by Clare Pastore, University of Southern California
A homeless person near an elementary school in Fruitdale Park in Grants Pass, Ore. AP Photo/Jenny Kane
On April 22, 2024, the Supreme Court will hear a case that could radically change how cities respond to the growing problem of homelessness. It also could significantly worsen the nation’s racial justice gap.
City of Grants Pass v. Johnson began when a small city in Oregon with just one homeless shelter began enforcing a local anti-camping law against people sleeping in public using a blanket or any other rudimentary protection against the elements – even if they had nowhere else to go. The court must now decide whether it is unconstitutional to punish homeless people for doing in public things that are necessary to survive, such as sleeping, when there is no option to do these acts in private.
The case raises important questions about the scope of the Constitution’s cruel and unusual punishment clause and the limits of cities’ power to punish involuntary conduct. As a specialist in poverty law, civil rights and access to justice who has litigated many cases in this area, I know that homelessness in the U.S. is a function of poverty, not criminality, and is strongly correlated with racial inequality. In my view, if cities get a green light to continue criminalizing inevitable behaviors, these disparities can only increase.
Western states strongly criticize the 9th U.S. Circuit Court of Appeals rulings against criminalizing homelessness, but other states argue that local governments have better options.
A national crisis
Homelessness in the United States is a massive problem. The number of people without homes held steady during the COVID-19 pandemic largely because of eviction moratoriums and the temporary availability of expanded public benefits, but it has risen sharply since 2022.
The latest data from the federal government’s annual “Point-in-Time” homeless count found 653,000 people homeless across the U.S. on a single night in 2023 – a 12% increase from 2022 and the highest number reported since the counts began in 2007. Of the people counted, nearly 300,000 were living on the street or in parks, rather than indoors in temporary shelters or safe havens.
The survey also shows that all homelessness is not the same. About 22% of homeless people are deemed chronically homeless, meaning they are without shelter for a year or more, while most experience a temporary or episodic lack of shelter. A 2021 study found that 53% of homeless shelter residents and nearly half of unsheltered people were employed.
Scholars and policymakers have spent many years analyzing the causes of homelessness. They include wage stagnation, shrinking public benefits, inadequate treatment for mental illness and addiction, and the politics of siting affordable housing. There is little disagreement, however, that the simple mismatch between the vast need for affordable housing and the limited supply is a central cause.
Homelessness and race
Like poverty, homelessness in the U.S. is not race-neutral. Black Americans represent 13% of the population but comprise 21% of people living in poverty and 37% of people experiencing homelessness.
The largest percentage increase in homelessness for any racial group in 2023 was 40% among Asians and Asian-Americans. The largest numerical increase was among people identifying as what the Department of Housing and Urban Development calls “Latin(a)(o)(x),” with nearly 40,000 more homeless in 2023 than in 2022.
This disproportionality means that criminalizing homelessness likewise has a disparate racial effect. A 2020 study in Austin, Texas, showed that Black homeless people were 10 times more likely than white homeless people to be cited by police for camping on public property.
Increasing homelessness, especially its visible manifestations such as tent encampments, has frustrated city residents, businesses and policymakers across the U.S. and led to an increase in crackdowns against homeless people. Reports from the National Homelessness Law Center in 2019and 2021 have tallied hundreds of laws restricting camping, sleeping, sitting, lying down, panhandling and loitering in public.
Just since 2022, Texas, Tennessee and Missouri have passed statewide bans on camping on public property, with Texas making it a felony.
Under presidents Barack Obama and Joe Biden, the federal government has asserted that criminal sanctions are rarely useful. Instead it has emphasized alternatives, such as supportive services, specialty courts and coordinated systems of care, along with increased housing supply.
Some cities have had striking success with these measures. But not all communities are on board.
Members of a local ‘park watch’ group demonstrate against homeless encampments in Grants Pass, Ore., March 20, 2024.AP Photo/Jenny Kane
The Grants Pass case
Grants Pass v. Johnson culminates years of struggle over how far cities can go to discourage homeless people from residing within their borders, and whether or when criminal sanctions for actions such as sleeping in public are permissible.
In a 2019 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals held that the Eighth Amendment’s cruel and unusual punishment clause forbids criminalizing sleeping in public when a person has no private place to sleep. The decision was based on a 1962 Supreme Court case, Robinson v. California, which held that it is unconstitutional to criminalize being a drug addict. Robinson and a subsequent case, Powell v. Texas, have come to stand for distinguishing between status, which cannot constitutionally be punished, and conduct, which can.
In the Grants Pass ruling, the 9th Circuit went one step further than it had in the Boise case and held that the Constitution also banned criminalizing the act of public sleeping with rudimentary protection from the elements. The decision was contentious: Judges disagreed over whether the anti-camping ban regulated conduct or the status of being homeless, which inevitably leads to sleeping outside when there is no alternative.
Grants Pass is urging the Supreme Court to abandon the Robinson precedent and its progeny as “moribund and misguided.” It argues that the Eighth Amendment forbids only certain cruel methods of punishment, which do not include fines and jail terms.
The homeless plaintiffs argue that they do not challenge reasonable regulation of the time and place of outdoor sleeping, the city’s ability to limit the size or location of homeless groups or encampments, or the legitimacy of punishing those who insist on remaining in public when shelter is available. But they argue that broad anti-camping laws inflict overly harsh punishments for “wholly innocent, universally unavoidable behavior” and that punishing people for “simply existing outside without access to shelter” will not reduce this activity.
They contend that criminalizing sleeping in public when there is no alternative violates the Eighth Amendment in three ways: by criminalizing the “status” of homelessness, by imposing disproportionate punishment on innocent and unavoidable acts, and by imposing punishment without a legitimate deterrent or rehabilitative goal.
‘Housing First’ is a strategy for reducing homelessness that has contributed to progress in cities including Houston, Salt Lake City and Columbus, Ohio.
The case has attracted dozens of amicus briefs, including from numerous cities and counties that support Grants Pass. They assert that the 9th Circuit’s recent decisions have worsened homelessness, stymied law enforcement and left jurisdictions without clear guidelines for preserving public order and safety.
On the other hand, the states of Maryland, Illinois, Massachusetts, Minnesota, New York and Vermont filed a brief urging the Court to uphold the 9th Circuit’s ruling, arguing that local governments retain ample tools to address homelessness and that criminalizing tends to worsen rather than alleviate the problem.
A brief from 165 former local elected officials agrees. Service providers, social scientists and professional organizations such as the American Psychiatric Association filed briefs noting that criminalization increases barriers to education, employment and eventual recovery; erodes community trust; and can force people back into abusive situations. They also highlight research showing the effectiveness of a nonpunitive “housing first” model.
A race to the bottom?
The current Supreme Court is generally extremely sympathetic to law enforcement, but even its conservative members may balk at allowing a city to criminalize inevitable acts by homeless people. Doing so could spark competition among cities to create the most punitive regime in hopes of effectively banishing homeless residents.
Still, at least some justices may sympathize with the city’s argument that upholding the 9th Circuit’s ruling “logically would immunize numerous other purportedly involuntary acts from prosecution, such as drug use by addicts, public intoxication by alcoholics, and possession of child pornography by pedophiles.” However the court rules, this case will likely affect the health and welfare of thousands of people experiencing homelessness in cities across the U.S.
Republished with permission under license from The Conversation.
I've often wondered if OJ Simpson would have been arrested, charged with murder, and what the reaction would have been if his murdered ex-wife had been a black woman. In the early 1990s, the former professional football player and Hollywood actor was earning $55,000 per month and had a net worth of nearly $11 million, according to court records.
I was born in 1965, the same year as Ron Goldman, and within my lifetime, interacial marriage was still illegal in some parts of the country until the Loving v. Virginia U.S. Supreme Court decision in 1967. Centuries of systemic racism has been codefied in law, policy, and custom which results in disastrous outcomes for African-American criminal defendants and civil litigants even today. Yesterday's racism didn't disappear, it simply evolved.
Too often in our society, when a black male celebrity is involved with a white woman the results are disastrous. From Jack Johnson to the lastest example Jonothan Majors, famous black men have had their lives tuned upside down because they dared date white women. Rape or attempted rape was the second most common accusation used as pretexts for lynching black people who violated Jim Crow etiquette or engaged in economic competition with white people. Even the bombing and destruction of the Greenwood District in Tulsa, OK and the murder of Emmett Till were based on false allegations by white women.
Even though Ron Goldman's family had had ties to drugs and money laundering, he was never considered the target. Ron Goldman was stabbed and wounded many times according to the autopsy report. Goldman sustained dozens of defensive wound on his body, mostly found on his hands, face, and upper body indicating he fought with his attacker for what could have been 5 – 10 minutes. The killer most certainly would have been covered in blood.
