CrimProf Blog

Fatal Police Shooting of Mentally Ill Hostage-Taker Did Not Violate ADA

Police officers did not violate the Americans with Disabilities Act when they fatally shot a mentally ill hostage-taker, the U.S. Court of Appeals for the Fourth Circuit held Feb. 12 (Waller v. Danville, Va., 4th Cir., No. 07-2099, 2/12/09).

The decedent's sister argued that the officers did not face exigent circumstances because they waited two hours before taking action. She also contended that they should have reasonably accommodated his disability by not banging on the door and yelling at the decedent, but instead calling mental health professionals, contacting his family members, or seeking to administer medications to him.

But Judge J. Harvie Wilkinson III, while stopping short of recognizing an “exigent circumstances” exception to ADA liability, said that the officers' reasonable belief “ ‘that this was a potentially violent hostage situation' … cannot help but inform” the ADA inquiry. He further concluded that the accommodations proposed by the sister were unreasonable, while the steps taken by the officers—including speaking with their supervisors, deploying a hostage negotiator, and attempting to calm the situation by waiting at least two hours before entering the premises—were reasonable under the totality of the circumstances, and thus satisfied any ADA duty of accommodation.

The Danville, Va., police received a 911 call at 9:23 p.m. on May 10, 2002, from a woman who said that she feared for her friend, whom she had not been able to reach for two days. The woman said her friend had a live-in boyfriend whom she described as a “mental patient” who had been “in and out of the hospital.”

‘Got Something for You.'

The police went to the boyfriend's apartment. He refused to let them in. The girlfriend called from inside that she was OK but that her boyfriend would not let her come to the door. The boyfriend told the police to leave him alone, and added, “If you come in here, I've got something for you,” leading the supervisor to think he had a weapon.

Checking with headquarters, the supervisor learned that the boyfriend had prior arrests for public drunkenness, disorderly conduct, and assaulting the girlfriend, and had indeed been in and out of mental institutions.

The police sent an experienced hostage negotiator to talk to the boyfriend, who yelled at the officer, “I'm going to blow your goddamned head off.” The police then ceased negotiation attempts and sent in an emergency response team. When the boyfriend came toward them in the apartment, swinging what appeared to be a scythe and brandishing what looked like a knife, three officers shot and killed him.
The decedent's sister, personally and as administrator of his estate, sued the city, alleging in part violations of the ADA and the Rehabilitation Act. She alleged that the city had discriminated against the decedent on the basis of his disability by unlawfully arresting him, using excessive force, and failing properly train officers properly in dealing with the disabled.

Read full article here. [Brooks Holland]

Study Shows Immigration Offenses Increasing the Number of Latino Federal Convicts

The sharp growth in illegal immigration and increased enforcement of immigration laws have dramatically altered the ethnic composition of offenders sentenced in federal courts. In 2007, Latinos accounted for 40 percent of all those convicted of federal crimes and one third of all federal prison inmates, according to a new study by the Pew Research Center, a non-partisan think tank.

Nearly half of all Latino offenders, or about 48 percent, were convicted of immigration crimes. Drug offenses were the second-most prevalent charge among Latino federal convicts, according to the report, which was made public on Wednesday.

As the annual number of federal offenders more than doubled between 1991 and 2007, the number of Latino offenders sentenced in a given year nearly quadrupled, growing to 29,281 from 7,924. Latino convicts now represent the largest ethnic population in the federal prison system, although they make up only 13 percent of the United States population.

Of Latino federal offenders, 72 percent are not United States citizens and most were sentenced in courts from one of four states bordering Mexico. Undocumented federal prisoners are usually deported to their home countries after serving their sentences.

“The immigration system has essentially become criminalized at a huge cost to the criminal justice system, to courts, to judges, to prisons, and prosecutors,” said Lucas Guttentag, a lawyer for the American Civil Liberties Union. “And the government has diverted the resources of the criminal justice system from violent crimes, financial skullduggery and other areas that have been the traditional area of the Justice Department.”

Last month The New York Times reported that federal immigration prosecutions have increased over the last five years, doubling in the last fiscal year to reach more than 70,000 cases. Meanwhile other categories of federal prosecutions including gun trafficking, public corruption, organized crime and white-collar crime have declined over the past five years.

