Friday, October 24, 2014
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.
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."
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.
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.
Sunday, October 19, 2014
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.
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.”
Saturday, October 18, 2014
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.
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.
Friday, October 17, 2014
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?
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.
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.
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.
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.
Thursday, October 16, 2014
Slate.com'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.
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.
"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.
Wednesday, October 15, 2014
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 well 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.
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.
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.