic memories of safer way to do it.” “We want to encourage innovation. ripping around on a Razor scooter in The , in We are the capital of , elementary school. Today, the word has its decision to not ban the scooters and we want to give people ways to an entirely new meaning. In the last last spring, tasked the Department get around town other than driving in year, several electric scooter companies of Transportation with creating a car by themselves,” Heyne said. “If have dumped their shared scooters on regulations to reel in the companies we can make these things work safely, every corner in major cities. All you operating them. The department spent then it sounds like a good means to need to hop on one of these scooters is the summer and fall doing public that end.” a phone app and a driver’s license. outreach, researching what few best Bird is one of the four scooter practices there were at the time, and Is the light electric vehicle a companies dominating the industry talking to other cities all across the revolution for transportation? and has scooters around nearly country. every corner in San Jose. Bird’s The department also spoke with “In the last six to eight months, vision is to make cities more livable scooter companies and have developed the narrative in the U.S. has become by replacing the 40 percent of car lines of communication with the four distorted by the scooter share mania,” trips that are under three miles with biggest players in the feld: Lime, Bird, Jeff Russakow, Chief Executive Offcer e-scooter trips, explained Mackenzie Wind, and Skip. These companies have at Boosted Inc. said. Long, Government Boosted Communications and is known for Public Relations for its electric Bird. Half of all car skateboards, trips are three miles but it recently or less and privately- announced an owned vehicles account electric scooter for 60 percent of model. trips of one mile or Russakow less, according to the explained National Household that venture Travel Survey. capitalists “Our transportation have poured a option offers a way for large amount cities to advance their of money into goals of getting cars scooter share, off the road to reduce but he said that traffc and carbon currently these emissions — and improve the health played an active role in discussions scooters are “toy-grade” products that and safety of their communities,” Long for realistic future expectations and are extremely unsafe. said. regulations. In December 2018, San “The good news is, someone is But not everyone agrees. People are Jose passed an ordinance requiring spending millions to put a demo of a setting them on fre, throwing them these companies to satisfy certain new vehicle type on every street corner off cliffs into the ocean, and stealing regulations which will allow them to on the planet,” Russakow said. “This is them. Scooter critics complain that obtain a permit for scooter deployment exposing people to a real alternative to they pose safety risks and create in San Jose. driving.” eyesores for the community. While San The permit program requires that While ridesharing has been touted Jose is receptive to the scooters, some each scooter have a unique identifying as the future of transportation, Boosted cities, like San Francisco, have not number and must conform to the anticipates the market to move to more been. Colin Heyne, Public Information California Vehicle Code’s equipment, than 90 percent ownership of light Manager at the City of San Jose, lighting, and safety standards. electric vehicles. Rideshare is great for Department of Transportation “We have language that says ad hoc travel, but it is unreliable and explained that unlike in San Jose, the the Director of the Department of expensive for purposes of commuting, problem was evident in San Francisco. Transportation can set a maximum Russakow explained. He said the sidewalks are crowded, speed limit in areas,” Heyne said. “We Russakow anticipates that light and the scooters were a real burden on start off with a maximum speed limit electric vehicles and electric scooters the pedestrians. of 12 MPH in our downtown core.” and skateboards will disrupt the There was an initial ruffing Scooter companies are also looking transportation market, similarly of feathers when these scooters into geofencing technology, a way to to how cell phones disrupted the mysteriously arrived, Heyne said. The automatically slow scooters to a certain communication market. He explained department wondered what they were speed when they go on the sidewalk. that rather than being stuck in one and why no one asked for permission The law requires electric scooters to place waiting for a call, the cell phone to dump them on every corner in San be ridden in bike lanes, but on streets enabled people to save time by taking Jose. where there are no bike lanes, scooter the call on the go. “We heard from residents and riders take to the sidewalks. Boosted foresees light electric businesses on both sides of the opinion Heyne said that in order for scooter vehicles saving commuters time and spectrum. There are people that love companies to comply with the new money. Russakow is adamant that, them. That is why there is an issue, permit program, they have until July “the light electric vehicle is the iPhone because residents, people we serve as to present technology that solves the of transportation.” a city, are using them all the time,” dangers for pedestrians when scooters Heyne said. “We didn’t want to boot are ridden on the sidewalk. 4 THE ADVOCATE April 2019

