Civil Rights Law & Policy Blog

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Thursday, October 23, 2014

SCOTUS "decision…to allow Texas' restrictive voter identification law to go into effect is deeply disturbing and simply wrong…"

...according to Professor Erwin Chemerinksy, dean of UC-Irvine School of Law. In this op-ed for The Orange Co. Register, Chemerinsky writes:

The Texas law, as Justice Ruth Bader Ginsburg noted Saturday, is “the strictest regime in the country.” Unlike other states, such as Wisconsin, Texas will not accept student identification from in-state universities or identification cards issued by Native American tribes or photo ID cards issued by the U.S. Department of Veterans’ Affairs. Obtaining the permissible forms of identification requires obtaining a state-issued birth certificate for $22. The Supreme Court long ago ruled that a state cannot charge even a $1 fee for voting.


[U.S. District] Judge [Nelva Gonzalez] Ramos concluded that the effect of the Texas law will be that about 600,000 voters, primarily African American and Latino, will be kept from voting. Judge Ramos agreed with the U.S. Justice Department and the challengers that the Texas law violated Section 2 of the Voting Rights Act of 1965 because it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result.




There are so many things that are troubling about the court’s action. It is the first time in decades that the Supreme Court has allowed an election law to go into effect after a federal trial court found it to be unconstitutional race discrimination. Appellate courts, including the Supreme Court, are supposed to defer to the fact-finding by the trial courts. Here, the district court held a trial, engaged in extensive fact-finding and wrote a very detailed opinion.


Also, this continues a trend in recent weeks of the Supreme Court deciding which election systems can go into effect in unsigned orders without written opinions. The court, over four dissents, allowed Ohio to change its election system to limit early voting. In other unsigned orders, the court permitted a North Carolina law and prevented a Wisconsin law from going into effect.


A crucial aspect of the judicial process is that judges give reasons for their rulings. This explains the basis of the decisions to the litigants, provides guidance for lower courts and makes the rulings seem more than arbitrary exercises of power. Even though the court needed to act quickly, there is no reason why it could not write at least brief opinions explaining its decisions. Yet, the court decided that the Texas law could go into effect without offering the slightest explanation.

[h/t Election Law Blog]

October 23, 2014 in Election Law, Equal Protection Clause, Right to Vote, Voter ID | Permalink | Comments (0)

"Justice Department condemns Ferguson leaks as effort to sway opinion"

The LATimes's Matt Pearce:

With a grand jury decision looming on whether a white police officer should face charges in the killing of an unarmed black 18-year-old in Ferguson, Mo., the investigation has sprung a few leaks.


New details from the inquiry into Michael Brown’s Aug. 9 death — all provided by unidentified sources and which seem to support Officer Darren Wilson’s story of what happened that day — have emerged in St. Louis and national news outlets in recent days.


The U.S. Department of Justice condemned the leaks Wednesday as “irresponsible and highly troubling” and said, “There seems to be an inappropriate effort to influence public opinion about this case.”

October 23, 2014 in Department of Justice, Excessive Force | Permalink | Comments (0)

California prisons will no longer segregate inmates based on race following violence

...reports the AP:

Instead, officers can lock down every inmate in an affected area, or individual inmates suspected of being involved in the incident or the gangs that were involved.


The Department of Corrections and Rehabilitation also agreed to provide inmates with opportunities for outdoor exercise any time a lockdown lasts longer than 14 days.


The agreement with attorneys representing inmates came after the U.S. Justice Department said in a non-binding court filing last year that the old policy violated the 14th Amendment that requires equal protection under the law.


Justice officials said that policy was based on generalized fears of racial violence and affected inmates who have no gang ties or history of violence.


State officials did not acknowledge any violation of inmates' constitutional rights as part of the agreement.

October 23, 2014 in 14th Amendment, Department of Justice, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

"Criminalizing the Hands That Feed the Homeless"

Atlantic contributor Matt Schiavenza observes that an increasing number of cities have passed ordinances prohibiting the distribution of food to the homeless:

"Street feeding is one of the worst things you can do, because it keeps people in homeless status," Robert Marbut, a consultant who advises cities on homelessness, told NPR.


But opponents of these restrictions argue that such comprehensive facilities are insufficient in helping the homeless. Then there's the issue of punishment: Do cities really want to punish individuals for the crime of feeding hungry people? Earlier this year, a couple in Daytona Beach, Florida were fined a total of $746 and banned from a city park after violating a city ordinance against providing the homeless with free food.


The National Coalition on the Homeless released a report on Monday arguing that having access free food does not incentivize the homeless to remain on the street.


"With all of the existing barriers that prevent individuals from finding work, earning an adequate wage, affording a safe home and caring for themselves, remaining homeless is rarely a choice at all," the report said.


The authors noted that since 2013, 21 cities have restricted the feeding of the homeless and another ten cities are in the process of doing the same. Overall, the study noted that there has been a 47 percent increase in the number of cities that have pursued the restriction of food sharing since 2010.

October 23, 2014 | Permalink | Comments (0)

Wednesday, October 22, 2014

"The Strife of Riley: The Search-Incident Consequences of Making an Easy Case Simple"

The title of this post comes from this recent paper by Professor Leslie Shoebotham, the abstract of which states:

In Riley v. California, the U.S. Supreme Court held that the Fourth Amendment requires police officers to obtain a warrant before searching an arrestee’s cellular phone in a search incident to a lawful arrest. The lauded decision heralds the modernization of the Fourth Amendment to embrace privacy in the digital age. But Riley’s reasoning contains a flaw that only Justice Alito recognized. Evidence gathering — i.e., the need to look for evidence of the arrestee’s crime for use at trial — has long justified law enforcement’s authority to perform incident searches. Indeed, evidence-gathering searches incident to arrest were recognized as legitimate searches over a century before the adoption of the Fourth Amendment. The Riley Court ignored this pedigree, however. Despite the doctrine’s centuries-long history, Riley concluded that the authority to search incident to arrest was defined by a trilogy of cases — California v. Chimel, United States v. Robinson, and Arizona v. Gant — cases that date back only to 1969. Based on the Chimel line, Riley concluded that the justifications for performing an incident search were limited to officer safety and preventing the destruction of evidence. And the only evidence-gathering incident search that Riley recognized was based on Gant; an incident search of the passenger compartment of an arrestee’s vehicle that Riley justified solely on the “unique circumstances” involved in the automobile context, not the search incident doctrine’s historical evidence-gathering basis. Therein lies the concern. By ignoring the doctrine’s evidence-gathering history, Riley has reorganized the search-incident doctrine into a rigid Chimel-based rule that just so happens to have a vehicle exception.

