“How The Supreme Court Protects Bad Cops”: How Many More Deaths And Riots Will It Take Before SCOTUS Changes Course?
Last week, a grand jury was convened in St. Louis County, Mo., to examine the evidence against the police officer who killed Michael Brown, an unarmed black teenager, and to determine if he should be indicted. Attorney General Eric H. Holder Jr. even showed up to announce a separate federal investigation, and to promise that justice would be done. But if the conclusion is that the officer, Darren Wilson, acted improperly, the ability to hold him or Ferguson, Mo., accountable will be severely restricted by none other than the United States Supreme Court.
In recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.
The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.
The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires, or even taking the license plate number and tracking the driver down later.
The court has also weakened accountability by ruling that a local government can be held liable only if it is proved that the city’s or county’s own policy violated the Constitution. In almost every other area of law, an employer can be held liable if its employees, in the scope of their duties, injure others, even negligently. This encourages employers to control the conduct of their employees and ensures that those injured will be compensated.
A 2011 case, Connick v. Thompson, illustrates how difficult the Supreme Court has made it to prove municipal liability. John Thompson was convicted of an armed robbery and a murder and spent 18 years in prison, 14 of them on death row, because of prosecutorial misconduct. Two days before Mr. Thompson’s trial began in New Orleans, the assistant district attorney received the crime lab’s report, which stated that the perpetrator of the armed robbery had a blood type that did not match Mr. Thompson’s. The defense was not told this crucial information.
Through a series of coincidences, Mr. Thompson’s lawyer discovered the blood evidence soon before the scheduled execution. New testing was done and again the blood of the perpetrator didn’t match Mr. Thompson’s DNA or even his blood type. His conviction was overturned, and he was eventually acquitted of all charges.
The district attorney’s office, which had a notorious history of not turning over exculpatory evidence to defendants, conceded that it had violated its constitutional obligation. Mr. Thompson sued the City of New Orleans, which employed the prosecutors, and was awarded $14 million.
But the Supreme Court reversed that decision, in a 5-to-4 vote, and held that the local government was not liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the majority, said that New Orleans could not be held liable because it could not be proved that its own policies had violated the Constitution. The fact that its prosecutor blatantly violated the Constitution was not enough to make the city liable.
Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.
When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.
The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.
Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?
By: Erwin Chemerinsky, Dean of the School of Law at the University of California, Irvine: Op-Ed Contributor, The New York Times, August 26, 2014
“Ferguson, Watts And A Dream Deferred”: Things Have Gone Off Track And Unlikely To Be Reversed In The Foreseeable Future
When rioting broke out in the Watts section of Los Angeles in the summer of 1965, African-Americans didn’t — couldn’t — know it yet, but the next three decades would turn out to be a period of sustained gains in terms of income, jobs, education and the status of blacks relative to whites.
The rioting this past week in Ferguson, Mo., by contrast, follows more than a decade of economic stagnation and worse for many black Americans, a trend that appears unlikely to be reversed in the foreseeable future.
The week of violence in L.A. began just five days after President Lyndon B. Johnson signed the Voting Rights Act of 1965, and 13 months after he had signed the Civil Rights Act of 1964 – the impact of which had not yet been felt in the daily lives of African-Americans.
During the decades following this landmark legislation, African-Americans made immense progress. The percentage of blacks over the age 25 with a high school degree more than tripled, going from just under 20 percent, or less than half the white rate, to more than 70 percent, nearly matching the white rate. The percentage of blacks over 25 with a college degree quadrupled from 3 to 12 percent over the same period.
Similarly, black median household income grew, in inflation-adjusted dollars, from $22,974 in 1967 to $30,439 in 2000, a 32.5 percent increase, more than double the 14.2 percent increase for whites. Although black household income remained well below white levels in 2000 – 66.3 percent of the white median – it was significantly better than it had been in 1967, when it was 57.1 percent of white median income.
Things went off track, however, as the 21st century approached. The riots in Ferguson follow a period of setback for African-Americans, despite the fact that we have a sitting black president in the White House.
While the economic downturns of the last decade-and-a-half have taken their toll on the median income of all races and ethnic groups, blacks have been the hardest hit. By 2012, black median household income had fallen to 58.4 percent of white income, almost back to where it was in 1967 — 7.9 points below its level in 1999. (This Census Bureau chart shows the long-term income trends for major demographic groups in America.)
