A recent Cracker Barrel experience is being used as a teachable moment, which will include legal analysis to help determine if the restaurant's actions were illegal. This site provides free self-help legal information.
I visited Cracker Barrel located at 10915 New Halls Ferry Road, Ferguson, MO 63136, Monday to help celebrate my son's birthday. I ordered meatloaf listed in the "Weekday Lunch Features" section for $5.99. Since my 92-year-old father was unable to attend, I placed a to-go order of the meatloaf for him.
When I received my bill, the meatloaf orders were listed for $6.99 each instead of the $5.99 menu price. I pointed out the mistake to the server who mentioned that the price had changed but that it wasn't reflected on the menu. The server had mentioned earlier that it was his first time working as a server. We left a tip on the table and I decided to get the bill corrected when I checked out.
When I presented the bill to the cashier, I explained that my bill was incorrect. A copy of Cracker Barrel's menu was sitting on a podium in the checkout area and I was able to show her the $5.99 price on the menu. The cashier also explained that some prices had gone up, but that they were not reflected on the menu and she called for the manager.
After waiting for the manager for about 10 or 15 minutes, he also acknowledged that some of the prices on the menu were incorrect and that they were waiting for the company to send updated copies. I asked, how do we fix this? The manager replied that $6.99 was the price. I pointed to the menu setting on the podium and stated this is the price, the $5.99 listed on the menu. The manager stated he had no way to honor the $5.99 menu price.
I mentioned under Missouri's truth in advertising statute, state law requires them to honor the menu price. I further explained that it was a simple matter to place a sticker with the new price over the old price. The manager held firm on the $6.99 price. Rather than escalate the issue, I explained that I no longer wanted the to-go meal, and only paid the $6.99 price plus tax for the meal I consumed. I told the manager to tell Cracker Barrel's corporate office I would be filing a complaint with the Missouri Attorney General's office.
I don't regularly patronize Cracker Barrel and the location was chosen by someone else. I've visited Cracker Barrel maybe four or five times, usually to meet with others celebrating a special occasion. Before ever visiting a Cracker Barrel restaurant, I saw news reports about racial bias. That information helped to form my impression of Cracker Barrel. I prefer to spend my money with businesses that appreciate my patronage. In 2004 the U.S. Department of Justice settled a complaint that alleged Cracker Barrel:
allowed white servers to refuse to wait on African-American customers;
segregated customer seating by race;
seated white customers before African-American customers who arrived earlier;
provided inferior service to African-American customers after they were seated; and
treated African-Americans who complained about the quality of Cracker Barrel's food or service less favorably than white customers who lodged similar complaints.
When an offer is made and accepted a contract is created. Once I placed my order, a contract existed between Cracker Barrel and myself. Here's where it can get a little tricky; the menu is not an offer. Menus are considered invitations to make an offer. When I placed my order, I was making an offer to purchase the menu item (accepting their invitation). By taking the order the server is accepting the offer, thereby forming the contract. The consideration is made by my acceptance to pay for the $5.99 menu price in exchange for the food or beverage.
The essential elements of a contract in Missouri are: “(1) competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation.”
Since Cracker Barrel failed to honor the contracted price, they breached the contract and exposed themselves to the possibility for legal action simply because they wouldn't honor their menu price.
Truth in Advertising
The Missouri Merchandising Practices Act (MMPA), Chapter 407 of Missouri Revised Statutes, is the state’s primary truth-in-advertising law.
RSMO 407.010, defines the term advertisement fairly broadly which would include restaurant menus. An advertisement or solicitation that creates a false impression in the mind of a reasonable consumer and that was made with the intent of influencing a purchasing decision is unlawful false advertising in Missouri. The regulations specifically provide that reliance is not an element of deception or misrepresentation. 15 CSR §§ 60-9.020, -9.070.
RSMO 407.020 defines misrepresentation, suppression, or omission of any material fact among other things as an unlawful practice. Under the MMPA, “omission of a material fact is any failure by a person to disclose material facts known to him/her, or upon reasonable inquiry would be known to him/her.” The sever, cashier, and manager all knew about the price change but failed to tell the customer.
RSMO 407.025 provides for damages and allows punitive damages and attorney fees.
To succeed in a false advertising claim under the MMPA, a plaintiff must prove the following four things:
There was a purchase, advertisement, or active solicitation of goods or services
The advertisement in question was primarily targeted for consumer purposes, not for business-to-business purposes
The advertisement or solicitation was, in some manner, unlawfully deceptive
The plaintiff suffered actual financial harm as a result of the false advertising
Truth in Advertising is not the same as Truth-in-Menu also known as “Accuracy-in-Menus” and “Truth-in-Dining” terms used to describe regulations governing restaurant menus. Many locations require that menu descriptions be honest and selling prices and service charges be accurate. Examples of information that should be carefully described include preparation style, ingredients, item size, and health claims.
It's unwise for a business to expect customers to pay for their mistakes. Until Cracker Barrel refused to correct its pricing error, I had an enjoyable experience. The meatloaf was decent and everyone else seemed to enjoy their meal. I relied on the accuracy of the menu. I don't know if I would have placed the same order if the $6.99 price was listed. I was actually considering a couple of more expensive options when I noticed the $5.99 menu. I might have ordered the chicken for $9.99 instead. Regardless, I would have still placed an order for my father. It wasn't that I couldn't afford the extra dollar, it was the total lack of regard and respect shown when they refused to honor their menu price!
Cracker Barrel ruined what would have been a positive experience and turned it into a negative one. If not but for the pricing error, I would have left very satisfied and my father would have been too. When I explained what happened, my father said you made the right decision to leave that other meal. Then I prepared his lunch myself.
Imagine you are at a store to make a purchase and a stranger snatches two dollars out of your hand. What would you do; keep quiet, say something, or do something? When Cracker Barrel wouldn't honor the menu price, I felt as if they were attempting to steal my money.
There are two separate causes of action to file a lawsuit against Cracker Barrel; "breach of contract" and "Missouri Merchandise Practices Act".
The breach of contract damages is only one dollar per meal. However, sometimes it's not about the money as much as the principle of the thing. If this was a deliberate tactic to increase profits, Cracker Barrel would know most people would never consider going to court for such a small amount. How many hundreds or even thousands of customers were overcharged? Everyone has to decide how much principle is worth to them. I've certainly spent more than two dollars in time and effort researching and writing this article which for me was worth it. I'm not planning to file suit.
Since the MMPA includes the possibility of punitive damages, that might prompt someone to file a lawsuit or even a class action. If someone were to file a lawsuit, Cracker Barrel would have to pay an attorney to represent them which could cost tens of thousands of dollars depending on the number of motions and hearings. A judge could decide to teach Cracker Barrel a lesson and award thousands in punitive damages.
The solutions were simple; use labels to show the new price, verbally tell customers about the price changes or make the adjustment when a customer complains. The reality is many customers might not notice or might be too embarrassed to mention the price difference. My research revealed the Ferguson Cracker Barrel's online menu (PDF) included the $6.99 pricing on September 13th. The manager could have simply printed copies for temporary use until the corrected menus arrived.
Cracker Barrel violated the law. Every member of our party thought it was wrong for them not to correct their mistake. Hopefully, Cracker Barrel will learn from this and treat its customers more fairly in future situations.
And if the American people don't benefit from these endless losing wars, why do we keep fighting them?
War is an economy. Anybody who tells you otherwise is either in on it or stupid" – War Dogs, the movie
by Miles Mogulescu, entertainment attorney/business affairs executive, producer, political activist, and writer.
The United States emerged from its victory in World War II as the world's preeminent superpower. Its annual military budget—about three-quarters of a trillion dollars a year—exceeds the aggregate of the next ten countries in the world.
Yet despite America's apparent global military supremacy, of the approximately dozen wars the U.S. has fought since 1945 (depending on how you're counting) the U.S. has lost every real war it has fought. (Its only "victories" have been minor military incursions to overthrow unfriendly governments in Grenada, population approximately 120,000, and Panama, population approximately 4.2 million.)
After millions of deaths of Americans and foreigners and trillions of dollars lost in places like Vietnam, Afghanistan, and the Middle East, is the U.S. any safer and secure because it fought these losing wars in far-off lands? No.
Have the American people benefited from these wars? No. Hundreds of thousands of soldiers have been killed or wounded and trillions of dollars have been spent.
So if the American people don't benefit from these endless losing wars, why do we keep fighting them? The short answer is that there are powerful forces in America that get rich from endless wars: The military-industrial complex and its political and economic servants and enablers.
As CodePink tweeted last week:
In 2021, OVER HALF of our entire $741 billion Pentagon budget will go directly to private military contractors that profit from war.