The federal justice system accounts for 200,000 or 8.6 percent of the total 2.3 million inmates in federal and state prisons and city and county jails. Nineteen percent of state prisoners and 16 percent of jail inmates were Latinos. African-Americans make up 39 percent of state prisoners and jail inmates while representing about 12 percent of the total national population.

Read full article here. [Brooks Holland]

Preserving DNA Evidence to Prove the Potential Innocence of a Man Scheduled for Death Today

Today the Innocence Project of Florida (IPF) is filing a motion to preserve evidence in the case of Wayne Tompkins, who is scheduled to be executed at 6 PM EST by lethal injection. Tompkins was convicted of murdering Lisa DeCarr in 1983, though doubts persist as to the true identity of the victim. IPF believes a new round of DNA testing should be conducted in order to banish all doubt, and today's action represents the first step toward acquiring that testing.

"If the victim in this case wasn't Lisa DeCarr after all, that means Wayne Tompkins was convicted of a murder that never took place. It's pretty bizarre that the Governor is about to execute a person when these kinds of questions remain," said Seth Miller, Executive Director of the Innocence Project of Florida. Several individuals have signed affidavits claiming to have seen DeCarr alive since the alleged murder.

"The Governor should remember two other cases, Frank Lee Smith and Ricky McGuinn," said Miller. Frank Lee Smith died on death row in Florida before DNA testing proved he was innocent. In Ricky McGuinn's case, his Texas execution was stayed, then DNA testing proved his guilt, and his execution was reset. In both cases, DNA testing proved vital to the establishment of culpability.

IPF is moving a court to notify the appropriate institutions that they have a statutory obligation to preserve all evidence pertaining to Tompkins' case for 60 days, even if he should be executed. IPF wants a robe, a sash, and samples of the victim's bones to be preserved, with confidence that a new round of DNA testing, using methods that have not been used in this case, will likely yield the identity of the victim.

Miller added, "There are serious doubts left in this case, and we fully intend to get to the bottom of what really happened. Tompkins shouldn't be executed when such important questions as the identity of the victim remain. Some day soon, we will make sure the truth comes out." Read More. . .
[Bobbi Madonna]

DOJ Maintains State Secrets Position from Bush Administration

In the first major national security case of the Obama administration, lawyers representing the government took the exact same position as the Bush administration. Government attorneys asked a judge to throw out a torture case, citing the need to preserve state secrets. Some human rights activists now say they feel betrayed by an administration that had promised greater openness and transparency.

Five former terrorism detainees brought the lawsuit, Mohammed et al. vs. Jeppesen DataPlan Inc. The men accuse Jeppesen, a Boeing subsidiary, of providing logistical support to the CIA for "torture flights" to overseas prisons.

Bush administration lawyers had argued there was no way to try this case without revealing state secrets. Activist groups and newspaper editorial pages hammered the Justice Department for taking that position, but a trial judge agreed and threw the case out.

As the government prepared to argue the case again before three judges at an appeals court Monday, observers wondered whether the Justice Department would change course now that there is a new president and a new attorney general. The government did not change course.

ACLU attorney Ben Wizner, who represents the detainees, said in a phone interview after arguments, "The Obama administration, which came to office on a promise of greater transparency — on a promise of ending these practices — stood up and made exactly the same arguments that were made by Bush lawyers to throw out torture victims' lawsuits. And that's a profound disappointment."

Read full article here. [Brooks Holland]

Second Circuit Holds Second Amendment Not Applicable to States

The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09).

The statute at the center of this case, N.Y. Penal Law §265.01(1), provides criminal penalties for possession of a broad range of items, including weapons used in martial arts. The plaintiff was charged under the statute after police found fighting sticks, or nunchaku, in his home. He ended up pleading guilty to a different charge and then filed a lawsuit against the county prosecutor and others seeking a declaration that the law offends his Second Amendment right to bear arms.

