#unreasonably prolonged detention

[tearsofrefugees]

[bokatankryse]

Scott Morrison is a terrible person

“In November 2014, the Australian Human Rights Commission delivered a report to the Government which found that Morrison failed in his responsibility to act in the best interests of children in detention during his time as Minister. The overarching finding of the inquiry was that the prolonged, mandatory detention of asylum seeker children caused them significant mental and physical illness and developmental delays, in breach of Australia's international obligations.” 

(link to inquiry)

Australians, this is the man who is now running our country. He has proven again and again that he doesn’t give a shit about refugees, as well as being a generally horrible person. 

He launched the Operation Sovereign Borders/Stop the Boats policy in 2013. 

When the Gillard government decided to pay for the family members of the victims to fly to Sydney for the funerals in 2011, Scott Morrison criticised the decision, saying it was unreasonable to expect taxpayers to foot the bill for flying family members from Christmas Island to Sydney. 

When a fellow members of the coalition called him out on the heartlessness of his comments, he conceded that “timing of my comments over the last 24 hours was insensitive and was inappropriate”, but otherwise stood by them. 

Back in 2014 he had the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill  passed to give him "unprecedented, unchallengeable, and secret powers to control the lives of asylum seekers”, and make him one of the most powerful people in the Australian government.

“No other minister, not the prime minister, not the foreign minister, not the attorney-general, has the same unchecked control over the lives of other people.”

Here’s a few of the things the bill now allows the immigration minister to do:

“push any asylum seeker boat back into the sea and leave it there”

“block an asylum seeker from ever making a protection claim on the ill-defined grounds of “character” or “national interest”. [The minister’s] reasons can be secret.” 

“detain people without charge, or deport them to any country he chooses even if it is known they’ll be tortured there”

also the minister’s decisions cannot be questioned

“When he was treasurer, he addressed the House of Representatives while holding a lump of coal, stating "This is coal. Don't be afraid. Don't be scared. It won't hurt you," and accusing those concerned about the environmental impact of the coal industry of having "an ideological, pathological fear of coal."” 

He was (and presumably still is) opposed to same-sex marriage, and when replying to a statement made by Penny Wong, the first female openly LGBT Australian federal parliamentarian, about how the plebiscite would incite homophobia, compared experiencing homophobia to experiencing “bigotry” for his views. 

(which is bullshit, because he can choose his opinions, but a person can’t choose to be gay, so they are in no way comparable.)

After Australia voted yes, he tried to make an amendment to the Marriage Amendment (Definition and Religious Freedoms) Bill to allow “parents to remove children from classes if "non-traditional" marriage is discussed”. Thankfully, he failed.

These are just some of the things he’s responsible for. Please, please don’t let yourself forget and don’t let him get away with being a terrible person. The next federal election is going to be within the next year, so, if you can, educate others so that we don’t vote the coalition into power again.

[ericfruits]

Qualified Immunity And Government Attorneys: No Liability When Court Disagrees On Interpretation Of Law

The United States Court of Appeals for the Fourth Circuit reversed the denial of qualified immunity to two government attorneys.

The plaintiff had sued on a theory that the attorney's erroneous interpretation of law had prolonged his incarceration

This suit raises interesting questions about the liability of government attorneys when an agency adopts their legal interpretation, but a court later disagrees. According to lawyers for the South Carolina Department of Corrections (“SCDC”), state law required Marion Campbell to serve at least eighty-five percent of his drug-distribution sentence before he could be released. The South Carolina Administrative Law Court agreed; the South Carolina Court of Appeals did not. Based on the appeals court’s ruling, the SCDC should have freed Campbell earlier than he was actually released based on the application of work and good-conduct credits.

After his release, Campbell filed this § 1983 suit. He asserts that the SCDC lawyers’ analysis of South Carolina law was erroneous and violated the Eighth Amendment’s prohibition on “cruel and unusual punishments” by prolonging his detention. But we find that qualified immunity shields the government attorneys. Assuming Campbell’s continued detention falls within the ambit of the Eighth Amendment, the SCDC lawyers were not deliberately indifferent to his plight. So Campbell has failed to make out a constitutional violation, and his suit must be dismissed.

Plaintiff had been incarcerated for a drug offense

To fulfill its responsibilities—including determining parole eligibility and calculating release dates based on earned credits—the SCDC needed to sort through the new law in all its contradictions. The task fell to Chris Florian, the SCDC’s deputy general counsel. Florian pored over the South Carolina caselaw on statutory interpretation and legislative intent. And based on his review, he concluded that South Carolina law required the SCDC to adopt a legal interpretation that harmonized potentially contradictory provisions of a statute, if possible.

Below

Finding the meaning of the state law obvious, the district court explained that Campbell’s Eighth Amendment right was, therefore, clearly established. So Florian and Tatarsky were not entitled to qualified immunity.