The prosecution of OJ Simpson involved perjured testimony, questionable DNA and circumstancial evidence. Los Angeles police detective, Mark Fuhrmann was a chief witness during the trial. Fuhrmann denied ever using the word "nigger" on the witness stand. Simpson’s defense team produced audiotapes of Fuhrman using the word "nigger" multiple times and Fuhrman later pleaded no contest to committing perjury. Prior to the Simpson case, Mark Furhman took part in taped interviews with a screenwriter in which he used the word "nigger" 41 times. At one point he said, “all these niggers in L.A. City government … should be lined up against a wall and fucking shot.” Read the court transcript for yourself.
The jury did not believe OJ had enough time to commit the murders, base upon the evidence, the jury determined OJ only had 8 minutes to murder Nicole Brown and Ron Goldmann, travel back to his estate, get cleaned up and ready for his trip. Additionally in those 8 minutes, OJ would have needed to clean the bloody Bronco and remove all traces of blood from the drain pipes that investigators checked for any traces of blood.
The only cut or bruise was on OJ's middle finger, which he said he cut in Chicago. Six or seven different witnesses testified they saw OJ at the airport and he didn't have a cut on his finger. Oj was shaking hands,signing autographs, and showing off his hall of fame ring.
OJ Simpson was acquitted of murder because the prosecution failed to prove their case against him. The legal defense team believed evidence was planted by police. Jurors are allowed to used their background, education, life experience, common knowledge and common sense when evaluating evidence. A bloody nose I had one day during the trial became a piviotal moment for me. I rushed to the my bathroom for tissue. After my nose stopped bleeding, I realized blood was several places between the living room and bathroom. I then thought about the tremendous amounts of blood killing two people with a knife would generate. If OJ was the killer, vast amounts of blood should have been found.
When I also consider the fact that the Los Angele Police Department was known to have racist officer and a large number of officers were proven to have planted evidence during the Rampart Scandal just a few years after OJ's acquital. Over 70 officers within the Rampart Division were accused of being corrupt. Rampart officers planted evidence and committed perjury which resulted in 106 prior convictions to be overturned and more than 140 civil lawsuits against the city of Los Angeles, costing the city an estimated $125 million in settlements.
I still believe the OJ Simpson jury reached the right verdict!
by Frankie Bailey, University at Albany, State University of New York
O.J. Simpson shows the jury a pair of gloves, similar to those found near the crime scene, during his trial in Los Angeles in 1995. POO/AFP via Getty Images
With the death of O.J. Simpson, I can’t help but wonder whether the media has learned any lessons from its coverage of his trial, in which the ex-football star was acquitted of murdering his ex-wife and her friend.
In many ways, the “trial of the century” brought out some of the media’s worst impulses.
As criminologist Gregg Barak explained, the O.J. Simpson case was a true “spectacle” – essentially a nine-month live news broadcast. At the same time, because of Simpson’s celebrity, the case was being followed as popular culture.
Of course, crimes have always attracted morbid interest, generating media attention and inspiring true-crime narratives.
But since the late 20th century, this has occurred more often – sometimes even before a trial has ended. The lines between news and entertainment have become increasingly blurred – what criminologist Ray Surette calls “infotainment” – with race, class and the quest for ratings influencing which crimes get covered and how they get portrayed.
Trial by media
Whenever I teach the O.J. Simpson trial in my criminal justice classes, I bring up a late-19th century murder case involving a white, upperclass woman named Lizzie Borden.
Both Simpson and Borden were accused of double murder – and both of their trials became a media circus.
In August 1892, Andrew Borden, a wealthy businessman, and Abby, his second wife, were hacked to death in their home in Fall River, Massachusetts. Accused of killing her father and hated stepmother, their 32-year-old daughter, Lizzie, became the subject of exhaustive media coverage.
A century before O.J. Simpson hired what the media called a legal “dream team,” Borden had a star-studded defense team that included a former governor and the Borden family lawyer. Like the Simpson case, the legal strategies of the prosecutor and the Borden defense team were subjected to much media scrutiny.
Most of the evidence against Borden was circumstantial; in the end, she was acquitted by an all-male jury that may have found it difficult to believe a respectable spinster could commit such a horrific crime.
Yet, Borden was never able to escape the stigma of having been accused of murder. Upon being set free, she found herself ostracized by former friends. For years, newspaper coverage documented Borden’s life after her acquittal. Since her death, the countless books, articles, a made-for-TV movie – even a recent TV series about Borden’s life after the trial – demonstrate the staying power of the high-profile, 19th-century trial.
Like Borden, Simpson was able to use his class and wealth to his advantage. But he also was excoriated during and after his trial.
Celebrity crimes make good TV
Of course, there was no television in Borden’s time.
On Oct. 3, 1995, an estimated 150 million Americans tuned in to hear the jury’s verdict in the O.J. Simpson trial. It marked the culmination of 16 months of wall-to-wall, prime-time television coverage.
On the evening of June 12, 1994, Nicole Brown Simpson and her friend, Ronald Lyle Goldman, were slashed to death outside Nicole Simpson’s upscale condo in Los Angeles, California. After the police pursued O.J. Simpson’s white Bronco in a low-speed car chase that mesmerized TV viewers, O.J. Simpson was arrested and charged with the murders.
For the broadcast networks and their fledgling cable news counterparts, it was a recipe for high drama – and high ratings.
With a captivated nation glued to their TVs, radios and newspapers, media outlets rolled out a slate of trial experts to offer daily commentary. This template would become the norm for future celebrity trials, as a cottage industry of legal pundits would appear on the airwaves to comment on cases ranging from Tom Brady’s “Deflategate” lawsuit to the indictments of former President Donald Trump since he left office in 2021.
Post-trial research has found that audience perceptions of guilt or innocence in the Simpson trial were shaped by the amount – and type – of media consumed. The more someone became sucked into the daily happenings of the trial, the more likely they were to become emotionally invested in O.J.’s life. Developing what’s known as a parasocial bond, they became more likely to believe in his innocence.
How the media colors crime and race
When the jury declared Simpson innocent, reactions largely fell along racial lines. Throngs of white Americans responded with shock, dismay – even anger – while crowds of Black Americans responded with elation.
Polls and surveys later found people’s reactions to the verdict reflected not only their opinion about Simpson’s guilt or innocence, but also their beliefs about race and the fairness of the country’s criminal justice system.
Simpson’s own relationship to race was always complicated.
In a 1970 New York Times article titled “For the Black Athlete, New Advances,” reporter Robert Lipsyte quoted Simpson describing how he had overheard a racial slur while attending a wedding with mostly white guests. Lipsyte wrote that race relations would have to improve dramatically for Simpson “to be able to transcend blackness in his public image.”
By the 1990s, Simpson seemed to have done just that. A middle-aged O.J. had achieved celebrity status, and he appeared to have transcended this blackness by distancing himself from poor and working-class black people, while gaining the acceptance of white people who saw him as a celebrity immune to the trappings of racial stereotypes.
Despite some incidents of domestic violence, Simpson had been able to maintain this genial reputation – until he was accused of the murder of his white ex-wife and her friend.
Simpson’s fall from grace was symbolized by a controversial 1994 Time magazine cover photo, which some claim was altered to make Simpson’s skin appear darker.
By 2014, the gap between how Black people and white people viewed Simpson’s verdict had narrowed: Black people were far more likely to believe that Simpson was guilty.
Since the rise of Jacksonian democracy and the expansion of the vote to all white men in the late 1820s, however, the support of rural white people has been vital to the governing power of almost every major party coalition. Which is why my co-author Paul Waldman and I describe rural white people as America’s “essential minority” in our book “White Rural Rage: The Threat to American Democracy.”
As a political scientist, I’ve written or co-written five books addressing issues of racial politics at some level of government or part of the country. My latest, “White Rural Rage,” seeks to understand the complex intersections of race, place and opinion and the implications they hold for our political system.
The unfortunate fact is that polls suggest many rural white people’s commitment to the American political system is eroding. Even when they are not members of militant organizations, rural white people, as a group, now pose four interconnected threats to the fate of the United States’ pluralist, constitutional democracy.
Although these do not apply to all rural white people, nor exclusively to them in general, when compared with other Americans, rural white people:
Express the most racist, least inclusive, most xenophobic, most anti-LGBTQ+ and most anti-immigrant sentiments.
Subscribe at the highest rates to conspiracy theories about QAnon, the 2020 presidential election, Barack Obama’s citizenship and COVID-19 vaccines.
Support a variety of antidemocratic and unconstitutional positions and exhibit strong attachments to white nationalist and white Christian nationalist movements inimical to secular, constitutional governance.
Are most likely to justify, if not call for, force or violence as acceptable alternatives to deliberative, peaceful democracy.
Let’s examine a few data points.
Xenophobia
In a Pew Research Center poll conducted in 2018, 46% of white rural Americans said it is important to live in a diverse community. That’s a lower proportion than urban and suburban dwellers and even nonwhite rural residents.
And in rural areas, fewer than half the people said white people have advantages Black people do not, approve of the legalization of same-sex marriage, and say immigrants make American society stronger.
In addition, Cornell researchers found that rural whites reported feeling less comfortable with gay and lesbian people than urban whites do. And 49% of rural LGBTQ+ people between the ages of 10 and 24 called their own towns “unaccepting” of LGBTQ+ people – nearly twice the rate of suburban and urban LGBTQ+ young people who said the same about their communities.