Income is a powerful measure of well-being, but equally important is the chance a person has of improving his or her position in life — of whether expectations are rising or falling.
Inequality in America is not news, and there have been a number of studies published recently that challenge the old notion that the United States is the land of opportunity for all, but for African Americans, the findings are particularly bleak.
From 1965 to 2000, the poverty rate among blacks fell from 41.8 percent to 22.5 percent. Since then, it has risen to 27.2 percent. The white poverty rate also rose during this period, but by a more modest 3.2 points.
Blacks suffered more than whites as a result of the 2008-9 financial meltdown and its aftermath, but the negative trends for African-Americans began before then.
A 2007 pre-recession Brookings Institution study by Julia Isaacs, “Economic Mobility of Black and White Families,” found that “a majority of blacks born to middle-income parents grow up to have less income than their parents. Only 31 percent of black children born to parents in the middle of the income distribution have family income greater than their parents, compared to 68 percent of white children from the same income bracket.”
White children, Isaacs reports, “are more likely to move up the ladder while black children are more likely to fall down.” Thirty-seven percent of white children born to families in the middle quintile of the income distribution move up to the top two quintiles, compared with only 17 percent of black children. Forty-five percent of black children from solidly middle class families “end up falling to the bottom of the income distribution, compared with only 16 percent of white children,” Isaacs found.
A more recent April 2014 study of black and white mobility by Bhashkar Mazumder, a senior economist at the Chicago Federal Reserve, showed similar results. That report is even more explicitly pessimistic.
The Chicago Fed study found that among black children born between the late 1950s and the early 1980s into families in the bottom fifth of the income distribution, half remained there as adults, compared with 26 percent of whites born in the bottom quintile.
Of black children born to families in the top half of the income distribution, 60 percent fell into the bottom half as working age adults, compared with 36 percent of similarly situated whites.
Mazumder concluded that if future generations of white and black Americans continued to experience the same rates of intergenerational mobility, “we should expect to see that blacks on average would not make any relative progress.” He noted that this recent time period stood “in direct contrast to other epochs in which blacks have made steady progress reducing racial differentials.”
One optimistic note is that the white reaction to events in Ferguson, including the commentary of some outspoken white conservatives, has been sympathetic to the anger and outrage over the police shooting of an unarmed black teenager. This stands in sharp distinction to the aftermath of the violence in Los Angeles in 1965.
Watts – and the string of urban riots in African-American neighborhoods from 1964 to 1968 — was crucial to the expansion of the conservative coalition that dominated most federal elections from 1966 to 2004. Fear of violence helped elect Ronald Reagan governor of California in 1966 and Richard Nixon to the presidency in 1968. Law and order, white backlash, the silent majority, and racial integration became core political preoccupations for once loyal Democratic whites as they converted to the Republican Party.
Just two years after the Democratic landslide of 1964, in the 1966 midterm election, Republicans picked up 47 seats in the House. “How long are we going to abdicate law and order favor of a soft social theory that the man who heaves a brick through your window or tosses a firebomb into your car is simply the misunderstood and underprivileged product of a broken home?” Gerald Ford, then the House minority leader, asked, with the answer assumed by the question.
Nearly half a century later, however, conservatives have voiced ambivalent responses to the Ferguson rioting. On Aug. 15, Erick Erickson, a popular conservative blogger at Red State, wrote a widely circulated posting titled “Must We Have a Dead White Kid?”
“Given what happened in Ferguson, the community had every right to be angry,” Erickson wrote. “The police bungled their handling of the matter, became very defensive and behaved more like a paramilitary unit than a police force. Property damage and violence by the citizenry cannot be excused, but is also the result of a community seeing those who are supposed to protect and serve instead suiting up and playing soldier.”
Erickson was by no means alone among conservatives. Sharing his views were Senator Rand Paul of Kentucky, a prospective Republican presidential candidate, and Charles C. W. Cooke, a National Review columnist, who argued that conservatives should “acknowledge that — even when our understanding of the facts is limited — incidents such as this open old and real wounds.”