Here

Simply put, the record shows that Florian acted reasonably to confront the interpretive problem before him. See Farmer, 511 U.S. at 845 (“[P]rison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.”). Indeed, Florian approached the relevant statutory-interpretation questions as a careful attorney would.

Plaintiff invoked res ipsa

Even if the res ipsa loquitor doctrine can be applied here, it fails. An incorrect legal opinion often occurs without some negligent (much less reckless) act or omission. In our adversarial legal system, roughly 50% of litigants lose—and thus have pressed an incorrect legal opinion. Competent administrative agencies and lower courts are often overturned despite careful and thoughtful legal interpretations. Indeed, the South Carolina Administrative Law Court (an independent body) first upheld Florian’s reading of the Omnibus Act. And even at the highest levels of the law, four colleagues at times share an “incorrect” or “unreasonable” opinion. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, n.4 (2016) (listing recent “divides in statutory interpretation cases”). An unreasonable outcome in that context cannot support an inference that the dissenters were negligent or criminally reckless in their analysis.

Conclusion

The correct interpretation of the Omnibus Act has now been settled as a matter of state law—Florian and Tatarsky were wrong. But legal error alone is not deliberate indifference. As a result, Campbell fails to make out a violation of the Eighth Amendment. Florian and Tatarsky are thus entitled to qualified immunity, and Campbell’s claim against them should be dismissed with prejudice.

(Mike Frisch)

https://ift.tt/2E5eWv2

https://ift.tt/2E5eWv2

[bhattchicagolaw]

Drugs, Canine Sniffs and Police Dogs: What You Need to Know

Drugs, Canine Sniffs and Police Dogs: What You Need to Know is republished from: https://www.bhattchicagodefenselaw.com/

Dogs are a powerful tool for law enforcement to find drugs and explosives. Oftentimes, courts, civilians and police officers take a positive hit from a canine as definitive proof that drugs or explosives exist. Unfortunately, dogs, like any other tool, must be calibrated and understood to be used properly. Because officers interpret any reaction from their drug dogs or explosive dogs as a positive hit for what they are looking for, law enforcement will use their canine sniffs as an excuse to search vehicles, bags and homes.

Here are some scenarios and situations to be aware of when dealing with drugs and canine searches.

The temporary detention of luggage in a public place so that a trained dog may sniff it to determine whether drugs are present does not constitute a search.

Walking a narcotics detection dog around the exterior of a car does not constitute a search for drugs because the exterior sniff does not require entry into the car and is not designed to disclose any information other than the presence or absence of drugs.

The United States Supreme Court has held that conducting a canine sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the sniff itself infringed the respondent’s constitutionally protected interest in privacy. Use of a well-trained drugs detection dog that does not expose non-contraband items that otherwise would remain hidden from public view during a lawful traffic stop generally does not implicate legitimate privacy interests. Thus, a canine sniff performed for drugs on the exterior of a car while the defendant was lawfully seized for a traffic violation does not infringe on the defendant’s privacy expectations.

A canine sniff of a vehicle does not constitute an invasion of privacy and does not violate the defendant’s right to be free from unreasonable search and seizure as long as the dog is “welltrained.”

Absent probable cause, the drug canine sniff must be done during the course of the routine traffic stop to be valid.

Absent reasonable and articulable suspicion, the police may not prolong a routine traffic stop in order to allow time for a drug canine unit to arrive.

It is important to note that a suspicionless canine sniff at a routine traffic stop is not a violation of the Fourth Amendment.

Purav Bhatt is a criminal defense attorney serving the Chicagoland area including Cook, Lake, DuPage and Will counties. If you or a loved one has been charged with a criminal offense contact The Law Office of Purav Bhatt at 773-791-9682.

Drugs, Canine Sniffs and Police Dogs: What You Need to Know was first seen on: https://www.pninjurylaw.com/

[bisexualboyinterrupted]

The Anti-Terror Bill has been signed into law! Our Constitution was created with safe-guards that will protect the people from abuses by the government. However, the Anti-Terror Bill, not only is it draconian, it is also unconstitutional as it can be easily abused and used against on our protected rights. The Anti-Terror Bill will be a weapon for State Terrorism.

Duterte is creating an enemy so that he could justify his form of governance, with the use of force just like the fascist he is. First, he used the Drug War to justify Oplan Tokhang which led to a number of Extrajudicial Killings. And now, he using terrorism to further his fascist agenda. Under the Oplan Tokhang, anyone can be tagged as a drug peddler or user. Under the Anti-Terror Bill, anyone can be tagged as terrorists.

