“A Culture Where Avoidable Force Becomes Inevitable”: Justice Department; Cleveland Police Use ‘Unnecessary’ Force
Cleveland police have routinely engaged in “unreasonable and unnecessary” force, including a half-hour police chase involving 100 officers that left two unarmed African-Americans dead when police mistook the car backfiring for gunshots and shot each of them more than 20 times, a Justice Department investigation revealed Thursday.
The probe, part of an ongoing series of “pattern or practice” investigations into the nation’s police departments, also found that Cleveland police often needlessly shot residents, struck them with head blows and subjected them to Taser weapons and chemical spray.
Taken together, the incidents in Ohio’s second-largest city, the Justice Department concluded, have led to a situation where “avoidable force becomes inevitable.”
Attorney General Eric Holder, in announcing the Cleveland findings a day after he opened a separate investigation into the chokehold death of an unarmed black man in New York, recommitted his office to the Obama administration’s Building Community Trust initiative.
The effort is designed to “foster strong, collaborative relationships between local police and communities they protect and serve,” the attorney general said.
In Cleveland, Holder said, the issues of police and community relationships are “complex and the problems longstanding.” But, he said, “we have seen in city after city where we have engaged that meaningful change is possible.”
Faced with the federal probe’s findings, Cleveland police and city officials have signed a statement of principles committing them to mending police-community relations. Holder said the plan will lead to a consent decree that would be “court-enforceable,” with an independent monitor to oversee improvements and ensure that reforms are made.
Similar agreements have been reached after Justice Department investigations into police departments in other communities in states including California, Arizona, New Mexico and Louisiana.
The Cleveland probe was opened after a local newspaper, the Plain Dealer, revealed in May 2011 that six officers accused of brutality had used force on 29 suspects during a two-year period.
By: Richard A. Serrano, The Los Angeles Times; The National Memo, December 4, 2014
“How To Make The Supreme Court More Accountable”: The Most Powerful, Least Accountable Public Institution In The Country
Justice Samuel A. Alito’s sister is a high-powered labor attorney who represents management in disputes with workers. Justice Elena Kagan’s brother, a teacher at an elite public school in New York, has protested the school’s admissions process because of low minority enrollment. And Justice Stephen G. Breyer’s son co-founded a tech company that broadcasts civil court proceedings.
Does having relatives involved in labor disputes, affirmative action battles, and cameras in courtrooms affect how Supreme Court justices decide cases and manage their institution? They say no, and we’re supposed to take them at their word. But is “trust us” really good enough for the nation’s highest court?
A confluence of recent events has made the Supreme Court the most powerful, least accountable public institution in the country. It is time to make the justices more accountable to the American people.
The court rules on wide-ranging issues fundamental to American life — where we can pray, who is eligible to vote and marry, how much regulation businesses should face, and who has access to health insurance. And with Congress gridlocked and relations between the legislative and executive branches at a historic nadir, the court’s opinions are binding and irreversible. So much for checks and balances.
In spite of this vast power, the justices have little accountability. Not only do they decide for themselves when to recuse themselves from cases in which they have conflicts; they also aren’t bound to a code of ethics the way the rest of federal judiciary is. They can decide how much information on investments and travel to release in their annual financial disclosure reports, and they determine when and where people can demonstrate near their building.
Yet for all the flaws and impenetrability at the Supreme Court, the problems could be solved rather quickly. Unlike the consensus required to make changes in Congress, the Supreme Court is largely in charge of its own rules — and Chief Justice John G. Roberts Jr. himself could usher in most of the vital changes needed, including tightening requirements on recusals, requiring the justices to adhere to the Code of Conduct for U.S. judges, posting disclosure reports online, providing advance notice for public appearances and permitting live audio and video in the courtroom.
Roberts has been loath to implement any changes. Years ago when he was asked about the benefits of permitting live broadcasts of oral arguments, Roberts replied, “It’s not our job to educate the public,” as if saying he was comfortable hiding behind the cast-iron doors in perpetuity.
A new organization I’ve launched, Fix the Court, will take on some of what the court should be doing itself. Each week, we release information online about the justices related to five issue areas — recusals, disclosures, ethics, public appearances and media and public access. But public pressure is also needed to encourage the justices to be more transparent.
