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Legal Myths & Reality By Judge Joan Shkane

By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality because those informed are always the most successful.

MYTH: Immigration law is stuck in an unchangeable rut.
REALITY: Federal immigration policy is very changeable. It wasn’t until the 1920s that immigration pol-icy started to choose people based on ethnicity. Before that, if you could get here, you were in and encouraged to become a citizen. In the last U.S. administration federal immigration (ICE) officials were permitted (some argue encouraged) to aggressively enter courthouses and courtrooms at will to arrest alleged illegal immigrants. Many attorneys and judges objected to this policy because they claim it had a “chilling effect” on an individual’s willingness to help police or to even come to the court buildings when they needed help. They argue that there are a thousand other places to find illegal immigrants.
Prosecutors found that witnesses in prosecutions and trials would not come to the buildings for fear of arrest and deportation. Defense attorneys agreed. Domestic violence advocates could not help victims seeking court protection from abusive partners and others because the victims would not come to the court buildings. Those pursuing legitimate legal claims were left with no place to go for justice since they could not come to a courthouse without fear of arrest and deportation. Of course, when there exists a legal vacuum and individuals cannot get help, history shows that someone will always fill that vacuum. That someone may be unscrupulous and criminal. Some say it can even lead to organized crime rise because people have nowhere to safely seek help, and may then turn to those outside the law to help. The unscrupulous are always willing to extend help and then make an offer you can’t refuse!
The new administration under the Department of Homeland Security has offered what some describe as a more nuanced plan. It has now forbidden federal agents to arrest people in or near courthouses for most immigration violations. They believe that such arrests interfere with justice and with public safety. Immigration arrests in or near courthouses may only be made now if: 1. There is a national security threat posed by the alleged illegal immigrant; 2. There is an imminent risk of death, violence, or physical harm to any person posed by the alleged illegal immigrant; 3. The immigration officials or police are involved in hot pursuit of an individual who poses a threat to public safety and maybe an alleged illegal immigrant, or 4. There is an imminent risk of destruction of evidence important to a criminal case by an alleged illegal immigrant. The goal is now to focus on those who truly present a threat to public safety, and this has mostly stopped indiscriminate arrests of anyone in the country illegally.

MYTH: Animals have rights, too.
REALITY: In 2018 in this column I discussed the movement to have a chimpanzee living in a cage in a warehouse in Montgomery County declared a person for the purpose of enforcing the right against unlawful imprisonment. New York’s highest court decided against the chimp.
The issue now comes in the form of an elephant named Happy. She was a free Asian elephant living a normal Asian elephant life when she was captured at age one and transported to various zoos. She is now 50 years old and has lived at the Bronx Zoo for more than 40 years. She has been forced to give rides to human children, to be part of an elephant extravaganza for human amusement, been denied direct social contact for fifteen years with other elephants, and is forced to spend most of her time indoors in a large holding facility. The Zoo argues that she is treated well and that known facts like socialization and depression don’t matter in the animal world.
The Nonhuman Rights Project has now received notice that New York’s highest court, the Court of Appeals, will hear an argument on the issue of the lawfulness of Happy’s imprisonment. A leading scientist, a philosopher, legal scholars and experts, theologians, and the public from around the world are expected to attend the argument.
The legal argument in favor of granting Happy legal personhood is that ”personhood” in the law is not the same as being human. They argue that international courts have found that ships, corporations, holy books, and a river are classified as persons for the purpose of the protection of certain rights. The Zoo argues that Happy has her immediate needs tended to, like food, shelter, and medical attention, so that she is fine, and there is no reason to change her circumstances.
The Nonhuman Rights Project says that Happy has been “imprisoned in solitary confinement, notwithstanding the uncontroverted scientific evidence that Happy is an autonomous, intelligent being with advanced cognitive abilities akin to human beings.” Stay tuned! My dog is watching this case!

MYTH: A parent’s First Amendment freedom of speech wins in all arguments.
REALITY: In this column, we have often discussed the standard to be used in a child custody case. Whatever circumstance is in the “best interest of the child” is the standard used around the world, including the Americas, Europe, Africa, and Asia. There are a number of circumstances that go into deciding what is in the best interest of the child. Now comes a new one.
In the Town of Dryden, east of Ithaca, New York, a mother, and father enjoyed joint custody of a mixed-race child. The child was born in 2014. The child lived primarily with the mother. At the mother’s home was a rock with a Confederate flag painted on it. It is unknown if the rock was there before the mother moved in. The father objected to the presence of the rock where the child could see it and come to understand its meaning to the father, and to many Americans. Many believe that one of the principles that the Confederate flag champions are white supremacy, and inferiority of non-white persons, and they say that is unamerican. The case ended up in the Appellate Division, the second-highest court in New York. The Court decided that the presence of the rock with the flag in the mother’s home is NOT in the child’s best interest. The Court reminded the parties that to continue joint custody with a primary residence with the mother, the mother must encourage and teach the child to embrace her mixed-race identity. If she wishes to continue to reside with the child. The Judge wrote that to do otherwise would “thrust her into a world that only makes sense through the tortured lens of cognitive dissonance”. That is, one parent, says and lives one belief, and the other parent a different belief. This is on matters that the child obviously cannot change, and is not just a function of the mind, but of the child’s very body and genetic makeup. The father found honoring the Confederate flag offensive, and the mother apparently did not. She also said that she never used racial slurs in the presence of the child or at all.
The mother further argued that her right to free speech protects her right to display the flag. The Court agreed that the mother does indeed have a right to free speech, and may keep the rock if she chooses. However, weighing the best interest of the child, where the focus belongs in a custody case, does not permit the child to continue to reside in that home with the mother and her rock. The moth-er must remove the rock by June 1, 2021. If she does not remove it, then the father may argue a change of circumstance and proceed to seek sole custody in accordance with the best interest standard.
The mother now argues that this ruling may create opportunities for parties to litigate political views and opinions. The father argues that such a position ignores the fact that the child’s whole body and psyche are mixed-race, and that cannot be argued and has nothing to do with political views. The Court did not address whether or not an objecting parent must produce evidence of how the child’s well-being is negatively affected by a parent’s views and opinions, maybe through an expert witness. This will continue to be developed through other cases.
Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


Utica Phoenix Staff
Utica Phoenix Staff
The Utica Phoenix is a publication of For The Good, Inc., a 501 (c) (3) in Utica, NY. The Phoenix is an independent newsmagazine covering local news, state news, community events, and more. Follow us on Twitter and Facebook, and also check out Utica Phoenix Radio at 95.5 FM/1550 AM, complete with Urban hits, morning talk shows, live DJs, and more.

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