With the Anti-Terror Bill, the Duterte administration is hell-bent on violating human rights at the guise of defending the country from terrorism, (the same thing Marcos did under Martial Law). With the government’s history of red-tagging, this bill will be weaponized to silence critics as what previous administrations did. Remember Cybercrime Law under Nonoy? Like the Cybercrime Law, the draconian Anti-Terror Bill will be weaponized against critics of the government and it will make it legal for them to have their arrests.

The Anti-Terror Bill is unconstitutional in more ways than one. First it has Usurpation of Judicial Power as it gives the Anti-Terrorism Council (filled with appointed members of the cabinet) the power to authorize the prolonged detention of suspects arrested without warrant (any person or group they suspect), and subject them to asset freezing. Its definition of terrorism is vague and it gives enforcers a wide discretion on who are terrorists or what constitutes as terrorism. Anyone could be linked to the terrorists (even mass orgs or ordinary individuals). It unnecessarily restricts and prohibits rights like free speech and expression and the right to assembly. The bill also includes a 60 - 90 Days Wiretapping which is a violation of our right to privacy. It has unreasonable penalties with few human rights safeguards as it legalizes detention without a case being filled and warrantless arrests by mere suspicion without probable cause.

We already can see how the armed men handles dissenters and protesters. Many are being taken and illegally detained. Many are being red-tagged. Many have become victims of force disappearances. There’s planting of evidences and the tired narrative of “nanlaban”. With the Anti-Terror Bill, they are given much more power that leads to Police Brutality and State Terrorism.

If we don’t act now, we will lose the rights and liberties we are enjoying — the same rights and liberties people have fought for and died for under the Marcos Dictatorship and before that.

The one who signed is the true terrorist!

[houston-dwi-lawyer]

How Long Can Police “Reasonably” Detain You Before Initiating a DWI Arrest?

How Long Can Police “Reasonably” Detain You Before Initiating a DWI Arrest?

DWI cases usually start with a routine traffic stop. But when a police officer suspects there may be more than just a normal traffic violation, the officer may detain the driver to conduct further investigation. From a legal standpoint, such detentions are permissible so long as they further a “legitimate law enforcement purpose.” That is to say, the officer may not unreasonably prolong the…

[nulawtoronto]

Ontario Will Not Appeal Decision to Stay Murder Charge Against Adam Capay

We have previously blogged about solitary confinement in Canada, and are revisiting this issue given the recent announcement by Ontario Crown prosecutors declaring that they will not appeal Superior Court Justice John Fregeau’s decision to stay the proceedings in the first-degree murder case against Adam Capay (“Capay”). On January 28, 2019, Justice John Fregeau stayed the first-degree murder charge against Capay due to the “complete and utter failure” of Ontario’s correction system in managing Capay’s solitary confinement for more than four years while awaiting trial. Capay was released to his family following this decision. WHAT HAPPENED? On June 3, 2012, Capay fatally stabbed Sherman Quisses ("Quisses") twice in the neck while they were in a correctional facility in Thunder Bay. Capay was immediately placed in segregation after his attack on Quisses on the basis that he was a threat to both himself and other prisoners. Capay was kept in a Plexiglass cell with the lights on 24-hours a day for 1,647 days. He was often kept in detention blocks where he was not allowed to flush the toilet from inside the cell. Capay’s decline became publicly known after Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, visited him during a tour of Thunder Bay District Jail and released the details to the media. Capay described his lengthy segregation as having impaired his ability to speak and differentiate day from night. On October 18, 2016, The Globe and Mail published the first in a series of stories about Capay and his prolonged isolation. JUSTICE FREGEAU’S DECISION TO ORDER A STAY Capay’s lawyers requested a stay (a ruling by the court halting any further legal proceedings) of the first-degree murder charge on the basis that Capay’s rights were violated under the Charter of Rights and Freedoms (“Charter”). Justice Fregeau heard testimony from corrections staff and numerous experts in the field of forensic psychiatry, human rights, and correctional law and policy. Justice Fregeau found that Capay suffered from pre-existing mental-health issues as a result of his childhood experiences of physical and sexual abuse, domestic violence in his home, parental alcoholism and other intergenerational trauma, and concluded that these issues were exacerbated by his isolation, sleep deprivation, and lack of access to mental health services. According to Justice Fregeau, Capay’s isolation violated four sections of the Charter, including:

The right of life, liberty and security of person (Section 7);

The right not to be arbitrarily detained (Section 9);

The right not to be subjected to cruel and unusual punishment (Section 12); and

The right to be equal before and under the law (Section 15).

Although Capay was responsible for Quisses’ death, his many years of isolation amounted to cruel and unusual punishment and a violation of his Charter rights. Justice Fregeau ruled that these Charter violations were so “prolonged, abhorrent, egregious and intolerable” that the only appropriate solution was to stay his murder charge and allow Capay to be released. Justice Fregeau’s decision set out the following issues with the Thunder Bay District Jail, which included:

Failing to hold legally mandated reviews of Capay’s segregation status;

Advising staff to avoid talking to the inmate; and

Neglecting Capay’s declining mental health.

