Thursday, October 31, 2013

CRL&P Daily Reads: Halloween 2013

Second Circuit stays lower court's stop-and-frisk ruling.

Twenty-three percent of Republicans want more women to be elected to office.

Brown University student defends protest against NYPD commissioner as a successful exercise of free speech.

Hawaii is ready to legalize gay marriage.

Chelsea Manning could sue if she doesn't get treatment for gender identity disorder.

Oneida Nation representatives meet with NFL to discuss the movement to change the name of Washington's football team, but NFL stands firm.

 

October 31, 2013 in First Amendment, Fourth Amendment, Freedom of Speech, Same-sex marriage, Stop-and-frisk, Universities and Colleges | Permalink | Comments (0)

School board takes “I ♥ boobies” bracelets to Supreme Court

The "I ♥ Boobies!" bracelets are heading to the Supreme Court! Indeed, after the Third Circuit ruled it could not ban the bracelets, a Pennsylvania school district has voted 7-1 to appeal the decision. The district claims that the ruling compromised the disciplinary authority of the school. I wonder, however, whether that authority has been so weakened so as to justify the district's expenditure of taxpayer dollars to continue the fight. No matter, at least the district's students are having the opportunity to learn about the First Amendment.

The USA Today reports:

A Pennsylvania school district says it will take its fight against "I (heart) Boobies!" bracelets to the U.S. Supreme Court.


The Easton Area School District board voted 7-1 Tuesday night to appeal a decision rejecting its claim the bracelets are lewd and should be banned from school.


The 3rd U.S. Circuit Court of Appeals also determined the district didn't prove the bracelets are disruptive when it upheld a lower court's decision in August.


The bracelets are designed to promote breast cancer awareness among young people. Two girls challenged the school's ban in 2010.


Superintendent John Reinhart tells The Express-Times of Easton the ruling compromised administrators' ability to determine what is and is not appropriate in school.


Dissenting board member Frank Pintabone says the district should let the matter go.

 

October 31, 2013 in First Amendment, Freedom of Speech, Schools | Permalink | Comments (1)

Atlantic correspondent Ornstein calls for a constitutional right to vote

CRL&P has noted several arguments for considering the right to vote as protected First Amendment speech.

Voting was done publicly until the end of the 19th century, and open voting changes the nature of the expression. Viva voce voting, for example, required voters to announce their votes publicly, and this declaration had persuasive value. The most respected citizens voted first, and thus candidates sought their support in order to influence voters down the line.

George Washington played this game in order to win his first election. In The Varieties of Political Experience in Eighteenth-Century America, Professor Richard Beeman explains:

Voting in Virginia was conducted viva voce, so the assembled freeholders (and candidates) were able to watch the course of the election as it unfolded...


As the balloting proceeded, it was apparent to all assembled at the courthouse that virtually all of the men of influence in the county had swung their support to Washington... The strategy of marshalling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on.

Ultimately, the question is whether voting communicates an idea. Even ignoring the context of voting in small rural communities, the expressive value of viva voce voting is at least as expressive as some forms of protected First Amendment political speech (e.g. flag burning, political yard signs, etc.) Further, as Justice Thomas observed in his dissent in Nixon v. Shrink Missouri Gov't PAC, "[I]t is up to the citizens...to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade." 528 U.S. 377, 420 (2000).

Today, The Atlantic calls for a constitutional amendment for the right to vote:

It is becoming increasingly obvious that the Supreme Court decision in Shelby County v. Holder, which eviscerated the Voting Rights Act, is leading to a new era of voter suppression that parallels the pre-1960s era—this time affecting not just African-Americans but also Hispanic-Americans, women, and students, among others.


The reasoning employed by Chief Justice John Roberts in Shelby County—that Section 5 of the act was such a spectacular success that it is no longer necessary—was the equivalent of taking down speed cameras and traffic lights and removing speed limits from a dangerous intersection because they had combined to reduce accidents and traffic deaths.

In North Carolina, a post-Shelby County law not only includes one of the most restrictive and punitive voter-ID laws anywhere but also restricts early voting, eliminates same-day voting registration, ends pre-registration for 16- and 17-year-olds, and bans many provisional ballots. Whatever flimsy voter-fraud excuse exists for requiring voter ID disappears when it comes to these other obstacles to voting


In Texas, the law could require voters to travel as much as 250 miles to obtain an acceptable voter ID—and it allows a concealed-weapon permit, but not a student ID, as proof of identity for voting. Moreover, the law and the regulations to implement it, we are now learning, will create huge impediments for women who have married or divorced and have voter IDs and driver's licenses that reflect maiden or married names that do not exactly match. It raises similar problems for Mexican-Americans who use combinations of mothers' and fathers' names.


In a recent election on constitutional issues, a female Texas District Court judge, Sandra Watts, who has voted for 49 years in the state, was challenged in the same courthouse where she presides; to overcome the challenge, she will have to jump through hoops and possibly pay for a copy of her marriage license, an effective poll tax on women.


The Justice Department is challenging both laws, but through a much more cumbersome and rarely successful provision of the Voting Rights Act that is still in force. It cannot prevent these laws and others implemented by state and local jurisdictions, many of which will take effect below the radar and will not be challenged because of the expense and difficulty of litigation.

Continue reading

October 31, 2013 in Election Law, First Amendment, Freedom of Speech, Right to Vote, Voter ID | Permalink | Comments (1)

Charges filed against Skokie officer in videotaped jail cell incident

Earlier this month, CRL&P noted that a woman from Illinois had filed a civil rights lawsuit after a Skokie police officer shoved her face-first into a jailcell bench, causing serious injuries. Today, The Chicago Tribune reports that the police officer has been charged with aggravated battery and official misconduct. The title of this post comes from the article, which begins:

A Skokie police officer caught on video shoving a woman into a cell bench had become irate after she wouldn't look into the camera for her booking photo, according to prosecutors who have charged the officer with aggravated battery and official misconduct.


Officer Michael Hart pushed Cassandra Feuerstein so hard that it broke her eye socket, cut her cheek and loosened her teeth, prosecutors said. She needed reconstructive surgery to place a titanium plate in her cheek and still suffers vision problems and numbness in her face, her attorney said.


The charges came after Feuerstein's attorney, Torri Hamilton, filed a federal lawsuit this month alleging police brutality in the case and released a police video of the incident that attracted widespread attention on the Internet.


Cook County State's Attorney Anita Alvarez announced the charges Wednesday, saying her office takes the case "very seriously."


"It's pretty clear that he stepped over the line," Alvarez said. "Obviously (police officers) are there because of the public trust. ... It's a sad day when we have to announce charges against a police officer."

October 31, 2013 in 42 U.S.C. § 1983, Civil Rights Litigation, Prisons and Prisoners | Permalink | Comments (0)

Wednesday, October 30, 2013

San Francisco Chronicle To Ban Washington Redskins Team Name

Via The Huffington Post:

The San Francisco Chronicle has announced it will stop printing the team name “Redskins” when referring to the Washington, D.C. football team -- the latest development in the ongoing controversy stemming from the perceived racial insensitivity of the team's name.

The decision, the newspaper says, is its responsibility as a purveyor of language.

"Words are powerful, and so is how we choose to use them," the paper’s managing editor Audrey Cooper told POLITICO. "Our long-standing policy is to not use racial slurs — and make no mistake, 'redskin' is a slur.”

According to NBC Sports, the Chronicle made the decision on October 25, aligning it with several other publications that have dropped the name, including Slate, Mother Jones and The Kansas City Star.

The paper will refer to the team instead as “Washington,” except in cases where it may be confusing to the reader.

“For example, we will use the team name when referring to the controversy surrounding its use," Cooper explained.

The Chronicle’s decision calls further attention to the controversy surrounding the name, which President Obama recently said the team should consider changing.

"I don't know whether our attachment to a particular name should override the real legitimate concerns that people have about these things," he told the Associated Press.

The team's owner, Dan Snyder, has vowed never to abandon the name.

October 30, 2013 in Current Affairs | Permalink | Comments (1)

CRL&P Daily Reads: Oct. 30, 2013

Arizona Sheriff Joe Arpaio wants to employ 'one or two' drones in surveillance of Pheonix area.

NPR says Texas voter-ID law is unexpectedly making voting difficult for some women.

Support growing in the Senate for Employment Anti-Discrimination Act (ENDA) banning workplace discrimination on the basis of sexual orientation or gender identity, and an Ohio funeral home wants gay marriages recognized on death certificates.