CALifoRniA ConsUmeR pRivACy ACt: the fUtURe of ConsUmeR dAtA pRoteCtion? By Sarah Gregory “Because it would take the legislature all of their legislative Staff Writer capacity for the entire year, just to start making a dent. And Controversial public information leaks, like the Facebook- they got other stuff to do, and that is not where their head is at,” Cambridge Analytica scandal that took place early last year, Goldman said. “So that is why I see the only winning outcome inspired Alastair Mactaggart, Board Chair of Californians for is a federal pre-emptive law, because California can’t fx the Consumer Privacy, to draft Assembly Bill 375—which was problem it created for itself. So the only solution is going to be to passed late last year and will go into effect on January 1, 2020 start again and clean out the California law.” following a lengthy revision process. The bill, commonly known The CCPA has been amended once by SB 1121. The bill as the California Consumer Privacy Act (CCPA), is a set of amends several existing aspects of the CCPA. SB 1121 clarifes compliance standards that companies are required to abide by in the role of the California Attorney General’s enforcement order for consumers to have greater control over their personal abilities, exemptions for data already regulated under other information. privacy acts, the limitations of private rights of action, the extent The bill started as a ballot initiative that garnered 629,000 the CCPA interacts with the First Amendment, and local laws signatures, almost double the required signatures necessary to that may confict with the CCPA. appear on the November 2018 California ballot. In May 2018, Before AB 375 passed, consumers had no way of knowing Senator Robert Hertzberg and Assemblyman Ed Chau asked what personal information was being collected about them Mactaggart if he would withdraw the initiative if the legislature through their online endeavors or purchases. The CCPA is passed a law addressing the same privacy concerns. Mactaggart being hailed as a landmark piece of legislation, as it is the frst agreed to withdraw if all of the components in the initiative were piece of consumer privacy legislation in the nation. Although replicated in the proposed law. complex privacy laws have reached the nation’s door in the form Senator Hertzberg and Assemblyman Chau’s offces could of the General Data Protection Regulation, the GDPR, like the not reach a solution with Mactaggart. Instead, both the CCPA, operates with the goal of guaranteeing strong protection California Senate and Assembly passed AB 375 unanimously, for individuals regarding their personal data and applies to and Governor Jerry Brown signed it into law shortly after. businesses that collect, use, or share consumer data, whether the MacTaggert then withdrew his initiative from the November information was obtained online or offine. 2018 ballot. Others are concerned with the ability to effectively enforce The concern for the state of consumers’ personal information the CCPA. For example, the Electronic Frontier Foundation is has been steadily growing over the past two years, MacTaggert currently promoting a bill they argue will strengthen the CCPA. explained. “One of the things we want to change to make the CCPA “The truth is, it started as a simple conversation among stronger is to create a broader ‘private right of action.’ One of the friends at a social outing when I asked an engineer working for issues of the current version is that it is primarily enforced by Google whether we should be worried about the subject—wasn’t the California Attorney General’s offce,” Lee Tien, a Senior Staff ‘privacy’ just a bunch of hype, I asked. His reply was chilling: ‘If Attorney for the EFF said. “We would like it to be enforceable by people just understood how much we knew about them, they’d more public offcials. The Attorney General has actually got his be really worried.’ That stuck with me. And boy was he ever own bill, SB 561, and that bill contains a number of measures right – the more knowledgeable I became on the subject the about the enforcement of the CCPA. Both AB 1760 and SB 561 more I realized this was a problem that was getting much, much will make it possible for ordinary individuals to sue for violations worse. I also found out that under current law, consumers were of the CCPA.” powerless to do anything about it,” MacTaggert said. This is important because of the 30-day cure period provision Californians for Consumer Privacy, the consumer rights within the CCPA. This provision aims to give businesses a 30- foundation that started the initiative, says the CCPA is based on day period in which they can correct their actions concerning a three main principles. CCPA violation. “Transparency: we should be able to know what personal Tien explained that the problem is that this gives businesses information companies collect about us, our children, and our an opportunity to correct their mistakes and thus, evade devices, and who they are selling it to. Control: consumers punishment for their violation. Furthermore, he said it creates a should be able to tell companies not to sell their personal disadvantage for consumers. information, and companies shouldn’t be able to retaliate “Consumers are unable to hire lawyers to enforce their rights against consumers who exercise this choice. Accountability: after in case of a violation,” Tien said. “Most of the enforcement right all the massive data breaches in the last few years, whether now is through the AG, we think that is just not enough to make at Facebook, Target, Equifax or Yahoo, it became glaringly companies take people seriously.” apparent that many of these big companies don’t care enough The call for consumers to have more control over their about your data security. We drafted the initiative to hold them personal data is paralleled by consumer rights foundations more accountable if they fail to take good care of your personal throughout California. information,” MacTaggert explained. “The reason we need strong consumer privacy legislation is Meanwhile, critics of the bill, like Eric Goldman, a leading because privacy is a fundamental right,” Tien said. “To me, it is privacy expert and professor at Santa Clara University School like free speech. It is a right. You would not ask me to pay for a of Law, advocate for a preemptive federal privacy law. Goldman right, would you?” says the CCPA is a bad start in the furtherment of privacy On March 25, Assemblymember Chau introduced Assembly legislation and has so many problems that the only solution is Bill 25 to the California Legislature. AB 25 proposes to amend for Congress to pass an all-encompassing federal privacy law. the current defnition of “consumer” in the CCPA to exclude Goldman identifed three main ways in which the legislature employees of the companies that are affected by the CCPA’s could improve the CCPA. provisions. There are countless other proposed amendments “One, is the defnition of ‘consumer.’ Who is a consumer advocated by privacy foundations, including Californians for under the law? And excluding people who aren’t consumers, like Consumer Privacy. employees who are defned as consumers, even though they are In response to the possibility that the CCPA will be able to not. Two, is the defnition of what businesses are covered. And effectively implement its intended goal by January 1, 2020, Tien raising the bar substantially. Making sure we are talking about said, “We don’t know if that will happen. It all depends on what larger businesses and not small or medium sized businesses. the companies do, right? One of the things that is important to And the third, is to fx the defnition of ‘personal information,’ recognize is that since this law isn’t yet in effect, it therefore can which basically does not do anything meaningful to distinguish be changed. In this session right now, just as we are pushing between sensitive information and virtually anonymized AB 1760, that would make the privacy protection stronger, information,” Goldman said. “It promotes both as the same type there are others that want to make the provisions of the CCPA of information and that makes it untenable for companies to weaker. That is really a matter of politics. I can’t tell you if this provide the kind of transparency and control that consumers will happen, because I don’t know what the law will look like actually want.” in a year’s time. But certainly, the intent of the law, of Alistair When asked if he thinks any of the issues can be fxed before Mactaggart, the intent was good. But if we can make the law the enactment date, he said “no.” stronger, that is what we are trying to do.” April 2019 THE ADVOCATE 5

