Thursday, October 30, 2014
"Removing Malice from Federal 'Malicious Prosecution': What Cognitive Science Can Teach Lawyers About Reform"
42 U.S.C. § 1983 (“§ 1983”) empowers individuals suffering civil rights abuses at the hands of state actors to seek recourse in federal court. The statute was enacted in response to southern states’ failure to control the Ku Klux Klan, and it has increasingly become a vehicle for federal reform of unconstitutional state and local government practices. Nationwide, state criminal justice systems cry out for such ex-post reform, as they continue to generate wrongful convictions at unacceptable rates with no notable preventative measures in place.
“Malicious prosecution” claims brought under § 1983 are a common mechanism for redressing state-driven wrongful convictions, but this article asserts that they are not meeting their full reform potential. A plurality of federal courts erroneously requires plaintiffs to prove malice in support of such claims. While, superficially, the requirement comports with the “malicious” prosecution nomenclature, the nomenclature itself is misleading. Federal malicious prosecution claims are based on the Fourth Amendment, the purpose of which is to hold state defendants accountable for objectively unreasonable acts – not intentional, or malicious, ones.
In abandoning the Fourth Amendment’s purpose, the offending courts have also ignored the real causes of wrongful convictions and, therefore, have failed to further true reform. Research shows that the vast majority of wrongful convictions are driven – not by malice – but by cognitive biases that cause inaccurate perceptions and objectively unreasonable decision-making. Although unintentional and often unconscious, cognitive biases may be ameliorated through education, exposure to divergent views, and reform of systemic factors that trigger and exacerbate bias. Reframing § 1983 relief for wrongful conviction as a question of objective unreasonableness rather than malice would tie liability more closely to: (1) non-malicious cognitive errors that frequently taint state actors’ decisions during criminal proceedings, and (2) states’ failure to implement cognitive error-neutralizing practices. This change to the legal standard, accompanied by close consideration of cognitive science, has the potential to enhance plaintiffs’ access to compensation and to require state reform of the true systemic causes of many wrongful convictions.
Wednesday, October 29, 2014
Police watchdog founder claims NYPD officers roughed him up, stripped searched him after he recorded encounter in which he asked for their badge numbers...
...reported The NY Daily News's Tina Moore earlier this week. Forty-four-year-old Jose LaSalle plans to sue NYC, the NYPD, and the officers involved for $500K for allegedly violating his civil rights.
The inmate is 35-year-old Mark Christesen. He was convicted for the 1998 murders of 36-year-old Susan Brouk and her two children near Vichy, a small central-Missouri town about two hours southeast of St. Louis. The AP reports:
The appeal to the Supreme Court raised several concerns about legal counsel Christeson has received over the years, including the failure of some of his attorneys to meet a 2005 deadline to file for an appeal hearing before a federal court. It is uncommon for someone to be executed without a federal court appeal hearing.
The high court denied a second appeal challenging the state's planned use of a made-to-order execution drug produced by an unidentified compounding pharmacy.
This Sacramento Bee op-ed argues that the $50 to $100 million saved under California's Proposition 47 by recategorizing several low-level felonies as misdemeanors will be reinvested in mental health care and drug treatment, which will reduce the risk of recidivism, thereby lessening the burden on the state's already overflowing prisons and jails.
- "Prop. 47: A simple step toward reducing mass incarceration"
- SCOTUS denies review of decision requiring California to monitor compliance with ADA by local jails
"A Lawyer Looks at Civil Disobedience: How Lewis F. Powell, Jr. Reframed the Civil Rights Revolution"
This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. Powell’s reasons for defending diversity are worth recovering today, not least because courts continue to misinterpret his landmark opinion in Regents v. Bakke, confusing the use of diversity in higher education with the compensatory goals of affirmative action, a project that Powell rejected.
Tuesday, October 28, 2014
Yup, as ACLU's PrivacySos notes, this recent Electronic Frontier Foundation analysis confirms that so-called "sneak and peeks" -- justified as a national security necessity -- more often than not are used to fight to the ridiculous war on drugs. Specifically, these warrants allow police to perform a search without first notifying the suspect.