President (and former General) Dwight D. Eisenhower warned in his 1961 Farewell Address to the nation, "We must never let the weight of this [the military-industrial complex] endanger our liberties or democratic processes. […] Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals."
Drive around the wealthy suburbs around the nation's capitol and look at the multi-million dollar McMansions owned by corporate executives and lobbyists who are the real beneficiaries of America’s forever wars. During the Afghanistan War, the stocks of the five largest defense contractors outperformed the S&P 500 by 58%. Fortunes end up in the pockets of corporate executives. They and their companies spend tens of millions of dollars lobbying Congress and contributing to Republican and Democratic politicians alike to buy their support for forever war and defense budgets totaling 60% of the Federal government's discretionary spending.
That's why, even as the Afghanistan War is ending, much of the corporate elite and the corporate media is ginning up a new cold war with China, to justify continued overspending on the military.
The main danger to U.S. security is not a military invasion by a heavily. armed superpower enemy. Bigger national security threats today are climate change, cybersecurity, and global pandemics. These will not be addressed by spending more on the traditional military and fighting more losing forever wars. They require popular resistance to the military-industrial complex, the defeat of politicians on their payroll, and the transformation of American priorities from preparing for and fighting useless wars to addressing the climate, economic inequality, and equal justice.
As Warren Gunnels, staff director of the Senate Budget Committee, put it, "The only thing that we 'accomplished' by going into Vietnam, Iraq, and Afghanistan was to put trillions of dollars into the military-industrial complex and destroy millions of lives—period, full stop. It's time to stop repeating the same mistakes over and over again."
Open letter to Black Churches, Organizations, and their members
My late uncle, Dick Gregory, frequently declared that "The black woman and the black church are the two most powerful forces in the history of America." Black women are exercising their power, St. Louis' most visible examples are newly elected US Representative Cori Bush and the progressive St. Louis prosecutor Kimberly Gardner. It's way beyond time for the Black Church to assert its power!
I am the author of "Legal Research for Non-Lawyers," and maintain a free self-help legal information site that provides practical resources to help people help themselves. The site and its content are targeted primarily to Black people who can't afford an attorney, however, all visitors are welcome. Lack of legal knowledge and representation are among the black community's greatest obstacles.
I began publishing Court.rchp.com shortly after the 2014 murder of Michael Brown. Although I don't hold the power associated with monetary wealth, I am exercising the individual powers that I do have; time, information, and the ability to publish and reach out to others.
While exercising those powers during a recent research project, a disturbing pattern of institutional racism negatively impacting your members was revealed. Enterprise Rent-A-Car has been accused of not renting luxury cars to African-Americans and instead use tactics to convince them to take lower-level vehicles.
Enterprise is not alone, many of the companies your members patronize practice the same sort of subtle racism. While drafting this letter, a news story aired in the St. Louis area about black women being refused dine-in service at a local Waffle House. However, white customers were allowed to dine in.
When my 92-year-old father saw the Waffle house news story, he stated, "White companies always use black people to clean up their messes", referring to the Black Waffle House Vice President defending the company against racial discrimination claims. I couldn't help but check out Enterprise Holdings Executive Officers and as expected, the only Black Executive was their Diversity Officer.
Earlier this year, we also had an issue with State Farm Insurance company where racial discrimination may have played a part. We believed State Farm was charging us more than similarly situated white drivers and they had planned to unfairly cancel our policies. A formal complaint was filed with the Missouri Department of Insurance and State Farm rescinded the cancelation notice.
A Gallup Poll released last month, asked African Americans whether they had been treated unfairly in the last 30 days.
35% report mistreatment while shopping in a store
About one in five reports unfair treatment in other situations
54% of Black Americans report unfair treatment in at least one situation
Reports of mistreatment higher among Black than Hispanic Americans
Acceptance of subpar treatment invites increasing amounts of racialized mistreatment which ultimately leads to deadly encounters with white citizens and police officers falsely claiming self-defense and being believed.
Two of the largest black church organizations, The National Baptist Convention USA, Inc. and The Church of God in Christ (COGIC) together have over 43,000 congregations with over 12.5 million members in the United States, with millions more in other denominations. Black Americans have an estimated buying power of $1.3 trillion and donate a higher share of their wealth than Whites. If Black America was a country, we would be the 15th largest country by GDP, between #14 Spain and #16 Mexico. Black households on average give away 25 percent more of their income per year than Whites. Black churches take in an estimated $12-13 billion per year, an amount larger than the GDP of 74 nations. Before the pandemic, these two organization's yearly conventions contributed hundreds of millions of dollars to their host cities' local economies. In addition to church donations, nearly two-thirds of Black households donate to community-based organizations and causes, to the tune of $11 billion each year.
The combined membership and financial resources of black church congregations can be a powerful force in the fight against racial discrimination. When people discriminate against us they don't care whether we're Baptist, Catholic, Cogic, AME, Jehovah's Witness, Nation of Islam, or any other denomination, to racist, we're all just black.
Racists have been using a divide and conquer strategy against us for centuries. During slavery, it was field vs house slave, dark vs light-skinned. Divide and conquer is a strategy of maintaining power by breaking up larger concentrations of power into pieces that individually have less power than the one implementing the strategy. The strategy includes causing rivalries and divisions to prevent smaller groups from linking up to break up existing power structures. Racist institutions have perfected and modernized their methods. However, in the digital era, we're still using the same strategies employed during the 1960s. During the George Floyd protest, the Federal Government targeted Black Lives Matter leaders for prosecution.
As Malcolm X so aptly declared in his 1964, "Ballot or the Bullet" speech, "though Islam is my religious philosophy, my political, economic, and social philosophy is Black Nationalism"…"if we bring up religion we’ll have differences; we’ll have arguments, and we’ll never be able to get together."
Black Faith Union
The combined leaders of your organizations should consider forming a Black Faith Congress (BFC), similar to how African countries formed the African Union (AU). The BFC could even collaborate with black fraternities, professional, and social justice organizations and request membership to the Diaspora Division of the AU. Representatives from participating black denominations could present ideas to form a national strategy to combat the evil that is racism. The BFC could develop a national racism database to record instances of discrimination to reveal which companies and institutions demonstrate a clear pattern of racist policy. Organized sanctions, whether in the form of a boycott, lawsuit, or some other punitive action could be imposed.
The Black Faith Congress or whatever name is chosen could also help formulate a black economic game plan. The BFC could also create a national online database of black talent and black businesses. How many times does one of your members have the solutions to another member's problems, but they have no medium to connect?
You probably have many members with underutilized IT and website development skills that would be happy to work on such a worthwhile project. They might even be able to develop a Black Church peer-to-peer app similar to Uber, Turo, or Airbnb. The possibilities are endless. If the BFC started a credit union or insurance company, I would certainly join.
Funding for such a project could be simple. If each of your member congregations contributed just $25 per month to fund the BFC, in just one year they would have over $12 million to work with. If every congregation member contributed a single dollar each month, that would be over $150 million per year. Member organizations could hold fundraisers to purchase shares in the BFC. BFC shares should be restricted and only made available to your member congregations. Too many of our most promising and valuable assets, BET, Motown, and Johnson Publications (Ebony & Jet) among others for example are now white-owned and controlled. The BFC over time would then pay dividends back to the member congregations.
Additionally, charitable contributions from corporations should be denied, because donations can be used as control mechanisms. If you're dependant on racist corporations for funding, it might prove difficult to call them out on their racism. "Beware of strangers bearing gifts!"
The Internet has provided an opportunity for global reach. The pandemic has forced many of your member congregations to begin streaming their services. Zoom and other similar technologies have eliminated the need for the BFC to regularly meet in person reducing potential travel expenses. The members of your congregations are among the most talented people on the planet. The black church is synonymous with music, praise dance, and drama. Just about every major black artist has shared in interviews that their talent was developed in the black church. However, the black church doesn't receive any financial benefit from the talent they helped to develop. There should be BFC recording studios and movie production crews. People are shooting movies on iPhones. The BFC wouldn't even have to worry about distributions because many of their member congregations have quality screens and sound systems and could become part-time movie theatres.
Tyler Perry, a well-known member of the Black Church, owns the largest film production studio in the United States. The BFC could partner with Perry to create content. Earlier this year, Tyler Perry asked the Black Church what good are you? The BFC could reach out and show him. The BFC could organize and monetize the church's talent into streaming content. They could start by creating a YouTube channel but work to ultimately create its own streaming service that the Black Church controls. How about a show similar to Shark Tank where black church members pitch business ideas to the BFC to fund. The BFC could get a percentage of ownership in the business. Religious organizations pay no taxes on their investments, whether from interest they earn on their investments or in capital gains.