Competing BiLLs now woRKing togetheR to RedUCe Use of foRCe By poLiCe By Emily Branan and San Francisco, and it was said SB 230 has undergone “major Staff Writer recommended by the Department amendments” and is focused on Two California bills designed to of Justice under the Obama preventing future shootings. compete with each other are now Administration. SB 230 would require every working together to reduce instances AB 392 will not only provide California law enforcement offcer of use of force by police in the state. a more objective standard when to undergo a new training and AB 392, co-sponsored by analyzing use of force issues, but education program, specifcally Assemblymembers Shirley Weber it will also make interactions focused on reducing use of force (D-San Diego) and Kevin McCarty with police safer for people across and set policy requirements on de- (D-Sacramento), would raise the California, Kocurek explained. escalation, tactical methods and standard for police use of force from “We’re interested in the front end, interpersonal communication. This “reasonable” to “necessary” to prevent we want to prevent use of force,” training program would be funded by death or serious bodily harm to an Kocurek said. “We want to prevent the state. offcer. deaths, we want to save lives, and “The loss of life is always tragic, SB 230, authored by Senator Anna we don’t want to increase risks to and an offcer’s use of deadly force Caballero (D-Salinas), originally offcers.” should always be a last option,” kept the standard at “reasonable,” Kocurek said AB 392 limits the Smith said. but that language has since been circumstances in which police can use SB 230 also details how incidents removed. force to only the situations in which involving use of force would need to Before the revisions, the bills there is an imminent threat to the be reported when they happen in the were seen as conficting. SB 230 was offcer’s safety. community. Smith said, under this heavily supported by police bill, use of force policies unions, while AB 392 was and training would supported by groups such be considered in legal as the American Civil proceedings. These use Liberties Union. of force policies would The two bills are now also be accessible by the working together to solve public. the issue of use of force in “Unfortunately, California. If both pass, our society has many AB 392 would raise the dangerous threats, and standard for use of force, just as our peace offcers and SB 230 would provide cannot anticipate what the education and training they will encounter on guidelines offcers would any given day, our legal need to meet the new standards governing standard. their engagement must AB 392 is currently account for the split- being considered by the second and dangerous Committee on Rules. SB 230 passed “There’s demonstrated evidence scenarios we see confronting law the Committee on Public Safety that offcers can adjust a threat enforcement too often,” Smith said. and is headed to the Committee on assessment enough and also This bill would also require Appropriations. manipulate their circumstances to offcers to undergo training in topics reduce the amount of risk so that such as implicit and explicit bias and AB 392 - Raising the Standard the use of force is not necessary,” cultural competency. Kocurek said. “We’re not saying Along with the training, Smith Joe Kocurek, Communications that all circumstances are like that. said SB 230 would also give police Director for Assemblymember Weber, If you’ve got a gun in your face or offcers several extra duties, said AB 392 was partly inspired by if somebody’s coming at you with a including rendering medical aid, the fatal shooting of Stephon Clark hatchet, you have to shoot - we get intervening in incidents of excessive in Sacramento in 2018. The District that.” force, and reporting those incidents. Attorney recently decided not to Santa Clara University School of Supervisors would then be tasked pursue charges against the police Law Associate Professor W. David with investigating instances of use of offcer who shot and killed Clark in Ball said he thinks an important part force. his backyard. of AB 392 is that it would analyze the Ball said one thing he believes “I think it was at that point, we situation as a whole. the bills left out was a provision to knew there was enough political will “If an offcer goads someone into account for the fact that if an offcer that change was possible,” Kocurek trying to attack them, and then says has a stressful encounter one day, he said. “[That] incident, because it was it was necessary at that point, that’s or she is more likely to use force the up here in Sacramento, basically one way of looking at it,” Ball said. next day. galvanized a lot of sentiment in this The other way is to say if the offcer “You might be concerned with building around the need to make goaded this person, that’s not OK.” staffng somebody who may have had this change.” a trauma that makes them evaluate Kocurek said AB 392 would apply SB 230 - Requiring Specifc threats, or sees threats in otherwise what is seen as an industry “best Training innocuous behavior more readily practice.” He said the “necessary than someone else does,” Ball said. standard” has been adopted by Delphert Smith, Communications several cities, such as Dallas, Seattle, Director for Senator Caballero, 6 THE ADVOCATE April 2019