Planned Parenthood says Iowa ban on telemedicine system used for dispensing abortion pills prevents rural access to needed medical services and asks judge to suspend the ban.

Egyptian military tribunal sentences a journalist to one year in prison for allegedly impersonating a military officer.

October 30, 2013 in Abortion, Election Law, First Amendment, Fourth Amendment, Freedom of Press, Right to Vote, Search, Voter ID | Permalink | Comments (0)

Should elderly judges be forced to retire?

In a few days, New Yorkers will vote on a referendum to amend the state constitution to raise the mandatory retirement age for some state judges. As The New York Times reports, "[I]t would raise the mandatory retirement age for State Supreme Court justices and Court of Appeals judges to 80. Currently, the State Supreme Court, a trial-level court, requires justices to leave at age 76; the Court of Appeals, the state’s highest court, has a cutoff at 70."

Proponents argue that the mandatory retirement age was adopted at a time when life expectancy was lower, and they note that other state officials are not forced into retirement. Chief Judge Judith Kaye calls the age restriction "bad public policy" because it forces "experienced judges [to] leave the bench when they are at the top of their game." She also says that raising the retirement age will keep skilled judges on the bench, and that these judges can be used to alleviate the pressure on lower courts with considerable backups.

Opponents, however, claim that the measure is flawed because lower court judges are not subject to the increase, and lower courts are under the most stress. "It leaves out lower-court judges," reports The Times, and they "make up about three-quarters of the 1,259 jurists in the state. These judges would still be compelled to step down at 70, yet they are the ones burdened with mountainous caseloads and backlogs."

Gov. Cuomo shares their concern, and his position has put him at odds with much of the state's legal establishment. But, the payoff might be worth it. As The Times observes:

If the amendment fails and he wins re-election next year, Mr. Cuomo will have a chance to replace four Republican judges in his second term, all appointed by Gov. George E. Pataki: Victoria Graffeo, Eugene F. Pigott Jr., Susan P. Read and Robert S. Smith. The amendment would extend the terms of Judge Pigott and Judge Smith.

The governor would also be able to name a new chief judge to replace Judge Lippman, who turns 70 in May 2015 and has butted heads with Mr. Cuomo over the judiciary budget. Passage of the would allow Judge Lippman to serve until 2023. Judge Lippman denied he wanted to extend his own time in office.

The bill he first proposed to the legislature did not include the Court of Appeals for that reason, he said. It was the Senate Republicans, led by Senator Dean G. Skelos, who added the high court to the mix, legislative aides said.

The Supreme Court addressed the constitutionality of mandatory retirement laws in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which it ruled inter alia that state judges are exempted from the Age Discrimination in Employment Act (ADEA). The question was whether state judges fall under the definition of "employee," which the ADEA says "shall not include...an appointee at the policy making level." Justice O'Connor authored the majority opinion, and she concluded:

We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly, though it does. Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state officials, "appointee on the policy making level" is sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not.

Justice Blackmun, joined by Justice Marshall, dissented by claiming that 1) the "structure and legislative history of the policymaker exclusion" inform the view that Congress did not intend for judges to be excluded; and, 2) that deference should be given to the EEOC's "reasonable construction" of the law.

The Court's decision was particularly interesting for its application of the Tenth Amendment and federalism concerns to invoke the plain statement rule, under which a federal law will be applied to state government activities only if Congress expressed a clear intent that the law have that effect. The Court concluded that Congress did not intend for the ADEA to apply to judges. Thus, states retained the authority to determine the qualifications for state judges.

Today, thirty-two states place mandatory-retirement restrictions upon at least some judges. Next week, New Yorkers will determine whether to amend the current restriction, but they appear unready to take that step. According to one poll from the Siena College Research Institute, New Yorkers oppose the amendment by a wide margin--71 to 27 percent.

While political realities render opposition understandable, New York's age restriction on some judges seems rather outdated. C.J. Kaye's claim that "the age limit has deprived the New York courts of great legal minds in their prime" might go too far, but judges over 70 likely have some good years left. If the amendment were to pass, the former restriction would be forgotten to history as fearful projections are usually mistaken ones.

While we wait for a decision, CRL&P knows of at least one state judge who ought to consider retirement.

October 30, 2013 in 14th Amendment, Equal Protection Clause | Permalink | Comments (0)

How birth control became everybody's business

The title of this post comes from this fascinating article from The Week looking at the origins of birth control and the early obstacles to its development. The article begins:

This October marks the 97th anniversary of the opening of the first Birth Control Clinic, in Brooklyn, New York. It was opened by Margaret Sanger, who founded the American Birth Control League (which would later become Planned Parenthood). The clinic remained open for nine days before police shut it down and arrested Margaret for distributing obscene materials.

Before the mid-19th century, birth control was the unspoken, private concern of women and their sexual partners. But in the 1800s, American society changed, and what was once a personal choice became an issue of public decency. The run-up to the opening of Sanger's birth control clinic is a fascinating — and troubling — story of tumultuous change and social engineering.

 

October 30, 2013 in Abortion | Permalink | Comments (0)

CRL&P Daily Reads: Oct. 30, 2013

Group pushing for state laws criminalizing revenge porn, but future efforts could be aimed at federal government.

Glenn Greenwald appeared on Anderson 360 last night to discuss the revelation that the NSA was spying on allies.

Woman sues Texas over ban on same-sex marriage.

NY Post claims former employee's allegations of a hostile work environment related to the controversial Obama/chimpanzee cartoon are trivial.

Saudi teacher who supports women's right to drive has been detained.

 

October 30, 2013 in 14th Amendment, First Amendment, Freedom of Speech, Revenge Porn, Same-sex marriage | Permalink | Comments (0)

Marijuana ads stir the pot over drug safety, free speech

The title of this post comes from this article highlighting how pro-marijuana reform groups' use of advertising billboards on buses is making some officials nervous. The article is from McClatchy, who incidentally is in the early led for today's best pun. The article begins:

When televangelist Pat Robertson announced his support for legalizing marijuana last year, pot backers wasted no time in putting his picture on an electronic billboard in Colorado.


Marijuana billboards have popped up along busy freeways from Seattle to Florida. In September, one greeted fans going to Sports Authority Field at Mile High Stadium in Denver for the first NFL game of the season. In July, pot supporters tried to get a video ad on a jumbo screen outside a NASCAR event in Indianapolis, but objections forced them to pull it in the last minute.


In the latest twist, pro-pot billboards are emblazoned on city buses in Portland, Maine, aimed at winning votes for a Nov. 5 ballot measure that would make the city the first on the East Coast to legalize marijuana for recreational use.


Critics fear that the increased advertising is a sign of things to come as support for legalization continues to grow, reflected by a Gallup poll released last week that found backing from a record high 58 percent of Americans. They see the stepped-up promotion as a dangerous trend that will lead to more drug abuse among children.

Read more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy


Read more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy


Read more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy


Read more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy


Read more here: http://www.mcclatchydc.com/2013/10/30/20679
more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy

October 30, 2013 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Macy's security has arrest quota, 'race code system' for nonwhite shoppers: lawsuit

Via the Daily News:

Macy's security guards worked on a quota system of five “arrests” per week — and nonwhite shoppers were identified by an internal “race code system,” according to a lawsuit.


African-American men were referred to as “10-90s” and black women as “10-91s” among store security personnel, a Turkish immigrant charged in court papers after her 2010 arrest. The demeaning code was created by Macy’s “to facilitate its targeting of Middle Eastern, African-American/black and other nonwhite shoppers,” the suit charged.


Plaintiff Ayla Gursoy, who is Muslim, said she was detained and arrested while shopping in the Herald Square store on Sept. 18, 2010. Charges were later dismissed.


In a partial deposition provided by her attorney, store detective Brenda Howard acknowledged five “arrests” per week was the target for security workers, according to the suit. Howard couldn’t be reached Tuesday. The attorney did not provide the full deposition.


A Macy’s spokesman said company policy was not to comment on pending litigation.

October 30, 2013 in 14th Amendment, Fourth Amendment | Permalink | Comments (0)

Tuesday, October 29, 2013

NY appeals judges ponder fate of stop-frisk ruling

The title of this post comes from this article reporting that the Second U.S Circuit Court of Appeals may suspend the lower court's ruling that NYC's stop-and-frisk policy is unconstitutional. The article begins:

A federal judge's conclusion that New York City police officers sometimes violate the constitution when they stop and frisk people has made officers "passive and scared" to use the crime-fighting tactic, lawyers warned a federal appeals panel Tuesday as they asked that the ruling be suspended while it is appealed.