You may not have known, for example, that Justice Clarence Thomas ruled on Bush v. Gore while his wife was collecting candidates’ resumes to recommend to a new Bush administration. Or that Justice Ruth Bader Ginsburg spoke at a National Organization for Women conference soon after ruling on a case in which the group had submitted a brief to the court. (Ginsburg sided with NOW in the case.) Or that just last year, Justice Antonin Scalia was part of the court majority siding with anti-abortion advocates who said a Massachusetts law allowing a buffer zone around abortion clinics violated the 1st Amendment — even though his wife had been on the board of a pro-life organization and served as a “crisis counselor” to pregnant women. These are but a few of the examples where the justices may not have exercised proper discretion in hearing a case. There are dozens more.
Mustering public support for reform is the first step, and that shouldn’t be too difficult: Despite the well-documented political divisions across the country, Republicans, Democrats and Independents are united in their desire for a more accountable Supreme Court. Recent polling found that more than 85 percent of Americans of all ideologies support requiring the justices to follow the judicial code of conduct from which they are currently exempt. Large majorities also support cameras in the courtroom and compelling the justices to post disclosure reports online.
The recent elections were a stark reminder of how responsive and accountable Congress and the president can be to the will of the public. Frustrated voters displayed little reluctance sending a message to Washington lawmakers, kicking some out and starting over.
Supreme Court justices, rightly, can’t simply be voted out of office. But the time has come to end the special rules that exempt them from scrutiny by the American public.
By: Gabe Roth, Executive Director of Fix the Court, The Los Angeles Times; The National Memo, December 4, 2014
“Invasive And Humiliating”: Court Deals Blow To Drug Testing Of Florida Welfare Recipients
A federal appeals court on Wednesday upheld a lower federal court ruling that Florida Gov. Rick Scott’s crusade to conduct drug tests on welfare recipients as a condition of their benefits was unconstitutional.
The unanimous ruling came from a bipartisan panel of judges and broadly concluded that people cannot be forced to surrender their constitutional rights as a condition of receiving a government benefit. The decision came just two weeks after the 11th U.S. Circuit Court of Appeals judges heard arguments in the case.
In an exhaustive, 54-page ruling, Judge Stanley Marcus concluded that “citizens do not abandon all hope of privacy by applying for government assistance.” He said that “the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable” and that “by virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy.”
In 2011, Scott initiated a program to require drug testing as a condition for welfare applicants to receive Temporary Assistance for Needy Families benefits. The ACLU sued the state on behalf of Luis Lebron, a Navy veteran and single father.
In a statement, Maria Kayanan, ACLU of Florida associate legal director, said she was “pleased” by the court’s opinion.
“This is a resounding affirmation of the values that the Fourth Amendment of the U.S. Constitution protects — that none of us can be forced to submit to invasive and humiliating searches at the whim of the government, and that the Constitution protects the poor and the wealthy alike,” she said.
A circuit court judge ruled in 2013 that the program was an unconstitutional violation of the 4th Amendment protections against unreasonable searches and seizures, and halted testing. Scott appealed to the federal appeals court and a hearing was held Nov. 20.
The Florida Department of Children and Families had argued that the drug tests were warranted for all TANF recipients because the state had an interest in protecting children of welfare recipients who were using drugs. But Marcus concluded that “the State has presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families. After all, the State acknowledges that drug use harms all individuals and families, but the State does not — and cannot — claim an entitlement to drug test all parents of all children.”
In a separate case, Marcus wrote the opinion that struck down Scott’s attempt to randomly test state workers for drugs. Scott has considered appealing that ruling to the U.S. Supreme Court after removing from the list about half of the state’s classes of workers who would be eligible for drug screening.
By: Mary Ellen Klas, The Miami Herald (TNS); The National Memo, December 3, 2014
“Justice Must Satisfy The Appearance Of Justice”: The System Must Counteract Prosecutors’ Natural Sympathies For Cops
“Justice must satisfy the appearance of justice,” Felix Frankfurter wrote, in a Supreme Court case 60 years ago.
That edict — a foundation of democracy — has not been observed in some recent high-profile cases in which grand juries have refused to indict police officers for killing unarmed African-Americans. The resulting injury is not just to criminal justice but to the legitimacy of the government itself.
As a former prosecutor let me put this as directly as possible: Blame the prosecutors, not the grand jurors. There is one reason that Daniel Pantaleo is not being charged in the death of Eric Garner. It’s because District Attorney Dan Donovan of Staten Island did not want him to be.
Why not? The cynical point of view is that Donovan was playing to his base. Staten Island is the whitest and most conservative borough in New York. It’s also home for many cops. Maybe Donovan figured he would take heat however the grand jury came out, but the people who would be protesting in the street in the event of no indictment did not include most of his electorate.
