Puerto Rico received a rather unwelcome and tightly wrapped Christmas gift this year from the United States as it was reminded, in a brief filed by Solicitor General Donald B. Verrilli Jr., that it is not a sovereign state regardless of the fact that it has its own Constitution and is much more independent than a colony or territory.

The United States, taking a substantial interest in the outcome of the two cases reaching the Supreme Court in January 2016 regarding Puerto Rico’s political status and future, just planted its feet firmly in the argument that Puerto Rico does not self-govern and is actually a territory with a limited ability and authority to govern over its own interests, disputes, and affairs. The brief has created a media frenzy in Puerto Rico and has even involved the United Nations through an appeal highlighting human rights issues pertaining to self-determination.

Image Courtesy Of [Vxla via Flickr]

Historically speaking, Puerto Rico was ceded to the United States by Spain in 1898 following the conclusion of the Spanish-American War pursuant to the Treaty of Paris signed on December 10, 1898. Following several years of constructing Puerto Rico’s government, legislature, and judiciary, it was finally provided a bill of rights by Congress in 1917, and the people of Puerto Rico were granted U.S. citizenship. In 1950, Congress gave Puerto Rico the right to create its own Constitution to be adopted by its government so long as it “provided a republican form of government” and “include[d] a bill of rights.” Puerto Rico’s Constitution was approved by Congress in 1952 following several changes and revisions. Since then, Puerto Rico has enjoyed a level of autonomy and sovereignty similar to that of the states. Constitutionally speaking however, Congress has directly managed and overseen Puerto Rico’s affairs under the Territory Clause of Article IV of the Constitution.

The cases to be heard by the Supreme Court, while narrow in focus, will directly address the debate over Puerto Rico’s constitutional and political future–a bigger picture effect, if you will. One case addresses whether the United States and Puerto Rico are separate sovereign nations for the purposes of Double Jeopardy under the Fifth Amendment of the U.S. Constitution. Due to the fact that the Double Jeopardy Clause prohibits individuals from being tried for the same offense twice, Puerto Rico would have to have sovereignty and operate in an autonomous fashion to charge individuals for the same crimes they were convicted of in federal court. While the federal U.S. government and the states are considered separate sovereigns for the purposes of Double Jeopardy, in its brief, the U.S., who is not a party to the case, submitted support for the Respondents in Commonwealth of Puerto Rico v. Luis M. Sanchez Valle, concluding that Puerto Rico is not a separate sovereign entity and therefore, Puerto Rico’s individual and independent prosecution of the individuals convicted in federal court violates the Double Jeopardy Clause of the Fifth Amendment.

The second case to be heard by the Supreme Court centers around Puerto Rico’s catastrophic public debt of approximately $72 billion, which it wants to be able to control and restructure in the same way each individual state can, but is not able to under the Bankruptcy Code of U.S. law. The debt incorporates $20 billion for public utilities, used by the people of Puerto Rico including 3.5 million Americans, which Puerto Rico is unable to pay. It is urging the Supreme Court to grant Puerto Rico the right to enact laws allowing for restructuring. This desperate measure comes on the heels of a 2014 decision by the U.S. Court of Appeals for the First Circuit that struck down Puerto Rico’s Recovery Act, which allowed for Puerto Rico to fill the gaps of Chapter 9 of the Bankruptcy Code that had excluded any part of Puerto Rico’s government to take part in restructuring. As such, the Recovery Act was found to be in direct opposition to U.S. law and deemed unconstitutional. The financial crisis in Puerto Rico has brought the small island to the brink of an economic meltdown.

Puerto Rico’s Governor, Alejandro García Padilla, issued an impassioned and assertive statement following Verrilli’s brief filing, stating that the Solicitor General’s stance is “contrary to all Supreme Court jurisprudence” and that Verrilli’s position is “at odds with prior postures by his office with regards to the sovereignty of the Commonwealth.” As far as Padilla is concerned, using the term “colony” to describe Puerto Rico’s current political status, well, those were fighting words.

While the upcoming Supreme Court cases both carry the answer to a long-lasting debate about Puerto Rico’s constitutional and political future, it appears that both sides want their cake and to eat it too. Padilla does not support either statehood or independence for Puerto Rico and wants U.S. financial and legal support on his own terms. The U.S. has received many benefits from its relationship with Puerto Rico, yet it fails to address the major pitfalls threatening the territory and is unwilling to be flexible in order to address dire concerns that only it can to date. Nothing is for certain except this–come early 2016, the Supreme Court will tackle the issue as to whether Puerto Rico is separate and sovereign from the United States. Until then, all we can do is wait and hope that Puerto Rico works with the United States to come up with additional solutions to the major problems at hand.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

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As the impact of technology on our lives expands, sometimes the law fails to do so accordingly, creating questionable legal gray areas. Many of us store our entire lives in our cell phones, usually just protected by a short four-digit password. The question of whether or not it’s legal for the government to ask for someone’s phone password was just decided by a Pennsylvania court, at least temporarily solving at least one of those legal gray areas.