Keep in mind, the Catholic Church is the Biggest Financial Power on Earth. The Vatican has a large number of shares in the most powerful international banks and corporations such as Gulf Oil, Shell, General Motors, General Electric, International Business Machines, etc. They own over 177 million acres of land and that may not include the hundreds of thousands of schools, hospitals, and other special use properties. Catholic churches pay a tax to the Vatican every year.
The BFC if properly executed and managed could bring in billions in additional revenue while also providing valuable service to the community.
In addition to making the private sector accountable, the BFC could create a police misconduct database where members report incidents of racial discrimination and other law enforcement misconduct. Police would no longer be able to hide their miscount reports, at least those made by your members. Those officers could be held accountable and a tool would exist to help identify and eliminate them.
Black church members
My parents were Catholic, my wife's family Pentecostal, my son is an ordained Baptist minister, and I have had close friends that are Muslim or Jewish. They are all kind and loving people who worship the same God, however, they simply have different customs and varied in ideology. Don't allow our difference in faith prevent us from working together to achieve a common good.
An email to some of the largest Black Organizations and Churches will be sent inviting them to freely use these ideas. Share this letter with your church if you believe in this concept. If you're a member of an association of Black Teachers, Black Lawyers, Black Doctors, or a member of a Black Greek, Black Professional, or Black Social Reform organization urge your organization to reach out to form associations with the other organizations. Competition for donations, grants, and other subsidies have divided many Black Organizations. The BFC could function as an affiliate organization similar to United Way serving Black Churches and Organizations.
Some sort of audit mechanism would need to be in place to control corruption. We all know there are those among us who will sell us out for opportunity.
We understand that many congregations and organizations may not be interested. Partnerships can be local, regional, or national. You don't need everyone to participate to achieve success. One hundred years ago "Black Wall Street" was destroyed, lets build another using the Black Church as a foundation. If the pandemic has demonstrated but one lesson, it's "United we stand, divided we fall!"
"Every kingdom divided against itself will be ruined, and every city or household divided against itself will not stand." – Mathew 12:25
Christopher Hill, Founder/CEO of ManUpGlobal and co-author of the book, "The Re-Factor," recently endured a car rental experience from hell. He was placed on Enterprise Rent-A-Car's do not rent (DNR) list by mistake.
Enterprise and other car rental companies maintain a (DNR) list which is a list of customers who have been forbidden from renting a vehicle for any reason.
Christopher was preparing for ManUpGlobal's Operation Suave when his car became inoperable because of an accident. Below is an interview Christoper did before the event.
Christopher who happens to be my son needed a car immediately and there was a rental car shortage. He eventually found a vehicle at Avis in West County about 20 miles away for $100/day. Christopher drove the Avis vehicle that weekend and to work Monday.
Christopher is an ordained minister, he is employed by a non-profit organization where he teaches classes to incarcerated men transitioning back into society, however, he has never been incarcerated himself or had any major legal issues.
On Monday, May 24, 2021, I searched for a better rate while he was at work and made a car rental reservation on Enterprise.com. I normally rent from their Dellwood location and reserved a midsize there for $82/day. That reservation was canceled after I discover a midsize rate of $38.75/day at the Ladue location.
When Christopher finished working, We met at Avis and drove to the Ladue Enterprise location.
I listed Christopher as an additional driver, but we were informed he was on the do not rent list. Enterprise Rent-A-Car stated that a car Christopher previously rented had been repossessed, which we both knew was untrue. We waited while the agent tried to reach someone, however, Enterprise's corporate offices were closed. The agent told us she would check into the matter the next day and we ended up renting from another company at twice the cost.
Rental that caused Do Not Rent Blacklisting
Christopher rented a car from the Enterprise Rent-A-Car location, 2233 Washington Avenue in downtown St. Louis in December 2019, then extended the rental multiple times. On or about January 13, 2020, Christopher returned to the Washington Avenue location to extend his rental and provided his credit/debit card.
The car was returned undamaged on what Christopher thought was the due date, January 29th, his card was charged and he didn't think anything else about the matter. He was never told there was an issue or that he was being added to the DNR list or even that he was in danger of being added to that list.
The vehicle was returned undamaged, the credit/debit card provided was charged and the total fees were paid in full. Since there was no vehicle damage, no outstanding or unpaid fees. It's hard to understand why Christopher was added to the do not rent list.
False Hope for Removal
On May 25th, the Enterprise Rent-A-Car agent called to explained that she confirmed that the vehicle had been repossessed. I knew this information was incorrect. Assuming they mixed up Christopher's rental with someone else; I asked the location of the repossession. I was hoping for some clue which renter's car had been repossessed. The agent checked, called back, and then stated that the car had been returned but that a repo request was made before the vehicle being returned. The agent explained that her boss would call to see about removing Christopher from the do not rent list.
After not hearing from anyone, I phoned back and eventually spoke to a manager who stated Christopher could not be removed from the list. Upon further inquiry, I was provided with information for the Risk Management department.
Before calling Enterprise Risk Management, I phoned the repo company. The owner confirmed that on January 28, 2020, a repo order from Enterprise was received, however, it was canceled less than 24 hours later on January 29th. Enterprise experienced no charges for the canceled repo order according to the owner of the repo company.
Efforts to Resolve
I phoned the manager of Enterprise's Risk Management several times between May 27th and June 9th, but only reached his voicemail. I emailed a detailed message using Enterprise.com's customer service link. I received a response that they needed to hear directly from Christopher, so I forwarded the email.
On June 13th, Christopher contacted Enterprise by email. Explained he wasn't sure how he ended up on the DNR list and because Enterprise's office hours conflicted with his work schedule, he asked his father to look into the DNR list issue. Christoper disclosed he read his father's summary of the incident and the details were correct and to please accept the statement as if it were his own and asked to be promptly removed from the DNR list.
On June 14th, Enterprise apologized for the inconvenience, stated they would engage the management team at Risk Management and that they would contact him soon to provide proper assistance.
On June 25th, Christopher explains he had not heard from anyone. Christopher was approaching the July 3rd deadline for the auto insurance replacement from Hertz. Pandemic supply chain issues caused delays at the auto dealer where Christopher's car was being repaired. The dealer offered to provide him with an Enterprise replacement vehicle beginning on July 3rd. Because the DNR list issue was not resolved, Christopher had to pay to continue the Hertz rental. Hertz continued the rental at the insurance rate (around $26/day including taxes and fees) until August 11th at which time he was charged $975.87.
On August 10th, the dealership reserved a rental from Enterprise since Christopher's car still was not fully repaired. I attempted to reach the manager of Enterprise Risk Management again. The person who answered the phone (TW) explained he was on vacation and would not return until Monday, August 16th.
After explaining the details to TW, she found Christopher's rental record and stated that he had only paid for two days on January 13, 2020, that the car was due back on January 15th, but the vehicle was not returned until January 29th. I disputed that information and wondered if they might have mixed him up with another renter.
She provided me with her email to send some documentation we discussed, however, she stated Christopher would most likely never be removed from the DNR list. She said no one other than the department manager could remove Christopher from the list.
Christopher emailed me copies of his bank statements showing six separate payments to Enterprise Rent-A-Car totaling $1,214.28 concerning the rental resulting in him being blacklisted on Enterprise’s DNR list. (bank statements cutouts shown)
Dec. 19. 2019 $178.75
Jan. 02, 2020 $240.00
Jan. 07, 2020 $170.00
Jan. 13, 2020 $120.00
Jan. 21, 2020 $275.45
Feb. 03, 2020 $230.08
This information among other things was shared with Enterprise on August 11th. I received a response indicating I would be contacted by an area manager and another stating my message has been sent to the Regional Office, and someone would contact me concerning my son's 'do not rent' case. As of the publication of this article, we have not heard from anyone.
The dealership made a reservation in Christopher's name at Enterprise. Since the DNR list issue was not resolved, I had the dealership change the reservation to my name and picked up a vehicle. My wife drove the Enterprise rental and Christopher drove her vehicle. Christopher will not drive the Enterprise rental unless and until he is removed from the DNR list and authorized to drive it.
How the DNR List is Supposed to Work
Supposedly, most drivers don’t have to worry about ending up on a Do Not Rent list. The assumption is that renters are only blacklisted from car rental companies due to avoidable issues like failing to follow the terms of the rental lease, causing unpaid damage to rental cars, or participating in illegal activities. However, Enterprise has been shown to penalize renters for frivolous reasons. One man was added to the DNR list because he shared an address with a former roommate who owed a balance.
There's a Facebook group "Enterprise Rent-A-Car did me wrong", where people share how they have been wronged by Enterprise Rent-A-Car. Several people complained about being unfairly added to the Enterprise's DNR list.
