By TONY GONZALEZ • NOV 14, 2016
More than a decade has passed since the U.S. Supreme Court struck down the so-called “sodomy” laws that made it criminal to engage in homosexual sex — and even longer since Tennessee took that step.
Yet traces of those prosecutions linger, with charges logged in court files and subject to background searches. In Nashville, that includes convictions against 41 men from the 1980s and 90s.
Nashville, Tennessee—The Tennessee Board of Cosmetology and Barber Examiners has officially withdrawn its threatened enforcement action against on-demand beauty services provider Project Belle (“Belle”), green-lighting the company’s business practices and enabling its continued growth throughout the State of Tennessee. Represented by Nashville attorney Daniel Horwitz, Belle responded to the Board’s formal demand that it pay a fine and cease and desist from operating by invoking Belle’s constitutional rights to conduct business free from protectionist governmental interference. The hard-fought victory is featured in Forbes, The Nashville Business Journal, Reason, The Daily Signal, The Tennessean, and other media outlets.
Based on the complaint of a competitor that Belle was introducing “highly disturbing” competition for customers into the market for beauty services, the Board had claimed that the Tennessee Cosmetology Act of 1986 prohibited Belle from facilitating the purchase of cosmetology services in the privacy of a customer’s home. Accordingly, the Board demanded that Belle pay a civil fine, waive its right to judicial review, and cease and desist from operating. Instead, Belle lawyered up and formally contested the Board’s allegations, causing it to “reconsider” its threatened enforcement action. The Board’s decision to permanently withdraw its demand and close the case soon followed.
Photo Credit: Jessica Steddom
“We are extremely pleased that the Board of Cosmetology has withdrawn its unlawful and overzealous threats against Project Belle, whose only crime has ever been to provide eager customers with convenient, premium quality beauty services at competitive prices in the privacy of their own homes,” said Daniel Horwitz, Belle’s attorney. “No government agency should be in the business of preventing popular, innovative businesses from serving willing customers just to protect entrenched industry competitors from competition. We look forward to working with the General Assembly in the coming months to make clear that the Board lacks the authority to deprive healthy, able-bodied consumers of their right to purchase their desired beauty services whenever and wherever they please.”
“The Board has decided to dismiss its complaint and Belle will continue its operations and growth efforts in Nashville,” said Armand Lauzon, Belle’s founder and CEO. “We are delighted by the Board’s decision. It means that beauty professionals who have built businesses with us can continue their success, and our clients can continue enjoying services that many of them desperately need. It also means that economic growth and innovation can continue expanding in Tennessee. We are proud to have helped pave the way on this important issue.”
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Constitutional lawyer Daniel A. Horwitz has been appointed to a four-year term on the Tennessee Advisory Committee to the U.S. Commission on Civil Rights.
State Advisory Committee members conduct reviews and produce reports and recommendations concerning state and local civil rights issues, including justice, voting, discrimination, housing, and education. By Congressional mandate, the Commission establishes Advisory Committees in all 50 states and the District of Columbia. Appointees to State Advisory Committees serve renewable four-year terms.
The U.S. Commission on Civil Rights is an independent, bipartisan agency charged with advising the President and Congress on civil rights matters and issuing a federal civil rights enforcement report. For information about the Commission and its State Advisory Committees, please visit http://www.usccr.gov.