This Article amplifies Justice Alito’s admonition that evidence gathering must be recognized as a legitimate justification for police to search incident to arrest. This Article addresses the consequences of Riley’s digital-age reboot of the search-incident doctrine, especially Riley’s limitation of Gant to the vehicle context — a restriction that was, ironically enough, not necessary for imposing a warrant requirement on cell phone searches. Rather than relying solely on Chimel’s two “concerns,” this Article argues that the search-incident doctrine has been supported—both before and after Chimel — by three justifications: officer safety, preservation of evidence, and importantly, the need to discover evidence of the crime of arrest. Without evidence gathering as an implicit justification in a properly limited search incident to arrest, Riley’s limitation of Gant calls into doubt law enforcement’s authority to perform an incident search of an arrestee’s reaching distance — a Chimel search — to look for evidence of the arrestee’s crime once the arrestee has been handcuffed and is adequately secured. All things considered, Riley represents much more than a commonsense warrant requirement for cell phone searches. Riley is the deceptively simple beginning of the end of evidence gathering as a justification in a properly limited search incident to arrest.

October 22, 2014 in Fourth Amendment | Permalink | Comments (0)

Woman files lawsuit after being held nearly two years for crime she couldn't have committed...

...because she was in jail at that time of the crime. The lawsuit alleges two Chicago dectives took advantage of her "obvious cognitive disability" to coerce a confession from her. As CNS reports, the complaint states:

Defendants...fed the plaintiff information about the crime, then lied in police reports about doing so, making it appear as if the plaintiff was the one who knew about the details of the crime, when, in fact, she knew nothing about the actual details of the murder.


Additionally, defendants...threatened the plaintiff and also made her false promises of leniency to get her to confess to a crime they knew she did not commit or have any involvement in...

October 22, 2014 | Permalink | Comments (0)

"This man carries a loaded gun around your children every day..."

...reads the lawnsign Kimberly Edson placed in her yard to inform her neighbors that an area man legally carries a concealed handgun. The sign contains a picture of Matthew Halleck, who Edson says walks by her house everyday when taking his daughters to school. Edson explained:

Since we don't have a way to stop him, we felt it was important to notify the neighborhood and the parents that there is an armed man in their presence...The first couple days of school he had it very visible, we saw it and were quite concerned.


I have a responsibility to help create the kind of community I want to see, and I don't want to see a community where there are guns around schools...


He has a Second Amendment right to carry the gun, I have my 1st Amendment right to say that I don't like it...

Halleck is considering suing Edson for libel.  

October 22, 2014 in First Amendment, Freedom of Speech, Gun Policy | Permalink | Comments (0)

Broad testing "an absolutely essential element of assuring the civil rights of children in America..." Louisiana state superintendent Jon White, one of several Common Core supporters quoted in this Cleveland Plain Dealer article. White added:

We should examine how and how much testing we do... But we should always be conscious that we still have a country and a society that is rife with inequity and injustices, and until the time when we can assure every family of an equal opportunity to achieve an excellent education, we must commit to an annual measurement of our delivery of an education so that we can lay bare the honest truth as to whether or not we succeeded in educating every child.


The value of testing, at its essence, is that it tells the truth and that is a civil rights issue first and foremost and should not be forgotten by anyone[.]

October 22, 2014 in Schools | Permalink | Comments (0)

Autopsy “supports the fact that this guy is reaching for the gun…"

...claimed Dr. Judy Melinek, a forensic pathologist, after the release of the official autopsy of Michael Brown, according to this St. Louis Dispatch report.

October 22, 2014 in Current Affairs, Excessive Force | Permalink | Comments (0)

Tuesday, October 21, 2014

Inmate in TN claims prison officials beat him and left him in a dark cell without water for two days

...among other civil rights violations, according to this local report.

October 21, 2014 in Excessive Force, Prisons and Prisoners | Permalink | Comments (0)

DOJ officials and consultants to begin review of police misconduct by Baltimore PD officers "within weeks"

After continued complaints of excessive force by Baltimore PD officers, DOJ yesterday announced plans to begin the collaborative review of BPD practices. According to The Sun's Mark Puente:

Policing consultants, working with federal officials, plan to start interviewing community members, elected leaders, officers and union officials within weeks. They plan to ride with officers and examine the culture, practices, policies, supervision and oversight in the department.


[Community Oriented Policing Services (COPS) director Ronald L.]Davis said federal officials would be “very blunt” in identifying deficiencies and holding officials accountable to rebuild the trust with residents.


“This is very strong process,” he said during a news conference at the U.S. attorney’s office in Baltimore. “I want to reassure the community this is about helping the city of Baltimore reform. This is not about forcing them to reform in a way that we decided.”


The Justice Department plans to hold community meetings so residents can discuss problems they have seen with the police. Officials plan to issue an assessment and recommendations, and provide two updates in the 18 months after the review is finished.


The consultants plan to review disciplinary records and files from review boards, and sift through residents’ complaints to match them to lawsuits in which officers were accused of abuse. 

City leaders had called on DOJ to commit to a full civil rights investigation, which, unlike collaborative review, carries the authority of court order. Many feared BPD otherwise would have no incentive to fully comply in the inquiry, and without such an incentive the community couldn't fully trust that the review would produce meaningful results. But DOJ assures that its review will be "thorough, independent and objective."

A recent Sun investigation found that BPD had paid out more than $5.7 million in settlements for police misconduct since 2011, costing the city more than $11.5 million with attorneys fees.

A few related posts:

October 21, 2014 in Excessive Force | Permalink | Comments (0)

WA prison program helps inmates with intellectual disabilities learn basic skills, self-awareness

One Washington state prison has developed an innovative approach for improving services for inmates with intellectual disabilities, a population often subject to manipulation and abuse. As this local article reports:

For people with low intellectual function or a traumatic brain injury, life in prison can be scary. Amy Czerwinski, a health care manager for the Department of Corrections, designed the Skill Building Unit with her team.


It’s in a storage space that has been converted into a learning environment. An elaborate Halloween display of pumpkins and gourds line the beige walls, reminiscent of an elementary school classroom.


At a long table mental health counselor Nikki Rymer, helps two inmates complete workbook exercises designed to help build self-awareness and self-respect. Inmates also participate in basic skills classes, like dental hygiene.


The environment is so unlike prison, it’s almost easy to miss the two corrections officers keeping watch in a glass enclosed booth in the corner.


Angela Browne, of the Vera Institute of Justice, thinks that an alternative like this unit is in everyone’s best interest. “Anytime there’s an acute incident that’s money. And segregation uses so much space. So in the long run it’s in the state’s interest. It’s in the taxpayer’s interest,” she said.


Browne says by looking for alternatives to segregation specialized units like the one at WCC are helping to flip the paradigm for some inmates.

October 21, 2014 in Prisons and Prisoners | Permalink | Comments (0)

"Exclusive video: Did the NYPD really need to pepper-spray a guy waiting for the train?"

October 21, 2014 in Excessive Force | Permalink | Comments (0)

Philly PD settlement costs in police misconduct cases more than $40 million since 2009

...according to The Philadelphia Daily News's David Gambacorta:

The city has shelled out more than $40 million to settle 584 of the 1,223 police-misconduct lawsuits - think wrongful-shooting deaths, excessive force or illegal searches - filed since January 2009, the website reported.