The three-judge 2nd U.S. Circuit Court of Appeals asked plenty of questions but did not immediately rule in a case that may be affected in a major way by next week's mayoral election. Democratic candidate Bill de Blasio, who is leading in polls, has sharply criticized and promised to reform the police department's stop-and-frisk technique, saying it unfairly targets minorities.

Attorney Celeste L. Koeleveld, arguing for the city, said officers are "hesitant, unfortunately" to use the tactic anymore.

Attorney Daniel Connolly, making legal points on behalf of former Mayor Rudolph Giuliani and former U.S. Attorney General Michael Mukasey, told judges that city officers were "defensive, passive and scared" about using the technique.


Read more here: http://www.star-telegram.com/2013/10/29/5288170/ny-appeals-judges-ponder-fate.html#storyli

October 29, 2013 in Fourth Amendment, Search, Seizure, Stop-and-frisk | Permalink | Comments (0)

CRL&P Daily Read: Oct. 29, 2013

Bill before Ohio House would let nursing home patients set up hidden cameras to document poor treatment.

Sen. Portman paid prominent pollster to assess the effects of his new position on gay-marriage after his son announced that he was gay, and former Supreme Court Justice O'Connor performs same-sex wedding ceremony.

Support for the death penalty reaches its lowest point in more than fifty years.

Plain Dealer editorial argues for keeping convicted felons closer to home.

Al Sharpton and Barney's CEO have a productive meeting discussing recent racial profiling allegations, but that might not be enough for NY Attorney General.

Several hundred protesters denounce the killing of 13-year-old by FBI agent

 

October 29, 2013 in First Amendment, Freedom of Assembly, Prisons and Prisoners, Same-sex marriage | Permalink | Comments (0)

Sunday Dress: Wearing a Mask for Halloween

On Sunday, Professor Ruthann Robson of the Constitutional Law Prof Blog discussed state anti-masking laws and the interesting impact those laws could have during Halloween. She begins:

Many states have anti-masking statutes, criminalizing the wearing of a mask or identity concealing face covering.


In some states, the statutes are known as anti-Klan statutes, although by their terms they do not limit their coverage to Klan regalia. The Georgia Supreme Court upheld the state's anti-masking statute, O.C.G.A. 16-11-38, against a First Amendment challenge in State v. Miller (1990). Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute, argued that the statute was overbroad. In addressing Miller’s argument, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”

Her full post can be found here.

 

October 29, 2013 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Texas AG seeks quick ruling on abortion law appeal

Via AP:

A federal appeals court judge is considering whether to grant an emergency appeal that would allow the state to enforce a law that could shut down a dozen abortion clinics in Texas.


In court papers filed with the 5th Circuit Court of Appeals, Texas Attorney General Greg Abbott asked the judge to make a decision by the end of the day Tuesday. Clinic operators have said a third of their facilities will have to stop providing abortions if the law takes effect.


District Judge Lee Yeakel ruled Monday that a requirement that doctors have admitting privileges at a hospital within 30 miles of an abortion clinic does nothing to protect women's health.


Abortion doctors have had difficulty getting such privileges since hospitals have different standards.

 

October 29, 2013 in Abortion | Permalink | Comments (0)

How long is too long for a traffic stop?

Wait A Second! today reminds us that traffic stops can violate the Fourth Amendment's reasonableness requirement. In this post, the blog highlights the recent Second U.S. Circuit Court of Appeals decision holding that a half hour stop was not unreasonable under these circumstances:

The case is Harwe v. Floyd, a summary order decided on October 17. The stop lasted a half hour. Floyd stopped Levy's car because she swerved without signaling. She admitted drinking alcohol at dinner. The Second Circuit (Raggi, Droney and Keenan [D.J.]) says that Floyd reasonably continued the stop "beyond the time necessary to issue a traffic violation in order to assuage reasonable suspicions as to driver sobriety." He necessarily questioned Levy and Harwe separately because Levy failed two sobriety tests, further lengthening the stop.


The case seems simple enough, but nothing under the Fourth Amendment is simple. Levy says the officer should have instead investigated her claim that she failed the sobriety tests because she was a stroke victim. But the Court says that Floyd's interview at the time was reasonable. The plaintiffs also argue that Floyd wasted time talking with other officers "who purported laughed and pointed at Levy." But even if this conversation was unrelated to the stop, it was relatively brief in comparison to the necessarily more time-consuming sobriety tests, preliminary questioning, the placement of Levy in the police car and filling out the citation, among other things.

October 29, 2013 in Fourth Amendment, Seizure | Permalink | Comments (0)

Senators bicker over state stand your ground laws

The Senate is debating stand your ground laws today, and unsurprisingly the parties don't agree upon the laws' utility. The title of this post come from this article, which states:

Senate Republicans and Democrats are debating the merits of state stand your ground laws, with Democrats urging a review and Republicans saying the policy is a matter of self-defense.

Under the gaze of Trayvon Martin's mother, Sybrina Fulton, Sen. Dick Durbin opened the hearing by saying the laws have been abused and urging Congress to consider how the policy would affect other gun legislation. Texas Republican Sen. Ted Cruz said the laws make possible the right to self defense.

At least 22 states have some form of the law, which generally cancels a person's duty to retreat in the face of a serious physical threat.

The 17-year-old Martin, who was unarmed, was shot in 2012. A jury acquitted George Zimmerman earlier this year, sparking racial tension and debate over the laws.

 

October 29, 2013 in Gun Policy | Permalink | Comments (1)

Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment

The title of this post comes from this paper examining the role of prosecutors in upholding the Fourth Amendment in immigration cases, and what remedies might be available to noncitizens when law enforcement violate its mandate during arrests. Here's the abstract:

A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally obtained evidence, typically by arguing that the Supreme Court should overrule its 1984 decision in INS v. Lopez-Mendoza not to enforce the exclusionary rule in civil immigration court. This Essay, in contrast, considers the role of Immigration and Customs Enforcement (ICE) attorneys in upholding the Fourth Amendment, taking as a launching point the recent exercise of prosecutorial discretion by ICE attorneys in Charlotte, North Carolina in cases arising from systemic unlawful policing.


Part I briefly describes how ICE's lawyers in the Charlotte immigration court have closed deportation cases against noncitizens arrested through unlawful policing by local officers in North Carolina, following a Department of Justice report on the discriminatory targeting of Latinos in Alamance County, North Carolina. The Essay then explores two potential bases for an ICE prosecutor’s decision to take remedial action when arresting officers violate the constitution. First, Part II examines ICE prosecutors’ constitutional responsibilities as executive branch attorneys in light of the Supreme Court’s decision to underenforce the Fourth Amendment in the context of immigration arrests. Part III then considers whether ICE’s remedial actions in North Carolina comport with internal agency guidelines for exercising prosecutorial discretion in deportation cases.

 

October 29, 2013 in Fourth Amendment, Search, Seizure | Permalink | Comments (0)

A bid to keep youths out of prison

The title of this post come from this article from The New York Times about recent efforts by states to pass legislation aimed at reducing the number of youth defendants charged as adults. The article begins:

James Stewart died alone.


The 17-year-old from Denver had committed a terrible act: while driving drunk, he slammed into another vehicle head on and killed its driver. Initially placed with other juvenile offenders, he was moved to the county lockup after the district attorney charged him as an adult. Left alone in his cell despite his frantic pleas to be with others, he tightened his bedsheets around his neck and killed himself.


His death, in 2008, was one of two suicides by young people in Colorado jails that helped spur a significant change in state law last year by narrowing the authority of prosecutors to charge juveniles as adults and to place them in adult jails, part of a wave of such laws nationwide.


In a reversal of the tough-on-crime legislation that swept the nation in the late 1980s and ’90s, nearly half of the states have now enacted one or more laws that nudge more young offenders into the juvenile justice system, divert them from being automatically tried as adults and keep them from being placed in adult jails and prisons.

 

October 29, 2013 in Prisons and Prisoners | Permalink | Comments (0)

Monday, October 28, 2013

CRL&P Daily Read: Oct. 28, 2013

Sen. Paul believes abortion and scientific research might lead to eugenics, and a Texas judge finds certain limitations on abortion unconstitutional.

Sen. Reid says Senate will vote on bill to ban workplace discrimination on the basis of sexual orientation or gender identity by Thanksgiving.