The fatal shooting of Michael Brown has produced a rare right-left convergence, a shared recognition that the overwhelmingly white police department of Ferguson has become a hostile occupying force for much of the town’s majority black population.
There is, however, no left-right consensus about how to turn back the grim economic trends for African-Americans, much less what caused them.
Competing explanations for the difficulties that continue to plague African-Americans are a central element in the contemporary polarization between left and right; in fact, they help define it.
Liberals and conservatives disagree vehemently over the role of such factors as the decline of manufacturing jobs, the rise of single parenthood, racial discrimination, the poor quality of public schools, residential segregation, high incarceration rates, test score differentials, parental investment, crime rates, welfare incentives, the lack of engaged fathers – the list goes on.
Democrats in the main are convinced that impediments to black advancement are structural, amenable to government intervention: a strong and better-funded safety net; public investment in manufacturing and infrastructure employment; more rigorous enforcement of anti-discrimination laws.
Many Republicans focus instead on what they see as moral collapse and the erosion of such values as hard work and traditional family formation among the poor. Government spending on social programs, according to this view, creates disincentives to work and more trouble.
The urban riots of the second half of the 1960s prompted Washington to pump out money, legislation, judicial decisions and regulatory change to outlaw de jure discrimination, to bring African-Americans to the ballot box, to create jobs and to vastly expand the scope of anti-poverty programs.
Civil unrest also drew attention to the necessity of addressing police brutality.
Today, however, political and policy-making stasis driven by gridlock — despite a momentary concordance between left and right on this particular shooting — insures that we will undertake no comparable initiatives to reverse or even stem the trends that have put black Americans at an increasing disadvantage in relation to whites — a situation that plays no small part in fueling the rage currently on display in Ferguson.
By: Thomas B. Edsall, Contributing Op-Ed Writer, The New York Times, August 19, 2014
“Obama’s Executive Order Rights A Wrong”: One Of The Most Important Positive Steps For Civil Rights In Last 20 Years
Little noticed in coverage of President Barack Obama’s signing of the Fair Play and Safe Workplaces executive order July 31 was a provision that has been called “one of the most important positive steps for civil rights in the last 20 years.”
The statement comes from Paul Bland of the public interest group Public Justice, quoted by Emily Bazelon of Slate. He’s right; what he’s referring to is a provision of the order that bars employers from forcing workers to bring workplace discrimination, sexual assault or sexual harassment cases only through arbitration. As Bazelon reports, the order applies to firms with federal contracts valued at more than $1 million. But that’s plenty.
The arbitration provision got little public attention after the signing, in part because business lobbyists were so busy carrying on about other aspects of the executive order.
As my colleague Christi Parsons reported, businesses are exercised about a rule requiring prospective federal contractors to disclose labor law violations dating back three years and government agencies to take those violations into account when handing out federal contracts. The idea is to goad employers into settling the violations before they apply for contracts.
Business mouthpieces complain that the provision will create a “blacklist” barring companies with even minor violations from hopping on the government gravy train. Repeat after me: “Tough.”
The arbitration provision, however, addresses what may be an even more important abuse. As a private venue for dispute resolution, arbitration may be an effective way to keep commercial disagreement from clogging court dockets. That’s true chiefly when all the parties come to arbitration with roughly equivalent resources.
When it’s used by employers against employees, or by corporations against aggrieved customers, and when it’s forced down complainants’ throats against their wishes, however, it’s a scourge.
Arbitration provisions have proliferated everywhere, and it’s a safe bet that many, if not most, people forced into arbitration didn’t even know they were subject to the requirement until after their dispute arose – arbitration clauses are buried in the boilerplate you sign when you enroll with a cable company, go to a doctor or hospital, or take a new job. Arbitration typically favors the bigger party — they know their way around the process better, and they can take better advantage of what are often very loose standards of evidence and testimony in arbitration.
The Obama order strikes at the heart of this injustice by allowing complaints about workplace discrimination or abuse to be arbitrated only with the consent of the parties after the disputes arise. Surprise arbitration clauses, in other words, are out.
It’s hard not to see the order as a reproach to the Supreme Court and other courts. Judges are big fans of arbitration, in part because it keeps tedious commercial disputes out of their hair. The key case upholding arbitration clauses involved AT&T and a customer dispute over the real cost of “free” cellphones sold by the mobile carrier.
