Stop "Stop and Frisk"

The New York Civil Liberties Union in conjunction with The Bronx Defenders filed a civil lawsuit in April of this year on behalf of 13 plaintiffs challenging New York's "Clean Halls" program. According to the complaint, thousands of residents in buildings enrolled in the Clean Halls program are subject to being stopped and illegally ticketed or arrested for trespassing in their own buildings if they fail to produce identification when they take out the garbage, check the mail, duck out to the store for a quart of milk. Young people growing up in these buildings, lawyers say, are routinely searched without legal cause and detained. The lawsuit, which charges the city with violating the Fourth Amendment and the Federal Fair Housing Act, is similar to one filed two years ago against the New York Police Department and the city’s public housing agency, which is alleged to have employed a similar patrol system. The New York Timesran a story on the lawsuit and the program. The Bronx Defenders are offering a "Stop & Frisk" T-shirt to raise money for the lawsuit as well as to raise awareness into this unconstitutional practice. You can get a t-shirt and support a good cause at the same time-always a win win. On June 7th, the New York Civil Liberties Union created a "Stop and Frisk" app that allows users to quickly record and report "stop and frisk" incidents. The NYPD were critical of the app, stating that it could put users in danger. A video demonstration of the app is available here and the app's functions are described below:

A spokesperson for the NYCLU, Jason Javier, described a stop and frisk incident. "As it's happening," he said in a PIX11 interview, "You're feeling defeseless, and even as it doesn't happen, it makes you feel it could happen." That sort of anxiety and frustration is what motivated software designer Jason Van Anden. "I believe in the power of technology to effect positive change," he said at a newsconference hosted by the NYCLU on Wednesday. He said his belief led him to create the Stop and Frisk app for Android smartphones. An iPhone app is not yet available, but is expected to be released next month. The app has three main functions: to record, listen and report a stop and frisk incident to the NYCLU. "The app allows you to record a stop-and-frisk as it's happening," Javier said about the record function. The listen function allows an app user to listen to any other stop and frisk incidents in the vicinity near the user. "This is especially helpful for community groups that monitor police activity," an NYCLU spokesperson says on the organization's website, http://www.nyclu.org/app, which is where the app can be downloaded. The report function leads the app user to a questionnaire with a series of questions pertaining to a stop and frisk the user may have just observed, including asking about the race and gender of the person who was stopped, and the race and gender of the officers involved. It also asks, among other questions, if force was used in the stop and frisk encounter. The user then sends the completed questionnaire to the NYCLU.

Trayvon Martin Case: 911 Audio Released Of Teen Shot By Neighborhood Watch Captain

From the Huffington Post:

Police have released audio 911 tapes in the shooting death of Trayvon Martin, the unarmed teenager allegedly killed by a neighborhood watch captain while walking home from a store.

In eight chilling recordings, made the night of February 26, listeners can hear the frightened voices of neighbors calling to report screams for help, gunfire and then that someone was dead.

In perhaps the most disturbing of the recordings, a frightened voice in the background cries out for help and pleads "No! No!" and then continues to wail.

And for the first time, we hear the voice of George Zimmerman, the neighborhood watch captain who admitted to police that he shot Martin, who was walking home from a convenience store to his father's home in the gated community. Zimmerman has not been arrested or charged in the shooting.

"This guy looks like he's up to no good, or he's on drugs or something," Zimmerman tells the 911 operator. "He's just staring, looking at all the houses. Now he's coming toward me. He's got his hand in his waistband. Something's wrong with him."

Zimmerman described Martin as wearing a hoodie and sweatpants or jeans. He continues: "He's coming to check me out. He's got something in his hands. I don't know what his deal is. Can we get an officer over here?"

"These assholes always get away," he says to the operator. Zimmerman is then heard giving directions to the dispatcher. "Shit, he's running," Zimmerman says.

"Are you following him?" the dispatcher asks.

"Yes," Zimmerman responds.

"We don't need you to do that," the dispatcher says.

In other recordings, callers tell the 911 dispatcher that someone has been shot. One person tells the dispatcher that two guys were wrestling behind his back porch and that one of them was yelling for help. Then the male caller stammers in shock. "I'm pretty sure the guy is dead ... Oh, my God! ... The black guy looks like he's been shot and he's dead."

"The guy on top has a white T-shirt," another caller said.

"Is he on top of someone?" the operator asks.

"Mmmhmmm," a female caller responds.