During the same period, a combined $16.6 million has been spent by four cities - Indianapolis, Ind.; Austin, Texas; San Jose, Calif., and San Francisco - to settle 122 police-misconduct lawsuits.


Earlier this year, the Daily News reported that the city has shelled out more than $70 million since 2008 to settle lawsuits related to police-involved car accidents and civil-rights violations.

City Solicitor Shelley Smith said the Law Department holds regular "risk-management" discussions with the Police Department to review lawsuits filed against cops, to determine whether larger trends or problem areas are arising.

The numbers come from, a website dedicated to obtaining and analyzing government documents. Last week, it reported that the NYPD's settlement costs over the same period of time exceeded $428 million.

October 21, 2014 | Permalink | Comments (0)

Monday, October 20, 2014

"Flight attendants helped to ground sex discrimination"

The title of this post comes from this fascinating story, which begins:

Dedicated to protecting the safety of others, Lake Barrington's Shari Worrell once performed mouth-to-mouth to save a man's life. Another time, she used a pair of earphones, a small drinking cup and "occupied" stickers meant for the bathroom door to fashion a MacGyver-esque stethoscope needed by a doctor. Throughout her career, she received three awards of merit for her lifesaving efforts.


But before she started her job each day, Worrell had to step on the scale to prove she weighed between 105 and 118 pounds, undergo an inspection to make sure the seams in her stockings were straight and submit to a girdle check.


"It was just the way it was back then," says Worrell, 66, who started as a "stewardess" with United Airlines in 1968. "I didn't think it was the least bit odd. If they told me to stand on my head in the corner, I probably would have done it."


But during her 34-year career as a flight attendant, Worrell and other young women who started as stewardesses helped change the way the airlines and all employers dealt with women in the wake of the groundbreaking Civil Rights Act of 1964 and its Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin.


"The flight attendants played an astonishing role in the development of Title VII," says professor Mary Rose Strubbe, assistant director of the Institute for Law and the Workplace at IIT Chicago-Kent College of Law. Strubbe, 66, who started her law career with a Chicago firm representing many of those flight attendants in discrimination cases, will be one of the presenters Thursday at the institute's conference on the role of flight attendants in fighting sex discrimination.

October 20, 2014 in Civil Rights Act | Permalink | Comments (0)

LATimes claims recording police interrogations would reduce coerced confessions

The LATimes editorial board argues that the number of innocent people in prison would be greatly reduced if police officers videotaped all interrogations. It writes:

The Innocence Project says that over 15 years, 64 of 102 erroneous murder convictions nationwide were based on false confessions. About 22% of all wrongful convictions involved coerced or otherwise improperly obtained confessions.


There's a simple step that can help address this: Require police to videotape interrogations of suspects in serious felony cases. More than 40 California cities or agencies already do this, including San Diego and San Francisco. (Los Angeles does not.) Federal agents in the Department of Justice began doing so in July. The benefits are clear and laudable: a chance to reduce wrongful convictions, protect police from contrived allegations of abuse or malfeasance and save the expense of defending bad cases.


California has considered this before. The Legislature passed such laws in 2005 and 2007, but Gov. Arnold Schwarzenegger vetoed them because of his fear of constraining police. But the concerns of law enforcement groups were unpersuasive. In 2008, the California Commission on the Fair Administration of Justice recommended taping interrogations, and last year, the state adopted a law requiring recorded interrogations — but just for minors suspected of homicide.

The board calls on the California legislature to pass a law requiring police to record interrogations "to protect both the integrity of the criminal justice system and the innocent."

October 20, 2014 | Permalink | Comments (0)

WaPo editorial board hopes states will stop subjecting inmates to "psychological and physical hell" of solitary confinement

WaPo's editorial board comments on the recent settlement between the Arizona DOC and the ACLU/Prison Law Project that will limit the DOC's use of solitary confinement and expand the number of hours isolated inmates are allowed out of their cells. It writes:

In some ways, Arizona’s use of solitary confinement has been worse than others’. David C. Fathi, director of the ACLU National Prison Project, said the state still automatically assigns all inmates with life sentences to serve their first two years in isolation, whether they were convicted of a violent crime or not. This is a gratuitously nasty punishment that sets prisoners up to be problem inmates. Even after the settlement, guaranteeing prisoners a mere one hour per day outside their cells is hardly lenient, only justifiable if a prisoner is an extreme risk to staff or other inmates.


Yet Arizona’s Department of Corrections has not been alone in enforcing some counterproductive, harsh rules. Systems in states across the country have devised bizarrely mean-spirited restrictions, such as denying prisoners reading material or even timepieces, making it impossible for them to keep their mind from slipping away or to determine whether it is day or night.


Mr. Fathi predicts that once Arizona sees its rates of inmate suicide and other psychiatric issues drop, prison officials will ease up even more. The optimistic view extends beyond the state’s borders: Others, too, may note the movement in Arizona, as well as in early reformist states such as Colorado, Maine and Mississippi, and decide that it is also in their interest to end the common use of unnecessary and debilitating isolation. The less optimistic view is that it will take more lawsuits to force some states to change.

October 20, 2014 in Prisons and Prisoners | Permalink | Comments (0)

"The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial"

The title of this post comes from this recent paper by Professor Renee Lettow Lerner, the abstract of which states:

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.


October 20, 2014 | Permalink | Comments (0)

Sunday, October 19, 2014

"Solitary Confinement at Rikers"

NPR's conversation with New York magazine's Jennifer Gonnerman about her recent piece in The New Yorker about a 16-year-old who spent three years in jail while awaiting trial for stealing a backpack.

October 19, 2014 in Prisons and Prisoners | Permalink | Comments (1)

Inmate claims corrections officers withheld medical treatment after severe beating

An inmate in New Mexico has filed a lawsuit alleging corrections officers didn't provide him with medical treatment after he was severely beaten by 10 other inmates, suffering a collapsed lung as a result. He also claims officers knew he was unsafe in the general population, partly as a result of information they had spread to other inmates.

State DOC spokesman Alex Tomlin claims officers provided sufficient treatment at the prison and sent the inmate to a local hospital for further care, according to The Santa Fe New Mexican's Uriel Garcia.


October 19, 2014 in Prisons and Prisoners | Permalink | Comments (0)

Florida DOC official requests independent audit of use of force in state's prisons

Florida DOC secretary Michael Crews has requested an independent audit by The Association of State Corrections Administrators into the use of force by officers in the state's prisons, according to The Miami Herald's Julie Brown. The audit stems from the nearly twofold increase in use-of-force cases since 2008. As Brown writes:

In the recently completed fiscal year, state corrections officers logged 7,300 use-of-force cases, nearly 1,000 more than the previous year, according to the department's data... 


And these are only the cases that are reported by the officers and the prisons. Many others never get documented.