The Commission appointed:
Harvard Law School has published Daniel Horwitz’s article: Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1 (2016), in the Spring 2016 edition of the Harvard Latino Law Review. The article, accessible here, argues that the right to the effective assistance of counsel outlined in the landmark U.S. Supreme Court case Padilla v. Kentucky, 559 U.S. 356 (2010), applies to undocumented defendants. Its abstract is as follows:
In Padilla v. Kentucky, the U.S. Supreme Court held that non-citizen defendants who plead guilty as a consequence of having received incompetent immigration advice are entitled to withdraw their pleas if they can “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” To date, however, a nearly unanimous line of authority that includes two U.S. Circuit Courts of Appeals, seven U.S. District Courts, trial and appellate courts in four states, and at least one academic scholar has concluded in some form or fashion that “Padilla applies only to those who were present in the country lawfully at the time of the plea.” Specifically, these authorities have reasoned that because “a guilty plea does not increase the risk of deportation” for undocumented defendants, “in a situation where a defendant seeks to withdraw a plea based on Padilla, and alleges lack of knowledge of the risk of deportation, prejudice cannot be established[.]” In other words, these authorities conclude, regardless of either the breadth or the magnitude of their counsel’s incompetent immigration advice, undocumented defendants are never entitled to relief under Padilla because they are categorically incapable of satisfying Padilla’s “prejudice” prong.
These contrary authorities notwithstanding, however, this Article argues that Padilla does apply to undocumented defendants. Four reasons are offered to support this view. First, the contrary conclusion neglects the legal and practical reality that a guilty plea frequently does increase the risk of deportation for undocumented defendants. Second, regardless of the fact that there are myriad situations in which a guilty plea can cause an undocumented defendant to be deported who otherwise would not have been, the test for prejudice under Padilla is not whether a non-citizen defendant would have been deported anyway; instead, the applicable test is whether “a decision to reject the plea bargain would have been rational under the circumstances.” Third, the contention that Padilla does not protect undocumented defendants undermines the underlying purpose of the right to effective assistance of counsel itself: to prevent inaccurate convictions. Fourth, Padilla held without equivocation that: “It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the ‘mercies of incompetent counsel,’” and because this holding expressly includes undocumented defendants, lower courts lack the authority to ignore it.
Taken together, this Article concludes that future courts should reject the prevailing view that Padilla does not apply to undocumented defendants and should hold instead that undocumented defendants’ Padilla claims must be carefully reviewed for prejudice on a case-by-case basis.
Nashville attorney Daniel Horwitz, left, and Davidson County Criminal Court Clerk Howard Gentry talk after a hearing where Horwitz presented a case for the mass expungement of 350,000 cases involving 128,000 people. (Photo: Shelley Mays / The Tennessean)
Nashville, Tennessee—More than one hundred thousand (100,000) Nashville residents may soon benefit from a groundbreaking class action motion that was filed in Davidson County General Sessions Court on Tuesday. The motion – filed by Nashville Attorney Daniel A. Horwitz – was supported by Glenn Funk, the Davidson County District Attorney, and Howard Gentry, the Davidson County Criminal Court Clerk. It is the first of its kind in the country.
Tennessee law generaly provides that anyone whose case does not result in a conviction is entitled to have his or her records expunged free of charge if they file a petition for expungement with the Clerk’s office. Because many people cannot afford to take a day off of work or assume that their records are expunged automatically, however, thousands of people who have records that could be expunged end up falling through the cracks every year without filing the necessary paperwork. If granted, the motion filed on Tuesday would give the Clerk’s office the legal authority to begin clearing the backlog automatically.
On September 3rd, Judge Rachel L. Bell called an inter-agency meeting of the ten government agencies involved in processing expungements (the District Attorney, the Public Defender, the Criminal Court Clerk, General Sessions Court staff, the TBI, the TDOC, the AOC, the Metro Police Department, the Davidson County Sheriff, and Metro Legal). After several agencies expressed concerns about the cost of processing additional expungements, the cost burden that would result from a class expungement was taken into consideration. “I am committed to ensuring that no agency will be burdened by this proposal,” said Judge Bell. “Knowing that every agency is underfunded with respect to processing expungements, I will propose a graduated implementation schedule to guarantee that no undue burden is placed on any agency involved. I am also committed to ensuring that expungements are processed more quickly. I am excited about this proposal because of the many ways that expungements benefit the public.”