Rural residents are also more likely than urban and suburban residents to believe the 2020 election was stolen from Trump, according to 2021 polling by the Public Religion Research Institute.
And people who live in rural areas are also less confident as a whole than those who live in urban areas that votes will be counted accurately and fairly in their state or across the country, according to a 2022 poll from the Bipartisan Policy Center.
In addition, by our analysis, of the 139 U.S. House members who voted to reject the certification of Joe Biden’s presidential election just hours after a violent mob of Trump supporters rampaged through the Capitol, 103 – 74% – represented either “purely rural” or “rural/suburban” districts, as categorized by Bloomberg’s CityLab project.
Antidemocratic beliefs
A scholarly analysis of multiyear data from the American National Election Studies project finds that rural citizens are “much more likely (than urban residents) to favor restrictions on the press” and to say it would be “helpful if the president could unilaterally work” without regard to Congress or the courts.
This is one of several signals that rural residents are disproportionately likely to support white Christian nationalism, an ideology that reaches beyond Christian ideas of faith and morality and into government. Its followers want the United States to base its laws on Christian values rather than maintain the centuries-old separation of church and state the founders saw as fundamental to a secular democracy.
Justification of violence
Rural residents are more likely than urban or suburban residents to say the political situation in the country is heading to a point where violence may be necessary to preserve the nation, according to polls from the Public Religion Research Institute in 2021 and the University of Chicago Institute of Politics in 2022.
Of the estimated 21 million Americans who in late 2021 said Joe Biden’s 2020 presidential win was “illegitimate,” according to the Chicago Project on Security and Threats, 30% lived in rural areas. And 27% of Americans who say Trump should be returned to office even if “by force” are rural residents. Those are minority views, but both proportions are significantly higher than the rural proportion of the overall population.
With the 2024 election fast approaching, the views of rural white people are once again of vital importance because they and the members of Congress who represent them disproportionately believe the 2020 election was stolen from Donald Trump by Joe Biden. A Pew Research Center study found 71% of rural white voters voted for Trump in 2020, so their preference in November will be key to who returns to the White House for a second term.
Republished with permission from The Conversation under a Creative Commons license.
If Florida Gov. Ron DeSantis had his way, the word “woke” would be banished from public use and memory.
As he promised in Iowa in December 2023 during his failed presidential campaign, “We will fight the woke in education, we will fight the woke in the corporations, we will fight the woke in the halls of Congress. We will never, ever surrender to the woke mob.”
DeSantis’ war on “woke ideology” has resulted in the banning of an advanced placement class in African American studies and the elimination of diversity, equity, and inclusion programs in Florida’s universities and colleges.
Given the origins of the use of the word as a code among Black people, DeSantis has a nearly impossible task, despite his tireless efforts.
For Black people, the modern-day meaning of the word has little to do with school curriculum or political jargon and goes back to the days of Jim Crow and legal, often violent, racial segregation. Back then, the word was used as a warning to be aware of racial injustices in general and Southern white folks in particular.
In my view as a behavioral scientist who studies race, being woke was part of the unwritten vocabulary that Black people established to talk with each other in a way that outsiders could not understand.
Demonstrators march on Jan. 1, 1934, in Washington against the unjust trials of nine Black men falsely accused of raping two white women. Bettmann/Getty Images
The early days of wokeness
It’s unclear when exactly “woke” became a word of Black consciousness. Examples of its use – in various forms of the word “awake” – date back to before the Civil War in Freedom’s Journal, the nation’s first Black-owned newspaper.
In their introductory editorial on April 21, 1827, the editors wrote that their mission was to “plead our own cause.” Part of that mission was offering analysis on the state of educating enslaved Black people who were prohibited from learning how to read and write.
Because education and literacy were “of the highest importance,” the editors wrote, it was “surely time that we should awake from this lethargy of years” during enslavement.
By the turn of the 20th century, the use of versions of the word “woke” by other Black newspaper editors expanded to include the fight for Black voting rights. In a 1904 editorial in the Baltimore Afro-American, for instance, the editors urged Black people to “Wake up, wake up!” and demand full-citizenship rights.
By 1919, Black nationalist Marcus Garvey frequently used a version of the word in his speeches and newspaper, The Negro World, as a clarion call to Black people to become more socially and politically conscious: “Wake up Ethiopia! Wake up Africa!”
At around the same time, blues singers were using the word to hide protest messages in the language of love songs. On the surface, Willard “Ramblin’” Thomas laments a lost love in “Sawmill Moan”:
If I don’t go crazy, I’m sure gonna lose my mind ‘Cause I can’t sleep for dreamin’, sure can’t stay woke for cryin’
But instead of a love song, some historians have suggested that the lyrics were a veiled protest against the atrocious conditions faced by Black workers in Southern sawmills.
The song given the most credit by historians for the use of the word woke was written and performed in 1938 by Huddie Leadbetter, known as Lead Belly. He advises his listeners to “stay woke” lest they run afoul of white authority.
In an archived interview about the song “Scottsboro Boys,” Lead Belly explained how tough it was at the time for Black people in Alabama.
“It’s a hard world down there in Alabama,” Lead Belly said. “I made this little song about down there. … I advise everybody, be a little careful when they go along through there — best stay woke, keep their eyes open.”
Lead Belly explains his “stay woke” advice to Black people at the 4:30 mark.
National Guard troops protect members of the Scottsboro Boys as they enter an Alabama courtroom on Jan. 1, 1932.Bettmann/GettyImages
Based on their words, the nine Black men – ages 12 to 19 years old – were immediately arrested and in less than two weeks, all were tried, convicted, and with one exception, sentenced to death.
One of the alleged victims, Victoria Price, testifies on April 4, 1933, against nine young Black men in the Scottsboro case.Bettmann/GettyImages
All the cases were appealed and eventually reached the U.S. Supreme Court. In its 1932 Powell v. Alabama decision, the court overturned the verdicts in part because prosecutors excluded potential Black jurors from serving during the trial. But instead of freedom, the cases were retried – and each of the “Scottsboro Boys” was found guilty again.
There were four more trials, seven retrials and, in 1935, two landmark Supreme Court decisions – one requiring that defendants be tried by juries of their peers and the other requiring that indigent defendants receive competent counsel.
The nine young men spent a combined total of 130 years in prison. The last was released in 1950. By 2013, all were exonerated.
How woke became a four-letter word
Over the years, the memory of the Scottsboro Boys has remained a part of Black consciousness and of staying woke. During the height of the Civil Rights Movement, Martin Luther King Jr. used a version of woke during his commencement address at Oberlin College in 1965.
“The great challenge facing every individual graduating today is to remain awake through this social revolution,” he said.
In recent times, use of the word has ebbed and flowed throughout Black culture but became popular again in 2014 during the protest marches organized by Black Lives Matter in the wake of the shooting death of Michael Brown by a police officer in Ferguson, Missouri. Two years later, a documentary on the group was called “Stay Woke: The Black Lives Matter Movement.”
Florida Gov. Ron DeSantis speaks at a conservative political conference on Feb. 24, 2022, in Orlando, Fla.Joe Raedle/Getty Images
But for GOP lawmakers and conservative talk show pundits, such as DeSantis, “woke” is a pejorative word used to describe those who believe that systemic racism exists in America and remains at the heart of the nation’s racial shortcomings.
When asked to define the term in June 2023, DeSantis explained: “It’s a form of cultural Marxism. It’s about putting merit and achievement behind identity politics, and it’s basically a war on the truth.”
Desantis couldn’t be more wrong. The truth is that being aware of America’s racist past cannot be dictated by conservative politicians. Civic literacy requires an understanding of the social causes and consequences of human behavior – the very essence of being woke.
Republished with permission under license from The Conversation.
However, as cars grow “smarter,” the right to repair them is under siege.
As legalscholars, we find that the question of whether you and your local mechanic can tap into your car’s data to diagnose and repair spans issues of property rights, trade secrets, cybersecurity, data privacy and consumer rights. Policymakers are forced to navigate this complex legal landscape and ideally are aiming for a balanced approach that upholds the right to repair, while also ensuring the safety and privacy of consumers.
Understanding telematics and right to repair
Until recently, repairing a car involved connecting to its standard on-board diagnostics port to retrieve diagnostic data. The ability for independent repair shops – not just those authorized by the manufacturer – to access this information was protected by a state law in Massachusetts, approved by voters on Nov. 6, 2012, and by a nationwide memorandum of understanding between major car manufacturers and the repair industry signed on Jan. 15, 2014.
However, with the rise of telematics systems, which combine computing with telecommunications, these dynamics are shifting. Unlike the standardized onboard diagnostics ports, telematics systems vary across car manufacturers. These systems are often protected by digital locks, and circumventing these locks could be considered a violation of copyright law. The telematics systems also encrypt the diagnostic data before transmitting it to the manufacturer.
This reduces the accessibility of telematics information, potentially locking out independent repair shops and jeopardizing consumer choice – a lack of choice that can lead to increased costs for consumers.