What particularly caught my attention is how many people complained that they only discovered they were on Enterprise's DNR list at the rental counter which seems punitive and retaliatory. I can't imagine the stress of arriving in another city standing in line at the rental counter for a long time so you can attend a funeral, job interview, or some other important function, especially if you're running late, only to be blindsided with the news that you're on the DNR list!
Relevant Facts about Enterprise Rent-A-Car
Enterprise is the largest company of the US car rental Oligopoly which controls over 94% of the market:
AvisBudget Group (owns Avis, Budget, and Payless)
Enterprise Holdings (owns Alamo, Enterprise, and National)
Hertz Global Holdings (owns Dollar, Hertz, and Thrifty)
Enterprise Holdings and its affiliates own nearly 1.7 million cars and trucks, making them the largest car rental service provider in the world measured by revenue and fleet. The company is privately owned by the Taylor family, #48 on Forbes 2020 America's Richest Families List, with a net worth of $7.8 billion. Enterprise dominants the insurance replacement market. According to Auto Rental News at one point Enterprise controlled over 85% of that market.
Jack Taylor (d. 2016) founded Enterprise in 1957. He named the company after the USS Enterprise, an aircraft carrier he served on as a Navy pilot during World War II.
Jack Taylor's son, Andrew C. Taylor is Executive Chairman of Enterprise Holdings.
Andrew C. Taylor's daughter Chrissy Taylor is the president and CEO of Enterprise.
The St. Louis-based company reported $22.5 billion in revenues for the fiscal year through July 2020, down 13% due to less travel during the pandemic.
Enterprise has 80,000 employees and operates in nearly 100 countries and territories.
The Taylor Family controls two major charitable foundations; the Enterprise Holdings Foundation with over $323 million in assets and the Crawford Taylor Foundation with over $585 million in assets.
A previous negative experience with Enterprise was used as a teachable moment on this site in 2015.
It seems extremely unfair that a company would ban some of its customers for life, sometimes for minor transgressions, however, if you’re placed on a Do Not Rent list for a legitimate reason, you generally don’t have legal recourse against the company, including any right to appeal. When you land on a DNR list of the parent or subsidiary DNR list you are barred from renting from any of the related companies.
When a person is mistakenly placed on a DNR list, there may be remedies available.
Car rental agreements are contracts. Therefore the first step is to look closely at the contract, which usually includes two separate parts.
“The big print giveth and the little print taketh away”
The contract you are given at the rental counter is often a rental summary (big print) which provides the most important details. There's usually a terms and conditions section (little print) that may be accessible thru an internet link, printed on the rear of the contract in small print or attached.
It's been nearly two years since the December 2019 rental resulting in Christopher being listed on the DNR list and he did not have a copy of that contract. Assuming that my August 11th contract is the same as Christopher's prior contact, our discussion will concentrate on what I consider the most relevant parts of the contract concerning the DNR list issue.
Section 1, provides the following definition: “Rental Period” means the period between the time Renter takes possession of Vehicle until Vehicle is returned or recovered and in either case, checked in by Owner. This is an interesting definition since this could be interpreted differently than the dates appearing on the rental summary. The summary portion of my rental contract listed 8-11-2021 as the pickup date and 8-12-2021 as the anticipated return date. When I asked Enterprised about this, I was told the dealership usually rents the vehicle for a single day and then continues to renew the contract each day until the repairs are complete. Therefore, even though the rental summary so far indicates my car is over a week late, the rental is still valid and I have legal possession. A similar situation might have been the source of Enterprise's confusion concerning the January 2020 due date.
Section 4 – outlines the prohibited uses and what the renter shall not allow or do with the vehicle. None of the prohibitions were violated in Christopher's case, therefore, no further discussion is required.
Section 16 – Limitation of Remedy/No Consequential Damages. This may be unenforceable. Consequential damages, also known as "special damages," refers to damages from an indirect result of an event or incident. The difference between direct and consequential damages is not clear. When a generic exclusion of consequential damages is included in contracts without bothering to define what consequential damages are, it is frequently a fact question whether the damages are direct or consequential. Not long ago a federal court held that a contractual provision excluding “consequential damages” is ambiguous.
A breach of contract action includes the following essential elements:
Inclusion on the DNR list would normally indicate a breach of contract. In Christopher's case, Enterprise suffered no damages.
The car dealership repairing Christopher's car uses Enterprise exclusively. That sort of market dominance certainly has created some situational monopolies. Exclusive contracts with a single car rental company can result in serious hardships if your job requires travel. With this in mind, we wondered if there are any legal remedies under the law when placed on a DNR list by mistake?
Missouri law implies a covenant of good faith and fair dealing in every contract. Slone v. Purina Mills, Inc., 927 S.W.2d 358, 368 (Mo.App. 1996). When Enterprise blacklisted Christopher without a valid reason or warning based upon his contracted rental vehicle, Enterprise violated the covenant and therefore breached the contract. Unlike Enterprise, Christopher has suffered damages. He suffered embarrassment, mental anguish, increased rental charges from May 24th, then July 3rd thru August 11th and August 20th; Christopher was forced to rent another vehicle from Hertz to drive to a speaking engagement about 200 miles away.
Since corporations are considered persons under the law when placed on a DRN list by mistake, would it be considered slanderous or libelous since each is a separate entity? We could find no case law concerning this issue and this question may remain unanswered until tested in court.
Car rental companies are public accommodation providers under the Americans with Disabilities Act and Title II of the Civil Rights Act of 1964, 42 US § 2000. Privately owned businesses and facilities that offer certain goods or services to the public including food, lodging, gasoline, and entertainment are considered public accommodations for purposes of federal and state anti-discrimination laws. Federal law prohibits public accommodations from discriminating based on race, color, religion, or national origin. If you believe you have been discriminated against, you may file a complaint with the Civil Rights Division of the Department of Justice, or with the United States attorney in your area. You may also file suit in the U.S. district court.
With this in mind, does a valid reason need to exist before placing members of a protected class on a car rental do not rent list without a clear and convincing reason? Business owners have the right to refuse service to customers for legitimate reasons. Business owners cannot refuse service to protected classes of people based on arbitrary grounds. Reasons must be legitimate enough to hold up in court, otherwise, a rebuttable presumption of discrimination could exist.
Considering the evidence of systemic racism we uncovered at Enterprise, with limited research, we believe it might be possible to make a prima facie case, especially once we conduct further research. To establish a prima facie case for public accommodation discrimination, the complainant must show that he/she: (1) is a member of a protected class, (2) attempted to exercise the right to full benefits and enjoyment of a place of public accommodation, (3) was denied those benefits and enjoyment, and (4) was treated less favorably than similarly situated persons outside her protected class. McCoy v. Homestead Studio Hotels, 390 F. Supp. 2d 577, 583-85 (S.D. Tex. 2005).
While evidence that a person engaged in bad behavior in the past is generally not admissible in court cases, habit evidence is admissible as an exception to this rule. Habit evidence refers to evidence of a repetitive response by a person to particular circumstances. Corporations are considered persons under the law. It is used in court cases for proving how that person would likely act in a similar situation.
We believe we have a valid claim under both state and federal law. We will allow Enterprise a reasonable amount of time to respond before filing suit if we so choose to pursue that option. We will update this page once additional details become available.
Racism at Enterprise
Enterprise CEO Chrissy Taylor published, “We Must Do More, and We Will”, a pledge to help increase racial equity in response to the murder of George Floyd. If sincere, I applaud Ms. Taylor's pledge.
As a black man, I have endured many slights and inconvenience that makes you wonder in the back of your mind if the treatment, lack of attention or service is because of race. This is because black folks have a proverbial institutional knee on their necks.
I don't pretend to know the hearts and minds of others; however, statements, tone, reaction, facial expression, and body language all provide clues. Although bias is often difficult to quantify, to paraphrase the late Supreme Court Justice Potter Stewart, "I know it when I see it."
Institutional racism is embedded through laws, regulations, and customs within society or an organization. It's less perceptible because of its "less overt, far more subtle" nature. It can be seen or detected in processes, attitudes, and behavior that amount to discrimination through prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people. It originates in the operation of established and respected forces in the society
Unfortunately, bias and prejudice are innate characteristics—often deeply ingrained and concealed from our own self-examination. The United States Supreme Court recognized this when it said that “[b]ias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence.” Further, the high court said, bias or prejudice can exist in someone “who was quite positive he had no bias and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence.” Crawford v. United States, 212 U.S. 183, 196 (1909).
Our research indicates some Enterprise policies and practices are most likely disproportionately negatively impacting African-Americans and other minorities. Below are some examples.
