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Discretion and Discrimination In Seattle

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A variety of state and federal laws prohibit discrimination in property rentals, but that wasn’t good enough for Seattle. As long as there was discretion, there was the possibility of discrimination, and so they enacted a law to prevent implicit bias by requiring landlords to rent to the “first qualified” potential tenant.
The goal is to ensure prospective renters are treated equally, according to Councilmember Lisa Herbold, who championed the policy. When landlords pick one renter among multiple qualified applicants, their own biases — conscious or unconscious — may come into play, she says.
There are questions, even after a tenant meets the basic “qualifications” for renting, such as credit rating, ability to pay* and prior landlord recommendations. Prior criminal history cannot be a question, though, as Seattle has forbidden landlords from running a rap sheet. Chief among them is that landlords lose any discretion for intangible qualifications, from a tenant with a bad attitude to one whose personal hygiene could present a problem for other tenants.
The libertarian law firm, Pacific Legal Foundation, is challenging the law.
If government can strip you of choice just because unconscious bias might influence that choice, its power would have no bounds. But that is precisely what Seattle is doing to its landlords. In Yim v. City of Seattle, PLF is challenging an anti-discrimination law that prohibits landlords from choosing their own tenants. Today, we filed our opening brief to ask the Court to invalidate this oppressive and brazen violation of fundamental rights.
Whether this constitutes an unconstitutional taking is unclear. But that this reflects a new level of regulatory creep is certain. At Volokh Conspiracy, Ilya Somin makes the case that this crosses the line.
It is surely true that landlords sometimes engage in subconscious discrimination. Indeed, the same is true of a wide range of people engaging in all kinds of transactions. It does not follow, however, that eliminating landlord choice is the right answer. Doing so is likely to harm tenants more than it benefits them. If landlords cannot rank potential tenants based on factors such as reliability, credit history, their treatment of previous rental properties, and so on, the predictable result is that they will either put fewer properties on the market to begin with, charge higher rent, increase security deposits, or some combination of these and other measures that make rental housing more costly. This likely to be particularly true of landlords who own properties in poor and minority neighborhoods, where landlords believe the risk of nonpayment or other problems is likely to be unusually high.
Will this regulation undermine the rental market in general, and for the poor and minorities in particular, if landlords believe they will be forced into renting to “undesirable” tenants? It’s hard to imagine that people with property to rent will let it lie fallow because of this regulation. They make money renting, and making money is why one becomes a landlord. Holding rentals off the market makes no sense, as they will produce no income.
Whether or not Seattle’s policy is illegal, it potentially sets a dangerous precedent. If the state can impose severe restrictions on liberty and property rights in order to curb subconscious bias, there would be few meaningful limits to its power. Very few if any types of decisions are completely free of cognitive errors of this type. They can occur in almost any economic or social transaction.
And this lies at the core of the opposition to this deep regulatory incursion, that it’s one more step into governmental micromanagement of individual freedom. There will certainly be instances where the “first come, first rent” regulation results in problems, particularly for small buildings where getting along with one’s neighbors is at a premium.
There is no magic to landlords’ assumptions about who will be a better tenant than someone else. And many landlords don’t really care, as this is how they manage their rentals already. But the question of whether this new intrusion into individual discretion, property rights, personal choices, will lead to ever-deeper regulation of people’s discretion to “curb subconscious bias” is a serious one.
Renting apartments is a business, like any other. Businesses are subject to regulation. You may believe they shouldn’t be, but they are. The law allows it and that’s really not a subject for serious debate. However, regulating business for implicit bias, as opposed to discrimination, is a very different animal. Since implicit bias, itself a controversial concept, can’t be detected per se (because it’s implicit, see?), the only means of combating it is to prohibit discretion at all.
And if individual discretion becomes a legitimate subject of business regulation, with the solution being to prohibit all individual discretion, the consequences could be bizarre. And even though this comes as a business regulation, regulation tends to transfer over to the personal realm eventually, as demonstrated by Title IX’s impact.
Is the “first come” rule for Seattle rentals the end of the world? In that instance, probably not. But regulatory creep has happened over and over, and individual discretion is a core aspect of individual freedom, even when it comes to how one chooses to conduct one’s business.
Is the potential benefit of ending implicit bias worth losing the ability to make business choices based on one’s personal discretion? Perhaps. But will this prove to be the acceptable baby step that leads inexorably to the next one, and the one after that, which ends up socially engineering our every choice? That’s the question that should be considered now, as it will be too late once personal discretion has been lost to good intentions.
*The law prohibits discrimination based on the source of rental payments.
The Seattle City Council approved an ordinance Monday banning discrimination by landlords against renters with alternative sources of income, such as Social Security benefits, veteran’s benefits, unemployment insurance, child-support payments and other assistance programs.