“Use of force’’ is a broad term. It covers any time a corrections officer uses physical force or certain chemical agents to subdue an inmate deemed to be causing a disturbance or resisting a lawful command. Officers are sometimes named as subjects, sometimes as participants.


Corrections officials know that a significant number of force applications never get reported, said Ron McAndrew, former warden at Florida State Prison.


“There were many times at Florida State Prison where I would come upon situations where I encountered an inmate who had two black eyes, a bloody mouth, and bruises up and down his body,” he said. “I would ask him what happened and he said he fell off his bunk. Well, he didn’t get injuries like that from falling off his bunk.He was too afraid to tell me that he was beaten by the officers.”

October 19, 2014 in Excessive Force, Prisons and Prisoners | Permalink | Comments (0)

Saturday, October 18, 2014

"Cops Need a Warrant to Grab Your Cell Tower Data, Florida Court Rules"

WIRED's Kim Zetter:

The Florida Supreme Court ruled Thursday that obtaining cell phone location data to track a person’s location or movement in real time constitutes a Fourth Amendment search and therefore requires a court-ordered warrant.


The case specifically involves cell tower data for a convicted drug dealer that police obtained from a telecom without a warrant. But the way the ruling is written(.pdf), it would also cover the use of so-called “stingrays”—sophisticated technology law enforcement agencies use to locate and track people in the field without assistance from telecoms. Agencies around the country, including in Florida, have been using the technology to track suspects—sometimes without obtaining a court order, other times deliberately deceiving judges and defendants about their use of the devices to track suspects, telling judges the information came from “confidential” sources rather than disclose their use of stingrays. The new ruling would require them to obtain a warrant or stop using the devices.




The ruling constitutes the first time that a state court has reached this finding under the Fourth Amendment. It comes at a timely moment when federal courts of appeal in other jurisdictions are in the midst of taking up the question of cell tower data, Wessler told WIRED. Even if other jurisdictions rule differently, the Florida case makes it more likely that the issue will one day get to the U.S. Supreme Court.

October 18, 2014 in Fourth Amendment | Permalink | Comments (1)

FBI agent helps bring justice to Alabama inmate beaten to death by corrections officers

"The Racist Housing Policies That Built Ferguson"

The Atlantic's Ta-Nehisi Coates explains in this recent post

October 18, 2014 in Fair Housing Act | Permalink | Comments (1)

Officer who killed Michael Brown claims he was forced inside his vehicle and feared for his life

Darren Wilson, the white police officer who killed Michael Brown, an 18-year-old black man, told federal investigators his account of the events of August 9 that resulted Brown's death. According to Wilson, Brown "punched and scratched him repeatedly"as the teenager held him inside his vehicle. Wilson claims "Brown reached for his gun" and "removed [it] from the holster on [Wilson's] right hip," according to this NYTimes report.

In September, Officer Wilson appeared for four hours before a St. Louis County grand jury, which was convened to determine whether there is probable cause that he committed a crime. Legal experts have said that his decision to testify was surprising, given that it was not required by law. But the struggle in the car may prove to be a more influential piece of information for the grand jury, one that speaks to Officer Wilson’s state of mind, his feeling of vulnerability and his sense of heightened alert when he killed Mr. Brown.


Police officers typically have wide latitude to use lethal force if they reasonably believe that they are in imminent danger.


The officials said that while the federal investigation was continuing, the evidence so far did not support civil rights charges against Officer Wilson. To press charges, the Justice Department would need to clear a high bar, proving that Officer Wilson willfully violated Mr. Brown’s civil rights when he shot him.


The account of Officer Wilson’s version of events did not come from the Ferguson Police Department or from officials whose activities are being investigated as part of the civil rights inquiry.

The Brown family's attorney said that Wilson's account is unreliable, and that Wilson cannot dispute that he shot "Brown [as he] ran away from him." Dorian Johnson, who was with Brown that day, claims that Wilson actually "grabbed [Brown] around his neck" and pulled him into the police S.U.V.  before shooting him. After he shot Brown, Johnson says they "took off running" but Wilson shot Brown again -- and again -- a claim supported by at least one eyewitness. Johnson also denies that Brown ever attempted to grab Wilson's gun. 

The evidence confirms that there was a struggle between Wilson and Brown at last part of which occured inside the S.U.V., and that Brown was shot at close range with Wilson's gun. Brown's blood has been found on the gun and Wilson's uniform, as well as on the inside of the police S.U.V. The evidence also shows that two bullets were fired inside the vehicle, one of which struck Brown's arm. 

Then there's the matter of the shots fired outside the vehicle. The Times reports that Wilson did not account for these shots. Even if Wilson's conduct inside the vehicle was reasonable (which is disputed), the family's attorney will certainly claim that any perceived threat ceased once Brown began to flee. 

It seems to me that the NYTimes's report protends badly for those hoping the grand jury will issue an indictment. But perhaps I'm a cynic. Supposedly, we'll find out within the next 30 days.

October 18, 2014 in Excessive Force, Reasonableness | Permalink | Comments (1)

Friday, October 17, 2014

"Vanita Gupta Is an Excellent Choice for Top Civil Rights Post"

NYTimes's Jesse Wegman calls President Obama's selection of the ACLU's Vanita Gupta to run the DOJ's Civil Rights Division an "inspired" but "risky" decision. Although perhaps an ideal candidate, partisan gridlock in Washington could create significant obstacles to Gupta's confirmation. Wegman writes:

 In less polarized times, the answer should and likely would be an unequivocal yes. What argument could there be against naming a highly-experienced civil-rights lawyer to the top civil-rights post in the country? Ms. Gupta would, if confirmed, also represent a groundbreaking trifecta for the position: the first woman, the first South Asian, and, at 39, the youngest in the department’s history.


But nothing is unequivocal these days, particularly in light of the Senate’s spectacular failure to confirm Mr. Obama’s previous nominee, Debo Adegbile.


Mr. Adegbile was also very qualified to lead the division, but he was voted down 52-47 last March, after a concerted push by law-enforcement groups furious at what they considered to be thecardinal sin of doing his job. As a lawyer with the NAACP Legal Defense Fund, Mr. Adegbile was involved in appeals on behalf of Mumia Abu-Jamal, then on death row for the 1981 murder of a Philadelphia police officer.


By these low standards, Ms. Gupta’s nomination might seem even riskier. She has spoken bluntly and often on issues that were once considered untouchable on both sides of the aisle. In a 2013 New York Times op-ed, Gupta wrote of the vast racial disparities in America’s “prison-industrial complex” and called for, among other things, the elimination of mandatory-minimum sentences and the decriminalization of marijuana possession.