Let’s get the vAxx stRAight opinion: yoU hAve the Right to CoUnseL At pRe-tRiAL goveRnment AppeALs By Evan Gordon risk for autism. and procedures for obtaining medical Staff Writer Nonetheless, the damage from Wakefeld’s exemptions to evade immunizations For 30 years, the state of Oregon had study was already done. The concerns by requiring further state government not experienced a single case of tetanus raised, even though discredited, have led oversight. Such proposed oversight would infection, typically traced to bacteria found to increasing numbers of parents opting entail utilizing a standardized medical in soil and manure. But the state was caught not to give their children vaccines, Dr. Han exemption request form created by the State off-guard in 2017 when a six-year-old boy explained. Department of Public Health, as well as a was medevacked to a Portland hospital “We know that there have been increases database of approved medical exemption following a minor incident that occurred a in the number of children who are requests that would be accessible to local week prior. After receiving a gash on his unvaccinated, for whatever reason, and we health offcers. forehead while playing on his family farm, believe those increases are due to parental While some states are grappling with the boy’s cut was promptly cleaned and choice rather than a lack of access to how to address this alarming trend, New stitched at home. But within a week, he vaccines,” Dr. Han said. York City Mayor Bill de Blasio imposed a began suffering crippling muscle spasms, In a late-April media statement, the mandatory vaccine order requiring residents diffculty breathing, and could barely keep CDC attributed the dissemination of of certain zip codes to obtain vaccinations or his mouth open. His condition was so critical misinformation about the safety of vaccines face severe fnes. There are, however, certain that he ended up receiving two months of as a substantial factor causing recent circumstances that could give rise to the intensive medical care. ongoing outbreaks in New York, Washington, possibility of intervention on a federal level, While according to the Department of California, and other states. As per CDC explained Bradley Joondeph, a Professor Health and Human Services the introduction data, 2019 is well on its way to surpass 2014 of Constitutional Law at the Santa Clara of the tetanus vaccine has reduced deaths as having the highest number of reported University School of Law. from tetanus in the by 99 cases of the measles virus since it was “If we had a situation where a substantial percent since 1947, a growing number of declared eliminated in the U.S. in 2000 by outbreak was having a signifcant impact Americans are ignoring the science and public health offcials. on commerce, then you could say that becoming “anti-vaccine.” Recent outbreaks have even caught the requiring everyone to get vaccines was a The Oregonian boy, who had gone attention of President Donald Trump, who part of Congress’ regulation of interstate his entire frst six years of life without despite having shared vaccine-skeptic views commerce,” Joondeph said. “Short of that, receiving any vaccines, was provided with in the past, appeared to voice his support of Congress could certainly make your ability an emergency dose of the tetanus vaccine vaccines during a recent interview. to participate in all sorts of federal programs at the hospital. Over the course of the “They have to get the shots. The [such as Social Security benefts, Medicare, next two months, he breathed through vaccinations are so important. This is really or Medicaid] contingent on vaccination. a ventilator and required near-complete going around now. They have to get their So, even if it couldn’t directly mandate darkness and earplugs in order to avoid shots,” Trump said. it, it would probably have a lot of ways of triggering spasms, and received care from a According to the CDC, 90 percent of effectively coercing participation,” team of nearly 100 doctors and nurses. Upon recent measles cases in the U.S. originate A study published in the American his miraculous recovery, the boy’s family from international travellers. While 97 Journal of Public Health in September 2018 refused a subsequent secondary round of the percent effective, Dr. Han added that the highlighted that misinformation regarding tetanus vaccine, as well as any other routine MMR vaccine still leaves a small number vaccines was being promulgated by Twitter vaccinations. of vaccinated individuals, and those bots and Russian trolls on a wide scale as Excluding the exorbitant price of the who are unable to be vaccinated due to a way to disseminate anti-vaccine content helicopter transport, rehabilitation therapy, health complication exemptions, at risk of and promote discord. The prevalence of such and various follow-ups, the hospital bill alone contracting the highly contagious virus after content across social media platforms has in amounted to roughly $812,000. Somewhat coming within