Yet another caller says, "Someone was screaming 'Help! help! help!' Then I heard a gunshot."

One caller, a teenage boy, said that as he was walking his dog, "I saw a man laying on the ground that needed help. He was screaming."

Then, he told the operator, he heard a gunshot and said the screaming stopped.

Martin's family and their attorneys were allowed to hear the audio before it was made public.

"You hear a shot, a clear shot, that we can only assume is a warning shot," said Natalie Jackson, a family attorney. "Then a 17-year-old boy is begging for his life. Everything tells me that that was Trayvon Martin."

Tracy Martin, the teenager's father, broke down crying as he listened to the audio on Friday, the family lawyers said. "My son was crying for help, and he still shot him," Tracy Martin, the teenager's father said, according to Benjamin Crump, another family attorney.

The local state attorney is reviewing the investigation and will decide whether to prosecute the volunteer watchman.

Police in Sanford initially told Martin's family that Zimmerman had not been arrested because he had a "squeaky clean" record, according to Tracy Martin. Zimmerman had been arrested in 2005 on charges of resisting arrest with violence and battery on a law enforcement officer, according to court records. Those charges were later dropped.

"Do we really believe that if Trayvon Martin would have pulled the trigger, he would not be arrested?" said Crump. "This is obviously a cover-up, and we need a sweeping overhaul of the Sanford Police Department."

Sanford Mayor Jeff Triplett said he spent Thursday meeting with the state attorney's office discussing the release of the tapes. "It was as simple as us saying, 'We're going to do this, what do you think?'" Triplett told HuffPost.

Earlier Friday, Triplett met with Rep. Corrine Brown (D-Fla.), Police Chief Bill Lee and city manager Norton Bonaparte to discuss the 911 recording.

The police chief serves at the pleasure of the city manager. Bonaparte was asked by HuffPost whether the furor jeopardizes Lee's job. "We're reviewing all of our options at this point," he said, adding that he currently sees "no reason" to remove Lee.

Zimmerman had been the subject of earlier complaints by residents of the gated community in which he and Martin's family lived. At an emergency homeowner's association meeting earlier this month, "one man was escorted out because he openly expressed his frustration because he had previously contacted the Sanford Police Department about Zimmerman approaching him and even coming to his home," a resident wrote in an email to HuffPost. "It was also made known that there had been several complaints about George Zimmerman and his tactics" in his neighborhood watch captain role.

The case has drawn national attention and has outraged many residents of Sanford, a town about 20 miles north of Orlando, particularly in the African-American community. Many have suggested a history of strained relations between the police department and blacks.

Full article with audio can be found here.

Go To Trial and Crash the System

The New York Times ran an op-ed piece this past Sunday entitled "Go to Trial: Crash the Justice System". The article describes one woman's idea to organize thousands of people charged with a crime to not "play the game" and plead out, but instead to go to trial and "crash the system". As anyone who has worked in the criminal defense industry knows, the system depends on the plea bargain. There are not enough judges, juries, prosecutors, defenders, or other resources for everyone to go to trial. Indeed, over 90% of all criminal cases end in plea bargain. That, of course, is related to the unique threat and promise system of justice in America: a person charged is often threatened with stiffer penalties if he or she chooses to exercise the Constitutional Right to trial and the fear is a real one in a system where the Government generally has the better hand in terms of resources. But what would happen if those accused decided simultaneously to "break the house" and go to trial?
This is the question Susan Burton posed. Ms. Burton became a crack cocaine addict after her five year old son was run over by the police. For fifteen years she was in the revolving door of arrest, incarceration, release with no resources, and rearrest that is the hallmark of the American criminal justice system. But Ms. Burton asked Michelle Alexander, the author of the article and a new book entitled "The New Jim Crow: Mass Incarceration in the Age of Colorblindness”, what would happen if the people accused refused to play along? Here is an excerpt (full article here):

On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

In telling Susan that she was right, I found myself uneasy. “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said. “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?”

Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

DOJ Releases Findings of Misconduct in Maricopa County Arizona Sheriff's Office

The Justice Department announced its' findings today in a civil rights investigation into the Maricopa County Sheriff's Office. The Justice Department found constitutional and civil rights abuses including discriminatory stops and arrests of Latinos. An excerpt of the press release follows and the full report is available here:

The Justice Department found reasonable cause to believe that MCSO, under the leadership of Sheriff Joseph M. Arpaio, has engaged in a pattern or practice of misconduct that violates the Constitution and federal law. The investigation, opened in June 2008, was conducted under the provisions of the Violent Crime Control and Law Enforcement Act of 1994 and Title VI of the Civil Rights Act of 1964, and the Title VI implementing regulations.