DOJ will not prosecute guards from private prison for alleged criminal civil rights violations.

J. Posner: "The point I was making in my book in mentioning the Crawford case was not that the decision was right or wrong[.]"

All new FBI agents ordered to visit the Martin Luther King, Jr. Memorial to remind them of past abuses by the FBI and of their commitment to better practices in the present and future.

 

October 28, 2013 in 14th Amendment, Abortion, Civil Rights Litigation, Department of Justice, Election Law, Religion, Right to Vote, Science, Voter ID | Permalink | Comments (0)

Judge rules against Texas abortion limits

Per CNN:

Parts of a new Texas abortion law, considered among the most restrictive in the country, are unconstitutional, a federal judge ruled Monday, one day before they were scheduled to take effect.


The lawsuit -- filed in U.S. District Court in Austin by Planned Parenthood on behalf of more than a dozen women's health care providers across Texas -- alleged the law violates the constitutional rights of women and puts unreasonable demands on doctors who perform abortions.


The lawsuit specifically targets requirements under the new law that doctors obtain admitting privileges at a local hospital, and usage controls on RU486 -- the so-called "morning after" pill.


U.S. District Judge Lee Yeakel struck down both provisions, handing abortion-rights groups a clear win.

 

October 28, 2013 in 14th Amendment, Abortion, Religion | Permalink | Comments (0)

Lunchtime Links

The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory

The title of this post comes from this recent article arguing that imposing prison sentences for hate speech is disproportionate to the harm stemming from such speech, and as a result is an injustice to the speaker. Here is the abstract:

We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.

 

October 28, 2013 in First Amendment, Freedom of Speech, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (1)

Citizens United comes to New York

The title above comes from this post from Wait A Second!, a blog which tracks the civil rights decisions of the Second U.S. Circuit Court of Appeals. Today, it highlights the recently decided case that struck down imposed limits on per annum political contributions by individuals. The post begins:

Is there a more hated Supreme Court ruling in recent years than Citizens United, which struck down on First Amendment grounds certain restrictions on corporate campaign contributions? Love it or hate it, Citizens United is here to stay, and it just knocked down a campaign finance law in New York.

The case is New York Progress and Protection PAC v. Walsh, decided on October 24. This case was argued on October 18, so the urgency is clear, as irreparable harm is inherent in First Amendment violations, and the plaintiff supports the New York City mayoral campaign of Joseph Lhota, who needs the money in time for the election in November.


The law in New York imposed a $150,000 aggregate annual limit on certain political contributions by any person in New York State. So the plaintiff -- which makes independent expenditures without prearrangement or coordination with a candidate -- cannot receive more than that amount from any individual contributor in any calendar year. NYPPP alleges that "the cap violates its core First Amendment right to advocate in favor of Joseph Lhota in the upcoming mayoral election."

Post-Watergate, Congress took a hard look at campaign finance laws. When the money people challenged these restrictions under the First Amendment (on the theory that campaign contributions and spending constitutes political speech), the Supreme Court in Buckley v. Valeo (1976) said the Constitution allows for some of these campaign finance restrictions in the interest of combating corruption. When Congress enacted the McCain-Feingold campaign finance restrictions in 2002, a new Supreme Court began chipping away at it, and the Citizens United ruling said that the government has no anti-corruption interest in limiting independent expenditures.

I am sure the lawyers representing the State of New York worked valiantly in defending the law that the Second Circuit took up in this case. But Citizens United makes this result a foregone conclusion. Under Citizens United, "it follows that a donor to an independent expenditure committee such as NYPPP is even further removed from political candidates and may not be limited in his ability to contribute to such committees. All federal circuit courts that have addressed this issue have so held."

October 28, 2013 in Election Law, First Amendment, Freedom of Speech | Permalink | Comments (0)

CRL&P Morning Reads: Oct. 28, 2013

Macy's says no employees were involved in alleged race stop

As CRL&P has noted, Barney's and Macy's are involved in a dispute with several black patrons who were detained after purchasing expensive items at the stores. Barney's has vowed to review their policies. Macy's now claims that its employees did not participate in the alleged discrimination.

The title of this post comes from this article, which begins:

No Macy's employees were involved in the detention or questioning of a black actor who claims he was stopped because of his race while shopping at the flagship Manhattan department store, Macy's officials said Sunday.

Rob Brown, a black actor who works on the HBO series "Treme," has said he was detained nearly an hour by police on June 8 after employees contacted authorities about possible credit card fraud. The actor has filed a lawsuit.

In a statement, Macy's said there was no record of any employee contacting authorities about Brown's purchase. The store said police officers requested use of a room in the building and that request was granted.

The store said it was reaching out to Brown, and continuing to investigate the situation.

 

October 28, 2013 in Civil Rights Litigation, Fourth Amendment | Permalink | Comments (0)

Sunday, October 27, 2013

Restroom battles emerge in transgender rights cases

The title of this post come from this article about the recent victory of two transgender individuals before the Iowa Civil Rights Commission. Although born as men, these two women will now be able to use women's restrooms in public places. The article states in part:

These cases, along with milestones such as the University of Northern Iowa's crowning of transgender student Steven Sanchez as its homecoming queen this month, bring visibility to a new set of rights issues in Iowa.

"Civil rights for black people didn't happen overnight, and it won't happen overnight for trans people, either," said Jodie Jones, an Iowa City transgender who won a dispute over whether she could use the women's restroom at the Johnson County Courthouse. "But I feel like we've moved the ball forward."

Continue reading

October 27, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Civil Rights Litigation | Permalink | Comments (0)

CRL&P Daily Reads: Oct. 27, 2013

Judge dismisses false arrest lawsuit in which the wrong man was arrested and held in prison for five days before police realized their mistake.

Macy's now joined with Barney's in scandal over allegations that the businesses profiled black shoppers making expensive purchases and detained them, while Barney's vows to review its policies.

Wisconsin becomes latest state to consider enacting legislation criminalizing revenge porn.

Protesters marched in Washington on Saturday decrying the NSA's online surveillance program.

FBI investigates the recent killing by police of 13-year-old carrying a plastic gun.

 

October 27, 2013 in 14th Amendment, Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Speech, Reasonableness, Revenge Porn, Seizure | Permalink | Comments (0)

Saturday, October 26, 2013

Judge violates Tennessee Code of Conduct, Constitution by requiring parents to change son's name

The Tennessee judge who independently changed a baby’s name from Messiah to Martin has been found to have violated Tennessee’s Judicial Code of Conduct. The judge ordered the name changed despite protests from both parents. According to the judge, “Messiah” can only be applied to the one who “earned” it, “and that one person is Jesus Christ.”

Rule 2.3(B) of the Judicial Code of Conduct states:

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon…religion[.]

The judge’s action clearly violates the requirement of Rule 2.3. By requiring the name-change, the judge’s judicial opinion reflected her religious convictions, and her ordered required the parents’ compliance at the expense of their own beliefs.

Tthe Tennessee Constitution states "that no human authority, in any case whatever, control or interfere with the rights of conscience[.]" Art. 1, Sec. 3. Also, at a minimum, the Establishment Clause of First Amendment prevents coercive state action that compels adherence to a particular religious doctrine. The state has no authority to require religious observance, and requiring the baby’s parents to change their child’s name to meet the judge’s personal religious beliefs clearly does just that.  

I’m not particularly familiar with available punishments for judicial misconduct, but this seems like a particularly egregious example that requires more than a meager scolding. To me, the judge's order calls her judgment into question. How can society expect fair and impartial rulings after such an obvious example of judicial disregard for the Tennessee Code of Conduct, the Tennessee Constitution, and the U.S. Constitution?

Sanctions against the judge are pending. 

Notably, according to Reuters:

Messiah was the 387th most popular name for boys born in the United States in 2012, based on applications for Social Security cards filed with the U.S. Social Security Administration.

In all, there were 762 applications for boys named Messiah in 2012, more than double the 368 applications made in 2011, the Social Security Administration said.

 

October 26, 2013 in 14th Amendment, First Amendment, Freedom of Religion | Permalink | Comments (0)

So, I shouldn't wear my John Wayne costume?

John_Wayne_portrait
The University of Colorado recently started placing fliers around campus asking students to keep the feelings of other students in mind when selecting this year's Halloween costumes. As The Huffington Post reports, "Advertisements posted around campus depict students from different ethnicities, cultures and religions standing next to a person dressed in costume. In one, a young black man is standing next to another man wearing blackface, gold chains and flashing a prop gun. Another shows a young Asian woman holding a photo of a white woman dressed in a geisha costume." Be courteous, consider how others might interpret your costume. I'm with ya.
 