Miami Beach, FL – 2021
Earlier this year, a man says he was racially profiled at Miami Beach Enterprise Rent-A-Car. After waiting for hours over two days, a white female employee refused to rent him a car and called the police. When the police arrived, it was refreshing to see them take a neutral approach and not automatically believe the false narrative that the black customer was the problem.
Detroit, MI – 2018
Employees of the Enterprise Rent-a-Car at Detroit Metropolitan Airport claim black customers are discriminated against when trying to rent luxury vehicles. White customers were given discounts not available to black customers and code words to distinguish black from white customers were used. The video below provides shocking details.
Baltimore, MD – 2019
Enterprise Rent-A-Car Co. of Baltimore was ordered to pay more than $16.3 million in lost earnings, benefits, and interest to 2,336 black job applicants who were passed over for the company's management trainee program.
Following an investigation by the U.S. Department of Labor's (DOL's) Office of Federal Contract Compliance Programs (OFCCP), an administrative law judge found that the company—which is a federal contractor—showed a pattern over 10 years of discriminating against black applicants in favor of white applicants. According to the judge, the company's policy had a disparate impact, which means that a seemingly neutral policy was discriminatory in practice.
Alexandra, VA – 2018
Brendalan Jackson, an Enterprise customer in Alexandra, VA stated the following at complaintsboard.com:
"I have had multiple issues with Enterprise but figured that the representatives were having a bad day. I have called out a few situations at enterprise when I truly knew I've been racially profiled; then only to be patronized by Enterprise employees (Station Manager). I have called the customer service deescalation number for assistance; however, never getting my issue resolved (demeaning me further). My husband completed the registration online for me for a premium SUV (Chevrolet Suburban). I know I was racially profiled again on 11/21/18 in Old town Alexandria, Va. When I arrived at the counter there were two Caucasian females both to assist me. When they looked up my information they both looked at each other while I was standing there, one of the females switched the keys on the counter (as if I was blind and did not see them); I inquired if there was an issue? One of the ladies paused and said that both the Tahoe and Suburban vehicles were identically the same. She then continued to switch out the keys from the Suburban to the Tahoe (which had multiple issues). Now keep in mind that this is Thanksgiving Eve and I needed to get on the road to travel home, I didn't know what she was talking about until my husband informed me that the car wasn't a premium car that I was being charged /paying for and told me that I should've received a Suburban. I am an African American female with over 15 years of experience as a Master of Social Work that supervises a clinical program teaching adolescents on this very issue. I am appalled at the very treatment that I have been given as an Enterprise Plus Member and a paying customer of the Corporation. I am officially putting this on our Core Agency Web site to inform all of our over 5, 000 employees of this Metropolitan area. So that they avoid Enterprise and avoid them being humiliated as I have been on 11/21/18 and again another situation with enterprise at DCA on 11/17/18."
Ms. Jackson's complaint was marked resolved, however, we do not know what the resolution was. However, there were at least 27 discrimination complaints on the site including the one from a federal law enforcement officer below.
Tawana – another Enterprise customer stated the following at complaintsboard.com:
"Before arriving at the Enterprise Car Rental desk I called from home to ask what I needed to rent a car and I was told a credit card. I was asked if my credit card was linked to my checking account and I said yes. I was told to bring two bills (utility bills) from home. I brought four or five to be on the safe side. Once I arrived at the desk I presented all of the information that was required of me. The agent went over to another gentleman in the office and they began to whisper, the agent came back and asked if I had any proof that my bills are not past due. The bills that he had were current and had no past due amounts listed on them, which would have proved that they were not past due and were paid. I was the only African American customer in the office at the time, I was told that I had to pull up my bank account online at one of their desks in order for them to see if I paid my bills. They placed me at a desk to do so. I was extremely insulted by this treatment. I am a Federal Officer (Law Enforcement) and I was treated like a criminal."
On October 24, 2000, eight black individuals filed a class action complaint in the United States District Court for the Eastern District of Missouri (St. Louis), alleging that their employer, Enterprise Leasing Company of St. Louis and its parent company, Enterprise Rent-A-Car, engaged in racially discriminatory practices in promotion and hiring. The plaintiffs claimed that Enterprise was in violation of Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e), The Civil Rights Act of 1866 (42 U.S.C. § 1981), and portions of the Missouri Human Rights Act (MHRA) RSMO 213.
On May 3, 2002, a judge signed a consent decree which required the Enterprise to pay $2.3 million in damages to the two sub-classes and the named plaintiffs and included injunctive relief requiring the company to make changes in the way it advertises and publicizes available jobs as well as how it communicates with those who are turned down for jobs within the company.
As previously mention, I normally rent from the Dellwood location, however, the May 24th reservation was made with the Ladue location because their cars were more than half off Dellwood pricing. I live in the Ferguson/Dellwood area which is predominantly black. Ladue is 94.1% white and only one percent black. I'm not sure why there was such a difference in pricing between Dellwood and Ladue, however, that fact taken along with other factors support an argument for racial discrimination.
At Enterprise, renters without a ticketed return travel itinerary need to provide a credit card with sufficient funds to cover the cost of their rental plus an additional amount between $200 to $400 based on the rental location. Why? What possible difference could the rental location make in determining how much deposit is required. Are Black renters being charged $400 disproportionately?
We also discovered proof of age discrimination at Enterprise.
2019 – Capital One, Enterprise Ensnared in Facebook Ad Bias Scandal – The U.S. Equal Employment Opportunity Commission found “reasonable cause” to believe Enterprise violated federal anti-discrimination law by restricting job postings on the social network to people of certain ages or genders. In both cases below Enterprise refused to promote anyone over the age of 40; click on cities for details.
The Taylor family owned the Keefe Group, a company profiting off public and private prisons and their prisoners. A 2015 Post Dispatch article, revealed the company has contracts with more than 800 public and private prisons. They are one of the larger players in a cottage industry that handles deposits to prisoner accounts, provides inmates with everything from food and condiments to music players and phone service. The following statements were made in the article: “They find so many ways to milk these people for every penny they can”…“You are talking about people who are extremely poor”, said Michael Campbell, assistant professor of criminology at the University of Missouri-St. Louis. Alex Friedmann, managing editor of Prison Legal News accused the Keefe Group of price gouging. The day after the first anniversary of the Michael Brown shooting death protestors marched on Enterprise Holdings because of their connection to the Keefe Group.
Months later, the St. Louis Business Journal reported the Taylor family was considering selling the Keefe's Group parent company Centric Group for $900 Million.
Our "Secret Meeting" page discusses the allegations that companies who profited off prisons conspired to target young black men to fill prisons. If your employer requires driving or travel, inclusion on a DNR list could result in job loss. I worked for a transportation company the used Enterprise rentals; if one of our drivers was on the DNR list and unable to drive those trucks, they may have lost their job. Unemployment, financial hardship, and poverty are among the top reasons people commit crimes.
If you are an Enterprise employee and have evidence of discrimination or unfair practices, please contact us.
Alternatives When Black Listed
As we discovered, landing on a DNR list can be a major setback. The first and most obvious alternative is to try another rent from another company not affiliated with the company the place you own their list.
If Enterprise or some other company is your only or lowest cost option, ask a friend or relative to borrow their car and offer to pay for the rental vehicle as a replacement. DO NOT DRIVE THE RENTAL. If the person on the DNR list is allowed to drive the rental, the renter could also end up on the DNR list.
Since three companies control over 94 percent of the car rental market, complain to your US Representative about how they are using their superior bargaining position to create unfair consumer conditions and request new regulations or breaking companies up into separate entities.
Check out Turo, a peer-to-peer car sharing, sort of the Airbnb of car rentals. Renters search for available vehicles listed by people who are willing to rent their vehicle often at prices much lower than car rental companies.
Another possible option if you need a rental for vacation is RvShare.com, where you can rent RVs and motor homes directly from local owners. UPDATE: RV Share became an affiliate advertiser after we published, so booking your RV rental thru the link above helps support this site financially.
I did not want to write this article! Christopher and I made several good faith attempts to resolve this issue, but there comes a point where the ridiculousness of a situation just needs to be called out.
Mistakes happen, I understand that, but what’s important is how those mistakes are handled and Enterprise handled this issue very poorly. Research indicates that for every complaint expressed, there are over 25 unregistered complaints. Many dissatisfied customers just quietly take their business elsewhere. When you are the largest company in an Oligopoly that statistic may not be as meaningful.
We have had to expend too much effort trying to resolve an issue that never should have occurred in the first place. This situation has caused financial hardship, embarrassment, major inconvenience, and wasted a great deal of time.