Justice Fregeau wrote in his decision:

When exercising their statutory discretion in making segregation decisions regarding the accused, the complete and utter failure of correctional officials to properly balance the accused’s charter rights with the statutory objectives can only be described as profoundly unreasonable, unacceptable and intolerable.

                        …

The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane. There would be ongoing prejudice to the accused if forced to proceed to trial.

RECOMMENDATIONS MADE TO THE CORRECTIONAL SERVICES MINISTER

On February 21, 2019, Renu Mandhane (“Mandhane”), chief commissioner of the Ontario Human Rights Commission, wrote an open letter to the Honourable Sylvia Jones, the Minister of Community Safety and Correctional Services, calling for an end to segregation in Ontario. Mandhane emphasized that prisoners in Ontario continue to be held in segregation for extended periods of time, despite the fact that it is harmful to their mental and physical health, and undermines institutional safety, rehabilitation and reintegration. The data from May 2018 reveals that there were nearly 4,000 segregation placements over a two-month period, with 657 of those exceeding 15 days. Mandhane wrote: The numbers are large and it can be hard to remember that each number represents a person. Adam Capay’s treatment is a reminder of the lived reality behind the numbers and the long-term negative consequences that segregation has on prisoners, correctional officers, victims of crime, the community and the administration of justice. Mandhane recommends that the government immediately launch an action plan, including limiting segregation to fifteen-days, judicial reviews of isolation decisions, and bans on the segregation of pregnant, suicidal, mentally ill and physically disabled inmates. The previous Liberal government passed a bill incorporating many of Mandhane’s recommendations prior to last year’s election, however, this bill has not yet been proclaimed by the Lieutenant-Governor and the new Progressive Conservative government. We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog. In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison LLP at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services. Full Article: https://criminallawoshawa.com/ontario-will-not-appeal-decision-to-stay-murder-charge-against-adam-capay/

[nancydhooper]

Jeff Sessions Was the Worst Attorney General in Modern American History

From immigration to transgender rights, Attorney General Jeff Sessions showed contempt for American civil rights and liberties.

On Wednesday, the Trump administration bid farewell to one of its most infamous members: Attorney General Jeff Sessions. In his brief tenure, Sessions managed to dismantle and rescind an astounding range of efforts by prior administrations to protect civil rights and civil liberties and introduced new policies that endanger some of the most vulnerable citizens in the U.S.

From his draconian approach to immigration policy to his efforts to erase protections for transgender people to his many moves to dismantle his predecessors’ attempts to decrease the federal prison population, the list of Sessions’ offenses is long. We’ve rounded up some of the former attorney general’s most egregious actions below to showcase Sessions' contempt for civil rights and liberties.

Immigration

Sessions did everything in his power to speed up deportations and aid the separation of families, issuing a series of policies that trampled on due process. The Justice Department ended a program to notify immigrants of their rights during deportation cases, set arbitrary and unreasonable quotas for immigration judges, and repeatedly overruled immigration court and Board of Immigration Appeals' decisions on his own initiative.

This summer, the former attorney general attracted criticism from U.S. District Judge Emmet Sullivan for requiring victims of domestic violence seeking asylum to meet a nearly impossible threshold during the asylum screening process. Following the summary deportation of two ACLU clients, a woman and her child who fled rape and other brutality in El Salvador, Judge Sullivan asked: “Somebody in pursuit of justice who has alleged a credible fear in her mind and is seeking justice in a United States court is just spirited away?” He went on to order the government to “turn the plane around” and return our clients to the U.S.

In September, the ACLU published a first-person account of a survivor of domestic violence from Mexico who was granted asylum prior to the introduction of Sessions’ new policy. “People like me come from countries where the police and justice system do not protect women and girls,” she wrote. “For the United States to deny us refuge says our lives mean nothing.”

Under Sessions, the Justice Department also made a series of increasingly desperate attempts to bully states and localities into colluding with its draconian detention and deportation agenda, in spite of being repeatedly blocked by the courts. And Sessions fully endorsed Trump’s decision to end the DACA program, which provides protection from deportation to hundreds of thousands of undocumented young people who came here through no fault of their own.  Sessions maintained that the relief, granted by the Obama administration, was an “unconstitutional exercise of authority by the Executive Branch.”

Criminal Justice

Sessions’ efforts to dismantle civil rights and civil liberties protections gained during prior administrations are especially apparent when it comes to criminal justice. He rescinded multiple Obama-era memos, including one that directed federal resources away from enforcing federal drug laws in states that have legalized medical or recreational use of marijuana. The move was part of the former attorney general’s fear-driven agenda to reinvigorate the War on Drugs and to systematically dismantle his predecessors’ efforts to reduce federal imprisonment rates. Among those efforts was Sessions’ directive to prosecutors to bring the harshest possible cases against defendants — including people like Marion Hungerford, a mentally ill woman who was sentenced to 159 years in federal prison for helping to commit a string of armed robberies, even though she never touched the gun.