Also, these telematics systems fall outside the scope of the original Massachusetts legislation and the nationwide memorandum of understanding. Recognizing the pivotal role diagnostic data plays in vehicle maintenance and repair, 75% of Massachusetts voters approved a ballot initiative on Nov. 3, 2020, to amend the state’s repair legislation. The amendment aims to ensure that the switch to telematics does not curtail an effective right to repair vehicles.
Specifically, the new law requires manufacturers selling telematics-equipped vehicles from the 2022 model year onward to provide car owners and their chosen repair shops access to the vehicle’s mechanical data through an interoperable, standardized and open-access telematics platform. Access should also encompass the ability to relay commands to components of the vehicle, if necessary, for maintenance, diagnostics and repair. Voters in Maine overwhelmingly approved a similar measure on Nov. 7, 2023.
However, the Massachusetts law was the subject of a lawsuit in federal court shortly after voters approved it in 2020, and it was suspended until June 1, 2023.
Repairing cars today is as much about data as it is nuts and bolts, but increasingly, carmakers are locking that data away from car owners and independent repair shops.Nenad Stojkovic/Flickr, CC BY
Safety and privacy concerns
While the amendment makes significant strides toward creating a level playing field in vehicle maintenance and repair, the National Highway Traffic Safety Administration and car manufacturers have raised concerns about the legislation.
The National Highway Traffic Safety Administration’s main concern revolves around cybersecurity vulnerabilities with potential ramifications for vehicle safety, particularly the amendment’s provision for two-way access. A hacker could potentially take control of a car’s critical systems like accelerator, brakes and steering. Consequently, the agency recommended that car manufacturers not adhere to the law.
A related argument is that Massachusetts law is preempted by federal law. This forms the basis of a lawsuit filed in November 2020 by the Alliance for Automotive Innovation against Massachusetts’ attorney general.
The manufacturers assert that abiding by the state law would inevitably put them in breach of federal statutes and regulations, such as the National Traffic and Motor Vehicle Safety Act. This lawsuit was pending as of press time, although the Massachusetts attorney general declared the law effective as of June 1, 2023.
Critics also emphasize the privacy concerns associated with open access to telematics systems. Granting third-party access could expose personal details, especially real-time location data. Advocacy groups warn that this information might be used as a tracking tool by potential abusers and others aiming to exploit people.
Recent developments
The National Highway Traffic Safety Administration and Massachusetts’ attorney general appear to have reached a consensus on alterations to the law, and the administration has dropped its recommendation that manufacturers disregard the law.
The primary adjustment would mean a telematics platform would be in compliance with the right to repair law if it were accessible within close proximity to the vehicle – for example, via Bluetooth. The National Highway Traffic Safety Administration confirmed that this would be safer and align with federal law.
However, repair advocates have criticized this change as unduly restrictive. They argue that it gives authorized car dealers an unfair advantage over independent repair shops because the manufacturers allow the dealers to access the data remotely.
A new federal bill, the REPAIR Act, was recently introduced in the House, seeking to require vehicle manufacturers to provide access to in-vehicle diagnostic data, including telematics. This bill’s first hearing occurred on Sept. 27, 2023, and the bill passed out of subcommittee on Nov. 2.
Consumer Reports is among the organizations that support right-to-repair legislation.
Who owns your car’s data?
One issue left unresolved by the legislation is the ownership of vehicle data. A vehicle generates all sorts of data as it operates, including location, diagnostic, driving behavior, and even usage patterns of in-car systems – for example, which apps you use and for how long.
In recent years, the question of data ownership has gained prominence. In 2015, Congress legislated that the data stored in event data recorders belongs to the vehicle owner. This was a significant step in acknowledging the vehicle owner’s right over specific datasets. However, the broader issue of data ownership in today’s connected cars remains unresolved.
Whether data should be subject to property rights is a matter of debate. If deemed property, it seems logical to award these rights to the vehicle owner because the vehicle creates the data while used by the owner. However, through contractual terms and digital locks, manufacturers effectively secure control over the data.
The question of ownership aside, the crux of the matter for right to repair is guaranteed access for vehicle owners to their vehicles’ data.
A way forward
While concerns surrounding the Massachusetts legislation have merit, we believe they should not overshadow the need to preserve a competitive space in the auto repair sector and preserve the right to repair. This matters not only for safeguarding consumers’ autonomy and ensuring competitive pricing, but also for minimizing environmental waste from prematurely discarded vehicles and parts.
The hope is that policymakers and the industry can strike a balance: upholding the right to repair without compromising safety and privacy. One possibility is developing tools that segregate sensitive personal information from mechanical data.
Ultimately, a successful implementation of the new law in Massachusetts may pave the way for a renewed nationwide memorandum of understanding, capturing the essence of the original memorandum of understanding and preserving the right to repair cars in the face of rapidly advancing technologies.
Republished with permission under license from The Conversation.
Only “persons” can engage with the legal system – for example, by signing contracts or filing lawsuits. There are two main categories of persons: humans, termed “natural persons,” and creations of the law, termed “artificial persons.” These include corporations, nonprofit organizations and limited liability companies (LLCs).
Up to now, artificial persons have served the purpose of helping humans achieve certain goals. For example, people can pool assets in a corporation and limit their liability vis-à-vis customers or other persons who interact with the corporation. But a new type of artificial person is poised to enter the scene – artificial intelligence systems, and they won’t necessarily serve human interests.
As scholarswho study AI and law, we believe that this moment presents a significant challenge to the legal system: how to regulate AI within existing legal frameworks to reduce undesirable behaviors, and how to assign legal responsibility for autonomous actions of AIs.
This is far from a philosophical question. The laws governing LLCs in several U.S. states do not require that humans oversee the operations of an LLC. In fact, in some states, it is possible to have an LLC with no human owner, or “member” – for example, in cases where all of the partners have died. Though legislators probably weren’t thinking of AI when they crafted the LLC laws, the possibility for zero-member LLCs opens the door to creating LLCs operated by AIs.
Many functions inside small and large companies have already been delegated to AI in part, including financial operations, human resources and network management, to name just three. AIs can now perform many tasks as well as humans do. For example, AIs can read medical X-rays and do other medical tasks, and carry out tasks that require legal reasoning. This process is likely to accelerate due to innovation and economic interests.
A different kind of person
Humans have occasionally included nonhuman entities like animals, lakes, and rivers, as well as corporations, as legal subjects. Though in some cases these entities can be held liable for their actions, the law only allows humans to fully participate in the legal system.
One major barrier to full access to the legal system by nonhuman entities has been the role of language as a uniquely human invention and a vital element in the legal system. Language enables humans to understand norms and institutions that constitute the legal framework. But humans are no longer the only entities using human language.
An LLC established in a jurisdiction that allows it to operate without human members could trade in digital currencies settled on blockchains, allowing the AI running the LLC to operate autonomously and in a decentralized manner that makes it challenging to regulate. Under a legal principle known as the internal affairs doctrine, even if only one U.S. state allowed AI-operated LLCs, that entity could operate nationwide – and possibly worldwide. This is because courts look to the law of the state of incorporation for rules governing the internal affairs of a corporate entity.
We believe the best path forward, therefore, is aligning AI with existing laws, instead of creating a separate set of rules for AI. Additional law can be layered on top for artificial agents, but AI should be subject to at least all the laws a human is subject to.
In addition to embedding law into AI agents, researchers can develop AI compliance agents – AIs designed to help an organization automatically follow the law. These specialized AI systems would provide third-party legal guardrails.
Researchers can develop better AI legal compliance by fine-tuning large language models with supervised learning on labeled legal task completions. Another approach is reinforcement learning, which uses feedback to tell an AI if it’s doing a good or bad job – in this case, attorneys interacting with language models. And legal experts could design prompting schemes – ways of interacting with a language model – to elicit better responses from language models that are more consistent with legal standards.
Law-abiding (artificial) business owners
If an LLC were operated by an AI, it would have to obey the law like any other LLC, and courts could order it to pay damages, or stop doing something by issuing an injunction. An AI tasked with operating the LLC and, among other things, maintaining proper business insurance would have an incentive to understand applicable laws and comply. Having minimum business liability insurance policies is a standard requirement that most businesses impose on one another to engage in commercial relationships.
The incentives to establish AI-operated LLCs are there. Fortunately, we believe it is possible and desirable to do the work to embed the law – what has until now been human law – into AI, and AI-powered automated compliance guardrails.
Republished with permission under license from The Conversation.
The month before Kim Gardner was sworn in, I published an article that made the following prediction: "Make no mistake, if Ms. Gardner proves to be a fair prosecutor, there will certainly be those that will attempt to distort her statements, vilify her actions and generally discredit her. There is a private prison system that stands to lose millions of dollars under a non-oppressive system."
The oppression of African-Americans is big business. Police officers often earn six figures annually, judges, prison food service, prison guards, probation officers, tech companies that supply ankle monitoring systems, and a multitude of others make their living and profits because of the continuing oppression of others. Take away the oppression and their income is taken away. Oppression and racism are big business, and always have been!