A California federal judge and the 9th Circuit Court of Appeals rejected AT&T’s demand to compel arbitration. But the Supreme Court sided with the company in a 5-4 ruling (naturally).
This was a reflection of what legal scholar David Cole recently called the court’s “unremittingly conservative” narrowing of access to the judiciary to remedy legal wrongs. The Earl Warren Court, he observed in the New York Review of Books, “viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process.”
The Roberts Court has put its thumb on the other side of the scale.
The Obama order shifts the balance just a little bit back the other way.
By: Michael Hiltzik, Columnist for The Los Angeles Times; The National Memo, August 14, 2014
Five days after a police officer fired multiple rounds at and killed 18-year-old Michael Brown in Ferguson, Missouri, we now know that the officer’s name is Darren Wilson. Thanks to Ferguson Police Chief Thomas Jackson, we also know that officers believe Brown had just strong-armed a convenience store clerk for a $48.99 box of Swisher Sweets cigars. Jackson provided the incident report from that robbery to reporters in Missouri this morning. He took no questions, suggesting reporters take some time to “digest it.”
Having read it and re-read it and digested it, I find the Ferguson police department’s behavior over the past week even more baffling than I did before.
For the sake of argument let’s assume (a huge assumption) that the Ferguson police are not trying to build a public case for Wilson’s innocence by assassinating a dead man’s character.
Why did it take five days for them to release this information, none of which has anything to do with the circumstances of Brown’s death?
What happened to the box of Swisher Sweets?
Per Matt Yglesias, if Brown was a suspect in a robbery, why wasn’t his accomplice Dorian Johnson arrested and charged rather than allowed to escape and appear in multiple television news interviews?
Was Johnson lying when he claimed that Wilson approached him and Brown not to question or arrest them for robbery but to tell them to “get the fuck onto the sidewalk”?
We don’t know because Jackson says he “cannot discuss the investigation about the attempted apprehension of the suspect in that strong-arm robbery. That goes to the county prosecutor’s office.”
I’m sure there are more questions. This is just for starters. But it smells very bad when a police department refuses to release any information about a deadly officer-involved shooting, unleashing five days of madness, and then reverses course to assure the public that Brown was a menacing, cigar-stealing thug.
I’ve seen a number of people online entertain an obvious but important hypothetical series of events like the ones in Ferguson, only with races reversed. Among the reasons such a scenario is so hard for so many people to fathom is that we instinctually believe protests would be unnecessary if a black officer killed a white kid because justice would be meted out swiftly and transparently.
Do a quick Google search for news stories about a black police officer killing a white teenager and the internet will spit back dozens of stories about precisely the opposite scenario. Michael Brown after Michael Brown.
But you’ll also find the Orange, Texas case of Captain Robert Arnold, a black Ranger who wrongfully killed James Whitehead, a white former Marine. Whitehead barked racial slurs at Arnold, who was responding to an altercation at an auto parts store, but the police insisted the slurs had nothing to do with the use of force. Arnold’s name was released to the press immediately. He was placed on administrative leave following the shooting. A Grand Jury said it lacked sufficient evidence to recommend a prosecution, but Arnold was nevertheless suspended indefinitely because, as police chief Sam Kittrell told Arnold in a letter, “alternative measures on your part would have prevented the necessity of the use of deadly force.”
Perhaps the investigation into the Wilson shooting will proceed just as smoothly from this point forward. Perhaps Jackson will have compelling answers to the above questions next time he meets the press. But nothing we’ve seen so far inspires much confidence that either of these things will happen.
UPDATE: We now have an answer to question number four, above. According to Police Chief Jackson, “The initial contact between the officer [Darren Wilson] and Mr. Brown was not related to the robbery.” Wilson approached Brown and his companion “because they were walking down the middle of the street, blocking traffic.”
In other words, Wilson didn’t know about the robbery at all when the encounter began. Which calls the incident report’s legal relevance to the circumstance of the shooting into question. If the altercation began under totally different pretenses, why try to connect the two? One reason would be to build a narrative that’s consistent with Wilson’s story. If Brown had just committed a crime, and was willing to tussle, and Wilson thought he was dealing with a couple of harmless jaywalkers, then it’s easier to believe that Brown was combative and Wilson was caught off guard. Both things need to be true if we’re to believe Wilson’s version of events—that Brown assaulted him, lunged for his gun, and was subsequently shot.