In May, Sessions falsely claimed that the settlement between the ACLU of Illinois and the Chicago Police Department was to blame for hundreds of deaths and shootings in the city. The landmark agreement followed the release of a groundbreaking report documenting officers’ unlawful use of stop and frisk. Sessions’ assertion that abiding by the Constitution increases crime is unsupported by the evidence and deeply flawed as a matter of principle. 

Throughout his tenure, Sessions resisted efforts to make the work of prosecutors more transparent and fair. Just last month, the Justice Department opposed the release of an opinion by the Tennessee Board of Professional Responsibility that required federal prosecutors working in the state to disclose all information favorable to criminal defendants.

Sessions also sought to limit the work of the Justice Department’s Civil Rights Division. Efforts to seek justice for people killed during police encounters have been dismissed, such as when the Justice Department declined to pursue federal civil rights charges against the officers involved in Alton Sterling’s death, or have been stonewalled, as in the prolonged civil rights investigation into the killing of Eric Garner.

Under prior attorney generals, the Justice Department undertook numerous civil rights investigations into local police departments and entered into consent decrees seeking to end racially discriminatory police practices in places such as Seattle; Los Angeles County; New Orleans; Baltimore; Newark; East Haven, Connecticut; and Ferguson, Missouri. But with Sessions’ arrival, an era of systemic police reform in cooperation with the federal government came to an end. In a March 2017 memo, Sessions instructed Justice Department officials to stay out of local police officers’ business. He has also ended a critical community policing program formerly used to address racial profiling and other issues, such as excessive use of force. And just before Sessions tendered his resignation on Wednesday, he signed a memo making it harder for the Justice Department to enter into consent decrees with police departments accused of civil rights and liberties abuses. 

Transgender Rights

Shortly after Trump was inaugurated, Sessions began systematically reversing hard-won legal protections for transgender people. In February 2017, the Justice Department revoked a guidance issued in 2016 by the U.S. Departments of Education and Justice on the rights of transgender students under Title IX.

In May 2018, the former attorney general took his efforts to dismantle protections for transgender people into the criminal justice system when he introduced a new policy mandating prison placements based on assigned sex at birth, except in rare cases. The policy, which endangers transgender people in prison, replaced a former rule, which required that gender identity — a person’s authentic, core understanding of their own gender — play a central role in whether a person is held in a male or female prison.

In October of this year, the Justice Department filed a brief with the Supreme Court attacking an appeals court decision in favor of our client Aimee Stephens. Aimee, a transgender woman, was fired from her job of six years at a funeral home after coming out to her employer. After Aimee sued the funeral home, the Court of Appeals for the Sixth Circuit ruled for her in March, stating that discrimination against transgender people is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. “No one should be fired because of who they are,” Aimee wrote for us in October.

Sessions disagrees. The Justice Department’s critique of the appeals court reflects its ongoing attack on transgender people. And last year, Sessions declared that transgender people would no longer be protected from sex discrimination under Title VII, changing the rules for all federal programs. Attacks like these bolstered an October announcement that the Trump administration plans to eliminate nondiscrimination protections for trans people found in federal civil rights law by changing the definition of “sex.”

Voting Rights

Voting rights also came under attack during Sessions’ reign over the Justice Department. A controversial memo from the Department of Commerce to the Census Bureau in 2018 mandating the addition of a question on citizenship to the Census was triggered by an earlier request from a Trump appointee in the Justice Department.

When career civil rights attorneys in the Justice Department refused to sign on to efforts by the administration to roll back voting rights, Sessions — who once called the Voting Rights Act “intrusive” — simply cherry-picked political appointees to work on those issues instead.

After Sessions

Following Sessions’ forced resignation, Trump quickly moved to place Matthew Whitaker as acting attorney general. Whitaker, a lawyer and former prosecutor, was Sessions’ chief of staff. There is little reason to believe that he will not follow in his predecessor’s footsteps on issues of civil rights and civil liberties. All those who care about civil liberties and civil rights will need to keep a close eye on the Justice Department. Sessions’ tenure was a disaster, and his replacement promises more of the same.    

from RSSMix.com Mix ID 8247012 https://www.aclu.org/blog/criminal-law-reform/jeff-sessions-was-worst-attorney-general-modern-american-history via http://www.rssmix.com/

[worldnewsen-blog]

Iraqi man seeks release after long immigration detainment

Iraqi man seeks release after long immigration detainment

[ad_1]

MINNEAPOLIS (AP) – An Iraqi man who allegedly hid his past as a member of an elite Iraqi military force is asking a federal judge in Minnesota to release him after 16 months in immigration custody.