Nevertheless, as Wegman observes, Gupta has support in some suprising places --  from the likes of Grover Norquist to a former head of the NRA. Wegman thus concludes:

Mr. Obama has named Ms. Gupta acting chief, and has indicated he plans to put her nomination before the Senate. He should hold to that, even if the Democrats lose in November. A vote is always a risk, particularly since the fight to replace Mr. Holder may not be pretty. But as Attorney General Eric Holder prepares to leave after six transformative and tumultuous years, Ms. Gupta is primed to expand on the most important parts of his legacy. She also has the potential to exploit a rare point of bipartisanship in a splintered era. If Mr. Obama can’t fight for someone like her, whom can he fight for?

October 17, 2014 in Department of Justice | Permalink | Comments (0)

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule"

The title of this post comes from this paper by Professor Gabriel Chin, the abstract of which states:

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to “preclear” changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution’s Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing – as well as from what little the Court has said – that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

October 17, 2014 in Election Law, Right to Vote | Permalink | Comments (1)

NYPD police union argues for continuing stop-and-frisk appeal

Last year, U.S. District Court Judge Shira Scheindlin held the NYPD's stop-and-frisk policy unconstitutional and ordered reforms. The 2nd Cir. initially stayed Scheinlin's order, but it later vacated the stay.* Then-Mayor Bloomberg defended the policy and appealed, but now-Mayor de Blasio had other plans. He announced that the city would not defend the use of stop-and-frisk, and new NYPD Commissioner William Bratton thinks that's ok. But the police union isn't happy. Although it was not a party to the appeal, it filed a motion in federal court to take it up. The district court rejected its motion because it hadn't been timely. On Wednesday, the 2nd Cir. heard oral arguments in the union's appeal of that decision. 

* An earlier version of this post mistakenly said the 2nd Cir. affirmed Judge Scheinlin's ruling. 

October 17, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Arizona settles legal battle over inappropriate use of solitary confinement and inadequate medical, mental healthcare in state's prisons

Earlier this week, the Arizona Department of Corrections (DOC) reached an agreement with the ACLU and the Prison Law Office to terms of settlement in the long-running legal battle over the treatment of inmates by the state's prisons. Among others things, the settlement requires the DOC to fulfill performance standards for medical and mental healthcare. It also stipulates that DOC will change rules for placing inmates with mental illnesses into solitary confinement, and it increases the number of hours those in solitary confinement are allowed out of their cells. The DOC agrees to limit the use of pepper spray to only those cases in which an inmate poses an "imminent threat" -- that is, DOC officers will no longer use it against inmates for "passive resistance to placement in restraints or refusal to follow orders." Additionally, the inmates' attorneys will be allowed to visit the prisons to ensure that these standards are met. As The Arizona Capitol Times's Howard Fische reports:

Don Specter, an attorney with the Prison Law Office, said this deal, which must be approved by U.S. District Court Judge Neil Wake, is more than just his organization and the American Civil Liberties Union accepting on faith that things will get better.


“We will be able to tour the prisons to check ourselves to see whether they’re providing adequate care,” he said.  “And we will also get a lot of documentation.”


The deal comes four months after the 9th U.S. Circuit Court of Appeals gave the go-ahead for the case, alleging inadequate health care, to be handled as a class-action lawsuit.


Judge Stephen Reinhardt, writing for the appellate court, said the attorneys for the inmates provided detailed allegations of everything from “outright denials of health care” to improper isolation policies. And they also had information on how spending on certain services dropped by more than a third over a two-year period even as inmate population did not.


But Reinhardt, in refusing to require each inmate to prove his or her rights were violated, said the claims alleged “systemic failures” in the prison’s health care system “that expose all inmates to a substantial risk of serious harm.” And if that is the case, Reinhardt said that would require a wholesale revamp of the agency’s policies — and not simply correcting the problems of the 13 inmates who filed the original 2012 lawsuit.

October 17, 2014 in Prisons and Prisoners | Permalink | Comments (0)

"Due Process of Administration: The Problem of Police Accountability"

The title of this post comes from this recent paper by Professors Charles Sabel and William H. Simon. The abstract states:

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the ways in which actors exercise their discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with independent developments in public administration. We illustrate the doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administration than as an expression of any particular substantive right. However, the Cincinnati intervention reaches more deeply into core administrative practices and indeed mandates a particular crime control strategy – Problem-Oriented Policing. As such, it typifies a more ambitious type of structural civil-rights intervention that can be found in other areas.

October 17, 2014 | Permalink | Comments (0)

Thursday, October 16, 2014

Jon Stewart and Bill O'Reilly debate the existence of white privilege...

...and craziness ensues.

October 16, 2014 | Permalink | Comments (0)

Does recent survey lend support for claim that voter ID laws stem from racial animus?'s Jamelle Bouie explains why he believes support for restrict voter ID laws is more about politics, not race. Bouie argues that partisanship accounts for a recent survey that found Americans were more likely to support voter ID when shown a picture of black person than of a white person; and for another one in which legistators who supported voter ID were more likely to respond to emails from persons with an "Anglo" sounding name than a "Latino" one. Finally, he cites a third study concluding that support for voter ID is "influenced by the intensity of electoral competition." In the end, Republican support for voter ID stems more from a desire to beat Democrats than to discriminate against racial minorities -- or so the argument goes, I suppose. Bouie writes:

Voter ID boosters don’t hold anti-minority animus as much as they want to maximize political advantage. As Judge Richard Posner wrote in a recent dissent against the Wisconsin voter ID law, “There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.”


Indeed, this ultra-partisanship helps explain the apparent reaction against minorities in the Delware and Southern California studies. If black Americans are Democratic voters and voter ID opponents, and you’re asked to take a stand on voter ID in the context of black voting, then you might show more support, if you’re a Republican voter. It’s not racial, it’s tribal.


But it's hard to say this matters. No, voter ID supporters might not hold racial animus, but they end up in the same place as a racist who does: Supporting laws that restrict the vote and hurt minorities.

October 16, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (1)

"Stop and Frisk: Balancing Crime Control and Community Relations"

The title of this post comes from this recent report by The Urban Institute, the abstract of which states:

Police have been stopping, questioning, and frisking pedestrians for decades in an effort to protect themselves and the public from harm. However, pedestrians may view the stop and frisk experience as unjustified and perceive that they are subject to unfair and overly aggressive treatment. These feelings are most pronounced for those residing in high-crime areas that are targets for intensive stop and frisk activities. Because citizens’ views of the police contribute to their willingness to cooperate with and empower law enforcement, minimizing the negative effects of stop and frisk is crucial for overall police effectiveness and is especially important for improving relations with communities of color. This publication discusses the constitutionality and legal precedents of stop and frisk and the theory and practice behind these street stops. This background is followed by a discus¬sion of stop and frisk’s unintended consequences and a series of practical recommendations for the lawful and respectful use of pedestrian stops in the context of community policing.

October 16, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Should police be allowed to moonlight for private security firms in PD uniforms?

Professor Elizabeth E. Joh discusses in this op-ed for The LATimes.

October 16, 2014 | Permalink | Comments (0)

"The Appropriate Standard of Proof for Determining Intellectual Disability in Capital Cases: How High Is Too High?"