close vicinity of an infected turn lent credence to the anti-vaccine debate, unsurprisingly, the cost of obtaining the individual. one that many public health offcials argue requisite vaccines for preventing tetanus As the proportion of parents opting out of should not be subject to debate in the frst are far less fnancially burdensome–ranging vaccines continues to increase, the public’s place. anywhere between $20 and $30 per dose, “herd immunity” status is also at risk of Teenager Ethan Lindenberger of Ohio according the Center for Disease Control and being compromised. Herd immunity requires recently attracted national attention when Prevention’s most recently updated CDC that a community maintain a vaccination he decided to go against the wishes of his Vaccine Price List. rate of approximately 95 percent to prevent parents and vaccinate himself upon turning circulation of infectious diseases, according 18. Lindenberger, who recently testifed Rise of the Anti-Vaxxers to the World Health Organization. before a Senate Committee, recounted The threat posed by a reduction of herd how his mother obtained much of her Much of the momentum behind vaccine immunity, compounded with the contagious misinformation concerning vaccines from hesitation and the so-called ‘anti-vaxxer’ composition of a virus, could lead to the Facebook. movement can be traced back to a since- formation of a powder-keg epidemic that In response to increased pressure from discredited study authored by former doctor would require government intervention. health offcials and lawmakers, Facebook Andrew Wakefeld published in The Lancet and Instagram recently announced that they in 1998, Dr. George Han, a Deputy Health Combatting Vaccine Hesitation would take steps to crack down on anti- Offcer with the Santa Clara County Public vaccine content by preventing the promotion Health Department explained. The study The state of California responded to of anti-vaccine ads and reducing search alleged a nexus between autism and the measles outbreaks by passing Senate result recommendations. MMR vaccine, which provides immunization Bill 277 in June 2015. SB 277 removed Although some parents may choose not against measles, mumps, and rubella. A personal belief exemptions to vaccination to vaccinate their children out of concern subsequent journalist investigation found requirements for entry to public or private for their health, Dr. Han noted that even if Wakefeld had numerous undisclosed schools. Although the bill has been children overcome the measles, there are conficts of interest, manipulated evidence, instrumental in encouraging parents to a substantial number who develop severe and even broke ethical codes. Wakefeld vaccinate their children, outbreaks continue complications that require hospitalization, was subsequently struck from the United to occur throughout the state, with an and in some cases, can lead to permanent Kingdom’s medical register and his study outbreak occurring in Santa Clara County effects like brain damage, or even death. was retracted by The Lancet. this spring, according to the Santa Clara “Why would you take the risk of something There have been numerous studies and Public Health Department. like that happening to your child when publications following Wakefeld’s 1998 Earlier this month, measles outbreaks you could have a vaccine and prevent it Lancet publication that have conclusively prompted multiple universities in Southern completely?” Dr. Han said. found no link between the MMR vaccine California to implement quarantines and autism. A March 2019 publication in affecting nearly 1,000 students at risk of Additional information regarding the Annals of Internal Medicine released contracting the virus. In response to growing education, training, information, and the fndings from one of the most extensive concerns over outbreaks, Senator Dr. other resources provided by the Santa studies on potential connections between the Richard Pan, a primary architect of SB 277, Clara County Public Health Department MMR vaccine and autism, concluding that recently introduced SB 276. Immunization Program can be found online the vaccination did not lead to an increased SB 276 would enforce stricter guidelines at: www.sccizedu.org. April 2019 THE ADVOCATE 7