Enterprise Rent-A-Car expended great effort explaining and justifying why Christopher was on the DNR list, but virtually no effort was expended to see if a mistake was made. I was told that it is not possible for Christopher to be removed from the DNR list and if that is true, it is unconscionable that Enterprise does not even consider correcting its mistakes or letting customers make amends.
As things stand now, avoiding Enterprise completely may not be possible. That is assuming they do not blacklist me on the DNR list for publishing this article. Enterprise Rent-A-Car may be the only option when a third party is providing a rental car. Enterprise will no longer be my primary choice for car rentals and I plan on doing a test rental on Turo in the future.
Plea agreements are made without the full discovery of the facts and evidence and prosecutors often lack enough evidence to secure a conviction. Personally, I never want to experience the degrading experience of going to jail. I don't believe I would ever accept a plea deal. Regardless of how short a prison sentence is when someone is locked up with hardened criminals, there's no way to guarantee your safety. Even if you physically survive your prison sentence, but are forced into compromising situations, your mental health could be permanently damaged.
by Shi Yan, Arizona State University; David M. Zimmerman, Missouri State University; Kelly T. Sutherland, University of Massachusetts Lowell, and Miko M. Wilford, University of Massachusetts Lowell
Despite a constitutional right to a jury trial, more than 94% of criminal convictions in the United States result from guilty pleas, not jury verdicts. Even innocent people, those who did not commit the crimes of which they are accused, can plead guilty – and they do.
When defendants are held in jail before trial, they may be more likely to accept a plea deal as well – even if they are innocent. The promise of immediate release, usually through probation or a sentence for time already served behind bars, has been found to increase both true and false guilty plea rates.
With tools like these, the justice system was already skilled at encouraging defendants to plead guilty – even if they were innocent. Then, the coronavirus hit.
Pleading during a pandemic
The COVID-19 pandemic changed the nation’s criminal justice system in two major ways.
First, prisons and jails, as places where diverse populations came into very close physical contact, became outbreak hot spots.
These facts further increased the risks of going to trial: Defendants had to wait longer for their day in court, and each day they spent in jail increased their risk of being exposed to the coronavirus. The research on pleas has clearly indicated that when the cost of going to trial increases, guilty pleas increase too.
Sure enough, a survey of 93 defense attorneys found that plea bargaining practices have indeed changed during the pandemic. More than 60% of the lawyers surveyed said they thought prosecutors were offering more lenient deals than they would have before the pandemic. At the same time, more than 30% of the attorneys had a client who claimed innocence but nevertheless accepted a plea offer because of concerns related to COVID-19.
To examine whether COVID-19 exacerbated the innocence problem in guilty pleas among a larger sample of potential defendants, we used a computerized simulation platform of legal procedures funded by the National Science Foundation and developed at the University of Massachusetts Lowell. More than 700 U.S. adults agreed to participate in our study, and we randomly assigned them to be either innocent or guilty of stealing a pair of sunglasses. In the simulation, all participants were detained before trial, then offered a plea deal to be immediately released.
Among both guilty and innocent conditions, we further randomly informed half of the participants about the complications related to COVID-19 – that the jail was currently having an outbreak of coronavirus and court dates had been pushed back because of the pandemic.
As the pandemic wanes, courts and the legal system as a whole are resuming more normal operations. But the fundamental problems with the plea process – excessive trial penalties and pretrial detention – will remain.
First Nation's People are the only group this country has treated as badly or worse than Black people. This was their land and it was stolen from them by deceit and genocide.
I've heard other ethnic groups, sometime in response to racism complaints from African-Americans talk about how their ancestors were discrimination against when they first immigrated to the United States. Every white immigrant group who came to this country did so voluntarily and for the most part had a home country to return to if they so choose. In fact, the first immigrants, the Piligrams, who the Thanksgiving myth is based upon were saved by First Nation People and then they betrayed them.
In the 1920s, a white community conspired to kill Native Americans for their oil money. Yet another example of how our predatory legal system was used to systematically oppress. Below is the documentary, "Back In Time: Osage Murders – Reign of Terror", which tells the story.
The shared history of betrayal is fresh in the memory of black people. There's irony in the title of this article, because the genocide and land theft were among the first exploitations. Conservatorships were simply one of the many atrocities committed against the indigenous people who were the original settlers of what we now call the United States.
by Andrea Seielstad, University of Dayton
Pop singer Britney Spears’ quest to end the conservatorship that handed control over her finances and health care to her father demonstrates the double-edged sword of putting people under the legal care and control of another person.
A judge may at times deem it necessary to appoint a guardian or conservator to protect a vulnerable person from abuse and trickery by others, or to protect them from poor decision-making regarding their own health and safety. But when put into the hands of self-serving or otherwise unscrupulous conservators, however, it can lead to exploitation and abuse.
Celebrities like Spears may be particularly susceptible to exploitation due to their capacity for generating wealth, but they are far from the only people at risk. As a lawyer with decades of experience representing poor and marginalized people and a scholar of tribal and federal Indian law, I can attest to the way systemic inequalities within local legal practices may exacerbate these potentially exploitative situations, especially with respect to women and people of color.
Perhaps nowhere has the impact been so grave than with respect to Native Americans, who were put into a status of guardianship due to a system of federal and local policies developed in the early 1900s purportedly aimed at protecting Native Americans receiving allotted land from the government. Members of the Five Civilized Tribes of Oklahoma – Cherokee, Choctaw, Chickasaw, Creek, and Seminole nations – were particularly impacted by these practices due to the discovery of oil and gas under their lands.
Swindled by ‘friendly white lawyers’
A conservatorship, or a related designation called a guardianship, takes away decision-making autonomy from a person, called a “ward.” Although the conservator is supposed to act in the interest of the ward, the system can be open to exploitation especially when vast sums of money are involved.
By that time, federal policy had forced the removal of the Five Civilized Tribes from eastern and southern locations in the United States to what is presently Oklahoma. Subsequent federal policy converted large tracts of tribally held land into individual allotments that could be transferred or sold without federal oversight – a move that fractured communal land. Land deemed to be “surplus to Indian needs” was sold off to white settlers or businesses, and Native allotment holders could likewise sell their plots after a 25-year trust period ended or otherwise have them taken through tax assessments and other administrative actions. Through this process Indian land holdings diminished from “138 million acres in 1887 to 48 million acres by 1934 when allotment ended,” according to the Indian Land Tenure Foundation.
Lawyers and conservators stole lands and funds before death as well, by getting themselves appointed as guardians and conservators with full authority to spend their wards’ money or lease and sell their land.
Congress created the initial conditions for this widespread graft and abuse through the Act of May 27, 1908. That Act transferred jurisdiction over land, persons and property of Indian “minors and incompetents” from the Interior Department, to local county probate courts in Oklahoma. Related legislation also enabled the the Interior Department to put land in or out of trust protection based on its assessment of the competency of Native American allottees and their heirs.
Unfettered by federal supervisory authority, local probate courts and attorneys seized the opportunity to use guardianships to steal Native Americans estates and lands. As described in 1924 by Zitkála-Šá, a prominent Native American activist commissioned by the Secretary of Interior to study the issue, “When oil is ‘struck’ on an Indian’s property, it is usually considered prima facie evidence that he is incompetent, and in the appointment of a guardian for him, his wishes in the matter are rarely considered.”
The county courts generally declared Native Americans incompetent to handle more than a very limited sum of money without any finding of mental incapacity. Zitkála-Šá’s report and Congressional testimony documented numerous examples of abuse. Breaches of trust were documented in which attorneys or others appointed conservators took money or lands from Nation members for their own businesses, personal expenses or investments. Others schemed with friends and business associates to deprive “wards.”
‘Plums to be distributed’
One such woman in Zitkála-Šá’s report was Munnie Bear, a “young, shrewd full-blood Creek woman … [who] ran a farm which she inherited from her aunt, her own allotment being leased.” Munnie saved enough money to buy a Ford truck and livestock for her farm, with savings remaining in a bank account. Once oil was discovered, however, the court appointed a guardian, who appointed a co-guardian and retained a lawyer, each of whom deducted monthly fees that depleted Bear’s funds. During the period of her guardianship, she was unable to spend any money or make any decisions about her farm or livestock, nor did she control her bank investment.
Zitkála-Šá’s report displays the extent of this practice:
“Many of the county courts are influenced by political considerations, and … Indian guardianships are the plums to be distributed to the faithful friends of the judges as a reward for their support at the polls. The principal business of these county courts is handling Indian estates. The judges are elected for a two-year term. That ‘extraordinary services’ in connection with the Indian estates are well paid for; one attorney, by order of the court, received $35,000 from a ward’s estate, and never appeared in court.”