But, then the Post reports:

At CU however, cowboys are not totally fine.

"When you dress up as a cowboy, and you have your sheriff badge on and a big cowboy hat, that's not a representation of a cowboy, that's not a representation of people who work on a ranch that's not a representation of people who live in the West, that's kind of a crude stereotype," CU spokesman Bronson Hilliard told Campus Reform.

Line-drawing is difficult; the difference between mockery and good-taste is sometimes not so clear. Indeed, that line depends on context, and context depends on both individual and community experiences. Whether a costume is a "crude stereotype" or an allusion to an iconic American symbol like John Wayne or Kirk Douglas might be disputed in different parts of the county.

October 26, 2013 in Freedom of Speech, Universities and Colleges | Permalink | Comments (2)

CRL&P Daily Reads: Oct. 26, 2013

Human memory might not be as reliable as you think, and one consequence of failed memory is the wrongful conviction of innocent criminal defendants.

Air Force Academy cadets no longer are required to recite "so help me God" in Honor Oath.

Illinois bill to impose mandatory minimums for illegal gun possession could be a win-win for Chicago mayor.

University of Pittsburgh Medical Center must wait to pursue civil rights lawsuit against the city and mayor for violation of due process in tax collection efforts.

Saudi women fight for right to drive.

 

October 26, 2013 in 14th Amendment, Civil Rights Litigation, First Amendment, Freedom of Religion, Gun Policy, Universities and Colleges | Permalink | Comments (0)

Friday, October 25, 2013

CRL&P Daily Reads: Oct. 25, 2013

Gun-rights advocates are planning to start collecting signatures in an attempt to recall California lawmakers who supported proposed gun regulations.

Greensborough police captain's civil rights lawsuit alleging discrimination by PD moved to federal court.

American Prospect argues that the Surpreme Court's reliance on two post-Reconstruction decisions have limited available remedies to victims of sexual assualt.

ACLU files amicus brief on behalf of secure email service provider facing contempt charges for failure to cooperate with U.S. government.

N.C. Attorney General and potential gubernatorial candidate speaks out on new voter ID law.

Homelessness among American K-12 students is growing.

 

October 25, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Civil Rights Litigation, Election Law, Equal Protection Clause, Fourth Amendment, Gun Policy, Right to Vote | Permalink | Comments (0)

Upcoming article draws attention to largely overlooked Supreme Court civil rights decision

In his upcoming article Snubbed Landmar: How United States v. Cruickshank Truncated the Reconsturction Amendments and Racialized Class Politics in America, Professor James Gray Pope argues that traditional narratives about the development of civil rights jurisprudence have failed to account for the precedential case that started it all: United States v. Cruikshank, 92 U.S. 546 (1876). According to Pope, the legal academy has created a "tale of progress" largely by ignoring Cruikshank's restriction on the Fourteenth Amendment's mandate to federal actions; its tailoring of the privileges and immunities clause; and, its limitation o the available protection of the Fourteenth and Fifteenth Amendments to racial minorities. "The results," argues Pope, "have been obfuscation and distortion." In fact, Cruikshank stymied "cross-racial movements" that might have led to a more promising futures. In the end, he urges: "It is long past time for this jurisprudentially inventive, politically pivotal, and socially schismatic case to take its proper place at the heart of the American constitutional narrative and pedagogical canon."

For those interested Supreme Court and civil rights history, this article provides valuable and intruiging insights that are well worth the time.

CRL&P related posts:

October 25, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Election Law, Equal Protection Clause, Right to Vote | Permalink | Comments (1)

Voter ID and the floundering right to vote

Yesterday, Slate contributor Dalia Lithwick pointed out that available data used to prognosticate the likely outcomes of new voter ID laws is outdated, and that it is no more clear that Democratic women will be disenfranchised than Republican women. Lithwick's focus on the effect of voter ID laws is necessary, but the problem with voter ID is judicial rather than legislative. The problem isn't whether voter ID laws will disenfranchise Democratic or Republican voters. The problem is that the laws disenfranchise voters. Period.

Voter ID laws have grown in popularity since the Supreme Court's decision in Crawford v. Marion County. In that case, the Court balanced the justification for the Indiana voter ID law against the burden on the right to vote. Liberal and conservative justices united to limit the right to vote, holding that the burden placed on that right was effectively de minimis and that states had a super important interest in preventing fraud (a decision which has been the subject of new interest following J. Posner's recent guilty plea regarding his part in validating the law as the author of the Court of Appeals' opinion).

But, the decision placed the burden of proof on the wrong party--the people. States should always have the burden of showing that regulations that infringe on even a small number of voters actually addresses a real threat or need. Otherwise, how "fundamental" is the right to vote, really? Under this standard, politicians need virtually no reason to manipulate the electorate to their advantage. Any regulation that has as its goal the "purity of the ballot box" is valid. Indeed, fraud becomes the catchall justification for infringing on the individual right to vote.

More robust protection for the right to vote is needed. A simple step would be to require strict scrutiny for all laws aimed at the rights of voters to cast ballots (which could easily be achieved by recognizing the right to vote as First Amendment political speech). This change would not affect states' ability to create laws addressing election issues, it would just prevent them from creating those issues to justify those laws.

October 25, 2013 in Election Law, First Amendment, Freedom of Speech, Right to Vote, Voter ID | Permalink | Comments (1)

CRL&P Morning Reads: Oct. 25, 2013

Wisconsin woman held in drug treatment center under fetal protection law challenges the law's constitutionality.

NRO's Reihan Salam says political reformers should focus on increasing party power.

Time raises questions about online reporting of sexual abuse.

Ohio Secretary of State says there's a need to cut down early voting hours.

Ohioans could be turning to Michigan abortion clinics as local ones close.

Columnist rejects argument for arming teachers and says its time to start holding partents of schoolhouse killers responsible as well.

And, a North Carolina Republican official resigns following racially-charged comments on Wednesday's The Daily Show.

 

October 25, 2013 in 14th Amendment, Abortion, Election Law, Equal Protection Clause, Fourth Amendment, Gun Policy, Reasonableness, Schools, Web/Tech | Permalink | Comments (0)

Thursday, October 24, 2013

CRL&P Daily Reads: Oct. 24, 2013

Texas voter ID law could cause problems for newly married or divorced women, although Slate observes that there is very little data to support claims of either side.

Civil rights group seeks meeting with Barney's CEO to discuss racial profiling allegations made by two shoppers who had been detained following expensive purchases.

ACLU files lawsuit to compel Missouri to disclose supplier of execution drugs.

BLT notes that federal court judge declined to dismiss former legal secretary's pregancy discrimination against firm.

Michael Steele discusses the institutional obstacles faced by HBCUs.

Michigan Gov. Rick Snyder dodges questions about his stance on extending civil rights to LGBT community.

October 24, 2013 in 14th Amendment, Civil Rights Act, Civil Rights Litigation, Election Law, Right to Vote, Same-sex marriage, Universities and Colleges, Voter ID | Permalink | Comments (0)

Today in Civil Rights History: Inaugural National Women's Rights Convention in Worcester, MA

On October 23-24, 1850, the inaugural National Women's Rights Convention was held in Worcester, Mass. The convention starred many speakers made famous by history, including Sojourner Truth, Frederick Douglas, and William Lloyd Garrison.

It commenced with a speech by the President of the Convention, Pauline Davis of Rhode Island. She called on the convention to proclaim civil and political rights for women, stating, "Our claim must rest on its justice, and conquer by its power of truth. We take the round, that whatever has been achieved for the race belongs to it, and must not be usurped by any class or caste. The rights and liberties of one human being cannot be made the property of another, though they were redeemed for him or her by the life of the other; for rights cannot be forfeited by way of salvage, and they are in their nature unpurchasable and inalienable." But the struggle for equal rights would not be easily won, she warned, for the success depended both on the rightousness of their cause and its acceptance by their oppressors:

Old ideas and habits of mind survive the facts which produce them, as the shadows of night stretch far into the morning, sheltered in nooks and valleys from the rising light; and it is the work of a whole creation-day to separate the light from the darkness...

We must be gentle with the ignorance and patient under the injustice which old evils induce. Long suffering is a quality of the highest wisdom, and charity beareth all things for it hopeth all things. It will be seen that I am assuming the point that redemption of the inferior, if it comes at all, must come from the superior. The elevation of a favored caste can have no other providential purpose than that, when it is elevated near enough to goodness and truth, it shall draw up it dependents with it...