This post at the Harvard Civil Rights-Civil Liberties Law Review blog argues that punishing victims of sex-trafficking for some crimes committed while they're being trafficked -- which they may have been forced to commit -- institutionalizes and prolongs their trauma. Because these crimes remain on their records, many sex-trafficking victims will have trouble finding employment, which in turn increases the likelihood that they'll be re-victimized.
Reason.com's Robby Soave notes this incredibly disturbing story out of Washington state, in which the local sheriff's department decided to deploy 24 officers and an armored vehicle to collect an $80K judgement from an elderly junkyard owner for violating local zoning ordinances. As Soave notes, one incredulous captain defended the decision: "People may not always understand why, but an armored vehicle is almost a necessity now."
I wonder if these lunatics have a support group.
Justice Brandeis forecasted that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.” In the law enforcement and government surveillance context, technological advances have made it possible to store an individual’s DNA in a national database, and have made it nearly impossible for that same individual to send an email, download a YouTube video, or transmit a text message without knowing that the government might be watching — without having the slightest degree of suspicion of criminal behavior. In any society that values basic civil liberties, such practices are intolerable — and unconstitutional. In Riley, the Court correctly held that, if privacy is to mean anything, it should protect individuals from being monitored without their consent, without a reason, and without a warrant. It is the beginning of principled change and enhanced protections for civil liberties in the digital age.
Monday, October 27, 2014
Professor Martha Minow, dean of Harvard Law School, wrote this op-ed last week in The Boston Globe urging a greater commitment to legal services for people with low-incomes. She writes in part:
Neglected in today’s headlines, blogs, and talk radio is a silent, shameful crisis that inflicts suffering and costs the nation money, legitimacy, and decency. Our justice system has become inaccessible to millions of poor people and so every day, we violate the “equal justice under law” motto engraved on the front of the grand United States Supreme Court. Americans who cannot afford legal help routinely forfeit basic rights as a result. Because the law does not enforce itself, veterans seeking benefits the nation has guaranteed, victims of domestic violence needing legal protection, and tenants and homeowners pursuing their rights since the financial disaster all need advisors and guides through the law and its agencies and courts.
Across the country, nonprofit organizations and private law firms offer civil legal aid to those with limited incomes by handling their legal cases. I serve as vice chair of the federal Legal Services Corporation, which also distributes grants to states based on their low-income populations. When this bipartisan federal effort started in 1974 with legislation signed by President Nixon, 12 percent of the population was qualified but today, due to soaring poverty levels, nearly 21 percent of Americans are eligible. Yet the federal contribution has dropped $35 million in the last 20 years.
The problem is not remote: low-income people denied their legal rights live around the corner from you...
...reports the AP. The law requires doctors at abortion clinics to have admitting privileges at nearby hospitals, even though hospitals aren't required to grant them such access. As result, the future of the state's three remaining abortion clinics is uncertain.
Relatedly, a state judge has upheld the state's law banning abortion-inducing drugs.
....Reuters reports. The lawsuit will allege that New Jersey's mandatory quarantine is overly broad and violates the constitutional right of due process.
New Jersey's mandatory quarantine for certain travelers from Ebola-stricken West Africa will likely face its first legal test this week, after a lawyer for a quarantined nurse said she would file a federal lawsuit within days.
Norman Siegel, a civil rights lawyer, said Kaci Hickox's isolation upon her return from West Africa raised "serious constitutional and civil liberties issues," given that she shows no Ebola symptoms and has not tested positive for the disease.
"We're not going to dispute that the government has, under certain circumstances, the right to issue a quarantine," said Siegel, who was on his way to visit Hickox in a New Jersey hospital. "The policy is overly broad when applied to her.”
The lawsuit would be the first to challenge the 21-day mandatory quarantine imposed by New Jersey for anyone arriving with a high risk of having contracted Ebola from Sierra Leone, Liberia and Guinea, where the epidemic has killed nearly 5,000 people.
The case could also affect similar policies announced by other states including New York and Illinois.
Nurse Hickox has since been released.