Wards were often kept below subsistence levels by their conservators while their funds and lands were depleted by the charging of excessive guardian and attorneys’ fees and administrative costs, along with actual abuse through graft, negligence and deception.
Reports like that of Zitkála-Šá’s resulted in Congress enacting the Indian Reorganization Act of 1934. This put the Indian land that had not fallen into non-Indian hands during the federal policy of allotting plots back into tribal ownership and secured it in the trust of the United States. It also ended the potential for theft through guardianship.
But the lands and funds lost as a result of guardianships were not restored nor did descendants of those swindled ever enjoy the benefit of their relatives’ lands and monies either.
by Elizabeth C. Tippett, University of Oregon and Charlotte Alexander, Georgia State University
Imagine what a lawyer does on a given day: researching cases, drafting briefs, advising clients. While technology has been nibbling around the edges of the legal profession for some time, it’s hard to imagine those complex tasks being done by a robot.
And it is those complicated, personalized tasks that have led technologists to include lawyers in a broader category of jobs that are considered pretty safe from a future of advanced robotics and artificial intelligence.
But, as we discovered in a recent research collaboration to analyze legal briefs using a branch of artificial intelligence known as machine learning, lawyers’ jobs are a lot less safe than we thought. It turns out that you don’t need to completely automate a job to fundamentally change it. All you need to do is automate part of it.
While this may be bad news for tomorrow’s lawyers, it could be great for their future clients – particularly those who have trouble affording legal assistance.
Technology can be unpredictable
Our research project – in which we collaborated with computer scientists and linguists at MITRE, a federally funded nonprofit devoted to research and development – was not meant to be about automation. As lawprofessors, we were trying to identify the text features of successful versus unsuccessful legal briefs.
We gathered a small cache of legal briefs and judges’ opinions and processed the text for analysis.
One of the first things we learned is that it can be hard to predict which tasks are easily automated. For example, citations in a brief – such as “Brown v. Board of Education 347 U.S. 483 (1954)” – are very easy for a human to pick out and separate from the rest of the text. Not so for machine learning software, which got tripped up in the blizzard of punctuation inside and outside the citation.
It was like those “Captcha” boxes you are asked to complete on websites to prove you’re not a robot – a human can easily spot a telephone pole, but a robot will get confused by all the background noise in the image.
A tech shortcut
Once we figured out how to identify the citations, we inadvertently stumbled on a methodology to automate one of the most challenging and time-consuming aspects of legal practice: legal research.
The scientists at MITRE used a methodology called “graph analysis” to create visual networks of legal citations. The graph analysis enabled us to predict whether a brief would “win” based on how well other briefs performed when they included a particular citation.
Later, however, we realized the process could be reversed. If you were a lawyer responding to the other side’s brief, normally you would have to search laboriously for the right cases to cite using an expensive database. But our research suggested that we could build a database with software that would just tell lawyers the best cases to cite. All you would need to is feed the other side’s brief into the machine.
Now we didn’t actually construct our research-shortcut machine. We would need a mountain of lawyers’ briefs and judicial opinions to make something useful. And researchers like us do not have free access to data of that sort – even the government-run database known as PACER charges by the page.
But it does show how technology can turn any task that is extremely time-consuming for humans into one where the heavy lifting can be done at the click of a button.
A history of partial automation
Automating the hard parts of a job can make a big difference both for those performing the job and the consumers on the other side of the transaction.
Take for example, a hydraulic crane or a power forklift. While today people think of operating a crane as manual work, these powered machines were considered labor-saving devices when they were first introduced because they supplanted the human power involved in moving heavy objects around.
Forklifts and cranes, of course, didn’t replace people. But like automating the grind of legal research, power machines multiplied the amount of work one person could accomplish within a unit of time.
Partial automation of sewing machines in the early 20th century offers another example. By the 1910s, women working in textile mills were no longer responsible for sewing on a single machine – as you might today on a home sewing machine – but wrangling an industrial-grade machine with 12 needles sewing 4,000 stitches per minute. These machines could automatically perform all the fussy work of hemming, sewing seams and even stitching the “embroidery trimming of white underwear.” Like an airline pilot flying on autopilot, they weren’t sewing so much as monitoring the machine for problems.
Was the transition bad for workers? Maybe somewhat, but it was a boon for consumers. In 1912, women perusing the Sears mail order catalog had a choice between “drawers” with premium hand-embroidered trimming, and a much cheaper machine-embroidered option.
Likewise, automation could help reduce the cost of legal services, making it more accessible for the many individuals who can’t afford a lawyer.
Indeed, in other sectors of the economy, technological developments in recent decades have enabled companies to shift work from paid workers to customers.
Touchscreen technology, for example, enabled airlines to install check-in kiosks. Similar kiosks are almost everywhere – in parking lots, gas stations, grocery stores and even fast-food restaurants.
At one level these kiosks are displacing paid labor by employees with unpaid labor by consumers. But that argument assumes that everyone could access the product or service back when it was performed by an employee.
In the context of legal services, the many consumers who can’t afford a lawyer are already forgoing their day in court altogether or handling legal claims on their own – often with bad results. If partial automation means an overwhelmed legal aid lawyer now has time to take more clients’ cases or clients can now afford to hire a lawyer, everyone will be better off.
In addition, tech-enabled legal services can help consumers do a better job of representing themselves. For example, the federal district court in Missouri now offers a platform to help individuals filing for bankruptcy prepare their forms – either on their own or with a free 30-minute meeting with a lawyer. Because the platform provides a head start, both the lawyer and consumer can make better use of the 30-minute time slot.
More help for consumers may be on the way – there is a bumper crop of tech startups jostling to automate various types of legal work. So while our research-shortcut machine hasn’t been built, powerful tools like it may not be far off.
And the lawyers themselves? Like factory and textile workers armed with new power tools, they may be expected to do more work in the time they have. But it should be less of a grind. It might even free them up to meet with clients.
As unemployment benefits, eviction moratoriums and other pandemic related safety nets expire, millions of people will find themselves in legal situations they are unprepared to handle. When my legal issues started after my 2011 jobloss, my legal research skills became some of my most valuable assets. Court.rchp.com exist in part because just about every other self represented person I saw in court lost cases they should have won, just as I won most of my cases in court.
If you know you're at risk for adverse legal action, don't wait before it's too late, start educating yourself now! Court.rchp.com contains a wealth of free self-help legal information that you can use to begin more knowledgable about the law.
by Lauren Sudeall, Georgia State University and Darcy Meals, Georgia State University
Judge Richard A. Posner, a legendary judicial figure, retired abruptly in 2017 to make a point: People without lawyers are mistreated in the American legal system.
In one of his final opinions as a judge on the United States Court of Appeals for the Seventh Circuit, he expressed frustration at the dismissal of one self-represented litigant’s lawsuit, writing that the prisoner, Michael Davis, “needs help – needs it bad – needs a lawyer desperately.”
Unfortunately, Davis’s circumstances are far from unique. Many lower-income people have no lawyer to help them navigate the legal system, either in civil or criminal cases.
Eighty percent of state criminal defendants cannot afford to pay for a lawyer, and only those who are actually incarcerated are constitutionally entitled to appointed counsel. Many people facing misdemeanor charges can, if convicted, be subjected to significant fines and fees, or face the loss of benefits (including housing) or deportation. Yet, they have no right to an attorney, and those who cannot afford a lawyer will go without one.
Unlike in the criminal context, there’s no federal constitutional right to counsel in civil cases. Civil cases can involve a range of critical issues, including housing, public benefits, child custody and domestic violence. And while some civil litigants may be entitled to counsel in certain jurisdictions, in most of these cases, people who cannot afford a lawyer will be forced to go it alone. Doing so may mean that they fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case.
As directors of the Center for Access to Justice at Georgia State University College of Law, we agree with Judge Posner. People like Michael Davis desperately need help. Without legal assistance, their issues will likely be unresolved or, worse, wrongly resolved against them.
In some states, as many as 80 to 90 percent of litigants are unrepresented, even though their opponent has a lawyer. The number of these “pro se litigants” has risen substantially in the last decade, due in part to the economic downturn and the relationship between poor economic conditions and issues like housing and domestic relations.
The Legal Services Corporation, the single largest funder of civil legal aid for low-income Americans in the nation, reported in June that 86 percent of low-income Americans receive inadequate or no professional legal help for the civil legal problems they face. Here in Georgia, state courts heard more than 800,000 cases involving self-represented litigants in 2016 alone.