opinion: yoU hAve the Right to CoUnseL At pRe-tRiAL goveRnment AppeALs By Yosef Ratner a right to appointed counsel as a matter of all, previously stated that the Sixth Staff Writer state constitutional law.” Amendment “does not include any right This result seems just. Lopez was, after to appeal.” Therefore, a pretrial appeal Disclaimer: All opinions expressed by the all, entitled to the help of appointed counsel from Lopez’s favorable suppression order author below are solely his/her opinions on the motion to suppress at the trial court cannot be a critical stage under the Sixth amd do not refect the opinions of The level. If the prosecution can get a second Amendment. Advocate. crack at the issue without a real adversary But this is a misapplication of the on appeal, then why go through the Supreme Court’s analysis of appeals in It is black letter law in criminal charade of appointing counsel at the trial different contexts. In holding that the procedure that an indigent defendant has court level if the defense is circumvented by Sixth Amendment does not include any a right to appointed counsel at all “critical the happenstance of a government appeal? right to appeal, the Court said that the stages” of a criminal prosecution, as well The prosecution could essentially take amendment’s protections otherwise extend as on frst appeals from a conviction. The advantage of a constitutional loophole to stages in “preparation for trial and at Sixth Amendment to the United States in the right-to-appointed-counsel the trial itself.” Constitution provides the right-to-counsel jurisprudence: if the government loses at The Court’s statement that the provision and the Fourteenth Amendment’s the trial court level, it can automatically Sixth Amendment does not apply to Due Process Clause respectively ensures get a do over on appeal—but this time appeals clearly assumes an appeal from the right. unchecked by the legitimate defense a conviction, and by the defendant. But is there also a constitutional right accorded to every defendant under the Here, Lopez’s appeal comes before a to appointed counsel on the prosecution’s Sixth Amendment. conviction in “preparation for trial and appeal from a pretrial suppression order? That is troubling. the trial itself”—and by the government. That’s exactly what the California That result would undermine our It is part and parcel of the very same Supreme Court held criminal prosecution last month, and that the Sixth the United States Amendment protects; Supreme Court should it is accordingly follow suit. unconscionable to Whether you rob an indigent analyze the issue defendant like Lopez under the Sixth of its protections upon Amendment or the the coincidence of an Due Process Clause, appellate tribunal’s the situation clearly untimely interdiction presents either a halfway into the fray. “critical stage” of the This fundamental criminal proceeding difference between or a fundamentally a pretrial and post- unfair setting to conviction appeal deprive an indigent is what separates defendant of the right the two stages to to appointed counsel. divergent analyses. For instance, And Supreme Court imagine that you precedent indisputably are a defendant in a recognizes this misdemeanor DUI distinction. case that turns on Take the Court’s crucial evidence, and decision in Ross v. that—with the help of appointed counsel— confdence in a “just result.” It is a central Mofftt. In rejecting an extension of the you prevail on a motion to suppress that premise in our adversarial system that right to appointed counsel on discretionary evidence resulting from the illegal arrest. justice should only be dispensed after appeals following convictions, the Court This basically kills the prosecution’s case, the conclusion of genuine adversarial stressed that there are “signifcant and the court dismisses the action against proceedings. It is the antagonistic character differences between the trial and appellate you “in the interest of justice.” But then of a legal proceeding on which we hang stages” of a criminal proceeding. the prosecution appeals the suppression our confdence that all the relevant facts “The purpose of the trial stage from the order... will be fully developed, and all legal State’s point of view is to convert a criminal The potential consequences are clear: if theories will be zealously advocated for. defendant from a person presumed the court of appeal affrms the lower court’s This is a principal reason the United innocent to one found guilty beyond a decision, the case is over; if it reverses the States Supreme Court recognized the right reasonable doubt.” But at the appellate decision, you are again haled back into to appointed counsel and consistently level, it is “ordinarily the defendant, rather court to face the charges against you. expanded this right ever since. than the State, who initiates the appellate So, should you have the assistance of a The interesting question going forward process, seeking not to fend off the efforts lawyer? is whether the California Supreme of the State’s prosecutor, but rather to The California Supreme Court recently Court’s decision might be followed with overturn a fnding of guilt made” at the said yes. In Gardner v. Superior Court, the a similar analysis under the United trial court level. Court was confronted with the question States Constitution. The Court in The signifcance of the Supreme Court of whether Ruth Lopez, the defendant in Gardner explicitly limited its holding explicitly extending the right to appointed the trial court, was entitled to appointed to its interpretation