The department found reasonable cause to believe that a pattern or practice of unconstitutional conduct and/or violations of federal law occurred in several areas, including:

Discriminatory policing practices including unlawful stops, detentions and arrests of Latinos;
Unlawful retaliation against individuals exercising their First Amendment right to criticize MCSO’s policies or practices, including but not limited to practices relating to its discriminatory treatment of Latinos; and
Discriminatory jail practices against Latino inmates with limited English proficiency by punishing them and denying them critical services.

The Justice Department found a number of long-standing and entrenched systemic deficiencies that caused or contributed to these patterns of unlawful conduct, including:

A failure to implement policies guiding deputies on lawful policing practices;
Allowing specialized units to engage in unconstitutional practices;
Inadequate training;
Inadequate supervision;
An ineffective disciplinary, oversight and accountability system; and
A lack of sufficient external oversight and accountability.

In addition to these formal pattern or practice findings, the investigation uncovered additional areas of serious concern, including:

Use of excessive force;
Police practices that have the effect of significantly compromising MCSO’s ability to adequately protect Latino residents; and
Failure to adequately investigate allegations of sexual assaults.

While no formal findings of pattern or practice violations have been made in connection with these issues, the investigation remains ongoing.

Rights for Non Citizens (Spanish Version)

Rights for Non Citizens Courtesy of FlexYourRights

Boston Police Fight Cellphone Recording

Witnesses who thought that a police arrest was getting out of hand started to audio tape the incident on their cellphones and are now charged with illegal surveillance.

Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.
Within minutes, Glik said, he was in handcuffs.
“One of the officers asked me whether my phone had audio recording capabilities,’’ Glik, 33, said recently of the incident, which took place in October 2007. Glik acknowledged that it did, and then, he said, “my phone was seized, and I was arrested.’’
The charge? Illegal electronic surveillance.

full article here

Big Case on Voting Disenfranchisement with Criminal Convictions

From Ninth Circuit Blog:

Tuesday, January 05, 2010
Farrakhan v. Gregoire, No. 06-35669 (1-5-10). This is a big civil rights/disenfranchisement case. Originally filed in 1996, plaintiffs contended that due to racial discrimination in the State of Washington's criminal justice system, the automatic disenfranchisement of felons resulted in the denial of the right to vote on account of race. This violated Sec. 2 of the Voting Rights Act. The 9th (Tashima joined by Reinhardt) reversed the district court’s denial of summary judgment for plaintiffs in a 1983 action brought by minority citizens of Washington state who had lost their right to vote pursuant to the state’s felon disenfranchisement provision. In a prior appeal, Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert denied, 543 U.S. 984 (2004) ("Farrakhan I"), this court reversed the district court’s summary judgment and held that vote denial claims challenging felon disenfranchisement laws were cognizable under § 2 of the VRA.

The 9th first found that Farrakhan I remained binding precedent despite contrary decisions from the 1st, 2nd, and 11th circuits. The 9th recognized the circuit split with its decision in Farrakhan I, but did not recognized Farrakhan I as clearly erroneous or that it needed to be reconsidered. The 9th found that the plaintiffs had standing, and that the plaintiffs had demonstrated that the discriminatory impact of Washington’s felon disenfranchisement was attributable to racial discrimination in Washington’s criminal justice system. The panel thus held that Washington’s felon disenfranchisement law violated § 2 of the VRA. The 9th remanded with instructions to grant summary judgment to plaintiffs given the evidence already before the court. Dissenting, Judge McKeown argued that the majority erred in granting summary judgment for the plaintiffs and that the proper approach would have been to remand the case to the district court for consideration of the plaintiffs’ motion for summary judgment. On remand, the court would weigh the evidence as to racial discrimination, and to assess other factors to determine if the VRA had been violated.

Given the state constitutional issues, the statutory VRA issues, and a circuit split, plus the shadow of McCleskey, this could well be headed to the Supremes, if there is not an en banc first.

Spokane Police Officer Karl Thompson on Administrative Leave

The US Attorney’s Office announced this afternoon that the Federal Grand Jury has indicted Karl Thompson on Civil Rights violations of excessive force and making false statements during an investigation.

"I believe in seeking the truth and trust our criminal justice system to do just that," said Chief Kirkpatrick. 