The title of this post comes from this recent paper by Professor Tim Saviello, the abstract of which states:

This paper takes a comprehensive look at how intellectual disability is diagnosed and proven in court, and applies the reasoning in the recent Supreme Court decision in Hall v. Florida to the determination of the appropriate standard of proof when capital defendants raise intellectual disability, concluding that preponderance of the evidence is the only standard of proof which adequately protects intellectually disabled capital defendants from unconstitutional execution.

In Atkins v. Virginia the Supreme Court held that the Eighth Amendment’s prohibition of cruel and unusual punishment prevented the execution of a criminal defendant suffering from intellectual disability. Because the Court in Atkins gave full license to the states to establish procedures to affect the Atkins mandate, those procedural schemes vary widely among states. One procedural choice is the appropriate standard of proof a capital defendant raising intellectual disability must meet. While the majority of states with capital punishment require proof to a preponderance of the evidence, several still require clear and convincing evidence, and one requires proof beyond a reasonable doubt.

The data and information used in the diagnostic process is inherently uncertain in nature, and the diagnosis is largely dependent on the subjective analysis and interpretation of that uncertain data by each individual clinician. The Supreme Court has recognized the impact of the inherent imprecision of medical diagnosis on the standard of proof for competency to stand trial in Cooper v. Oklahoma, finding only a standard of preponderance of the evidence appropriately considers that imprecision so as to ensure sufficient confidence in the trier of fact’s decision.

In Hall v. Florida, the Court relied specifically and significantly on the mental health profession’s research and conclusions regarding intellectual disability, and the Court recognized the imprecision and uncertainty in the diagnosis of intellectual disability. 

This strongly suggests that should the Supreme Court consider the appropriate standard of proof for capital defendants raising intellectual disability, they would take the same approach they did in Cooper, and reach the same conclusion that preponderance of the evidence is the only standard which complies with Atkins.

October 16, 2014 | Permalink | Comments (0)

Wednesday, October 15, 2014

ACLU's Vanita Gupta to head DOJ's Civil Rights Division

President Obama plans to nominate the ACLU's deputy legal director, Vanita Gupta, to head the DOJ's Civil Rights Division, WaPo's Sari Horwitz reports. Gupta has a strong record of civil rights activism as Unknownwell as support from unlikely sources -- including a former head of the NRA, the executive director of the Major Cities Chiefs Association, and Grover Norquist. Horwitz presents the highlights of Gupta's career:  

Her first case involved leading an effort to win the release of 38 defendants in Tulia, Tex., whose drug convictions and long sentences were discredited by her legal team. All of the defendants were pardoned in 2003 by Gov. Rick Perry, and Gupta helped negotiate a $5 million settlement for the defendants.


Gupta won a landmark settlement with the U.S. Immigration and Customs Enforcement agency on behalf of immigrant children detained at Hutto, a privately run prison in Taylor, Tex., which ended “family detention” at the facility. She also has challenged racial disparities in high school graduation rates in Florida and successfully challenged the denial of passports to Mexican Americans born to midwives in southern border states. And she managed a project that ended HIV segregation in U.S. prisons.


Since 2008, Gupta has taught civil rights litigation and advocacy clinics at New York University School of Law. She received her JD from New York University School of Law and her BA from Yale University.

The position has remained unoccupied ever since Tom Perez began his term atop the Deptartment of Labor. Earlier this year, the Obama administration failed to get the NAACP Legal Defense Fund's Debo Adegbile confirmed by the Senate. Opponents made hay on Adegbile's involvement in Mumia Abu-Jamal's appeal of his conviction for the 1981 killing of a Philadelphia police officer. In the end, the Senate rejected him, 47-52. 

October 15, 2014 in Department of Justice | Permalink | Comments (0)

Obama administration prosecutes "media leak cases" more often than all others combined

ACLU's Gabe Rottman:

James Risen is a Pulitzer Prize winning journalist. He's also currently under subpoena, possibly facing jail time, because of his reporting.


Specifically, he's being investigated because of an article on a CIA ploy to hinder Iran's quest for a nuclear bomb that went epically sideways and may have actually helped Iran along. 60 Minutes ran a great story on him this weekend, during which they cited a well-known statistic: the Obama administration has prosecuted more national security "leakers" than all other presidencies combined, eight to three.


But the story also prompted me to look into another figure, which is less well known and potentially more dramatic. Partially because of press freedom concerns, sentencing in media leak cases has historically been relatively light. Not so under President Obama. When it comes to sending these folks to jail, the Obama administration blows every other presidency combined out of the water – by a lot.


By my count, the Obama administration has secured 526 months of prison time for national security leakers, versus only 24 months total jail time for everyone else since the American Revolution. It's important – and telling – to note that the bulk of that time is the 35 years in Fort Leavenworth handed down to Chelsea Manning.

October 15, 2014 | Permalink | Comments (0)

Judge considers request to order Pasadena to release independent report on shooting of unarmed black teenager

In 2012, 19-year-old Kendrec McDade was killed by a Pasadena PD officer responding to a 911 call reporting a gun-point robbery of a computer. The pursuing officer claimed he saw and heard gunfire coming from McDade's direction. As it turned out, another teenager with McDade had stolen the computer. And, contrary to information given by the 911 caller, neither McDade nor the other teenager were armed. Because of the false report, the DA deemed the officer's conduct reasonable under the circumstances and didn't bring charges. But McDade's family filed a civil rights claim against the city, which later settled for $850,000.  

Now, the family wants the city to release an independent consultant's report of the 2012 shooting. The LATimes and various civil rights groups have joined them in their effort to get the full report. The police union opposes its release because of the personal information it allegedly contains, and the city is pushing for a heavily redacted version. According to The Times's Richard Winton, a judge may soon order the release of the redacted version:

Superior Court Judge James C. Chalfant said he would make a final decision this week on whether the report about the killing of 19-year-old Kendrec McDade should be released.


Chalfant said during a hearing that he did not want to tip his hand but was leaning toward the arguments by city officials, who said they believed a redacted version of the report could be made public.

October 15, 2014 in Excessive Force | Permalink | Comments (0)

Feminist cancels lecture because university can't restrict guns from event despite death threats

Despite an email threatening "the deadliest school shooting in American history," Utah State University (USU) had no legal authority to restrict firearms from an event featuring Anita Sarkeesian, renowned feminist and video game critic. According to The Salt Lake Tribune's Erin Alberty, the school received a message vowing to take "revenge" against the feminists who had "ruined my life." Alberty reports: 

The message threatened to rain gunfire and shrapnel upon a lecture by Sarkeesian...

"A Montreal Massacre style attack will be carried out," warned the message... "I have at my disposal a semi-automatic rifle, multiple pistols, and a collection of pipe bombs."


"Even if they’re able to stop me, there are plenty of feminists on campus who won’t be able to defend themselves," he wrote. "One way or another, I’m going to make sure they die."