But there is a more benign explanation. Maybe Donovan just appreciates that cops have one of the most difficult jobs in the world, and so, he cuts them some slack. It’s a very human reaction.
I speak from whence I know. One reason I became a prosecutor is that I had a number of bad experiences with the police where they racially profiled or just generally disrespected me. I thought I could go in as an undercover brother and change the system from the inside. What happened instead is that the system changed me.
When you work with cops every day you definitely gain more respect for their difficult work. And you need them to help you make your cases (every prosecutor has experienced having a police officer catch an attitude, sometimes in the middle of a trial, and purposely ruin your case because they don’t like you).
And finally policing is like most other employment — a few people do most of the work. So prosecutors see the same cops over and over, and they bond with them. It’s not so much that they excuse egregious misconduct as that they cast a blind eye. Nothing irks a cop more than an elitist prosecutor treating him or her like “some suspect.”
So the problem stems from the culture of the prosecutor’s office, compounded by the fact that, like most lawyers, prosecutors are competitive and ambitious and the way you move ahead is to win your cases, and the way you win cases is get your star witnesses — the cops — to go the extra mile. All that makes it really tough to try to send one of them to prison — even when they have messed up big time, as I believe Pantaleo did when he placed Eric Garner in a banned chokehold.
In a democracy, no one should be above the law. It’s fine for citizens to profoundly respect the men and women who serve as law enforcement officers. But when those people break the law, they must be held accountable just like anyone else. The automatic appointment of special prosecutors in criminal investigations of police is the best way to avoid district attorneys’ natural biases and make sure that justice satisfies the appearance of justice.
By: Paul Butler, Former Prosecutor and a Professor at Georgetown University Law Center; The Opinion Pages, Room for Debate, The New York Times, December 4, 2014
“Adding Insult To Injury”: First Mike Brown, Then Eric Garner; Prosecutors Can’t Be Trusted To Try Cops
A New York City man who was at most guilty of selling loose cigarettes on the street was tackled and placed in a chokehold by a police officer in late August. The man, Eric Garner, protested that he couldn’t breathe, but the officer with his arm around Garner’s didn’t let up. Today, a grand jury announced that it would not indict the officer, Daniel Pantaleo.
The lack of indictment comes just a week after a grand jury in Ferguson, Missouri, did not indict a police officer there, Darren Wilson, for his role in the shooting death of an unarmed teenager, Michael Brown. Both Eric Garner and Michael Brown are black and their deaths, within just days of each other in August, helped reignite a national conversation—as well as protests—about disproportionate police violence against the black community. At a time when black men are killed by police with disturbing regularity, Garner and Brown’s deaths added urgency to a long-simmering but woefully unaddressed crisis.
I’ll leave it to the legal analysts to rehash the evidence presented to the Pantaleo grand jury. Hopefully there will be a transparent accounting of what was introduced. But the fact that two grand juries in fairly rapid succession have failed to indict police officers involved in highly questionable deaths of unarmed black men should give us all pause. In Panaleo’s case, the grand jury’s refusal to indict him despite his use of dangerous and violent tactics doesn’t pass the smell test. Add in historic patterns of NYPD abuse against black men in New York—Amadou Diallo, Abner Loiuma, stop and frisk generally—and the lack of an indictment downright stinks.
Combined, the two cases suggest that more should be done to decouple criminal investigations of police abuse from the conventional prosecutorial system. Attorneys who usually work hand-in-hand with the police in pursuing other criminal cases can’t honestly be expected to be impartial and aggressive in then prosecuting those same officers. It’s worth noting that when prosecutors nationwide decide to bring charges before a grand jury, they usually succeed. In 2010, for instance, federal prosecutors sought indictments in about 162,000 cases and in only 11 cases did grand juries not return indictments. In the face of those statistics, these two non-indictments are glaring.
Even worse, the failure to indict the officers who killed both Eric Garner and Michael Brown deprives their communities of the transparency and accountability that trials ensure. No one is saying that the officers should be tried if there’s not sufficient evidence, but many legal analysts have agreed there’s enough in both cases to at least warrant a trial. There are questions about facts in terms of both Michael Brown and Eric Garner’s movements before their death, questions of fact that should be debated in a court. There are questions about the officers’ states of mind—questions that could be fleshed out and better understood if the cases went to trial.
But the lack of indictments, now twice in a row, seems to add insult to injury—that not only are black men routinely, disproportionately victimized by the police but they are victimized by a legal system that refuses to hold the police accountable.
By: Sally Kohn, The Daily Beast, December 3, 2014
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