In some types of cases, not having counsel can make a dramatic difference. Take the example of low-income tenants facing eviction. Across the county, roughly 90 percent of landlords are represented by counsel, while 90 percent of tenants are not. Simply having a lawyer increases the odds of being able to stay in one’s home. When tenants represent themselves in New York City, they are evicted in nearly 50 percent of cases. With a lawyer, they win 90 percent of the time.
Navigating the system
Why is having a lawyer so important? The reality is that even the most mundane legal matters can require dozens of steps and complex maneuvering.
In one study, researchers identified almost 200 discrete tasks that self-represented litigants must perform in civil cases – from finding the right court to interpreting the law, filing motions, compiling evidence and negotiating a settlement. Some of these tasks require specialized knowledge of the law and of the court system. Almost all require time away from work and caring for children. Many also require the ability to get to the courthouse, to read and to speak English or access a translator.
The Access to Justice Lab at Harvard Law School has also tracked how labyrinthine the justice system can be. Just starting a routine process – like establishing a legal guardian for a minor – can take many steps, and even these can vary in unexpected ways, given the natural variation among judges and the particulars of a specific case.
Regardless of the type of case, missing just one step could mean you have to start the process all over again or even cause the case to be dismissed, sometimes without the option to refile.
People often quip that there are far too many lawyers. Yet the reality is that, while there are a lot of lawyers in certain geographic areas and certain specialties, in many rural areas – sometimes referred to as “legal deserts” – there are actually far too few lawyers.
Our center recently published a map of Georgia’s legal deserts. In our state, there are five counties without any lawyers at all and another 59 with 10 lawyers or fewer.
To make matters worse, in many of those counties, public transportation and internet access are sparse, and a significant percentage of the population doesn’t even have access to a vehicle.
The Self-Represented Litigation Network, a nonprofit focused on reforming the system to help those representing themselves, has also used mapping tools to depict how access to the justice system can vary across the country and sometimes even within the same state.
One of the most shocking aspects of ou systems is that under US law, children arrested for illegally entering the country don’t have the right to demand a court-appointed lawyer or interpreter. The video below, "UNACCOMPANIED: Alone in America", demonstrates how heartless our legal system can be.
Changing the statistics
So, what do we do about the fact that the legal system is, for many people without a lawyer, nearly impossible to navigate? We believe that it will take a variety of different approaches to solve this issue.
In Washington, nonlawyers can be trained and licensed to offer legal support to those unable to afford the services of an attorney.
Still others, like Self-Represented Litigation Network founder Richard Zorza, emphasize simplification of legal processes, including changing or eliminating the procedural and evidentiary rules that make the process so difficult. For example, the Tennessee Supreme Court has approved plain-language forms and instructions, written at a fifth- to eighth-grade reading level, for use in uncontested divorces between parties with minor children.
Which approach is best? It may depend on the case – and an effective solution will include a combination of the above. Some cases will require nothing less than full-service representation by a lawyer, while in other contexts, streamlined procedures and simpler forms may be sufficient for pro se litigants to get a fair shake.
Whatever the solution, the problem is clear: Self-represented litigants’ grievances are real and, for too many, justice is out of reach.
Republished with permission under license from The Conversation. NOTE: The Immigrant Children segment was added by Randall Hill and was not apart of the original article.
That’s one reason why, on July 30, 2021, the U.S. Department of Education announced that it would be expanding the Second Chance Pell Experimental Sites Initiative. Higher education institutions can apply to be considered for the 2022-23 academic year.
Specifically, the number of colleges and universities providing higher education under Second Chance Pell will reach 200. That’s significantly more than the 130 sites operating in 42 states and the District of Columbia as of 2020.
As someone who studies correctional education and prisoner reentry, I see this expanded access to higher education in prison as something that will bring many benefits to not only the incarcerated individuals who get an education but to society as well.
Even before Second Chance Pell, prison education had already been proved as an effective way to prevent crime.
A commonly cited 2013 RAND Corporation study found that those who participate in prison education were 43% less likely to re-offend when released. In 2018, the RAND Corporation expanded their research and found that the impact was even greater – with prison education participants 48% less likely to re-offend.
If re-offense rates remain low as Second Chance Pell expands, states would likely begin to spend less taxpayer money on prison costs. A 2019 cost savings analysis by Georgetown University projected that states would save over US$300 million a year because of lower re-offense rates among Second Chance Pell participants.
People who participate in education programs in prison are 13% more likely to get jobs upon release than those who do not participate. The unemployment rate for someone with a bachelor’s degree is 3.7% compared with 6.7% for someone with a high school diploma or equivalent.
This suggests that the higher the level of education a person gets while incarcerated, the more likely they are to find work and pay taxes upon release.
There has been no large-scale study to test whether Second Chance Pell participation reduces re-offending and improves employment outcomes. However, a 2021 report shows that the first four years of the Second Chance Pell experiment yielded participation from 22,000 students, with 7,000 credentials awarded, including 3,499 certificates, 3,035 associate degrees and 540 bachelor degrees.
This willingness is likely to increase once the federal ban on Pell Grants to incarcerated students is fully lifted in 2023. These developments also come at a time when states are investing in opportunities to provide more higher education to people in prison as a way to improve their social and economic mobility when released.
"Dogs have served as instruments of violence in incidents dating back to the days of slavery, and as recently as the Black Lives Matter protests." – Mauled – When Police Dogs are Weapons
Four white Granite City, IL police officers allowed a police dog to maul a law abiding unarmed black teenager while conducting a traffic stop, then they lied about what happened in the official police report.
Devondrea Williams was in the back of a truck his cousin was driving with a friend when police pulled them over around 2:30 a.m. Monday, July 19th. Williams said police never explained why they were pulling them over. According to Williams, police asked for his information and asked him to get out of the truck. Before Williams could comply an officer grabbed his arm and several other officers pushed him against the truck.
Williams explained, “and then I see the dog out of the corner of my eye and then the dog bites me.” The teen said he was bitten by the dog four or five times. When the dog latched onto the teen’s leg and would not let go, officers finally tased the animal in order to get the K-9 to let him go. Williams told KMOV after he was bitten by the animal, “I ain’t never screamed like that a day in my life.”
Regeana Canada, who lives close to where the incident took place, saw police lights and filmed the encounter on her phone. She said the dog was latched onto Williams for eight or nine minutes.
Granite City Police Capt. Gary Brooks provided an account of what transpired to KMOV in a statement, “Officers conducted a traffic stop of a vehicle with some of the individuals involved in the incident. At this time, officers attempted to continue to gather facts to ascertain what exactly had taken place,” the statement said. “During the traffic stop, an individual obstructed the investigation and resisted arrest. They were taken into custody with the assistance of a police K-9. This investigation is still ongoing and as a result, no further information can be given at this time regarding this matter.”
Canada, however, refuted the captain’s claims of resistance. “No, he did not resist arrest at all,” said Canada.
Why wasn't the dog under anyone's controlled and allowed to run free? Regardless, why would it take police officers more than 8 minutes to stop their dog from attacking an innocent person? I can't imagine a situation where a private citizen watches their dog mauling someone for eight minutes and not being arrested. It's way beyond time to abolish qualified immunity for police officers. The officer responsible for that dog needs to be fired and any officers who lied need to be fired and prosecuted!
Under Illinios law, 720 ILCS 5/26-1(a)(2-10) , filing a false police report falls under the Disorderly Conduct statute. According to 720 ILCS 5/26-1(a)(4), a person commits disorderly conduct when he knowingly transmits to the police department a false report that a crime has been committed knowing at the time of the transmission that there is no reasonable ground for it. The penalty for such an offense is a Class 4 felony punishable by 1-3 years in the Illinois Department of Corrections.
Under Illinois law pursuant to 720 ILCS 5/31-1, a person who knowingly resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his official capacity commits a Class A misdemeanor. According to 720 ILCS 5/31-4(a) and (b) a person obstructs justice:
“when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:
Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information; or
Induces a witness having knowledge material to the subject at issue to leave the State or conceal himself; or
Possessing knowledge material to the subject at issue, he leaves the State or conceals himself.”
Remember the actor Jessie Smollett? On February 20, 2019, Smollett was charged by a grand jury with a class 4 felony for filing a false police report. Judge John Fitzgerald Lyke Jr. set Smollett's bail at $100,000 and he had to surrender his passport. On March 8, Smollett was indicted on 16 felony counts of "false report of offense". After completing 16 hours of community service and forfeiting his $10,000 bond, charges against Smollett were dropped on March 28.
At the time of publication, it was unclear whether Granite City police officers have body cameras. Granite City does has a Private Video Surveillance Camera Registration program. The Granite City Police Department signed an agreement with Amazon's home surveillance equipment company, Ring, in 2020 to gain special access to the company's Neighbors app. Someone should check to see if any other private video exist.