There may be real though very foolish tenderness in the motive which refuses to open to woman the trades and professions that she could cultivate and practice with equal profit and credit to herself. The chivalry that worships womanhood is not mean, though it at the same time enslaves the objects of its overfond care.

With that, the convention set out to build the foundation of movement. The convention claimed as its purpose "to secure for her political, legal, and social equality with man,” and it unanimously passed a series of resolutions committing itself to that cause. It resolved “[t]hat political rights acknowledge no sex”;“ [t]hat women are clearly entitled to the right of suffrage, and to be considered eligible to office[,]” and that the continued denial of these rights will “no longer be endured[.]” It also asserted women’s equal right to property in marriage—“that the wife may have, during life, an equal control over the property gained by their mutual toil and sacrifices[.]”

Further, the convention closely allied itself with the growing movement for the abolition of slavery. The convention resolved "[t]hat every human being of full age, and resident for a proper length of time on the soil of the nation, who is required to obey law, is entitled to a voice in its enactments[.]"; and, it paid homage to those upon whom injustice heaped its most heavy burdens:

Resolved, That the cause we are met to advocate,--the claim for woman of all her natural and civil rights,--bids us remember the million and a half of slave women at the South, the most grossly wronged and foully outraged of allwomen; and in every effort for an improvement in our civilization, we will bear in our heart of hearts the memory of the trampled womanhood of the plantation, and omit no effort to raise it to a share in the rights we claim for ourselves.

The National Women's Right Convention of 1850 certainly was a radical step toward equal civil rights, and many thought it too much. The day after the convention closed, for example, The New York Herald used its front page to lament the "awful combination of socialism, abolitionism, and infidelity." According to The Herald, the apparent "designs of the piebaldassemblage called the Woman's Rights Convention" were these:

  • To abolish the Bible.
  • To abolish the constitution, and the laws of the land.
  • To recognize a society upon a social platform of a perfect equality, in all things of sexes and colors.
  • To establish the most free and miscellaneous amalgamation of sexes and colors.
  • To elect Abby Kelley President of the United States, and Lucrietta Mott Commander-in-Chief of the Army.
  • To cut throats ad libitum.
  • Toabolish the gallows.

Of course, the movement for political and social rights for women trudged slowly along, with a few small victories inspiring hope for larger ones in the future. Many of those attending that first convention never got to vote; sixty-nine years passed before the ratification of 19th Amendment granting women the right to vote. But, the women and men who attended the convention expected difficulties, and hopefully their sacrifices are remembered occasionally today.

CRL&P related posts:

October 24, 2013 in Civil Rights History, Election Law, Freedom of Assembly, Right to Vote | Permalink | Comments (0)

"Limbo is not as bad as hell, but it's sufficiently bad that it can't be written off completely."

Earlier this week, the Seventh Circuit Court of Appeals announced its decision in Billy Julian v. Sam Hanna, et. al., in which it reversed the district court's ruling that the plaintiff's 42 U.S.C. 1983 claim for malicious prosecution was not actionable because Indiana law provided adequate alternative remedies. Most circuits allow 1983 claims for malicious prosecution whether or not an available remedy exists under state law, but the Seventh Circuit is unique in this respect. ThWriting for majority, Judge Richard Posner explains: "We've held that a federal claim for malicious prosecution is actionable only if the state fails to provide an adequate alternative, whether called a claim of malicious prosecution or somethings else." The defendants claimed that tort remedies for false arrest and false imprisonment supplied adequate alternative remedies to those offered for malicious prosecution. Thus, the question was whether such alternatives were "adequate."

In this case, the plaintiff had been charged with arson, burglary, and attempted theft following a fire at a local public high school. He was sentenced to 15 years in prison. More than three years later, he was released after defense counsel presented evidence that one of the witnesses who had placed him at the crime scene had actually been at home on house arrest. But, he was not acquitted, and a retrial was scheduled in 2007. After repeated postponements, the charges were eventually dropped in 2010.

The plaintiff filed a lawsuit alleging malicious prosecution in violation of his right to due process under the Fourteenth Amendment against three Indiana police officers, the county sheriff, and the Town of Frankton, Ind. Specifically, one officer investigated the plaintiff "without lawful reason[.] Also, police officers coerced witnesses into accusing the plaintiff of starting the fire. According to the court, "The defendant officers knew the accusations were false--the officers had fabricated them and fed them to the witnesses."

The district court dismissed the plaintiff's claim on the grounds that state law provided an adequate alternative remedy, which foreclosed the plaintiff's section 1983 claim. 

The Seventh Circuit reversed. The court held that available tort remedies for false arrest and false imprisonment are not adequate alternatives for malicious prosecutions claims. According to the court,

[Plaintiff] would be able to recover for those torts on the damages he sustained during the week or so that he was detained before being formally charged. These damages would be only a fraction of the total damages attributable to his malicious prosecution, for those damages accumulated over the entire period that began with his arrest and ended only when the charges against him were dismissed--a period of 9 years and 3 months. Throughout this period, when he was not actually in prison he was (or so he alleges, and quite plausibly) tormented by fear of being imprisoned or re-imprisoned and unable to obtain employment. (Internal citations omitted).

The court rejected the defendant's claim that Indiana law provides "no remedy for malicious prosecution by Indiana public officers, leaving the defendant remediless if he manages to avoid jail or prison for any of the time during which he's being maliciously prosecuted." According to the court: "Limbo is not as bad as hell, but it's sufficiently bad that it can't be written off completely." Because there was no adequate alternative remedy for the alleged civil rights violations, the plaintiff's section 1983 claim was actionable; the lower court decision was reversed.

The court remanded the case for further proceedings.

October 24, 2013 in 14th Amendment, 42 U.S.C. § 1983 | Permalink | Comments (1)

CRL&P Morning Reads: Oct. 24, 2013

Opponents of Illinois gay-marriage bill rally at the Capitol to urge lawmakers to vote against it. The Chicago Tribune reports that the bill is unlikely to come up for a vote

The Supreme Court will re-examine mental disability standards used to determine eligibility for death penalty.

Gov. Jindal condemns DOJ for denying request of four families to join state as defendants in civil rights case.

Des Moines Register editorial questions interrogations by state troopers during traffic stops.

In Iowa, former state employees allege "culture of discrimination and retaliation" in the workplace.

The Atlantic documents Sen. Wyden's efforts to reform the NSA's surveillance program.

Glenn Greenwald speaks with Newsweek about NSA leaks, governmental abuse of power, and future plans.

Sen.-elect Booker says he looks forward to working with Sen. Paul and others on reforming drug laws.

 

October 24, 2013 in Civil Rights Litigation, Department of Justice, First Amendment, Freedom of Press, Prisons and Prisoners, Same-sex marriage | Permalink | Comments (0)

Wednesday, October 23, 2013

CRL&P Daily Reads: Oct. 23, 2013

How much does a public defender need to know about a client?

Andrew Cohen asks today at The Atlantic. Cohen reviews the N.J. Supreme Court's recent ruling in State v. Terrence Miller, a decision in which the court ruled that a criminal defendant's right to counsel under the 14th Amendment does not require very competent counsel. Cohen calls the court's decision "one of the most indefensible I have ever read." Here's how it begins:

Earlier this month, the New Jersey Supreme Court issued a ruling in a case that didn't generate much publicity in the Garden State or anywhere else. It was just another opinion, about another indigent criminal defendant whose case was processed through a justice system that was relentlessly more concerned with efficiency than with justice. Sadly, it's not big news today when our nation's judges permit a person's fair trial rights to be violated in a way that both shocks the conscience and violates the Constitution.

In State v. Terrence Miller, four justices of the state supreme court—over a lone dissent—affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller's case only four days before trial. He never spoke to any witnesses, or to Miller's former attorney, or to investigators in the public defender's office. He didn't know what his client would say on the witness stand.

Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the "higher ups" in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge's frustration.

To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge. The trial proceeded. Miller never had a chance to present his best defense, whatever it was, and was quickly convicted. All of this, the state supreme court declared, satisfied the defendant's constitutional right to counsel first expressed in Gideon v. Wainwright. Miller, the court said, got a fair trial. His trial judge, the justices concluded, should have delayed the trial but did not "abuse his discretion" when he didn't.