The case, SEC vs. Huang, dealt with two former Capital One data analysts who were suspected of insider trading. They were using phones that were provided by Capitol One, but used passwords that the suspects had chosen themselves. They were not required to disclose these passwords to Capitol One. Although they returned the phones to Capitol One when they were fired, they did not turn over the passwords. When the investigators asked the two suspects (both with the last name Huang, although not related) they refused, arguing that the Fifth Amendment, which protects an individual from self-incrimination, allowed them to refuse to hand over that information.

On Wednesday a district court in Pennsylvania decided in favor of the Huangs, meaning that they don’t have to turn over their passwords.

There were a lot of questions particular to the case, including the application of a particular legal doctrine called “foregone conclusion.” Essentially, pieces of information aren’t protected under the Fifth Amendment when the government knows what they contain, and their location. In this particular case, Judge Kearney wrote that the government “has no evidence any documents it seeks are actually located on the work-issued smartphones, or that they exist at all.” However, some legal experts, including the Volokh Conspiracy writer Professor Orrin Kerr, argue that the doctrine was applied incorrectly, pointing out that there’s a difference between asking for records of insider trading and asking for the passwords. If this case is appealed, that may be one of the questions that ends up being dealt with.

But back to that legal gray area–while the court may have ruled that phone passwords can be protected under the Fifth Amendment, other aspects of our mobile security probably aren’t. For example, last year a Virginia Circuit Court ruled that while cops can’t require individuals to unlock their phones using passwords, they can make them unlock them using biometric data–like the TouchID feature popular on most recent iPhone models. While these are obviously very different cases, in different courts, these cases and many others highlight the fact that the conversations over privacy and Fifth Amendment issues in the digital age are far from over.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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Public defenders don’t always have the best reputation. TV shows sometimes portray them as being fresh out of law school, inexperienced, and not dedicated to their clients–essentially the type of person you don’t want defending you in any legal capacity. In reality, many are dedicated veterans of the courtroom, and Jami Tillotson is a prime example. In fact, the long-time public defender was arrested January 27, 2015 for sticking to her job–defending her client. The entire scene was caught on two cellphone videos recorded by other attorneys present.

In the videos, Tillotson is seen standing next to her client and another man outside of a San Francisco Hall of Justice restroom, refusing to let their pictures be unlawfully taken. While trying to protect her client’s right to counsel she was arrested for “resisting arrest” (if that’s even a thing) by a plainclothes police officer, Sergeant Inspector Brian Stansbury. There was no mention of any other charge for her to even resist being arrested for, but when cops threatened her with arrest, she calmly replied, “Please do.”

The day of the incident Tillotson was in a courtroom representing her client on an unrelated misdemeanor theft charge, when she heard he and another man were being questioned by a group of police in the hallway, even though her client obviously had representation. Police were instructing her client how to pose for a photo when she intervened. She was well within her rights to do so on behalf of her client’s Fifth Amendment rights. Police didn’t see it that way though. Of course, after she was taken away in handcuffs their photos were taken anyways.

If you haven’t seen the cellphone footage of her arrest yet, you can watch the injustice below.

Apparently this isn’t the first time Sergeant Stansbury has used force to get his way. He was part of a 2013 federal civil rights lawsuit by a black San Francisco PD officer alleging racial profiling. In that case, Officer Lorenzo Adamson was stopped for not having a license plate when Stansbury immediately asked him if he was on probation or parole (because if you’re black you must be on one or the other), leading Adamson to believe that he was being racially profiled. Adamson was then choked and thrown to the ground by another police officer all the while repeating, “I’m a cop!”

Since Tillotson’s arrest video was uploaded to YouTube, her case has gone viral. Many are hailing her as a hero against this type of police intimidation and bullying, as well as questioning the legitimacy of her arrest. Stansbury might have just misspoken, intending to say “obstruction of justice” instead of “resisting arrest.” Either way, obstruction of justice and resisting arrest are charges abused far too often by police as a means to get their way or exert an alpha mentality.

David L. Carter, a criminology professor and former police officer, told NPR that police sometimes feel they have to arrest someone in order to “save face.” He also said some unjustified arrests also stem from officer fatigue when dealing with challenging members of the public, especially in protest situations. While Carter offers up some plausible reasons, it’s not the intent behind the injustice that matters; it’s the fact that there was even any to begin with.

Tillotson spoke about the arrest in a press conference last week, saying:

I was arrested for what we do as public defenders every day. I asked questions. I talked to my client and explained to him his rights. At that point, I was told I was interfering and taken into custody.

Her willingness to be taken away in cuffs is striking–it wouldn’t be surprising if she filed a civil suit against Stansbury and the other officers involved. While the current status of Tillotson’s case is unclear, one thing is certain; she will continue to defend her clients by any means necessary.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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