Due to policy and procedure, Ofc. Thompson has been placed on temporary paid administrative leave. The next stage is governed by a city policy which requires the City Administrator to determine Ofc. Thompson’s status pending the outcome of the criminal trial.

Kid Strip-Search Constitutional?

From ACLU Blog

You may have heard the infamous case of the 13-year-old girl who was strip-searched by school officials for allegedly possession ibuprofen (Advil). Perhaps as surprising as the strip search itself is today’s news that the U.S. Supreme Court has granted review in the case — meaning it will reconsider a lower court’s ruling that the student’s constitutional rights were violated.

The Issue Presented to the Supreme Court is: Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy. ScotusBlog has the order and Petitions for Certiorari.

Laptop Privacy at the Border?

From ACLU of Washington:

Washington Legislators Try to Protect Laptop Privacy at Borders

Written by Doug Klunder
There's been some media attention lately to the lack of privacy US citizens face when returning home from abroad, especially with electronic equipment such as laptops and cell phones. This situation is an entirely foreseeable outcome from several Supreme Court decisions, which have essentially declared the border to be a Constitution-free zone. Most notable is U.S. v Flores-Montano, decided a few years ago. The Court unanimously said it was OK for Customs officials to disassemble a car at the border -- with no suspicion of wrongdoing! It's hard to believe, but true: next time you drive to Vancouver, your car may be legally dismantled at the whim of a Customs agent.

Not surprisingly, Customs and Border Patrol (CBP) doesn't see any reason that authority doesn't also extend to looking at laptops, cell phones and iPods that travelers bring across the border. And it's a lot easier to snoop through a computer than it is to take apart a car, so there are a growing number of stories of electronic equipment being searched at the border for no identifiable reason. Not only searched, but copied -- letting the Federal government peruse all files at its leisure, and retaining those files indefinitely. We recently discovered that the reason the stories are growing is that CBP has changed its internal policy. Whether or not it was required by the Constitution, CBP had a policy for over 20 years of only reading personal material when there was suspicion of wrongdoing, and only copying it when there was probable cause of wrongdoing (a higher standard). But the reasonable suspicion requirement was dropped a year ago, and the probable cause requirement was also dropped in the past few months.

So now laptops are treated the same as cars -- available to be searched and copied simply at the whim of a Customs agent. Whether it's a letter to Aunt Sally, emails to your lawyer, proprietary business information or photos of your trip to a topless beach, don't expect to keep any secrets from Customs if it's in a file stored on your laptop, even if it's encrypted. For a good description, take a look at this Washington Post article.

The good news is that CBP doesn't exist in a vacuum. Even if CBP doesn't think there's anything wrong with looking at people's electronic lives on a whim, some legislators do--including legislators from Washington state. Senator Maria Cantwell has co-sponsored S. 3612 (link not yet available) and Rep. Adam Smith has sponsored H.R. 7118, both called the Travelers' Privacy Protection Act of 2008. They would require Customs agents to have a reasonable suspicion of wrongdoing before searching electronic equipment such as laptops, and would require them to obtain a warrant before seizing or copying files.

“The Bush administration has sought to undo over twenty years of legal protections by searching personal electronics without probable cause,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “We applaud the introduction of this legislation and call on Congress to act quickly on this crucial issue for travelers. In today’s world, laptops, cell phones and digital cameras are the storehouses for our most personal information. We cannot allow our privacy to be breached under the guise of border security.”

Let's hope this bill passes. It's only common sense to expect some modicum of privacy when innocently travelling for either business or pleasure. Even if CBP doesn't have that common sense, Congress can force them to get some.

FBI's Civil Rights Initiative: No Trials Yet

From the Associated Press & New York Times:

"Flanked by officials from the NAACP and the Southern Poverty Law Center, FBI Director  Robert Mueller last year announced with considerable fanfare a new partnership between his agency and civil rights organizations.

The goal: To bring justice in long-ignored murders from the civil rights era.

The outcome: Not one case has been prosecuted under the FBI's Cold Case Initiative, which actually began two years ago with no fanfare at all.

The civil rights leaders present at Mueller's February 2007 news conference -- John Jackson of the NAACP, who now works for a private firm, and Richard Cohen, director of the Southern Poverty Law Center -- have come to question the government's motives.

''I've been disappointed that more cases have not been brought,'' Cohen said. ''I worried that too many people would get their hopes up. I don't want to be part of a show.''"

Full story here.