SCOTUS decision allowing Texas to implement new voter ID law in coming elections assuredly disenfranchises lifelong voters
The Guardian's Ed Pilkington explores the effect of Texas's severely restrictive voter ID law on the state's citizens. In particular, Pinlkington highlights the disenfranchisement of life-long Texan, Eric Kennie, a man who has never even left his hometown -- Austin, TX. Forty-five-year-old Kennie reportedly has voted consistently ever since he turned 18. But, as with an estimated 600,000 of his fellow Texans, SCOTUS's decision allowing the state to impose the new voter ID law -- notwithstanding the district court decision that the law unconstitutionally discriminates against minority voters -- assures his disenfranchisement in the coming elections.
As Pilkington explains, because he doesn't have any of the required ID cards, Kennie must get an election identification card (EIC), which, sadly, will not happen:
To get an EIC, Kennie needs to be able to show the Texas department of public safety (DPS) other forms of documentation that satisfy them as to his identity. He presented them with his old personal ID card – issued by the DPS itself and with his photo on it – but because it is more than 60 days expired (it ran out in 2000) they didn’t accept it. Next he showed them an electricity bill, and after that a cable TV bill, but on each occasion they said it didn’t cut muster and turned him away.
Each trip to the DPS office involved taking three buses, a journey that can stretch to a couple of hours. Then he had to stand in line, waiting for up to a further three hours to be seen, before finally making another two-hour schlep home.
In one of his trips to the DPS last year they told him he needed to get hold of a copy of his birth certificate as the only remaining way he could meet the requirements and get his EIC. That meant going on yet another three-bus trek to the official records office in a different part of town.
The cost of acquiring a birth certificate in Texas is $23, which may not sound much but it is to Kennie. He is poor, like many of the up to 600,000 Texans caught in the current voter ID trap.
But Kennie is a "scrapper," and his meager income makes the cost of obtaining a new birth certificate quite burdensome.
On a usual day he makes about $15 to $20 from recycling the cans and other scrap. On a good day – after a holiday like Valentine’s Day or Easter when people consume more – his earnings can rise to as much as $40 a day. He has no bank account or credit cards, and no savings – he only deals with cans and cash.
I asked him how much $23 means to him. His said what he does when he feels flush with money is decide to splurge on a special treat for himself and his friends. “I do chicken Tuesday at Popeyes.”
So what passes as a reckless binge for Eric Kennie – a splurge on about $10 worth of fried chicken – is less than half of what he spent getting himself a copy of his birth certificate.
The outcome was perhaps predictable by now: the birth certificate wasn’t up to scratch either. When he took it to the DPS (another three buses there, three buses back, another two hours waiting in line) they told him that the name on the birth certificate didn’t match the name on his voter registration card. The birth certificate has him down as Eric Caruthers – his mother’s maiden name – even though his parents were married at the time he was born.
What options remain available to Kennie? As Pilkington observes, what would be expected of Kennie in order to exercise his right to vote is tragically absurd:
In Eric Kennie’s case, there is no clear way out of the morass. He could go to court and ask for the name on his birth certificate to be changed to correct the error, but that would take hiring a lawyer for a fee that he could not afford.
Or he could swallow his pride and take up the identity given on his birth certificate – turning himself into Eric Caruthers. He doesn’t want to do that – he said it would make his deceased father “turn in his grave”. It would also be profoundly ironic: he would in effect be impersonating someone else in order to get around a law ostensibly designed to root out impersonation at the polls.
This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the U.S. Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt's Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The "human rights approach" shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the U.S. Supreme Court's recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity.
Sunday, October 26, 2014
This recent post by Professor Jonathan Simon at The Berkeley Blog explains the societal and institutional importance of California's Proposition 47, which will appear on the ballot this November. Simon begins:
California Proposition 47...would change the legal classification of many “nonserious and nonviolent property and drug crimes” from felonies to misdemeanors (read the details on ballotpedia.org here.)
This simple change has important consequences. A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail. If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons.
Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced “unless court finds unreasonable public safety risk,” a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.
The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are. Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes. Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation.
Opponents, most of the state’s District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).
But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment.
Advancement Project co-director Penda Hair's article at MSNBC.com, which begins:
Voting is the cornerstone of democracy – at least, it should be. But American democracy shifted dramatically on June 25, 2013, when the Supreme Court’s Shelby County v. Holder decision gutted a landmark provision of the Voting Rights Act (VRA). A majority of justices struck down the coverage formula for the VRA’S Section 5, which had required federal pre-approval of new voting practices in mostly southern states, effectively halting its protections. The court acknowledged that “voting discrimination still exists,” and noted that Section 2 bans voting discrimination on the basis of race throughout the land.