Article by Jeremy Kohler
After the 2014 fatal police shooting of Michael Brown in Ferguson, Missouri, and the months of protests that followed, the city of St. Louis was forced to reckon with its Black residents’ longstanding distrust of its police and courts.
Kim Gardner emerged as a voice for change. A lifelong resident of St. Louis, she had diverse professional experiences, having worked as a funeral director, a nurse, a lawyer, and a state legislator. When campaigning for circuit attorney, the city’s top prosecutor, she focused on the disproportionate frequency of arrests and police officers using force against St. Louis’ Black community.
Kim Gardner in 2022, when she was the St. Louis circuit attorney
“We need to change decades of old practices that left many in our community distrustful of the criminal justice system as a whole,” she told The St. Louis American, the city’s Black newspaper, just days before her decisive primary victory in August 2016 that all but sealed her general election win.
In the last decade, prosecutors in other major American cities also campaigned on promises of systemic reform: Kim Foxx in Chicago, Larry Krasner in Philadelphia, and Chesa Boudin in San Francisco.
Yet, much like Gardner, these prosecutors have faced resistance from the police and the unions that represent rank-and-file officers. They’ve been accused of being soft on crime and have even been met with political maneuvers aimed at derailing their initiatives. Several have been targeted by efforts to remove them from office or pare away their powers.
Boudin lost a recall vote and was removed in June 2022. And Krasner, criticized for his reduced emphasis on prosecuting minor crimes, was impeached by the state legislature in November, although a state court threw out the result.
In Florida, Gov. Ron DeSantis has removed elected prosecutors in Tampa and Orlando. He suspended Hillsborough County State Attorney Andrew Warren over Warren’s refusal to prosecute offenses related to abortion and gender-related health care. He suspended the state attorney for Orange and Osceola counties, Monique Worrell, because he said she wasn’t tough enough on some serious offenses.
Monique Worrell speaks at a press conference after Florida Gov. Ron DeSantis suspended her from her job as a state attorney
Georgia recently became the first state to establish a commission with the authority to discipline and even remove local elected prosecutors. Republican Gov. Brian Kemp framed the law as a way to check “far-left prosecutors.”
Gardner, who was reelected in 2020, stepped down in May of 2023 while facing both a lawsuit from the state attorney general that sought her removal and a separate attempt by the Republican-led legislature to curtail her authority. Gardner’s mismanagement of her office played a significant role in her downfall. Reform-minded lawyers who she personally hired had departed. And while judges fumed about prosecutors failing to show up for court, Gardner was moonlighting as a nursing student.
Though other prosecutors faced various challenges, there are no widely known instances like that of retired detective Roger Murphey in St. Louis, who has refused to testify in at least nine murder cases and hasn’t received any departmental discipline.
“For every progressive prosecutor who’s managed to stick it out, there’s one who’s either been recalled or driven out,” said Lara Bazelon, a University of San Francisco law school professor who volunteered on Boudin’s campaign and serves as chair of the commission he created to review inmates’ claims of innocence. “So it’s a real mix of success and cautionary tales.”
She added: “If the police are against you, or literally out to get you, you’re probably not going to be able to last in that job.”
Foxx, elected in 2016 and reelected in 2020, announced in April that she will not seek a third term next year, though she said it was not because of resistance from the police. In an interview, Foxx said that even before she took office, the Chicago police union felt threatened by her assertion that Black lives matter and that the criminal justice system could be more fair, particularly to communities of color.
Cook County State’s Attorney Kim Foxx announces that she will not seek reelection.
It was a signal, she said, “that I was not one of them.”
“The reality is we were offering something very different to what was traditionally viewed as the law-and-order approach to prosecution,” Foxx said. “I think it was surprising to folks that prosecutors could be elected addressing these issues.”
R. Michael Cassidy, a law professor at Boston College and an expert in prosecutorial ethics, said the Ferguson unrest emphasized the need for change in how police and prosecutors work. He said some prosecutors have failed to manage their relationships with police; prosecutors depend on the officers to bring them cases and to testify in court, but they must conduct oversight of the police as well.
Foxx pushed back against any assertion that she didn’t manage her relationship with police. She pointed to a popular Chicago police blog that often refers to her as “Crimesha” — “a play on the word ‘crime’ and what I believe to be a racist insinuation about me being Black with the name ‘-esha.’” The blog has also sexualized her last name by adding a third X and has insinuated that members of her family are connected to gangs.
“From the moment we came into office, we reached out to our partners in law enforcement, and what we saw was there was a segment of them who were never going to be satisfied with me in this role because I said ‘Black lives matter,’ because I said ‘We need police accountability,’ because I said that we had a criminal justice system that overly relied on incarceration that targeted Black and brown communities,” she said.
She said that she, Gardner, and other prosecutors “have been faced with an unprecedented level of hate and vitriol” from the police.
“That,” she said, “is the story.”
Chicago Fraternal Order of Police President John Catanzara and other union officials did not respond to requests for comment. But Catanzara told the Chicago Sun-Times in 2020 that the union’s complaints about Foxx were based on her job performance. He said she was a “social activist in an elected law enforcement position” who was unwilling to “faithfully do her job.”
The local police union organized a protest calling for the removal of Cook County State’s Attorney Kim Foxx in Chicago in 2019.
But as property crime rates climbed in San Francisco, Boudin came under increased scrutiny.
Cassidy said Boudin and other like-minded prosecutors have been scapegoated for isolated incidents or temporary spikes in crime statistics, as if they alone are responsible. In some cities, that has swung public opinion against them.
Chesa Boudin, during his time as San Francisco’s district attorney
Boudin said the claims were unfair and largely the product of police resistance to his reforms.
“We’ve seen, on body-worn camera footage, police officers telling victims there’s nothing they can do and, ‘Don’t forget to vote in the upcoming recall election,’” Boudin said in an interview.
Boudin said he and other local prosecutors have found “there is absolutely zero accountability for these officers who engage in explicitly political acts of sabotage or dereliction of duty.”
A spokesperson for the San Francisco police union declined to comment.
Some prosecutors have held onto their positions despite challenges to their power. In November, veteran public defender Mary Moriarty was elected county attorney for the jurisdiction that includes Minneapolis in the first election since the death there of George Floyd. The same night, Dallas District Attorney John Creuzot was reelected by a nearly 20-point margin in spite of calls by a police union for his ouster over his plan not to prosecute certain low-level offenses.
In August 2022, Sarah George, the incumbent state’s attorney in Vermont’s Chittenden County, which includes Burlington, secured her seat with a 20-point victory in the Democratic primary over Ted Kenney, a challenger backed by the police.
George had introduced a variety of reforms, including eliminating cash bail and declining to prosecute cases where evidence was obtained during noncriminal traffic stops, like those for broken taillights. The Burlington police union called her actions “disastrous” and Kenney argued that the approach made streets less safe.
George, too, has seen police body camera video of officers blaming her for crime. In one video, which she provided to ProPublica, the Riverfront Times and NPR, an officer from a suburban police department tells a couple that officers can’t do anything about a crack house in their neighborhood. He then implores them to vote for Kenney because of George’s “super-progressive, soft-on-crime approach where we arrest the same people daily and they get out the same day.”
George said that, with some crime investigations, the police are “not really doing the work that we need to do on the case, and then blaming us for the case not being filed.”
The Burlington police union declined to comment. The chiefs of police in Burlington and Winooski, the suburb where the video was taken, did not respond to messages seeking comment.
Gardner, too, often faced criticism from police for her reluctance to prosecute cases based on arrests alone. In one notable instance in 2019, she dropped child-endangerment charges against two daycare workers who were captured on video as they appeared to encourage toddlers to box using toy Incredible Hulk fists.
The police union called for her ouster, writing on Facebook: “The first rule of toddler fight club is … that you prosecute the sadistic promoters of toddler fight club.”
In comments made before her resignation, Gardner noted that she had been careful not to file criminal charges in cases where she did not feel there was enough evidence. “What they want me to do is make it look like this job is easy,” she said. “We can’t make things fit and people don’t like that. That’s not what justice is about.”
Richard Rosenfeld, a professor emeritus of criminology at the University of Missouri, St. Louis, was one of several researchers who pooled data from 65 major cities and found “no evidence to support the claim that progressive prosecutors were responsible for the increase in homicide during the pandemic or before it.”
Indeed, Chicago’s murder rate fell during Foxx’s first years in office, rose during the first years of the pandemic and has been falling this year, city crime statistics show. Philadelphia’s murder rate was in steep decline this year after a precipitous rise that started in 2020. And most categories of crime were in retreat in St. Louis at the time Gardner resigned, while violent crime was up in San Francisco a year after Boudin’s exit, according to statistics.
Acknowledging that the St. Louis police commonly blamed Gardner for crime trends, Rosenfeld, a veteran observer of policing in St. Louis, said, “Case not proved, is what I would argue there.”
Republished with permission from Propublica under license.
My friend "G" helped her daughter purchase a used vehicle from Pappas Toyota in St. Peters, MO, but now suspects the dealer committed fraud. Although "G" gave me permission to tell her story as a teachable moment; I'm not using "G's" name or her daughter's because "G" is a law enforcement officer.