Attorneys for 34-year-old Farass Adnan Ali are challenging what they call his “unreasonable, prolonged” pre-deportation detention. Ali, of Rochester, has been held since his May 2017 arrest.

I…

[worldnewsbuz-blog]

Iraqi man seeks release after long immigration detainment

Iraqi man seeks release after long immigration detainment

[ad_1]

MINNEAPOLIS (AP) – An Iraqi man who allegedly hid his past as a member of an elite Iraqi military force is asking a federal judge in Minnesota to release him after 16 months in immigration custody.

Attorneys for 34-year-old Farass Adnan Ali are challenging what they call his “unreasonable, prolonged” pre-deportation detention. Ali, of Rochester, has been held since his May 2017 arrest.

I…

[maxwellyjordan]

An immigration legacy at odds with Justice Kennedy’s animating principles

Pratheepan Gulasekaram is a professor of law at Santa Clara University.

In his reflection on Justice Anthony Kennedy, Harvard Law School professor Jack Goldsmith suggests that three principles animated Kennedy’s landmark opinions: dignity, capacious liberty from government interference and a robust conception of judicial power. Judging from his opinions and votes in immigration cases, however, Kennedy was an unreliable adherent to those principles, oftentimes disregarding the dignity and due process claims of noncitizens, and pleading for a diminished judicial role in critical immigration matters. This legacy was cemented by Kennedy’s last writing as a justice of the Supreme Court in Trump v. Hawaii. There, his final concurrence admonished the president for disregarding constitutional limits, while still casting the critical fifth vote to leave in force a presidential directive that his concurrence hinted was designed to make good on a promise to ban Muslims from the country.

Justice Kennedy questions lawyer during arguments in Trump v. Hawaii (Art Lien)

At first blush, Kennedy’s Hawaii opinion may seem shocking. Outside the immigration context, he was vigilant when federal, state and local governments acted in bad faith against politically unpopular groups. He famously authored Windsor v. United States, Romer v. Evans and Church of Lukumi Babalu Aye v. City of Hialeah, all cases in which he discounted the government’s justifications for the laws at issue and unearthed the unconstitutional animus that lay underneath.

It is equally true that Kennedy often rejected a shrinking role for the federal judiciary, even when dealing with the executive branch, or when national security concerns loomed large. Kennedy joined the five-justice majority in I.N.S. v. St. Cyr, which preserved habeas rights for noncitizens in the face of Congress’ attempt to strip federal court jurisdiction over immigration cases. He concurred and joined Justice John Paul Stevens’ five-justice majority in Hamdan v. Rumsfeld, stopping the George W. Bush administration’s initial attempt to use military tribunals to try enemy combatants from Guantanamo Bay. Later, in Boumediene v. Bush, Kennedy’s opinion for a 5-4 majority helped establish the limits on the political branches in their attempts to eliminate the habeas rights of alleged enemy combatants detained at Guantanamo Bay.

Yet, absent in Kennedy’s assessment of Trump’s immigration ban were his demonstrated ability to ferret out unconstitutional motives targeting disfavored minorities and his record of preserving access to federal courts to curb political branch excesses. Considered with his critical “swing” votes in other significant immigration cases, Kennedy’s jurisprudence reflects an inclination to ensure a judicial forum in which to present constitutional claims, only to deny any substantive relief to the noncitizen before the court. In retrospect then, Kennedy’s opinion in Hawaii should have been foreseeable, as it tracked his approach in a number of cases in which he shied away from meaningful judicial oversight over the federal government’s control and treatment of noncitizens.

In some cases, Kennedy appeared willing to acknowledge the necessity of invoking constitutional safeguards, but seemingly diluted those protections because they emerged in the immigration context. This equivocation is evident in cases like Verdugo-Urquidez v. United States, Nguyen v. I.N.S. and Kerry v. Din.

In Verdugo-Urquidez, a plurality of the court held that the Fourth Amendment did not extend to federal agents’ search and seizure of a noncitizen criminal defendant’s property in Mexico. While the plurality read the term “the people” protected by several provisions of Bill of Rights as stringently circumscribing the class protected by those provisions, Kennedy’s concurrence instead suggested that “the people” emphasized the importance of the right, rather than the category of persons protected. Although he rejected the plurality’s attempt to exclude noncitizens from constitutional protection, he nevertheless provided the fifth vote to deny the criminal defendant Fourth Amendment guarantees.