Categories : Uncategorized
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Mooning by defendants brother causes a mistrial

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A mistrial was declared in the first degree murder trial of Johnathan Ramil when his brother reportedly exposed his buttocks while members of the jury were present.  Mr. Ramil also reportedly made threatening comments in front of the jurors.  The judge reset the trial for the beginning of June and ordered that the Defendant’s brother will be banned from attending those proceedings.

Categories : Criminal Law
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Free and convenient Arizona Legal Research Tool

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Here is a newly launched site which provides easy access to
Arizona Criminal & DUI Law, Rules of Criminal Procedure and Rules of

This site is a great tool for Criminal and DUI defense attorneys who need quick access to these materials without having to register or navigate through other sites congested with unrelated content.

Categories : Criminal Law
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New license plate law to take effect

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Beginning Thursday, January 1, 2009, all motorists with Arizona license plates will be required to “maintain each license plate so it is clearly legible and so that the name of this state at the top of the license plate is not obscured.”  In other words, if you are one of the many drivers on the road with a bulky license plate frame, the police can pull you over if the word “Arizona” is even partially covered.  The new law, A.R.S. §28-2354, is viewed by many as unnecessary for public safety and unfair in that it applies only to in-state motorists.

The larger issue, however, is the real motive behind this new law.  Many Drug Defense Attorneys and Criminal Lawyers believe that the police supported this measure because it provides them the ability to legally justify the stop of a car in many cases where they otherwise would be unable to.  Under federal and state law, the police cannot conduct a traffic stop unless they have reasonable suspicion to believe that a crime or traffic violation has been committed.  If the police stop a car and find drugs or evidence of some other crime, the courts will generally suppress the finding if the initial stop was not legally justified.  This new measure now makes it that much easier for the police to conduct a questionable stop and sidestep issues pertaining to the constitutionality of their conduct.

Please contact Phoenix attorney Joshua Davidson if you have any questions about search and seizure law or wish to discuss your case.

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The East Valley DUI Task Force prepares for New Year

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Officers from several different valley police agencies including the Scottsdale Police Department and the Tempe Police Department will be out in full force tonight searching for drunk drivers.  Since Thanksgiving, the state taskforce has made over 1,900 DUI arrests and conducted over 20,000 traffic stops.


Even with Arizona’s new “super-extreme” DUI law which hammers first offenders with 45 days in jail if their BAC is too high, the average BAC of the drivers arrested by the DUI task force has been increasing since they began their operations last month.  Expect sobriety checkpoints and a strong police presence on the roads tonight.  Given the aggressive enforcement by the DUI taskforce this weekend, it would be a safe bet to avoid driving if you’ve had anything at all to drink.  Please be safe and avoid driving drunk as you celebrate the new year.  If however you are cited for a DUI over the holiday weekend, please contact Scottsdale DUI Attorney Joshua S. Davidson immediately for you’re an initial consultation.

Categories : DUI
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Maricopa County Attorney files lawsuit against Board of Supervisors

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A lawsuit has been filed by Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio.  The law suit challenges the decision of the Maricopa County Board of Supervisors to obtain legal advise from private attorneys (instead of Thomas) while Thomas’ office is prosecuting Don Stapley – a sitting supervisor.  While most first year law students and even non-lawyers would recognize the inherent conflict of interest in this situation, Thomas is seeking a court order requiring the Board to continue using his office as their attorney.  In other words, Thomas seeks to criminally prosecute a member of the Board while he provides legal advice to the board on other pending matters.

Of course, this is not the first scandal regarding the county attorney’s office.  In the infamous “New Times” prosecution, Thomas hired his former employer to be a special prosecutor.  Notwithstanding the piles of taxpayer money that his ex boss collected for handling that matter, the case was ultimately dismissed by Thomas.

Mr. Stapley is accused of withholding information pertaining to his financial and real estate dealings.

Categories : Politics
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Aggravated Assault charges cannot be filed based only on a broken prosthetic

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Earlier this month, Division One of the Arizona Court of Appeals issued a ruling regarding the use of a broken prosthetic as a “body part” to charge an individual with aggravated assault.  Under Arizona law, there are several aggravating factors that can be used to elevate an assault to a felony aggravated assault.  These factors include causing temporary but substantial loss or impairment of any body organ or part. 