By: Brian Beutler, The New Republic, August 15, 2014
“Subtle Forms Of Discrimination”: Without Economic And Educational Justice, There Is No Racial Justice
On a hot, dusty June day fifty years ago, during what became known as Freedom Summer, college students began to arrive in Mississippi—then the most closed society in America—to help register black residents to vote. Three civil rights workers were brutally murdered, a trauma that pierced the heart of our nation and thrust into the open the racist oppression of black political rights by Mississippi’s leaders.
Since that momentous summer, our country has made great strides to extend civil and political rights to all Americans regardless of race. Still, African Americans today face obstacles just as real as poll taxes and segregated restrooms; the difference is that these obstacles are now embedded in our institutions and social structures instead of being posted on public walls.
The reality is that, a half-century after Freedom Summer, African Americans continue to face severe barriers not just to voting but also to economic security. In fact, on the economic front, some indicators have even gotten worse and problems more entrenched in recent decades. The gap between black and white household incomes, for example, is actually wider today than it was in the mid-1960s. So if the primary Civil Rights struggle 50 years ago was for basic political rights, today it is for equal access to the ladder of economic mobility.
A key factor behind persistent racial inequality involves the failures of our education system. While African Americans may no longer be barred from attending school with white children, they still face disproportionate challenges in accessing the quality education that is a stepping stone to a decent life in America. One example is that black students today must survive a climate of punitive and discriminatory discipline that unfairly pushes them out of school and into the criminal justice system. Only last year, a sweeping federal settlement of charges of discriminatory discipline was finalized in the town of Meridian—the same town from which the three murdered civil rights workers left in 1964 on their final day of advocacy. Continued support is needed for such efforts to interrupt the school-to-prison pipeline.
The job market is another area still rife with racial inequities. While high school graduation rates for African Americans have improved dramatically since 1964, nearly 35 percent of recent black male high school graduates nationwide have no job—a far higher jobless rate than any other group. However, this summer, 100 of these students in the Mississippi Delta and Biloxi are now working full time in a project to support the restoration of federal summer jobs programs. Although it was launched on short notice, this initiative was flooded with three times more applications than available positions. Providing summer jobs opportunities is a vital first step towards ensuring economic stability.
In higher education, the white-black gap in college graduation has worsened, setting the stage for similar racial disparities in the job market. One problem is that African Americans seeking to advance beyond a minimum wage job often are recruited through targeted advertising into fast-track for-profit career schools as an alternative to traditional college education. Many of these companies charge hefty tuition fees, even as they fail to deliver degrees that qualify people for their intended career. Over the past several months, the U. S. Department of Education has proposed regulations to curb the misconduct of these predatory schools and ensure that career degrees lead to employment. Reining in these predatory schools will require support for strong final regulations, which are to be issued this fall.
It’s not just education and jobs: Deregulation in the lending industry in the 1980s further narrowed opportunities for many working African American families. Even as families supported by a minimum wage earner sank below the poverty line, state legislatures enabled the emergence of the predatory payday lending industry by carving out exceptions to their usury laws to allow small dollar, high-interest loans. So, just as the paychecks of poor families no longer met basic survival needs, and as traditional banks withdrew service from low-income neighborhoods, the payday industry ramped up pressure to ensnare borrowers into a cycle of high-interest loans that become a revolving door of debt.
In Mississippi, after fast-cash lobbyists blocked reforms in the state legislature, the Mississippi Center for Justice launched a new model for providing loans to low-income borrowers: the New Roots Credit Partnership, an alliance between employers and banks to provide emergency loans on fair, non-predatory terms. A growing number of Mississippi employers are signing up for this program, which is a promising model for helping low-income families achieve economic security. We need to expand such efforts and ensure all Americans have access to fair banking services.
Fifty years after Freedom Summer, we recognize that America cannot know true racial justice until there is economic justice. We should attack those more subtle forms of discrimination with just as much energy and determination as did those who started a powerful movement in the long, hot summer of 1964.
By: Reilly Morse, The American Prospect, July 3, 2014