These teachable moments are offered to provide our readers with real-life case situations that provide facts and analysis and possible remedies for common legal situations.
Facts and Background
On Monday, February 20, 2023, "G" sent her 19-year-old daughter, "T", to Pappas Toyota to test drive a 2013 Nissan Pathfinder that "G" saw online. "G" was unable to go with her daughter because "G" was working an extreme amount of overtime at that point. "G," asked me to accompany her daughter because "T" was nervous to go by herself.
After the test drive, "T" and I sat down with the salesperson to discuss preliminaries, and after several phone calls back and forth to "G", "G" took over negotiations with the salesperson over the phone. "G" was assured over the phone by the salesperson that the Pathfinder had no known issues, had gone through an extensive vehicle inspection process, had been state inspected, was a solid vehicle, and should provide reliable and trouble-free transportation for some time. In fact, the dealer stayed fairly firm on the price because the vehicle was in exceptional condition. The Pathfinder was purchased on February 24th.
On or about March 27th, Pappas was called because the Pathfinder's engine light came on and the vehicle was shaking when driving 40 mph or higher. An appointment was set for April 4th, Pappas performed a diagnostic test and replaced the "Plenum Gasket, Ignition Coil, and spark plugs". Pappas assured "G" and "T" that this would solve the problem and they spent $726 for that service. A few days later, the engine light came back on and when "T" called Pappas to report it, the service department told her there was no problem and that the engine light just needed to be reset. Pappas told "T" to look in the owner's manual for instructions on how to reset the light.
On July 12th, the Pathfinder stalled on Halls Ferry near Lindbergh and had to be towed about two blocks to Ronsick Auto Care. They performed a diagnosis on July 13th and determined that the entire Catalytic Converter System had failed. They further explained that the system includes three Catalytic converters and that it takes a substantial amount of time for the entire system to fail. Since the system includes three catalytic converters, the estimate to replace including labor was over $5,000. When "G" explained that they had just purchased the vehicle in February, Ronsick's professional opinion was that the vehicle was sold with a bad catalytic converter system.
On Thursday, July 13th, "T", phoned the salesperson at Pappas Toyota who sold the vehicle and explained the situation, and asked if Pappas would fix or allow the Pathfinder to be exchanged for another vehicle but was told Pappas couldn't do anything since she hadn't purchased an extended warranty.
On Friday, July 14th, a letter was faxed to Pappas, detailing the information above and that "G" and "T" believed the Pathfinder's conditions were preexisting prior to their purchase. Fraud was suspected because as automotive experts, Pappas knew or should have known the actual condition of the Pathfinder but did not disclose and maybe even illegally reset the engine check light to conceal the defects.
G & T chose to purchase from Pappas because they believe it to be a reputable and honest business and they were trying to avoid running into this sort of situation from a disreputable used car dealer. They demanded that Pappas make them whole and repair the Pathfinder at no cost per the Missouri Merchandizing Practices Act RSMo 407.020 et al. The following was stated in the letter to Pappas:
"This is a good faith attempt to resolve this issue, however, If we do not hear from Pappas by 2 pm today, Friday, July 14th, we will take the following actions.
My daughter, several of her friends, and family members are preparing an informational picket to take place on the public areas outside of Pappas Toyota.
A copy of this letter and a short press release will be sent to local media outlets.
If those activities produce no results, we will file a small claims complaint with St. Charles Circuit Court and let a judge decide if Pappas should have known about the defects prior to the sale."
Pappas Toyota Non-Responsive
G received no response from Pappas Toyota, since they didn't attempt to contact her, she filed complaints with the Missouri Attorney General's Office and several consumer complaint sites Friday evening. Because of the weather forecast, T canceled a planned information picket for Saturday, July 15th, however, she may reschedule later.
G is now researching and organizing documents and plans to file a small claims suit against Pappas Toyota. This page will be updated when additional information about the outcome is available.
Fraud and Lawsuit Analysis
In Missouri courts, small claims are limited to $5,000, see Missouri Rules for Small Claims Court and the Missouri Small Claims Court Handbook (PDF). According to the fee schedule for St. Charles Circuit Court, the filing fee will be $20.50. Because their claim is potentially greater than $5,000, G & T are also considering filing a standard civil lawsuit. RSMO 402.025 allows for possible reimbursement of attorney fees and punitive damages. If a civil vs small claims suit is filled, G & T will seek to recover the $729 spent in April for repairs, the cost to replace the catalytic converter system, lost time from work, car rental reimbursement, any other fees and cost associated with the action including attorney fees and punitive damages.
Missouri Revised Statute 400.2-314 provides an implied warranty of merchantability and the Missouri Supreme Court ruled in Herbert v. Harl, 757 SW 2d 585 that the statute applies to car dealers. A “warranty of merchantability” means the dealer promises the car will do what it's supposed to do: it will run. However, there are exclusions under RSMO 400.2-316, if the sales contract contains the term "as-is" the warranty of merchantability does not apply.
Pappas Toyota will most likely deny liability by stating that the vehicle was sold "as-is", however, that argument does not exempt them from liability under Missouri Merchandizing Practices Act RSMo 407.020 et al.
The Federal Trade Commission’s (FTC) Used Car Rule requires dealers to display a Buyers Guide in every used car they offer for sale and to give it to buyers after the sale. Pappas Toyota did not display a Buyers Guide when T and I test-drove the vehicle, however, they did have her sign one at the time of sale. Before and immediately after the test drive, I took several photos of the entire vehicle to record the condition and show to G, after reviewing those photos, I noticed there was no buyer's guide.
2013 Pathfinder on February 20, 2023, immediately after the test drive, T is on the left in the white coat.
In the photo above, there is a sign in the building's window advertising Pappas Premium, which is a peace of mind pledge. The following statement appears on the PappasToyota.com Pappas Premium page, "A pre-owned vehicle from Pappas Toyota isn’t an ordinary used car. After passing a rigorous inspection and reconditioning process, it’s added to our lot with Pappas Premium, a nationwide 2-Year/100,000-Mile Limited Powertrain Warranty, with 24-Hour Roadside Assistance, One Year of Tire Hazard Protection, and more!" There is no disclaimer stating that some vehicles are excluded. Any reasonable person reading this statement would assume that this applies to all used vehicles sold at Pappas.
This assurance is one of the reasons G sent her daughter to Pappas. At the time of publication, T's 2013 Nissan Pathfinder according to CarFax has a retail value of $10,220, a private party value of $7,700, and a trade-in value of $4,400. Let's assume Pappas purchased the Pathfinder for around $4,700. The reason a customer would then respond to Pappas' advertised selling price of $10,700 is that it is expected that Pappas inspected and reconditioned the vehicle as stated in the Pappas Premium pledge. Otherwise, customers could simply purchase the vehicle from a private seller and save thousands of dollars.
Under the Missouri Merchandising Practices Act, false pretense, false promise, misrepresentation, unfair practice, or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce is an unlawful act. Pappas' salesperson mentioned how their used vehicles undergo an extensive inspection which matches with the Pappas Premium statement of a "rigorous inspection and reconditioning". A dealer has an affirmative duty to tell you certain “material facts” about a vehicle, whether or not you ask for them. This includes disclosing if a vehicle was a “lemon law” buyback, a prior rental, a prior salvage, or in an accident requiring major repair work such as frame or suspension damage.
Pappas Toyota is the expert here. It is reasonable to expect that if the vehicle needed to have the "Plenum Gasket, Ignition Coil, and spark plugs replaced, the "rigorous inspection" should have identified those issues prior to the sale. It is also reasonable that Pappas should have known that the catalytic converter system was bad. How many of the three catalytic converters have to fail before the engine light comes on?
According to Automotive Diagnostic Repair Help: "As a rule, when converter efficiency drops below 90 to 95 percent, it will set off a catalyst efficiency code. A vehicle with an illuminated Check Engine Light and ANY trouble codes will NOT pass an emissions check. A fouled converter may or may not cause an increase in backpressure, but eventually, it might if carbon starts to build in the honeycomb restricting the passageways. The important point to remember here is that converters don't just foul or plug up for no good reason. There is always an underlying cause which must be diagnosed and corrected before the problem can be eliminated. Identifying a plugged or fouled catalytic converter is only half the fix. Why? Because replacing a bad converter will only solve the current problem temporarily. If the underlying cause of the converter failure is not also diagnosed and repaired, sooner or later the new converter will likely suffer the same fate."
According to RepairSmith.com and several other sites, a vehicle normally can be driven indefinitely with a bad catalytic converter. A clogged catalytic converter can only prohibit you from driving your automobile in the most severe circumstances. According to PerformanceMuffler.net, "A failing car’s catalytic converter will create a significant backpressure that lowers your car’s engine performance. Whenever this happens, you will notice your car shaking frequently".