That pattern continued in Nguyen, in which Kennedy’s opinion for a five-justice majority upheld a distinction in the Immigration and Nationality Act that makes it significantly more difficult for an unwed father to pass on citizenship to his child than it does for an unwed mother. His opinion offered the possibility of normalizing constitutional standards for immigration laws, which the Supreme Court has resisted reviewing under mainstream due process and equal protection principles, when he purported to apply the intermediate scrutiny standard to evaluate the INA’s gender-based classification. Yet, Kennedy’s opinion invoked outdated stereotypes about men and women and their relationship to their offspring to come to its conclusion. Last year, though, in Sessions v. Morales-Santana, Kennedy joined a seven-justice majority that struck down a different INA provision that also  discriminated against unwed fathers’ ability to transmit citizenship, signing on to an opinion by Justice Ruth Bader Ginsburg that all but discarded Kennedy’s prior reasoning. Nevertheless, his opinion in Nguyen still stands, and for several years has ensured that equality principles play weaker in the immigration and family context than they do in other regulatory areas.

Similarly, in Din, the court denied relief to a U.S. citizen who sought information from the government as to why her spouse had been denied a visa. Kennedy concurred separately to note that a plurality of the court had needlessly denied the noncitizen’s ability to raise a due process claim. But again, this rhetorical gesture proved empty. Ultimately, in providing the critical fifth vote yet again, Kennedy argued that the bare minimum of governmental response – a citation to the code section used to deny the visa – would suffice to meet whatever constitutional process rights the noncitizen, or his citizen-spouse, was due. His rulings in both Din and Nguyen, both of which denied close family members the full legal benefits of their relationships and threaten to separate spouses and children, are especially surprising in light of Kennedy’s most well-known opinion. In Obergefell v. Hodges, which established a constitutional right to marriage equality, Kennedy’s majority opinion sought to protect intact family units, and rejected the idea of forcing families to relocate in order to remain together.

In addition to his tendency to invoke constitutional standards, only to deny substantive relief, Kennedy also voted to justify and extend the use of immigration detention. These decisions conflict with his commitment to the inherent dignity of personhood, a concept he exalted in other contexts.  Kennedy’s views on the constitutional rights of noncitizens in immigration detention came into focus with his dissent in Zadvydas v. Davis. In that 2001 case, a 5-4 majority of the court held that the INA provision allowing for detention of deportable noncitizens whom the government could not actually remove had to be read to include a presumptive six-month time limit so as to avoid the grave constitutional concerns raised by indefinite detention. Kennedy critiqued the majority for “rushing to substitute a judicial judgment for the Executive’s discretion,” and argued that the protections already afforded detainees in removal proceedings were sufficient. Two years later, with the events of 9/11 intervening between the cases, Kennedy was able to vindicate aspects of his Zadydas dissent when he provided the fifth vote in Demore v. Kim. There, the majority upheld the prolonged detention of those in removal proceedings, allowing noncitizens to be locked up for years as their removal cases were heard. Kennedy’s concurring opinion joined the majority in full. He wrote separately only to emphasize that he might consider a constitutional challenge when an immigrant’s detention became unreasonable or unjustified.

Kennedy’s opinions leave significant uncertainty as to what set of facts, if any, might have moved him to find a due process violation. Perhaps more importantly, it was later revealed that the government’s representations to the court about average length of a noncitizen’s incarceration – statistics the court and Kennedy in particular relied upon to reject the  due process claim – were wrong. Despite this revelation, Kennedy left no doubt about his position on immigrant incarceration when he cast his vote in Jennings v. Rodriguez earlier this term. There, siding with another five-justice majority, he found no constitutional problems with reading INA provisions to justify the prolonged imprisonment of several classes of noncitizens without individualized bond hearings, including those with no criminal background and those seeking asylum.

It is true that Kennedy’s opinions at least recognized the possibility of noncitizens accessing federal courts to present their constitutional claims. In Din, for example, his concurrence held out the theoretical prospect that in some instances, the government’s motives in denying entry should be subject to more searching judicial review. Even in the detention context, his opinions ostensibly left open the chance that any particular individual’s incarceration might violate constitutional standards. Yet, read through the lens of his swan song in Hawaii, these past decisions seem to showcase Kennedy’s reluctance to vindicate substantive individual rights claims brought by noncitizens, rather than realistic opportunities for noncitizens to seek substantive relief. Moreover, his votes in the detention cases evince unwavering support of an expansive federal power over immigration detention.

Taken as a whole, Kennedy’s immigration jurisprudence demonstrates that his bold strides towards protecting the liberty and dignity of personhood were limited to some vulnerable minorities, but did not extend to persons covered by immigration laws and policies. His final concurrence in Hawaii, warning that this current president may have exercised discretion in a manner that violated the First Amendment but declining to check that discretion, seems to flow from Kennedy’s earlier immigration decisions. Yet, that result was not inevitable given his habeas and gay-rights jurisprudence. In the end, he was a reliable fifth vote for the conservative majority, fashioning an immigration jurisprudence that vindicated the government’s position against the claims of noncitizens.