Utah law prevents the state's universities from "inhibit[ing] or restrict[ing] the possession or use of firearms [in any way]." As such, USU could only increase security and check attendees' bags. Although the university was willing to go forward with the event, Sarkeesian cancelled it because of this.

October 15, 2014 in Gun Policy | Permalink | Comments (0)

"Supreme Court should put a stop to the relentless attacks on abortion"

LATimes editorial board argues that "the 230 restrictive laws enacted in 30 states since 2011" have undermined women's fundamental rights by creating undue burdens on their access to abortion services. It writes:

Some of those laws require clinics to be equipped to the standards of ambulatory surgical centers, and doctors who perform abortions to have admitting privileges at hospitals, despite the fact that there is no medical reason for either rule. Others require that women submit to counseling, often designed to discourage abortion, then wait a day or longer before undergoing the procedure. Some laws make a woman get an ultrasound of the fetus — and look at it — while others require parental consent before a minor can have an abortion. Often, these laws arrive cloaked in encomiums about protecting women's health, when in fact they are intended to do one thing only: to make it more difficult, and in some cases almost impossible, to get an abortion.

October 15, 2014 in Abortion | Permalink | Comments (0)

Oklahoma's botched execution amounted to "medical experimentation" and torture, says inmate's family

Clayton Lockett's execution by lethal injection for the 1999 murder of 19-year-old Stephanie Neiman in rural Oklahoma did not go well. After being declared unconscious, Lockett grimaced in pain and struggled against his restraints. Eventually, the state drew the blinds on the execution chamber and the wardon called it off. But Lockett died of a heart attack roughly 45 minutes later. 

Lockett's family has filed complaint against various state officiales as well as the doctor who allegedly performed "human medical experimentation in torturing Clayton Lockett to death, in vioalation of the Eighth Amendment." As The Guardian's Ed Pilkington reports: 

The position of doctors is particularly sensitive as physicians take the Hippocratic Oath to show “utmost respect for human life”. Where doctors have been present in the death chamber, their role has in most cases been tightly limited to assessing whether the prisoner is unconscious and then officially pronouncing death.


However, in the case of Clayton Lockett, the state has admitted that a physician was present who actively took part in killing the prisoner. The report of the internal investigation into the Lockett execution reveals that the physician stepped in to finish the job after the paramedic who had initiated the execution failed to place the IV into Lockett’s veins.




The investigation report indicated that there had been a shortage of appropriate needles that day, and that the physician and paramedic had failed to place the IV into the prisoner’s vein, leading to the injection of a mass of lethal drugs into his muscle.

This case is noteworthy because the complaint indentified the doctor who placed the IV in Lockett by his name. States usually try to maintain in secrecy the identities of the parties involved. But, Lockett's family claims a First Amendment right to this information. 

Relatedly, Oklahoma announced last week the delay of three executions until next year because of the dearth of needed drugs. It also needs more time to prepare staff for the state's new lethal injection protocols -- and the "larger, remodelled death chamber"-- put into place after Lockett's execution. 

October 15, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Tuesday, October 14, 2014

"This is about a man who simply wanted his shoes..."

...said Rev. Terrance Hughes after receiving news that a jury had awarded $4.65 million to the family of his friend, Marvin Booker, who died in 2010 while in a Denver jail. Booker was a 56-year-old homeless street preacher who weighed about 135 pounds. He reportedly suffered a heart attack while restrained by five deputies during a dispute over his shoes. His family claimed the deputies used excessive force and filed a federal civil rights claim against them, the city, and the county.

The AP reports:

Inmates told investigators that the struggle began when he was ordered to sit down in the jail’s booking area but instead moved to collect his shoes, which he had taken off for comfort.


Booker, who was arrested on an outstanding warrant for drug possession, was cursing and refusing to follow orders, according to the deputies’ account. He was restrained by deputies who got on top of him, placed him in a sleeper hold, handcuffed him and shocked him with a stun gun.


Attorneys representing the family of Booker said deputies stunned him for too long and should have backed down when Booker said he was struggling to breathe. In his closing arguments, Killmer said the “dogpile” of deputies was a zealous overreaction.




Denver’s medical examiner said Booker died of cardiorespiratory arrest during restraint, and ruled his death a homicide. The report listed other factors in his death, including emphysema, an enlarged heart and recent cocaine use.


Rice said Booker’s heart problems caused his death, and a healthier inmate would have survived the encounter.

As in Baltimore and New York, some are calling for a federal investigation into the use of force by Denver law enforcement:

The three-week trial came amid calls for a federal investigation of the department over other high-profile abuse cases that prompted the sheriff’s department to make sweeping reforms. Former sheriff Gary Wilson resigned in July as the city agreed to pay $3.3m to settle another federal jail-abuse lawsuit by a former inmate over a beating. It was the largest payout in city history to settle a civil rights case.

October 14, 2014 in Prisons and Prisoners | Permalink | Comments (0)

"How to Predict a Voting Rights Decision"

Professor Rick Hasen has this valuable, if depressing, essay at explaining how recent voting rights rulings have led him to this dour realization about the pending Texas voter ID case and the state of the federal judiciary:

I expect it will be resolved to let Texas use its ID law during the upcoming election.


My prediction is based on the same thing I used to predict that the trial judge would strike down Texas’ law: the ideology of the judge and the political party of the president nominating the judge.


It is sad in 2014 that this is a great predictor of how courts have decided these cases. But at least in the cases of North Carolina and Wisconsin, politics did not always predict Supreme Court justices’ decisions. Two Democrat-appointed justices (Stephen Breyer and Elena Kagan) voted to stop the last-minute expansion of voting rights in North Carolina, and two Republican appointees (Chief Justice John Roberts and Justice Anthony Kennedy) voted to stop the last-minute implementation of voter ID in Wisconsin.


Maybe there’s a glimmer of hope in that.

October 14, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

Federal data shows black teenagers much more likely to be killed by police than white teenagers

ProPublica recently analyzed police records from 1980 to 2012 and found that black teenagers are 21 times more likely to be killed by police than white teenagers. The analysis revealed:

The 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.




Black officers account for a little more than 10 percent of all fatal police shootings. Of those they kill, though, 78 percent were black.


White officers killed 91 percent of the whites who died at the hands of police. And they were responsible for 68 percent of the people of color killed. Those people of color represented 46 percent of all those killed by white officers.


There were 151 instances in which police noted that teens they had shot dead had been fleeing or resisting arrest at the time of the encounter. 67 percent of those killed in such circumstances were black. That disparity was even starker in the last couple of years: of the 15 teens shot fleeing arrest from 2010 to 2012, 14 were black.


[T]here were many deadly shooting where the circumstances were listed as "undetermined." 77 percent of those killed in such instances were black.

The data is not perfectly clear. Some PDs don't file reports on fatal shootings at all, while others do so inconsistently; the data is self-reported. Although these "unreported killings could alter ProPublica's findings," the observable disparity between the killings of black and white teenagers is not likely affected by their omission. Indeed, the data represents reports from more than 1,000 PDs, many of which are among the largest in the country.