Following a hearing on Tuesday, Judge Rachel L. Bell, Davidson County General Sessions Court Presiding Judge, took Horwitz’s motion under advisement. According to an affidavit filed by the Criminal Court Clerk’s office, the proposal would benefit 128,000 people and apply to 350,000 separate cases that were either not prosecuted due to lack of evidence or were dismissed between the years 2000 and 2012. Only cases that took place in Davidson County General Sessions Court that did not result in a conviction would be affected.
“Nashville is blessed to have public servants like Glenn Funk, Howard Gentry and Rachel L. Bell who care deeply about the community and who are committed to finding innovative ways to serve the public,” said Horwitz, who will be serving as lead class counsel alongside James P. Danly of the D.C. law firm Skadden, Arps, Slate, Meagher & Flom. “I am honored and humbled to be a part of an effort that will help more than 100,000 individuals who were never convicted of any crime clear their records and gain access to employment. The law should be a force that improves the lives of all people. I am overjoyed that in this case, it finally will be.”
“Consequences for criminal activity should be reserved for those who are guilty,” said District Attorney Glenn Funk.
Several elected officials serving in both the Tennessee General Assembly and the Metro Council have pledged their support for the effort and have already promised to fund it. “Justice demands this momentous undertaking that will remove an undue stain on individual’s records and help ensure their equal opportunity to employment,” said State Representative John Ray Clemmons.
“When a system has such a huge number of people caught in the backlog, it’s time to re-examine the system,” said Metro Council Member Fabian Bedne. “People who have not yet had their records expunged can’t fully contribute to society. Additionally, at a time when Nashville is enjoying unprecedented growth, we need to do what we can to maintain high levels of employment in order to lower costs and tame inflation. This is the right thing to do from both a human and a business perspective.”
Added Metro Council Member Freddie O’Connell: “This is a perfect example of a situation where what seems like a simple bureaucratic measure can have a lasting negative impact on the life of someone who has had an encounter with the justice system. The impact of this simple effort should offer some additional procedural justice to a number of Nashvillians, and I’m glad to see it being supported by the administrators of our justice system.”
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UPDATE (February 3, 2016): An agreement has been reached in Horwitz’s class expungement lawsuit. Nashvillians shall now have the right to file expungements offsite by mail. Information regarding this right is now available at the Criminal Court Clerk’s website here.
Nashville attorney Daniel Horwitz’s Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem L. Rev. 519 (2015), has been selected as a “must read” publication by the National Association of Criminal Defense Lawyers’ (NACDL) The Champion magazine and the Getting Scholarship into Court Project. Since its publication, the article (accessible here) has also been cited in multiple filings before the United States Supreme Court and by preeminent Fourth Amendment scholar Wayne LaFave.
Horwitz’s article, published in the Spring 2015 edition of the Memphis Law Review, critiques the holding adopted by a growing number of courts that law enforcement may delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause for up to forty-eight hours following an arrest as long as a judge or magistrate ultimately determines that the arrest itself was supported by probable cause. Although this issue has largely escaped review within academic literature, the practice of employing investigative detentions against warrantless arrestees is widespread among law enforcement. Of note, whether such investigative detentions comport with the Fourth Amendment has also generated a circuit split between the Eighth Circuit Court of Appeals and one of two irreconcilable lines of authority within the Seventh Circuit Court of Appeals. The issue has similarly divided the appellate courts of at least nine states.
Horwitz’s article rejects the notion that law enforcement may ever deliberately delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause (known as a “Gerstein hearing”) in order to facilitate further investigation by law enforcement. Specifically, Horwitz argues that the conclusion reached by several courts that police may intentionally delay a warrantless arrestee’s Gerstein hearing for the purpose of further investigation as long as probable cause existed to justify the defendant’s arrest in the first place is inconsistent with the Fourth Amendment for five separate reasons. First, he argues, it confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a determination of probable cause that is made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement — initially established by the Supreme Court in Gerstein v. Pugh, and subsequently reaffirmed by the Supreme Court in County of Riverside v. McLaughlin — which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, it renders McLaughlin’s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, it substantially diminishes the value of the check on law enforcement established by Gerstein by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to escape judicial review of any kind.
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