Incorporation Doctrine

For the first half of its life, the U.S. Constitution's Bill of Rights was interpreted as constraining only the federal government—not the states. However, in the late 1800s and early 1900s, the U.S. Supreme Court began ruling that certain rights were incorporated into the limits on state governments imposed by the 14th Amendment's due process clause. The provisions selected for incorporation so far include most, but not all, of the rights that come into play in criminal cases. For example, the right to indictment does not apply to the states.

Back before the incorporation doctrine took hold, the Supreme Court held, in United States v. Cruikshank, 92 U.S. 542 (1875), and Presser v. Illinois, 116 U.S. 252 (1886), that the Second Amendment is a limitation only on the power of the federal government and thus does not constrain state regulations. The Supreme Court's subsequent Second Amendment cases, United States v. Miller, 307 U.S. 174 (1939), and District of Columbia v. Heller, 76 U.S.L.W. 4631 (U.S. 2008), both involved federal regulations, so the incorporation issue was not really in play. Nevertheless, in a footnote in Heller, the Supreme Court had this to say:

With respect to Cruikshank‘s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

The Second Circuit, in contrast, has directly addressed the incorporation issue in recent years. In Bach v. Pataki, 408 F.3d 75, 73 U.S.L.W. 1677 (2d Cir. 2005), the court rejected a challenge to a state gun-control law on the ground that the states' power to regulate firearms is not limited by the Second Amendment right to bear arms.

Read full article here. [Brooks Holland]

Federal Sex Offender Law Faces State Resistance

An aggressive federal effort to keep track of sexual offenders is at risk of collapse because of objections from states and legal challenges from sex offenders and others.

The effort, approved by Congress three years ago, requires all states to adopt strict standards for registering sex offenders and is meant to prevent offenders from eluding the authorities, especially when they move out of state.

The law followed several heinous crimes by sex offenders on the run, including Joseph E. Duncan III, who in 2005 fled North Dakota, where he had been registered, and committed sex crimes and murder in three states, ending with the torture and killing of a 9-year-old boy in Montana.

An estimated 100,000 sex offenders are not living where they are registered, according to the National Center for Missing and Exploited Children, which collects the data from the states and provides it to the United States Marshals Service and other federal agencies.

But officials in many states complain about the law’s cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional, at least in part.

Despite a looming July deadline, no state has been deemed compliant with the law, and some are leaning toward ignoring major requirements. As a result, one of the toughest child-protection initiatives in the nation’s history is languishing.

“We support the intent, and I’m sure every one of my attorney general colleagues supports the intent,” said Mark J. Bennett, the attorney general of Hawaii. “But we believed we couldn’t follow every single provision because, legally and practically, some of the provisions didn’t make sense.”

Some sex offenders and civil liberties groups have also taken court action to block the law’s provisions. In Ohio, a man convicted 15 years ago of “gross sexual imposition” involving a teenage girl is challenging the requirement that he remain on the state’s registry of sex offenders for the rest of his life, instead of the 10 years previously required by Ohio law.

“That’s not what I want my children to grow up with,” said the man, Darren L. Coey, 35.

Members of Congress say they may try to address some of the problems with the law. Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, said through a spokeswoman that he planned “to determine whether revisions and improvements can strengthen compliance, and then to quickly make whatever changes may be needed.”

While some of the law’s backers acknowledge that the states have legitimate concerns, they remain fundamentally committed to the law, and suggest that the delays leave a patchwork of differing state laws that keep children unnecessarily vulnerable to predators.

Read full article here. [Brooks Holland]

Seventh Circuit Affirms Iraqi Spy's Conviction

The 7th Circuit refused to overturn the conviction of a former spy for Saddam Hussein who came to the United States as an unwitting "sleeper agent" for the Iraqi Intelligence Service and obtained U.S. citizenship by lying on his application.

Sami Latchin actively served in the IIS from 1979 to 1993, and was selected as one of the sleeper agents in Hussein's plan to plant spies around the world to gain positions of influence, gather intelligence and influence policy in favor of Hussein's Ba'athist regime.

"All spy programs, of course, operate on deception - the spies pretend to be people they aren't," Judge Evans wrote. "But Saddam's plan took it to a whole new level - not even the spies would know they were part of the program until they were activated many years down the road."

