Boston Lawyer Blog

SJC Strikes Down State Anti-Panhandling Law as Unconstitutional

Published on: December 22, 2020 | by Zalkind Duncan & Bernstein LLP

In a landmark decision published last week, Massachusetts Coalition for the Homeless v. Fall River, the Massachusetts Supreme Judicial Court (SJC) struck down G.L.c. 85, § 17A (often referred to as the anti-panhandling law) as an unconstitutional restriction on protected speech. This decision was hailed as a victory by community organizers and people who are houseless, who have long criticized the law for effectively criminalizing houselessness and poverty.

Section 17A imposed criminal penalties for any person who “signals a moving vehicle on any public way or causes the stopping of a vehicle thereon, or accosts any occupant of a vehicle … for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise.” (emphasis added). However, the law permitted the same conduct for other purposes, like selling admissions tickets and newspapers. The law also explicitly exempted from regulation this same conduct when performed on behalf of a non-profit organization with a police permit. The law imposed a $50 fine for violators.

Plaintiffs John Correira and Joseph Treeful are both houseless and members of the Massachusetts Coalition for the Homeless, an organization that advocates for housing justice and provides direct services and assistance to people experiencing houselessness. Like many people who are houseless, Mr. Correira and Mr. Treeful sometimes stand on public streets and ask motorists and passersby for donations in order to survive. Between 2018 and 2019, the Fall River Police Department charged the two men with more than forty violations of Section 17A. Both Mr. Correira and Mr. Treeful have previously been incarcerated as a result of these charges.

ZDB is Hiring!

Published on: December 14, 2020 | by Zalkind Duncan & Bernstein LLP

Boston Criminal Defense & Civil Litigation Firm Paralegal/Legal Assistant Position

We are a fourteen-lawyer firm located in the North End/Waterfront of Boston, with an interesting, varied, fast-paced practice in criminal defense and civil litigation (including employment, students’ rights, and other academic cases). We seek a motivated Paralegal/Legal Assistant with a strong educational background, excellent interpersonal skills, proficiency with office software (including Word, Excel and Outlook) and solid typing skills (70+ wpm). Interest in social media is a plus and previous office experience is desirable. This is an entry-level position that requires a minimum two-year commitment. We are looking for a candidate to start summer 2021. Please email resume and cover letter to the attention of Elena Jacob at resume@zalkindlaw.com. The position will be open until filled.

What Are Your Job Protections as a Parent or Caregiver During COVID-19?

Published on: December 4, 2020 | by Zalkind Duncan & Bernstein LLP

By Lilly Gill, Law Student Intern

The COVID-19 pandemic has drastically changed the relationships between employment, education, and family life as parents are juggling having their children home in remote education or otherwise having limited childcare, and other caregivers have needed to take care of elderly parents or disabled or sick relatives. In recent months, substantial evidence (examples abound, but a few are here, here, here, here, and here) has demonstrated that women are disproportionately taking on caregiving responsibilities during the pandemic. As a result, there are serious concerns that women are being pushed out of the workforce at higher rates than their male counterparts. While female workers may be particularly vulnerable to COVID-related job consequences, our practice has also received numerous inquiries from men who have sought time off, reduced schedules, or other accommodations to help take care of their children or elderly family. As the end of the year is approaching, the COVID-related protections passed by Congress earlier this year are expiring and therefore this may be the last chance for some employees to seek leave for child-care related needs. Moreover, employers may be making decisions regarding layoffs, performance reviews, promotions, and pay raises or bonuses, and may penalize employees with caregiving responsibilities based on gender-stereotypes that caregivers are unable to prioritize their work responsibilities. If employees face adverse career consequences due to their caregiving role, they may have multiple legal paths they can take to challenge those decisions.

Appeals Court Protects the Rights of Individuals in Interrogations Against Coercive Police Conduct

Published on: November 3, 2020 | by Zalkind Duncan & Bernstein LLP

Recently, in Commonwealth v. Davis, the Massachusetts Appeals Court determined that Massachusetts State Police officers coerced an individual to waive his Miranda rights when they arrested him after he attempted to exercise his constitutional right to counsel during an interrogation. CONTINUE READING ›

Supreme Judicial Court Permits State Licensing Boards to Consider Sealed Criminal Records During Disciplinary Proceedings

Published on: September 25, 2020 | by Zalkind Duncan & Bernstein LLP

By: Amanda Gordon, Legal Intern

In Massachusetts, in limited circumstances a person’s criminal records can be available to a licensing board or prospective employer. However, there remains a societal responsibility to ensure that criminal charges do not unfairly stigmatize or disadvantage defendants who have served their sentence or were never convicted at all. The Supreme Judicial Court acknowledged this tension in Boston Globe v. DJCIS, and again in its recent decision, Doe v. Board of Registration in Medicine. In this most recent case, the Court carved out a unique loophole, allowing the Medical Board to use sealed criminal records of doctors for the purposes of disciplinary deliberation. Typically, sealed criminal records can only be accessed by a small number of entities: courts, law enforcement agencies, and a few others. Prior to the Court’s decision, the Board of Registration in Medicine did not ordinarily have access to these records.