This month, the power of Section 2 to combat such wrongs was put to the test in the U.S. Supreme Court, with cases seeking to stop voting restrictions under Section 2 in North Carolina and Wisconsin. The high court’s divergent decisions in these cases – recognizing the harm of unjust policies in one state, but failing to see the damage to voters in another – illustrate how post-Shelby voting rights are in a tensely precarious position.
The Arizona Republic, joined by local and national media outlets, is suing the state's DOC and AG alleging that their refusal to release the identities of the state's sources of lethal injection drugs violates the First Amendment. This current controversy comes just three months after the state's botched execution of James Wood, which lasted nearly two hours. The Republic's Michael Kiefer provides further background:
The issue surfaced in 2010, when the standard drug used in executions since the 1970s became unavailable. The Arizona Department of Corrections invoked a law guaranteeing the confidentiality of executioners' identities to conceal that it was illegally importing the drug from Great Britain.
The Republic exposed the practice, and the U.S. Justice Department subsequently forbade the use of the imported drugs for executions in Arizona and other states.
Since then, the department has switched to other drugs and routinely tried, sometimes successfully, to conceal the sources.
In September, the First Amendment Coalition, an association of media organizations, joined a lawsuit filed by [James] Wood's lawyers requesting the same information as well as demanding the right to witness all stages of the execution as mandated by federal law.
Saturday, October 25, 2014
...according to this local report. The incident in the driveway of the the teenager's home prompted his family to file a civil rights suit against the local Georgia PD for alleged racial profiling, excessive force and false arrest. They're asking for $12.5 million in damages.
LAPD officer's "horrific" attack left man "look[ing] like a rag doll" as he was carried to nearby squad car
Twenty-two-year-old Clinton Alford was riding his bicycle when he heard over his shoulder the command to stop. He says he didn't know who it was, so he ran. Two police officers chased him, and, after a short distance, he surrendered voluntarily, lying down and placing his hands behind his back. An officer reportedly then placed him in handcuffs, which appeared to be the end of the routine encounter. But moments later a second squad car arrived, and Alford soon began "praying...they wouldn't kill me." A nearby security camera captured everything, according to The LATimes's Joel Rubin:
[A] uniformed officer, who the sources described as “heavyset” or “very large,” rushed from the driver’s side, according to sources. The officer moved quickly over to Alford, who was still held on the ground by the other officers, and immediately stomped or kicked...
The officer then dropped to the ground and delivered a series of strikes with his elbows to the back of Alford’s head and upper body, sources said. Alford’s head can be seen on the video hitting the pavement from the force of the strikes, two sources recounted. Afterward, the officer leaned his knee into the small of Alford’s back and, for a prolonged period, rocked or bounced with his body weight on Alford’s back...
Throughout much of the altercation, two officers restrained Alford but eventually they moved away.
When it was over, Alford’s body was limp and motionless, according to sources who viewed the video. It took several officers to carry him to a patrol car, they said.
Police officials confirmed that the video shows an officer, believed to be ten-year LAPD veteran Officer Richard Garcia, "delivering a powerful kick to the suspect's head." They added that Alford hadn't been resisting arrest, according to Rubin. Also:
The sources who reviewed the video of the incident also raised concerns about the officers’ actions following the arrest. Several minutes after Alford is put in the patrol car, they appear to notice the security camera on the building wall. The officer who kicked Alford knocked on the door of the building, which houses a small garment factory, until someone opened the door and he disappeared inside.
What happened after the officer entered the building isn't yet known, but the investigation continues. The officer's attorney disputes claims that his client used excessive force against a defenseless and compliant arrestee.
Alford was taken to a nearby hospital for treatment. He was later charged with drug possession and resisting arrest, but he claims he's not guilty.
Lehigh resolves civil rights investigation into university's handling of incidents of discrimination with voluntary agreement
Friday, October 24, 2014
...this Saturday, Oct. 25 @ 9 a.m. at East L.A. College. The event is free and open to the public, and among the planned topics for discussion is the need for civilian oversight of L.A. County jails. As ACLU's Mark-Anthony Johnson explains, the new year likely will bring a fresh opportunity to institute this needed change. Register here.