The only sleeper agent planted in the United States, Latchin insisted he went there to "retire." But the government produced evidence that Latchin made several trips to Eastern Europe to meet with "Ali," his handler, who gave him a code name and a cover story should he run into trouble. Ali also paid Latchin $24,000 a year for his services - an amount Latchin later explained as "retirement pay."

He settled in Chicago, where he worked as a counter agent at O'Hare International Airpot. In 1998, he successfully applied for naturalization.

"That may strike the reader as a shock," Evans wrote. "How could a spy for Saddam Hussein - whether past or present - acquire citizenship so easily? According to the government, only by lying."

Read full article here. [Brooks Holland]

Judge Permits Flag-Desecration Prosecution in Nebraska

A Sarpy County judge has denied a challenge to Nebraska’s flag desecration statute raised by a Kansas woman who argued it violates her right to free speech.

Judge Todd Hutton ruled Tuesday that prosecutors can proceed with their case against Shirley Phelps-Roper. She is a member of the Westboro Baptist Church of Topeka, Kan., whose members believe that U.S. troop deaths are punishment for the nation’s tolerance of homosexuality. The group has protested at military funerals nationwide.

Authorities say Phelps-Roper let her 10-year-old son stand on an American flag at the funeral of a National Guardsman in June 2007 in Bellevue. They also say she wore a flag as a skirt that dragged on the ground.

Nebraska’s law against flag desecration prohibits intentionally “casting contempt or ridicule’’ upon a flag by mutilating, defacing, defiling, burning and trampling it. Violating the law carries a misdemeanor charge.

The Nebraska Supreme Court is responsible for deciding whether a law violates the state Constitution, Hutton said. The case remains in a county court, which has limited authority.

Nebraska lawmakers didn’t try to change the law after a U.S. Supreme Court case challenged a Texas’ flag desecration law some 20 years ago.

“The Nebraska Supreme Court has held where a statute has been judicially construed and that construction has not evoked an amendment from the Legislature, it will be presumed that the Legislature acquiesced in the court’s findings,’’ he wrote.

“The Nebraska Supreme Court has yet to reconcile the findings’’ in the U.S. Supreme Court’s rulings in the Texas case and other flag cases, Hutton said.

Read full story here. [Brooks Holland]

"Defining `Cruel and Unusual' When Offender is 13"

From today's New York Times:

"In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape.

. . . .

"The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

. . . .

"Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing."

Read the rest of the story here [Mike Mannheimer]

New Article Spotlight: Challenging the Practical Importance of the Justification/Excuse Distinction

Arizona CrimProf Jack Chin has posted  The Justification/Excuse Distinction: An Argument for its Practical Irrelevance on SSRN.  The abstract: "For decades, Joshua Dressler, Paul Robinson, Reid Fontaine and others have debated the distinction between justification and excuse defenses. "Justifications" represent good behavior, while "excuses" relieve criminal liability for socially undesirable behavior for policy reasons. Building on the critiques of Kent Greenawalt and Mitchell Berman, this essay proposes that claims for the practical importance of the debate have not succeeded.  The best argument is Joshua Dressler's claim that a robust justification/excuse distinction will send clear moral messages about acquittals. But because acquittals are intrinsically ambiguous, they cannot be used to derive moral judgments. First, because clear cases of innocence or meritorious defense are disproportionately screened out before trial, acquittals disproportionately represent near-convictions. Also, even replacement of opaque not guilty verdicts with special verdicts would send clear messages only if the new verdicts are morally precise. However, "excuse" defenses can be satisfied by "justified" conduct and vice versa, e.g., the Model Penal Code's "justification" of erroneous uses of force based on simple but less than gross negligence. In addition, there are seemingly intractable debates about categorization of defenses. Assigning acquittals to pigeonholes that even specialists dispute cannot send clear moral messages. Other rationales for the practical importance of the distinction, such effects on accomplice or aider and abettor liability of third parties, do not reflect the law under the Model Penal Code or other modern approaches. This essay is part of a symposium at the University of Michigan Journal of Law Reform on Reid Fontaine's work." Full Text here.