Criminal records can be sealed in one of three ways: The first two (G. L. c. 276, §§ 100A and 100B) provide for automatic sealing of certain criminal records, upon request, after a required period has passed without any additional criminal convictions—currently three years for misdemeanors and seven years for most felonies. The third method (§ 100C) of sealing permits a former defendant, whose criminal case resulted in a nolle prosequi (abandonment of the case) or a dismissal, to seal their criminal record at any time upon a judge’s discretionary determination that “substantial justice would best be served” by such sealing, based on the standards set by the Supreme Judicial Court.

Thinking About Participating in a COVID-19 School or Childcare Pod? Here’s What You Should Know as a Massachusetts Employer or Employee.

Published on: August 4, 2020 | by Ana Muñoz

Due to the COVID-19 pandemic, many parents are exploring new arrangements for education and childcare for their children. Families who can afford to are creating “micro-schools” or “school pods”—groups of a few families with similar-aged children who hire a teacher to provide lessons in the families’ homes. Others are simply looking to hire extra childcare help for children who are out of daycare or doing school remotely.

Will Bifurcating Sexual Misconduct Processes Help Schools Comply with Title IX?

Published on: July 21, 2020 | by Naomi Shatz

As schools revamp their Title IX policies by August 14 to comply with the recently-enacted federal regulations, information about how those policies might look is starting to come to light. In recent weeks, a number of schools have made clear that—as my colleague predicted when the regulations came out—while they will create policies to address conduct that falls under the federal regulations, they will also have policies that address sexual misconduct issues that fall outside of what the federal government regulates. Boston University recently offered some insight as to how it will approach sexual misconduct cases come fall. According to BU’s Title IX coordinator, Kim Randall, “[c]omplaints that fall under the new Title IX regulations, as noted above, will be investigated using the procedures required by the new regulations, which are very different from our existing procedures. Those complaints that do not fall under Title IX will be investigated using procedures similar to those currently in place.” Having two separate policies that address sexual misconduct is likely to raise a host of issues that schools need to plan for before imposing those policies on students and faculty. Looking at how cases may be handled under BU’s proposed policies illustrates the issues schools will face if they choose to have two different sexual misconduct procedures.

Supreme Judicial Court Extends Pre-Trial Detention Time Limits Due to COVID-19 Pandemic

Published on: June 24, 2020 | by David Duncan

This week, the Massachusetts Supreme Judicial Court (SJC) issued an opinion in Commonwealth v. Lougee holding that its orders delaying trials due to COVID-19 allow the Commonwealth to hold defendants pre-trial beyond time limits set by statute. The decision applies to pre-trial detainees being held either on grounds of dangerousness under G.L. c. 276, §58A, or after violation of conditions of release under G.L. c. 276, §58B. Both statutes put time limits on how long a defendant can be held in jail without trial: 180 days under section 58A and 120 days under section 58B. The SJC decision addressed three cases: two in which the defendants were found dangerous and held under 58A, and one in which the defendant violated release conditions and was detained under 58B. In all three cases, a trial judge found that because the defendants had been detained for the statutory time limits, they had to be released. The trial judges did not find that the SJC’s orders postponing trials due to COVID-19 affected the calculation of time limits set by sections 58A and 58B. The Commonwealth appealed and the SJC reversed.

Why are the New Title IX Regulations 2000 Pages Long?

Published on: June 4, 2020 | by David Russcol

The Department of Education’s new Title IX regulations, which have now been officially published, run to over 550 pages of fine print in the Federal Register or over 2000 pages in regular font. Few people have the time or knowledge necessary to identify the most important parts of the regulations, let alone read the entire document from start to finish. Without context about the rule-making process, it can be difficult to understand why the regulations are structured the way they are. But understandable or not, the regulations have significant ramifications for students and educational institutions subject to Title IX’s prohibition on sex discrimination in education. This post breaks down the different parts of the regulations, which parts have legal effect, and why.

Laws passed by Congress often leave details up to the agencies designated to enforce them – sometimes very important details. Title IX itself is relatively brief, providing that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” with a limited set of exceptions. It is left primarily to the Department of Education to interpret and effectuate this non-discrimination mandate.

U.S. Department of Education’s New Position on Transgender Athletes is a Radical Departure from Prior Interpretations of Title IX

Published on: June 2, 2020 | by Naomi Shatz

Last month, the U.S. Department of Education (DOE) issued a letter to the Connecticut Interscholastic Athletic Conference (CIAC) and a number of Connecticut schools notifying them that their policy allowing transgender student athletes to play sports on the team that corresponds with their gender violates Title IX, and giving them until June 4 to come into compliance with the law. The DOE’s interpretation of how Title IX applies to transgender students is an about-face from previous interpretations it has issued, and from the interpretation many courts have given to Title IX.

As I described last year, an advocacy organization purporting to focus on religious liberty issues (the Alliance Defending Freedom (ADF)) filed a complaint with the DOE arguing that cisgender female athletes in Connecticut were being discriminated against under Title IX—the federal statute that prohibits sex-based discrimination in schools—because transgender female athletes were permitted to play on girls’ sports teams. The ADF has filed numerous such complaints and lawsuits arguing that when schools refuse to discriminate against transgender students, they are discriminating against cisgender students.