October 23, 2013 in 14th Amendment, Prisons and Prisoners | Permalink | Comments (0)

Segregating English learners in schools

The title of this post comes from an editorial in today's L.A. Times about the city school district's new policy of segregating students learning English from students who are fluent in English. Here's the how it begins:

Segregating young children for whom English is a new language according to their fluency levels produces the best academic results, according to most research. So the Los Angeles Unified School District has little choice in the matter. As a result of a settlement with the U.S. Department of Education, which had accused the district of doing poorly by its English learners, the district was required to submit an evidence-based plan for improvement, and that plan calls for sorting the students by English skills.

And yet there is reason for concern, especially considering American public schools' long and shameful history of labeling, separating and tracking students from the youngest grades on the basis of race and other characteristics.

Continue reading

October 23, 2013 | Permalink | Comments (0)

Hiding the Statute in Plain View: University of Texas Southwestern Medical Center v. Nassar

The title of this post comes from this recent article arguing the Supreme Court's recent decision in University of Texas Southwestern Medical Center v. Nassar used an approach to statutory interpretation different from the standard it had previously required. Here's the abstract:

The Supreme Court decided in University of Texas Southwestern Medical Center v. Nassar that the “a motivating factor” level of proof to establish liability set forth in §§ 703(m) and the same-decision defense to full remedies of 706(g)(2)(B) of Title VII of the Civil Rights Act of 1964 does not apply to claims of retaliation brought pursuant to § 704(a). Instead, Title VII retaliation must be the “but-for” cause of the adverse action plaintiff challenges. The obvious impact of Nassar is that it makes it more difficult for plaintiffs to prove retaliation. In some ways, Nassar is a surprise because the Court had consistently held for plaintiffs in a number of retaliation cases. In other ways, it was not a surprise that the Court would move its retaliation jurisprudence more in line with its recent pro-employer, anti-civil rightsinterpretation of statutes typified by its decision in Gross v. FBL Financial, Inc. To reach its desired decision, the Court had to forego the plain meaning approach to statutory interpretation that in Gross it said was to be used. The Court reached its conclusion by hiding the terms and the structure of Title VII in plain sight while replacing the actual terms of the statute with terms of its own creation. Further, the majority of the Court was captivated by a hypothetical presented by counsel for the employer of employees gaming retaliation law, a fact pattern that does not appear to have happened in any reported case, with that captivation indicative of the majority’s perspective favoring employers over employees in its recent antidiscrimination decisions. 

October 23, 2013 in Civil Rights Act, Civil Rights Litigation | Permalink | Comments (0)

Opposition stymies gun legislation that would establish mandatory minimums for illegal gun possession

The Illinois House Judiciary Committee has axed a controversial measure from H.B. 2265 that would have established mandatory minimum sentences for illegal gun possession. According to The Chicago Tribune, "Supporters say the measure is aimed at felons, gang members and people in possession of weapons without a valid firearm owner permit." Opponents, however, worry that the measure will send people to jail for up to three years for a simple mistake. The NRA claims, "This specific provision incorrectly targets otherwise law-abiding citizens, rather than deterring violent criminals with harsher penalties[.]" The measure will be subject to further negotiation.

Both sides argee that Chicago has a gang problem. Gang activity in Chicago is increasing, and gang membership has reached 100,000. Gang-related violence is high and guns play a prominent role in much of that violence. One evening last September, for example, gang-related shootings killed 3 people and put 23 more in the hospital.  

But the question of how to deal with that violence remains a difficult one. Mandatory minimums for illegal gun possession reportedly would have prevented as many as 19 deaths just this year, and one study estimates that the law would prevent nearly 4,000 crimes annually. According to DNAinfo Chicago:

The cost-benefit analysis found that more than 63 percent of those on probation for unlawful use of a weapon are arrested again for the same crime within a year, with 7 percent rearrested for a violent crime.

But, mandatory minimums may not be the answer. As the Chicago Sun Times editorial observed:

In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.

Whether establishing mandatory minimums would achieve desired outcomes is debatable, but one thing is certain: curbing gang-related gun violence requires social programs and community investment. As several Chicago officials have observed, social conditions such as high unemployement and underemployement exacerbate the problem. One group has protested South Chicago's "trauma care desert," noting that gunshot victims must be taken as far as 10 miles to receive care--sometimes with deadly consequences.

Some effots have been taken to ameliorate the situation facing youths in areas of high gang activity. In Chicago, city officials reportedly plan to provide social services such as GED programs and help securing jobs for former gang members. Others have tried to create dialogue between rival gangs. Father Michael Pfleger, for instance, has brought rival gang members together through a weekly basketball league. Reportedly, violence in his community has dropped.

Gun regulation likely would be valuable to curbing Chicago's gang violence, especially in conjuction with other efforts aimed at broader systemic problems. But mandatory minimums may be a short-term fix to long-term problems. Maybe not. 

CRL&P related posts:

For more on manditory minimums see Sentencing Law and Policy.

October 23, 2013 in Current Affairs, Gun Policy, Prisons and Prisoners | Permalink | Comments (0)

CLR&P Morning Reads: Oct. 23, 2013

Tuesday, October 22, 2013

Second Mississippi county agrees to trim voter rolls after lawsuit by conservative group

The title of this post comes form this article regarding a recent agreement in one Mississippi county to review its voter rolls for (allegedly?) ineligible voters. Here's how the article begins:

A second county in south Mississippi has agreed to clean up its inflated voter rolls after being sued by a conservative group that said the county failed to purge the names of people who had died, moved away or been convicted of disenfranchising felonies.

In a consent decree filed this past Friday in federal court, Jefferson Davis County said that by Jan. 31, it will identify people on the rolls who are no longer eligible to vote.

An Oct. 10 document from the secretary of state's office shows the county has almost as many registered voters as it has residents of voting age.

The American Civil Rights Union, a conservative group based in Alexandria, Va., sued Jefferson Davis and Walthall counties in April, saying that both, at the time, had more registered voters than residents who were at least 18. The lawsuits said that under the National Voter Registration Act of 1993, better known as Motor Voter, counties have an obligation to keep accurate voter rolls for federal elections.

In response to the lawsuit, Walthall County agreed in September to clean up its inflated voter rolls, and the county is making progress, according to the latest document from the secretary of state. The county had 11,219 voting-age residents in 2012. It had 12,752 registered voters on Sept. 4 and 12,421 on Oct. 10.

Jefferson Davis County had 9,253 voting-age residents in 2012. It had 8,792 registered voters on Oct. 10.

Mississippi has long had problems with inflated voter rolls. The Associated Press reported in October 2008 that 29 of the 82 counties had more registered voters than residents 18 or older. That is now down to 10 counties, according to an Oct. 10 spreadsheet released Monday by the secretary of state's office.

Secretary of State Delbert Hosemann, a Republican, created a statewide electronic registry that county officials can use to check for duplicate voter registrations. In recent years, some counties have used the list to purge voter rolls after people move away.

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October 22, 2013 | Permalink | Comments (0)

Ex-CSI chief fails to show for trial on civil rights violations

Csi-gil-grissomThe title of this post comes from this article about a local investigator who incomprehensibly "plant[ed] blood evidence" in a double murder case that resulted in the wrongful conviction of two people. The investigator was convicted for his actions but didn't show up to answer for them. 

Notably, the defendants in this case confessed. Perhaps surprisingly, this phenomenon is not so uncommon. According to The Innocence Project, 25 percent of cases in which DNA evidence later exonerated the wrongfully convicted included confessions or guily pleas.

Here's the article:

David Kofoed's day in federal court never came.

The former chief of the Douglas County CSI lab, named in a civil rights lawsuit after being convicted of planting blood evidence in a Cass County double murder, didn't show up for a trial scheduled to open this morning in federal court.

U.S. Judge Joseph Bataillon entered a default judgment against him and released the jury. 

"I doubt that he is en route," Bataillon quipped, noting that Kofoed was reached Monday by The World-Herald at his home in Charlotte, N.C.

The plaintiffs in the case, Matt Livers and Nick Sampson, were wrongly charged with murder in the 2006 shotgun slayings of Wayne and Sharmon Stock. Their civil-rights lawsuit sought damages for wrongful imprisonment based on Livers' coerced false confession, planted evidence and exculpatory evidence that was hidden from defense attorneys.

The Kofoed judgment follows a $2.6 million settlement late last week with investigators from the Nebraska State Patrol, Cass County and Douglas County. 

The settlements release the agencies and individual investigators named in the complaint from liability. None of the agencies admitted wrongdoing.