of the California counsel to pretrial prosecution appeals is counsel on the prosecution’s interlocutory Constitution. But can we expect the United potentially signifcant. At the very least, appeal of the order suppressing evidence. States Supreme Court to consider the issue it closes one remaining loophole in the That evidence was obtained during a as well, and fnd the same protections right-to-counsel jurisprudence. In Gardner, police offcer’s illegal traffc stop of Lopez, under either the Sixth Amendment’s right California’s Supreme Court correctly ultimately leading to DUI charges. to counsel or the Fourteenth Amendment’s distinguished the dramatically different The Court of Appeal held that Lopez Due Process Clause? contexts which inhere at the trial and had no right to appointed counsel on the The opposing argument—and the appellate stages, and accordingly tailored prosecution’s appeal, but the California California Court of Appeal’s argument—to its decision to refect those divergent Supreme Court reversed, holding that a application of this right under the Sixth circumstances. pretrial prosecution appeal of a suppression Amendment technically posits that the order “also qualifes as a critical stage of right-to-counsel provision is inapplicable the prosecution at which the defendant has on appeal; the Supreme Court has, after 8 THE ADVOCATE April 2019 ChARney hALL hot tAKes By Lubna Hakim it for academic growth, I think Staff Writer absolutely. One, just because it helps you understand what feld you want The Advocate asked Santa Clara to go into. For me, personally, that’s Law students: “Do 1Ls need a what it did. I had an internship at summer internship?” the court house in the family law division and now I just signed an offer at a family law frm because I liked it so much. Also, for the general learning experience in terms of getting experience in a legal feld at all. But if you phrase the question as if there is a lack of internships out there for 1L to fnd, I also think that might be true, especially paid ones, and you kind have to bite the bullet Peiyao Zhang (3L) sometimes and not get paid, which is what I did, which is fne, and it “Based on my experience, I would turned out fne. But I know a lot of say yes because it would make people want to get paid, but there is fnding a job your 2L summer a little kind of a small pool that get chosen bit easier because you have more Marili Iturbe Guadarrama (2L) for that kind of work.” relevant experiences you can talk “I think that internships during about in an interview. But I have your 1L summer are important, but friends that did not have jobs over 1L at the same time, if you decided summer and it hadn’t impacted their to travel abroad and do an abroad future job prospects. I think it really program, that can also be an depends on what you want to do. If amazing experience that you won’t you don’t have job, you can go fnd be able to get here... I also know the other means to kind of create similar abroad program does internships experiences like taking a clinic over as well and it would be a very good the summer or something that you idea, if you want to go that route, have more things to talk about and to try to actually get an internship more things that are relevant to the as well. Having a wide variety of job experience you want to get is internships can help you decide looking for.” exactly what you want to do and what you don’t want to do. Or you can see how an offce deals with cases and then see how a different offce deals with their kind of cases, and if you are set on specifc type of law, you can apply a little of each Samantha Sales (3L) offce method you like if you go to private practice.” “Yes, I totally think so because depending on if you know for sure what feld you want to go into, I think you should defnitely try it in that summer. Like for me, I thought I wanted to do family law, I was always interested in it. And so I did OCM’s Sarah E. Tesconi an externship at the Family Law Courthouse in Santa Clara, and that “Yes, we feel it is very important is when I realized I didn’t want to for a 1L to work during their frst do it. But at the same time, I was summer. When we meet with 1Ls, we still able to develop soft skills like emphasize the beneft to obtaining working with different people, other summer employment and we stress attorneys, and being familiar doing that it doesn’t necessarily matter paperwork with the court. It helps where you work your frst summer, you add to your narrative later on in just that you do work somewhere to law school when you fnally fgure out gain the legal skills you need to move what you want to do, like now I want yourself forward in your career.” to do corporate. But I’ve always gone back to my experience at the court Kelsey Hickman (3L) house and talked about how that weaves into why I’m qualifed for this “I think of the question in two and that.” different ways. In terms of needing