In this particular case, the Maricopa County Attorney’s Office charged the defendant with aggravated assault for damaging the dental bridge and attached artificial tooth of the alleged victim.  Specifically, the State attempted to argue that the prosthetic was itself a body part and its destruction amounted to an aggravated assault.  The Court of Appeals  upheld the dismissal of the charge but noted that a jury might still find the defendant guilty of aggravated assault under the legal theory that the broken dental prosthetic may have substantially impaired the victim’s ability to use her mouth to chew certain food.  Maricopa County Attorney Andrew Thomas (who reportedly has never tried a case before a jury) has a track record of stretching existing laws to conduct politically expedient prosecutions so there is little doubt his office will seek a felony conviction under this creative theory.

If you have been charged with aggravated assault in Mesa or Phoenix, please contact Criminal Defense Attorney Joshua S. Davidson today.

Categories : Criminal Law
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Charles Barkley charged with DUI in Scottsdale

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Former NBA all-star and MVP Charles Barkley was charged with DUI in old town Scottsdale early yesterday morning.  Although his DUI arrest took place in the city of Scottsdale, he was stopped and arrested by Gilbert Police Department officers.  The officers were working outside of their normal jurisdictions in connection with a multi-agency task force that targets various areas of Maricopa County.

According to news reports, Mr. Barkley declined to take a portable breath test but was cooperative with the officers.   Scottsdale DUI attorney Joshua S. Davidson advises all of his clients to follow these exact steps.  The portable breath test is not an accurate or reliable machine and its results are not admissible in court.  However, if you blow into it, the cops can use the result to impound your car for 30 days and possibly justify your arrest for DUI which then gives them the right to demand a blood draw.  The bottom line is that there is very little, if any, good that can come from taking a portable breath test.  As Mr. Barkley’s case demonstrates, refusing a portable breath test is by no means a guarantee that you will avoid being arrested for DUI.  However, it will potentially strengthen any motions to dismiss or suppress evidence that may be filed by his Scottsdale DUI attorney.

If you or a loved one is charged with a Phoenix DUI or a Scottsdale DUI, contact Attorney Joshua S. Davidson today.

Categories : DUI
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A great example of how NOT to conduct yourself in court

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Categories : Uncategorized
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Arizona Department of Public Safety to begin using consent forms for vehicle searchs

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Arizona DPS officer are going to be using a consent form which must be completed before searching a vehicle. The change in police was made after an advisory board of citizens appointed by the governor considered the matter and made its recommendations. According to news reports, the consent forms must also state the basis for the initial stop as well as the results of the search. These forms will be used to evaluate whether their officers are stopping and searching a disproportionate amount of minority motorists. From a criminal defense perspective, I believethese forms will be a double-edged sword. Certainly, if a consent form is signed, it will make it more difficultthe challenge the validity of a consensual search in court. Whenever consent is givenorally, the officer’s credibility and other factors always plays a role when asking the court to determine whether consent was actually given and if it was done voluntarily. On the other hand, if DPS has a policy requiring the use of the search form andthey do not obtain one for whatever reason, serious questions might be raised regarding why the officer departed from thier department’s policy.
Phoenix Drug Crimes Attorney Joshua S. Davidson strongly recommends that you politely but firmly refuse any request to search your vehicle. The fourth amendment to the United States Constitution protects all persons from unreasonable searches and the presumptionis that a search warrant is required. There are obviously many exceptions to the search warrant requirement however the burden in on the prosecution to establish the existence of the exception. Receivingconsent from the person searched is a well recognized way for the police to avoid the necessity of a search warrant. If the police disregard your denial of your request or threaten you with jail if you don’t allow them permission, it is okay to submit to their requests. Remember, the side of the road is no place to argue constitutionallaw with the police. You will lose 100% of the time. Just be sure to inform the officer that you are allowing the search only to avoid whatever they threatened you with or because you do not want to challenge them physically.
Contact a criminal defense attorney today at the Law Offices of Joshua S. Davidson if you or a loved one is facing criminal charges arising from a police search.

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The Arizona Defense Law Blog is published by Phoenix DUI and criminal defense attorney Joshua S. Davidson. Nothing on this website is intended to create an Attorney-Client relationship and the information provided herein is for general information purposes only.


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