Compensatory and punitive damages against Kofoed will be determined at a hearing next week.

Locke Bowman, an attorney for Livers, declined to estimate the damages his team is seeking but said the amount would be "very substantial."

"There's obviously no amount of money that's going to make Matt Livers whole," he said.

October 22, 2013 | Permalink | Comments (1)

Request for special prosecutor in forcible strip search case

Srip-searchAs CRL&P previously noted, LaSalle County, Ill. sheriff's deputies currently face a civil rights lawsuit following the alleged forcible strip-search of a woman arrested for DUI. Now, the woman's attorney wants a special prosecutor assigned to inquire into the conduct of the deputies. Here's the article:

An attorney for a woman who claims she was illegally strip-searched by LaSalle County sheriff's deputies has asked that a special prosecutor be named to investigate the department, according to court documents.

Terry Ekl, himself a former prosecutor, filed the request for independent oversight in LaSalle County on Friday. The county's current state's attorney, Ekl said in his motion, has "an inherent conflict of interest in the investigation and special prosecution of officers."

Ekl wants the special prosecutor to investigate whether criminal charges against the deputies are warranted.

Dana Holmes, of Coal City, said she was wrongfully stripped by county deputies after a drunken driving arrest last spring and filed a federal lawsuit last month. The alleged incident was recorded on jailhouse video cameras.

"It is essential, not only to protect the interests of Dana Holmes, but also to protect the interests of all citizens of LaSalle County, that a special state's attorney be appointed to investigate the conduct of the officers … to determine if criminal charges should be filed and prosecuted," Ekl's legal motion read.

Ekl has said other women have come forward claiming similar conduct. A federal judge ordered LaSalle County authorities to preserve potential strip-search recordings from their jail.

LaSalle County officials have said jail guards did nothing wrong in the May incident.

Illinois law permits strip searches only if there exists reasonable suspicion that the arrestee possesses contraband. The determination of reasonable suspicion may take into account the reason for arrest, the arrestee's appearance, and the arrestee's prior arrest record.  Kraushaar v. Flannigan, 45 F.3d 1040 (7th Cir. 1995). An arrest for DUI hardly seems like the type of arrest that would support reasonable suspicion, and the article does not elaborate on the woman's arrest record. And, personal appearance seems like a catchall, which I would have gave problems with if independently used to justify a strip search.

Nevertheless, in this case, jail officials ought to be concerned for a different reason. Under Illinois law, all strip searches must be conducted by officers of the same sex as the person searched. 725 ILSC 5/103-1(e). Here, four officers participated in the strip search, and three of them were male. That looks like a problem.

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October 22, 2013 | Permalink | Comments (0)

What If Colleges Embraced Affirmative Action for Class Instead of Race?

The title of this post comes form this recent article on The Atlantic's website about an experimental approach to college admission from Colorado University that focuses on class rather than race. The article states in part:

Gaertner set out to create a class-based affirmative-action framework for CU-Boulder that would take into account resources available to a child at home and in high school. He came up with two measures. The "disadvantage index" measures the likelihood that the applicant will enroll in college at all, given his socioeconomic status. The "overachievement index" measures whether an applicant's grades and test scores exceed the scores usually achieved by students of his socioeconomic status.

"When students apply and they demonstrate severe socioeconomic disadvantage, or extraordinary overachievement relative to that disadvantage, they're given a substantial boost in the admissions process," Gaertner says. Overachievers from all backgrounds get extra consideration, and so do severely disadvantaged students, even those who aren't achieving at high levels.

Each index is a statistical model that weighs many factors, including the teacher-student ratio at the applicant's high school, the number of dependents the applicant's parents are supporting, and whether the student's first language was English. Gaertner created a computer program that runs the math and produces a number that admissions officers use to classify students as moderately disadvantaged, severely disadvantaged, or not disadvantaged; and as exhibiting high overachievement, extraordinary overachievement, or none at all.

Two experiments prove that the indicies are working. In 2009, Gaertner had admissions officers review 478 applications, first under CU-Boulder's race-based policy and then under the new class-based policy, with all racial identifiers removed. Officers ended up admitting 9 percent more underrepresented minority students under the race-blind policy than and 20 percent more students of very low socioeconomic status.

In 2010, CU-Boulder ran another experiment, this time on 2,000 applications deemed borderline for admission. Half were evaluated using the new class-plus-race approach, and half using the old approach that used race alone. The hybrid approach resulted in a 13 percent increase in acceptance rates for the poorest students, a 17 percent increase for underrepresented minority students, and a 32 percent increase in the lowest-income, minority students. The results of both experiments were recently published in Harvard Law and Policy Review.

Colorado's ballot initiative didn't pass, so today CU-Boulder uses both race and the new indicies as factors in admissions decisions. In general, disadvantaged students admitted through this process don't perform as well at CU-Boulder as the typical student, Gaertner says. "Their grades and test scores don't indicate they're automatic admits, so you'd sort of expect them to have a little bit lower outcomes than typical undergraduate," he says.

But students identified as overachievers excel. "Their college outcomes—that's grades, credit hours earned, and graduation at four years and six-year graduation rate—is actually higher than typical undergraduates," Gaertner says of overachievers.

Constructing the new admissions factors has had an additional benefit. "The more we got into this, it actually expanded our view of diversity," MacLennan says. The admissions team now pays more attention to rural students and students coming from under-resourced high schools.

While the indicies are a good fit for CU-Boulder, it's not clear whether they'd work just as well at very selective schools, Gaertner says. And it's important to remember that improving on-campus diversity involves a spectrum of efforts.

Class-based admissions processes seem to be offered as alternatives to race-based affirmative action policies frequently. While I'm generally positive about the outcomes achieved at CU, I'm not sure that class-conscious admissions will greatly affect many people's perceptions about acceptable addmissions considerations. For proponents of affirmative action, this is not an either/or proposition--admissions that consider race and those that consider class are not mutually exclusive. For opponents, arguments supporting admissions policies that use indices not related to academic scores and extracurricular activies will not be any more satisfying than those based on race. One can easily imagine a Grutter-like suit against a university for class-conscious admissions.

October 22, 2013 | Permalink | Comments (0)

Dallas chief drops charge against man shot by officer

A CRL&P reader recently brought to my attention this disturbing case in which a Dallas police officer shot a mentally ill man allegedly armed with a knife at what appears to be a distance of more than 10 feet. The article states in part:

According to police accounts, Spencer and Watson responded to the 9400 block of Crimnson Court on Monday afternoon after Bennett’s mother, Joyce Jackson, called police for help in dealing with her son.

Authorities have said that she told the 911 operator that Bennett was violent, had a knife and was throwing things at a garage door.

An arrest warrant affidavit listing Spencer as the victim of an aggravated assault said the officer shot Bennett after he walked toward him and his partner with a “knife raised in an aggressive manner.” Spencer fired his weapon four times, striking Bennett in the abdomen.

But a neighbor’s video surveillance recording contradicted that account.

On the video, Bennett, who was seated in a chair, initially rolls back from officers as they advance on him. He then stands up but does not move. His hands remain at his side and he is standing still when Spencer shoots him.

The video shows that less than 30 seconds elapsed from the time the officers pulled up in their squad car to when Spencer opened fire.

City Council member Dwaine Caraway called the officer’s actions “coldblooded” and called for “immediate action” of some kind. Otherwise, the national spotlight on the case will cause “a devastating blow to the department,” he said.

The Dallas Police Department has been under mounting criticism for more than a year over officer-involved shootings.

It began in the summer of 2012, when community activists became upset about a string of police-involved shootings. One of those incidents nearly sparked a riot in the Dixon Circle neighborhood when an officer fatally shot a suspected South Dallas drug dealer. That officer was cleared of charges.

The officer allegedly violated several basic tactical rules, which seems clear enough from the video (found here).  Although the officer's attorney claims that unreported facts justify his actions, imagining what those facts might be is certainly difficult. 

Reportedly, the man shot by the officer was mentally ill. The Bureau of Justice Statistics has reported on the frequency of mental illness among the incarcerated. Given these numbers, police officers reasonably can be expected to be experienced in (or at least trained in) dealing with the mentally ill. I have a hard time believing that this officer's response comports with that training.

Of course, the facts in this case eventually will be revealed and we will be able to better evaluate (or condemn) this officer's actions. But, so long as the unknown facts that ostensibly will change the public mind as to this officer's conduct are withheld, we are left with the video. And the video is disturbing.

 

October 22, 2013 | Permalink | Comments (0)