Arizona asks federal judge to dismiss ACLU claim that state's revenge porn law violates First Amendment
The Arizona Capitol Times's Howard Fischer reports:
Assistant Attorney General David Weinzweig is arguing there is no legal basis for the lawsuit. He said the state is looking at a series of defenses, including that no one has been charged with breaking the law or is even being threatened.
Weinzweig also told U.S. District Court Judge Susan Bolton there are other legal problems with the claim filed last month by the American Civil Liberties Union on behalf of bookstores. That includes his contention that the lawsuit is about a purely political issue and seeks to involve the courts “in areas of government reserved to the legislative and executive branches.”
But ACLU attorney Lee Rowland said it’s not necessary for a bookstore owner, photographer, librarian or newspaper publisher to get arrested to challenge the law. And she brushed aside Weinzweig’s contention that the question is strictly political and beyond the reach of the courts.
“This is a First Amendment case,” Rowland said. “This is fundamentally about constitutional rights and whether or not our plaintiffs’ rights are being violated by this broad law. That is emphatically a question for the courts.”
The law approved earlier this year makes it a felony to “intentionally disclose, display, distribute, publish, advertise or offer” a photo, video, film or digital recording of someone else who is naked “if the person knows or should have known that the depicted person has not consented to the disclosure.” The legislation covers not just images of nudity but also anyone engaged in any sex act.
Offenders could end up in prison for up to 2 1/2 years — or 3 3/4 years if the person is recognizable.
The National Association of Criminal Defense Lawyers announced this week that it’s getting a “major grant” from Koch Industries Inc. to support the group’s indigent defense training programs and to study how states can do a better job of delivering legal services to the poor.
“We are supportive of the NACDL’s efforts to make the Sixth Amendment’s guarantee of an individual’s right to counsel a reality for all Americans, especially those who are the most disadvantaged in our society,” Charles G. Koch, the chairman and CEO of Koch Industries, said in a statement about the grant, which is believed to be in the six figures.
The grant comes at a time when state spending on legal defense for the poor has slumped, as Law Blog noted earlier.
The Washington Times reports on the outcry from conservative religious leaders over Houston mayor Annise Parker's issuance of subpoenas for the communications of five Houston pastors. The subpoenas come as part of litigation stemming from the disqualification of roughly 70 percent of the signatures on petitions to repeal the city ordinance requiring local businesses to permit transgender persons to use the bathrooms of the gender with which they identify. Mayor Parker claims that the subpoenas are necessary for the discovery of documents pertinent to the controversy, while opponents argue that the subpoenas themselves violate the pastors' First Amendment rights.
Parker already has amended the subpoenas so that the pastors will not be required to turn over copies of their sermons.
Appeals court finds officers violated civil rights of "calm child" they cuffed for disobeying teacher
An en banc 9th Cir. recently ruled that two Sonora, Calif. PD officers used excessive force when they handcuffed an 11-year-old who hadn't followed his teacher's instructions during recess, reports Education Week's Mark Walsh. Worried that the child might run off, the school called police when the boy didn't respond to the physical education teacher's attempt to get him back inside the school. The responding officers placed the cuffed boy in the back of the police car and took him to his guardian. According to the court:
It is beyond dispute that handcuffing a small, calm child who is surrounded by numerous adults, who complies with all of the officers' instructions, and who is, by an officer's own account, unlikely to flee, was completely unnecessary and excessively intrusive.
The court found, however, that the officers were immune from allegations that they'd violated the child's Fourth Amendment right against unreasonable seizures.
LGBT inmates at the West Valley Detention Center in San Bernardino county, Calif. allegedly are sent to the "alternative lifestyle tank" where programs providing opportunities for sentence reductions -- e.g. drug treatment, education, and work -- aren't available, according to this report by BuzzFeed's Claudia Koerner. Moreover, in the "tank," LGBT inmates get considerably less outdoor time than other inmates. They don't have access to religious services, and they're subjected to "abuse or neglect from deputies." Although segregation of LGBT inmates may be necessary for institutional safety, the lawsuit nonetheless argues “there is no legitimate penological reason to treat GBT inmates worse than non-GBT inmates just because of their sexual orientation or gender identity.”