On February 15th, the date that Pappas Toyota performed the emissions inspection, the vehicle mileage was 143,287. On April 4th when Pappas performed the repairs, the mileage was 145,283. The mileage recorded by Ronsick on July 12 was 149,069. The Pathfinder was driven less than four thousand miles since Pappas supposedly took care of the vehicle’s issues.
When a small claims lawsuit is filed, the plaintiff (the person suing), bears the burden of proof and must convince a judge. This requires the plaintiff to put forth evidence in the form of witness testimony, documents, or objects. There are four elements that need to be proven to win a Missouri Merchandizing Practices Act suit.
(1) the plaintiff purchased, or attempted to purchase, merchandise (which includes services) from a defendant in the state of Missouri;
(2) the plaintiff’s purchase of, or attempt to purchase, merchandise (or services) was for personal, family, or household purposes;
(3) the plaintiff suffered an ascertainable loss of money or property; and
(4) the plaintiff’s ascertainable loss was a result of an action by a defendant that has been declared unlawful by § 407.020 RSMo.
In all likelihood, the condition of the plenum gasket, ignition coil, and spark plugs would have resulted in a check engine light prior to the sale. Additionally, since the catalytic converter was so bad that it failed just three months later indicates there were issues for a while even before G& T purchased it. Remember, even the mechanic that the car was towed to agrees that this was a preexisting condition, so why didn't Pappas catch this, was it fraud or negligence? Either way, it's a material fact that Pappas should have known that wasn't disclosed. However, a vehicle with a catalytic converter so bad that it causes the car to stall shouldn't have passed inspection in the first place which increases the likelihood fraud was involved. It's highly probable a judge will agree.
If you are a former or current employee of Pappas Toyota, a customer, or someone who has helpful information concerning this case contact us.
G contacted the St. Charles Circuit Court about filing the small claims suit against Pappas Toyota and was told that she must first send a certified demand letter to the registered agent. She visited the Missouri Secretary of State's office and search their records of business listings and discovered that Pappas Toyota is owned by North Motors Inc. and that Michael Pappas become the registered agent in March 2023, his father Thomas Pappas (the former registered agent), passed away the previous month. G sent her demand letter on Friday, July 21st.
On Monday, July 24th, G received an email from the Attorney General which included Pappas Toyota's response prepared by their attorney including three attached documents; "Retail buyer's order, buyer's guide, and a document declining extended service contract. Pappas' attorney as expected cited the sale as-is but also asserted the parties agreed to arbitration. Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.
The irony here is that Section (a) of the attached Pappas arbitration clause states; "The Federal Arbitration Act, not state law, shall govern the arbitration process and the question of whether a claim is subject to arbitration. The customer, however, retains the right to take any claim, controversy or dispute that qualifies to small claims court rather than arbitration." The Pappas Toyota arbitration clause itself allows for issues to be taken to small claims court instead of arbitration. The important lesson is to carefully read any document provided by the opposition or their attorney.
An arbitration clause in a contract is usually binding, however, the Missouri Supreme Court has ruled that such clauses cannot waive the protection provided by the Missouri Merchandising Practices Act (MMP). See Shaffer v. Royal Gate Dodge where the dealer tried to compel arbitration but the court ruled the arbitration clause unenforceable.
In the case of Huch v. Charter Communications, the Missouri Supreme Court stated the following often while citing other relevant cases:
"the public policy involved in Chapter 407 is so strong that parties will not be allowed to waive its benefits."
In short, Chapter 407[, the MPA,] is designed to regulate the marketplace to the advantage of those traditionally thought to have unequal bargaining power as well as those who may fall victim to unfair business practices. Having enacted paternalistic legislation designed to protect those that could not otherwise protect themselves, the Missouri legislature would not want the protections of Chapter 407 to be waived by those deemed in need of protection. Furthermore, the very fact that this legislation is paternalistic in nature indicates that it is fundamental policy: "a fundamental policy may be embodied in a statute which … is designed to protect a person against the oppressive use of superior bargaining power."
Likewise, in Whitney v. Alltel Communications, Inc., a contract provision requiring arbitration was found to be unconscionable because giving it effect would deny protections afforded by the merchandising practices act. 173 S.W.3d 300, 314 (Mo. App.2005). The court held that to allow companies to avoid the consumer protections established in the act "would effectively strip consumers of the protections afforded to them under the Merchandising Practices Act and unfairly allow companies… to insulate themselves from the consumer protection laws of this State." Id. "This result would be unconscionable and in direct conflict with the legislature's declared public policy as evidenced by the Merchandising Practices Act and similar statutes."
Car dealers are required by the FTC to post a Buyers Guide before they display a vehicle for sale or let a customer inspect it for the purpose of buying it, even if the car is not fully prepared for delivery. The Buyers Guide must be displayed prominently and conspicuously on or in a vehicle when a car is available for sale. This means it must be in plain view and both sides must be visible. You can hang the Guide from the rear-view mirror inside the car or on a side-view mirror outside the car. You also can place it under a windshield wiper. The Guide also can be attached to a side window. A Guide in a glove compartment, trunk, or under the seat is not conspicuous because it is not in plain sight. Since the vehicle did not have a visible buyer's guide when T and I test-drove the vehicle, that violation could also be considered an omission per the MMP.
G & T are both listed as purchasers, however, T was the only signer to the contract which contains the arbitration clause. G & T financed the vehicle at a bank that only G had an account with at the time. Even if the arbitration clause was valid, and was not barred from being invoked in cases involving the MMP, it could be argued that the clause does not apply to G since she never signed it but does have a protectable interest.
Michael Pappas President North Motors Inc. D.B.A. Pappas Toyota 10011 Spenser Road St. Peters, MO 63376
Dear Mr. Pappas,
This letter serves as a formal demand for payment of $5000, the partial cost to repair the prior damage that Pappas Toyota, knew or should have known existed before our purchase. Our claim is based upon the Missouri Merchandizing Practices Act, RSMo 407.020 et al, which applies even when merchandise is sold as-is.
I helped my 19-year-old daughter T purchase a 2013 Nissan Pathfinder from Pappas Toyota on February 24, 2023. We live in Florissant, however, the primary reason for choosing your business was the Pappas Premium pledge on your website; https://www.pappastoyota.com/pappas-premium/.
Unfortunately, a month later, we were forced to pay Pappas $729 for repairs which included the Plenum Gasket, Ignition Coil, and spark plugs. Those items should have been detected from the "rigorous inspection" you claim to perform on all used vehicles before being added to your lot.
A few days later, the engine light came back on and when Taylor called Pappas to report it, the service department told her there was no problem and that the engine light just needed to be reset. Pappas told Taylor to look in the owner's manual for instructions on how to reset the light.
Three months later, the entire catalytic converter system failed and the estimated cost to replace is $5,285, I have included a copy of the repair estimate with this letter. A second mechanic we consulted said it was nearly impossible that an inspection wouldn't have caught those issues. Both mechanics concluded the conditions existed before our purchase.
For more complete information about this claim, see the self-help legal blog that picked up our story: http://court.rchp.com/is-pappas-toyota-engaging-in-unethical-car-dealer-practices/
We have previously tried to resolve this matter, my daughter T contacted your salesperson D on Thursday, July 13th, I sent a fax to your manager, A on Friday, July 14th at 636-xxx-xxxx, and I sent an email to you on Monday, July 17th at, mpappas@pappastoyota.com. We lodged a complaint with the Missouri Attorney General, the Better Business Bureau, and others, however, as of the date of this letter, we have not received any response.
If we do not receive a full payment of $5,000 by August 4, 2023, we will have no choice but to file a claim in St. Charles small claims court. In lieu of payment, if arrangements are made by July 27th, we will allow Pappas the option to replace the catalytic converter system at their cost and provide us with the full Pappas Premium coverage as we no longer feel confident about the vehicle's condition when sold.
Since our total claim exceeds $5,000:
$5,285 – estimated catalytic converter system replacement and related work + $729 – cost of prior repair April 4th + $112 – daughter lost wages
We reserve the right to file a standard civil case where we would seek full restitution including filing fees, attorney fees, tow charges, additional lost wages all other associated cost, and punitive damages.
This letter fulfills the St. Charles Circuit Court requirement of sending a certified letter to the registered agent of the business prior to filing suit. You have 10 days to respond after receipt of this letter to respond.
Pappas Toyota responded to the Missouri Attorney General's office, but no one has reached out directly to G about her complaints. G contacted the Toyota Corporation to alert them about the questionable practices of their franchisee. In reply to Pappas Toyota's attorney's response to the Missouri Attorney General about her complaint, G sent the following:
Re: Complaint No. CC-2023-07-00xxx
Dear Ms. W:
After careful review of the Pappas response and exhibits, I'd like to point out the flaws and oversight. I've been a Deputy Juvenile Officer (DJO) in the City of St. Louis since 1996 and my deceased husband, M, was an attorney so I have some familiarity with the law.