October 14, 2014 in Excessive Force | Permalink | Comments (0)

"The Invention of Low-Value Speech"

The title of this post comes from this recent paper by Professor Genevieve Lakier, the abstract of which states:

It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern. 

This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern. 

By challenging the accuracy of the historical claims that the Court has used to justify the doctrine of low-value speech, this Article forces a reexamination of the basis for granting or denying speech full First Amendment protection. In so doing, it challenges the Court’s recent claim that the only content-based regulations of speech that are generally permissible under the First Amendment are those that target speech that was historically unprotected. What the history of the doctrine of low-value speech makes clear is that history has never served as the primary basis for determining when First Amendment protections apply. Nor should it today, given the tremendous changes that have taken place over the past two centuries in how courts understand what it means to guarantee freedom of speech, and to what kinds of expression the guarantee applies.

October 14, 2014 in Freedom of Speech | Permalink | Comments (0)

SCOTUS's First Amendment NIMBYism

Yesterday, The NYTimes's Adam Liptak reviewed SCOTUS's supreme hypocrisy on the First Amendment. Liptak observes that SCOTUS has upheld the right of lunatics to protest military funerals Unknownand the rights of anti-abortion protesters to approach abortion clinics. Yet, SCOTUS's own stoop is too close for the First Amendment to mean anything. Liptak writes:

[T]he Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.


That vast and inviting space, with its benches and fountains, seems better suited to public debate than a military funeral or the sidewalk outside an abortion clinic. But the court insists on banning free speech on the plaza. Court police officers have been known to instruct visitors to remove small buttons bearing political messages.

Speech activities are relegated to the sidewalk around the court -- where ostensibly messages are less influential. 

Fortunately, as Liptak reports, SCOTUS soon may have an opportunity to reconsider whether to allow speech in front of the court. The D.C. appeals court recently heard arguments in a case arising after Capitol police ordered a man to remove his "U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans and Hispanic People" button. The government is appealing a lower court decision striking down the speech-restricted zone as “irreconcilable with the First Amendment.” As Liptak notes:

Such a statement [as that on the man's button] , on a topic of urgent public interest, would seem to be precisely what the First Amendment was intended to protect. Then again, a Supreme Court police officer once threatened a woman with arrest for displaying a sign bearing the verbatim text of the First Amendment.


The Supreme Court addressed the law in 1983, in United States v. Grace, ruling that it could not be applied to demonstrations on the public sidewalks around the court. Since then, the sidewalks, which are broad and set off by stairs from the plaza, have been regularly used for protests of all kinds.


But the First Amendment vanishes when concrete turns to marble, Justice Department lawyers representing Ms. Talkin told the appeals court. 

The government argues that extending First Amendment rights to the plaza might affect cases before the Court.  

“Demonstrations outside courthouses might give rise to actual or apparent efforts to subject judicial officers to improper influence,” they said in a brief.

That is, the government argues that SCOTUS justices are not so firm of principle as to be free from the overwhelming power of loud voices and poster boards. By moving protesters down the stairs from the plaza to the sidewalk around the court, protesters can protest while the Court's high but unprincipled minds can quietly contemplate the most important legal questions of our day. Yes, it's pathetic. 

October 14, 2014 in First Amendment, Freedom of Assembly, Freedom of Speech | Permalink | Comments (0)

Monday, October 13, 2014

"Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances"

The title of this post comes from this recent paper by Professor Anil Kalhan, the abstract of which states:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

October 13, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

"Republicans go to great lengths to keep some people from the ballot box"

WaPo records review reveals police spent seized cash on leisure, luxury vehicles, clowns -- and on a whole lot of military equipment

WaPo combed through thousands of documents detailing how local police spend money obtained under a federal program that allows them to seize any money or property they claim is connected to crime -- even when no criminal charges are filed. Police then use these assets to supplement their budgets; they can purchase just about anything so long as it serves law enforcement purposes. A brief sample of WaPo's findings reveals: 

Of the nearly $2.5 billion in spending reported in the forms, 81 percent came from cash and property seizures in which no indictment was filed... Owners must prove that their money or property was acquired legally in order to get it back.


The police purchases comprise a rich mix of the practical and the high-tech, including an array of gear that has helped some departments militarize their operations: Humvees, automatic weapons, gas grenades, night-vision scopes and sniper gear. Many departments acquired electronic surveillance equipment, including automated license-plate readers and systems that track cellphones.


The spending also included a $5 million helicopter for Los Angeles police; a mobile command bus worth more than $1 million in Prince George’s County; an armored personnel carrier costing $227,000 in Douglasville, Ga., population 32,000; $5,300 worth of “challenge coin” medallions in Brunswick County, N.C.; $4,600 for a Sheriff’s Award Banquet by the Doña Ana County (N.M.) Sheriff’s Department; and a $637 coffee maker for the Randall County Sheriff’s Department in Amarillo, Tex. 


Sparkles the Clown was hired with asset forfeiture proceeds by police in the Village of Reminderville, Ohio, where she painted children's faces at a community relations event.

Some purchases are absurd. However, because DOJ requires very little documentation, what police buy is sometimes anyone's guess. For example, according to DOJ records, the police in Braselton, Ga. apparently categorized $875,000 in spending as "other." 

October 13, 2014 | Permalink | Comments (0)

Nearly half of Americans "confident" police use unnecessary force

Forty-nine percent, actually. And when police officers are found guilty of misconduct, only half of Americans believe they suffer meaningful consequences. 

That's according to the most recent Reason-Rupe poll, which Reason Foundation director Emily Ekins highlights here.  The poll also finds nearly three-quarters of Americans oppose racial profiling by police.

A closer look at the numbers reveals some rather predictable results -- whites view police conduct differently than blacks and Hispanics, a result unexplained by disparities in class. As Ekins observes:

There are significant differences in perception across race and ethnicity, as well as income and age. Younger, lower-income, and nonwhite Americans are considerably more likely than older, high-income, and white Americans to perceive injustice in the police force.


African-American and Hispanic Americans are more likely than Caucasians to believe police abuse their authority and use force excessively...Only 34 percent of Caucasians believe the police use lethal force unnecessarily, compared to 82 percent of African-Americans and 72 percent of Hispanics.

So, is the criminal justice system discriminatory?

Forty-five percent of Americans believe the criminal justice system treats whites, African-Americans and Hispanics equally, while 44 percent think the criminal system treats whites more fairly than it treats blacks and Hispanics.

Residents in urban areas are more likely to believe that police too often resort to unjustifiable use-of-force than those in rural areas. Nevertheless, nearly three quarters of all Americans still view police favorably.

Nearly three-quarters also believe nonviolent drug offenders should be allowed to vote when their sentences end, and 80 percent believe that mandatory minimum sentences for such offenders need to go.


October 13, 2014 in Excessive Force, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)