The Daily Beast's Cliff Schecter has this truly incredible story, which begins:
Looking for a nexus of the cartoonish, the irresponsible and the absurd that helps sum up our current terrified-of-our-own-shadows American landscape? I give you Oakley, Michigan, a town of 290 souls, which is experiencing a strange series of events that is part guns gone wild, part police state and part Sharia Panic.
Now Oakley is probably a town no different than scores of others in most ways, with one glaring exception. Its police chief, Richard Reznick, for some reason thought it wise to create his very own posse of 100 open carry bandits, and they don’t need no stinkin’ badges! You see, Reznick has deputized these 100 or so individuals who can now open carry firearms pretty much wherever they want—some of who don’t even live in Oakley—and has refused to tell the public who they are.
Even the village council, which ostensibly governs Oakley, has been kept in the dark about exactly who comprises this small-town magnum force, because freedom! And also, apparently, ISIS would kill them. No, I didn’t make that up.
When the local newspaper filed an open records request for more information, the sheriff promptly found himself a lawyer, who issued the following statement:
Islamic State of Iraq and the Levant and online supporters call for attacks against law enforcement and government personnel. To release identifying information about law enforcement personnel under such circumstances would not only result in damages against the Village, and everyone involved in such a release, it would likely be considered as having been done with malice, opening the door to punitive damages, as well. There is no governmental immunity for such acts, nor privilege for attorneys advising their clients to do so.
An anonymous source informs me that he and his lawyer decided to go with the above over an earlier draft, which looked like this:
Luckily, discretion prevailed.
But yes, this middle-of-nowhere sheriff fears ISIS is coming for him, and he needs backup. Not just backup, but an anonymous fighting force willing to battle evil when it comes -- as it most certainly will -- to turn his Main Street into a post-apocalyptic hellscape.
To that end, I just can't for the life of me understand why he deputized only 100 people. Who the hell does he think he'll be fighting? And has he petitioned the feds for an armored vehicle yet? If not, I know of one that will be available very soon. He should definitely try to get in on that action. Why not? The worst that can happen is more laughter at his expense.
Thursday, October 23, 2014
...by a 3-2 vote, according to this local report. Mayor Pro Tempore Robb Davis said:
Our police in Davis[, Calif.] have done a tremendous amount to build the trust in the community. They're fantastic...I really felt this particular piece of equipment there was a real strong risk of beginning to damage and wear away that trust.
...writes USA Today's editorial board, adding that voter ID laws only compound the existing problem of "too few" people voting.
Partisan attempts to suppress the vote are bad enough. What's just as disappointing is how the U.S. vote gets suppressed by voters themselves.
While the rest of the world's established democracies typically see 70% or more of their eligible voters go to the polls, the USA typically sees just 60% in presidential elections and an abysmal 40% in midterm elections like the one coming up next month.
The problem in places such as Ferguson, Mo. — where a registration drive after the fatal shooting of Michael Brown yielded just 128 new voters — isn't that too many people are voting. It's that too few are.
Green Bay alderman responds to Muslim woman's questions about free busing on Election Day with inquires as to her views on terrorism
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]
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.”
...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.
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.
Wednesday, October 22, 2014
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.
...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...
...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.
Broad testing "an absolutely essential element of assuring the civil rights of children in America..."
...claims 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[.]
Tuesday, October 21, 2014
Inmate in TN claims prison officials beat him and left him in a dark cell without water for two days
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:
- "I don't trust this administration. We will benefit by pulling up all the carpet to see what is under it."
- Philly PD settlement costs in police misconduct cases more than $40 million since 2009
- "This is about a man who simply wanted his shoes..."
- "Brutality Cases Call For Federal Probe Into Baltimore Police Department"
- Woman locks officer in basement during warrantless search, wins civil rights suit against police
- Nearly half of Americans "confident" police use unnecessary force
- Only "disciplinary action and prosecutions…will ultimately change a culture of brutality" in NYPD
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.
...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 MuchRock.com, 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.
Monday, October 20, 2014
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.