Mr. K mistakenly stated our claims need to be arbitrated. Section 8(a) of Pappas Exhibit 1, states; "The Federal Arbitration Act, not state law, shall govern the arbitration process and the question of whether a claim is subject to arbitration. The customer, however, retains the right to take any claim, controversy or dispute that qualifies to small claims court rather than arbitration." Pappas' arbitration clause itself provides the authority to bypass arbitration and go to small claims court. However, the Missouri Supreme Court has ruled that such clauses cannot waive the protection provided by the Missouri Merchandising Practices Act (MMAP); see Shaffer v. Royal Gate Dodge, Inc., 300 SW 3d 556, where the dealer tried to compel arbitration but the court ruled the arbitration clause unenforceable.
Additionally, please note that both my name and my daughters' name appear as purchaser on Pappas Exhibit 1, however, only my daughter signed the agreement with the arbitration clause, therefore, I cannot be forced into arbitration. I would have preferred to accompany my daughter, however, I was working over 80 hours of overtime per pay period during that time leaving only a small window where we could both be present on February 24th. D, our Pappas salesperson, wasn't available during that window and informed me that I didn't need to be there to finalize the sale, but I was never informed about the arbitration clause or that the vehicle was sold as-is and not covered by the Pappas Premium pledge, Exhibit A. My negotiations with D were over the phone and by text and I didn't visit their location until after the deal was completed. The online advertisement for the Pathfinder did not mention it was as-is.
Car dealers are required by the FTC to post a Buyers Guide before they display a vehicle for sale or let a customer inspect it for the purpose of buying it, even if the car is not fully prepared for delivery. I was sent photos, Exhibit B, of the vehicle before and after the test drive which clearly shows there was no Buyers Guide. Please note that Pappas Exhibit 2 may have been signed by my 19 year old daughter if they presented it, but the Buyer's Guide certainly does not contain my signature.
The MMPA is designed to regulate the market place to the advantage of those traditionally thought to have unequal bargaining power, as well as those who may fall victim to unfair business practices. The Missouri legislature enacted paternalistic legislation to protect those consumers that could not otherwise protect themselves, signifying it would not want the protection of chapter 407 to be waived by those deemed in need of protection. This very fact indicates that it is a fundamental policy embodied in a statute which is designed to protect persons against the “oppressive use of superior bargaining power.” Huch v. Charter Communications. Inc., 290 S.W.3d 721, 726 (Mo.banc 2009). Therefore, the fact that my daughter signed the Buyer Guide does not exempt Pappas Toyota from their pledge.
We raised fraud issues in our complaint, so the Pappas attorney's correspondence does not fully resolve this matter. We hope that the AG's office may provide assistance, however, we are fully prepared to file suit in St. Charles Circuit Court if it cannot. The secondary nature of our AG complaint was to notify this office of possible fraud and to prevent Pappas from making false statements on their website concerning the Pappas Premium and "rigorous inspections" and then using the "As-Is" sale, arbitration, and declining to purchase an extended service contract to bypass and insulate themselves from the consumer protection laws of this State.
I am attaching a copy of the Pappas Premium Pre-Owned Peace of Mind pledge from their website. Please note there is no disclaimer stating that some vehicles are not covered. This pledge would mislead any reasonable consumer into thinking all used vehicles sold by Pappas are covered. Several mechanics have explained that the vehicle we purchased shouldn't have passed a basic state inspection and that any sort of "rigorous inspection" certainly should have identified the issues we faced in March and then July.
The 2013 Nissan Pathfinder we purchased was advertised for $10,700 on the Pappas Toyota website. The price was negotiated down to $10,000, however, I refused to pay a $499 administrative fee. That fee was then subtracted from the sales price to equal the original $10,000 agreed upon. We were charged $759 in March for repairs, Exhibit C, and now face another $5,285 for the catalytic converter system, Exhibit D. The total of these repairs is more than 60 percent of the purchase price for a vehicle according to the, Pappas Pledge "is like no other used car". It is illegal for a car dealer to sell a vehicle with a failing emissions system.
As part of my investigation and research, I pulled the Pathfinder's CarFax Report, Exhibit E. Please note that spark plugs and the ignition system was serviced on 11-06-2019 and the Plenum gasket was replaced on 09-21-2021. Keep in mind that the Plenum gasket, ignition coil, and spark plugs were replaced in April 2023 by Pappas Toyota. The CarFax report states that Pappas performed an emission inspection on 2-8-2023, however, the actual inspection certificate is dated 2-15-2023, Exhibit F. Did the Pathfinder fail inspection on the 8th? Further indication the Pappas emission certificate might be fraudulent. The Pappas Toyota website states they are a 2022 CarFax Top-Rated Dealer. It's reasonable to expect they would use the CarFax report as a guide to look for possible issues.
According to WheelsJoint.com, the Nissan Pathfinder ignition coils are responsible for amplifying the relatively low battery voltage from 12V to a high voltage of tens of thousands of volts for the spark plugs. Driving a Pathfinder with bad ignition coils can damage the engine or the catalytic converter.
According to RepairPal.com, the Plenum Gasket, also known as the intake manifold gasket on a Nissan Pathfinder is designed to last the life of the vehicle, but often it will be replaced when doing related engine repairs in order to prevent problems with it down the road. YourMechanic.com states, " The principal concern with a leaking intake manifold gasket is potential damage to the engine, depending on where the leak is. …. If the leak involves coolant, it could lead to engine overheating damage or the coolant could contaminate the engine oil, which can damage the engine bearings. If there is an air leak to the cylinders, it can cause lean operation which could overheat the catalytic converter."
On 1-10-2023, Pappas Toyota performed recommended maintenance including changing tires and an oil change. They performed an emissions inspection on Feb. 8th or 15th, however, no other inspections are mentioned. A condition of our purchase was the touch ups of noticeable paint chips and scratches which is most likely the service that was performed on 2-21-2023.
Sections 407.020 and 407.025 provide four elements to a MMPA claim: (1) the use or employment of a “deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression or omission of any material fact,” (2) the unlawful act must occur in connection with the sale or advertisement of merchandise, (3) the unlawful act must result in an ascertainable loss of money or real or personal property, and (4) the loss must occur to a person who purchases or leases merchandise primarily for personal, family or household purposes.
The Pappas Premium pledge in our case is an obvious false promise, then the fact there was no Buyer's Guide which was a concealment, suppression, or omission of a material fact, a major repair one month after purchase and then the complete failure of the catalytic converter system three months later in consideration of the facts above by any reasonable standard satisfies an action under MMAP.
A quick scan of Pappas Toyota's BBB file tells me we're not their first victim, but hopefully, we'll be their last. Proof of intent can be shown by circumstantial evidence. See Rice v. Lammers, 65 S.W.2d 151 (Mo. App. 1933). And silence or concealment is actionable on a showing of the seller’s superior knowledge or the seller giving partial information. In Hess v. Chase Manhattan Bank, USA, NA, 220 SW 3d 758 the Court held that the admission or concealment of material facts under the MMPA required less proof than what was required to prove comparable elements of common law fraud.
As a DJO, sadly, I must enforce the law on children as young as 10 years old, sometimes for minor offenses as low as $10, often motivated by great need. Hopefully, your office will hold grown men to account for thousands of dollars stolen by fraud and motivated by great greed!
Sincerely, G
Attached are the following:
Printout of the Pappas Premium Pledge from their website
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.
Enterprise reservation for 5-24-2021 showing daily rate of $82. This reservation was cancelled after the Ladue reservation was confirmed.
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.
Legal Analysis
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:
(1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff. Howe v. ALD Servs., Inc., 941 S.W.2d 645, 650 (Mo. App.1997).
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?
Age Discrimination
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.
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Conclusion
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.
After we published, we heard about a Black diversity and inclusion business program manager from Microsoft who had his Avis rental car repossessed by mistake.
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.
Given the lack of reliable data, it is extremely difficult to estimate what proportion of pleas are from innocent defendants. However, many researchers believe the proportion is significant. So far, the National Registry of Exonerations, a database that records all known exonerations of innocent defendants in the United States after 1989, has identified more than 580 cases in which innocent people chose to plead guilty.
When people are held in jail, they’re likely to accept quick release – even if it means admitting to something they didn’t do. Caspar Benson via Getty Images
Even though prosecutors largely base their charging and bargaining decisions on the assessed strength of available evidence, such assessments are not perfect. While guilty people are more receptive to plea offers, innocent defendants are not immune to the potentially coercive factors that make pleading guilty attractive such as pretrial detention and differences in duration of sentences.
Prosecutors often offer plea deals with dramatically lower sentences than those likely to be imposed if a jury finds the defendant guilty. In some cases, defendants who opted for a trial instead of pleading guilty have received tenfold sentence increases from the original plea offer, or even life sentences, upon conviction.
This possibility can make a plea offer very attractive, and even create what some have called a “trial penalty” for defendants who refuse to plead guilty.
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.
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.
And then courts closed or limited their operations, seeking to follow workplace safety rules and social distancing guidelines. Many courts stopped hosting jury trials for months.
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.
The results confirmed that both guilty and innocent participants were more likely to plead guilty when warned of the increased complications posed by COVID-19. Further, innocent participants ranked the pandemic as a more important factor in shaping their decision to plead than guilty participants.
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.
Republished with permission under license from The Conversation.