The post An immigration legacy at odds with Justice Kennedy’s animating principles appeared first on SCOTUSblog.

from Law http://www.scotusblog.com/2018/07/an-immigration-legacy-at-odds-with-justice-kennedys-animating-principles/ via http://www.rssmix.com/

[scfop3]

New Post has been published on https://scfop3.org/jail-prisoner-law-bulletin-march-2018/

Jail and Prisoner Law Bulletin - March 2018

A civil liability law publication for officers, jails, detention centers and prisons

ISSN 0739-0998 – Cite this issue as: 2018 JB March

CONTENTS

Digest Topics

Access to Courts/Legal Info

DNA Testing

False Imprisonment

Filing Fees

Immigration Detainees

Medical Care

Medical Cost Recovery

Prison and Jail Conditions: General

Prisoner Assault: By Officers

Religion

MONTHLY CASE DIGEST

     Some of the case digests do not have a link to the full opinion.

Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 10¢ per page.

Access to cases linked to www.findlaw.com may require registration, which is free.

Access to Courts/Legal Info

     A federal appeals court rejected claims of denial of a prisoner’s First Amendment right of access to the courts and Fifth Amendment procedural due process claims related to prison disciplinary proceedings asserted under the implied cause of action theory adopted by the Supreme Court in Bivens v. Six Unknown Federal Narcotics Agents, #301, 403 U.S. 388 (1971). The appeals court noted that neither the U.S. Supreme Court or it had ever expanded Bivens to such claims. Further, the circumstances of the plaintiff’s case against private employees at the residential reentry facility plainly presented a “new context” under Ziglar v. Abbasi, #15-1358, 137 S. Ct. 1843 (2017) (declining to apply Bivensto claims by alien detainees confined after 9-11 concerning their conditions of confinement), weighing against any such extension of Bivens. The court also stated that the plaintiff had alternative means for relief against the alleged violations of his First and Fifth Amendment rights by the private defendants. Vega v. United States, #13-35311, 2018 U.S. App. Lexis 2980 (9th Cir.).

DNA Testing

     A detainee was acquitted of charges of voluntary manslaughter. However, prior to his release he was subjected to a DNA swab. He sued, claiming a violation of his Fourth Amendment rights against unreasonable searches. Before the claim could be resolved, he died. His mother and the personal representative of his estate wanted to be substituted in as the plaintiff. The trial court, ruling that the man’s death had “extinguished” the claim, dismissed the lawsuit instead. A federal appeals court overturned the ruling, finding thatno federal statute or rule says anything about the survivorship of section 1983 federal civil rights claims, but the claim qualified as a “cause of action for . . . injuries to the person” under the Ohio state survivorship statute and, therefore, outlasted his death. Crabbs v. Scott, #17-3854, 2018 U.S. App. Lexis 1369, 2018 Fed App. 0015P (6th Cir.).

False Imprisonment

     A federal appeals court upheld the dismissal of two lawsuits filed by a detainee for failure to prosecute. He claimed that his imprisonment was improperly prolonged as well as that he had been detained for too long earlier. The appeals court noted that the proceedings had been protracted because the plaintiff, who went in and out of jail, “dropped out of contact” with both the court and his appointed lawyer. His other conduct included repeatedly attempting to disqualify the defendants’ attorney, filing an interlocutory appeal, neglecting to prepare his case for trial, failing to attend a witness’s deposition, not responding to defense counsel’s communications, and failing to submit a witness list, exhibit list, proposed jury instructions, proposed voir dire questions, or his objections to the defendants’ pretrial submissions.

     His later appointed attorney indicated that she had been unable to convince him to attend any meetings and had not heard from him in months. At one point, he “literally threw” a motion to recuse the judge at the courtroom deputy and told the judge “you’re recused.” Then he “abruptly left.” Under these circumstances, the appeals court stated, the trial judges had exhibited more patience than necessary” before dismissing the lawsuits. Dupree v. Hardy, #16-2212, 859 F.3d 458 (7th Cir. 2017).

Filing Fees

     An Oklahoma prisoner sued several state prison officials in state court, qualifying to proceed as a pauper under state law. The defendants then removed the case to federal court and paid a required federal filing fee. The trial court then ruled that the plaintiff, who had previously abused the federal courts by filing frivolous lawsuits, was not eligible to proceed as a pauper and dismissed his case because he failed to pay the filing fee. A federal appeals court reversed, holding that state-court plaintiffs whose cases are removed to federal court have no obligation to pay a filing fee since nothing in the applicable federal statute on proceeding as a pauper said anything to the contrary. Woodson v. McCollum, #17-6064, 875 F.3d 1304 (10th Cir. 2017).

Immigration Detainees

     A federal appeals court upheld a preliminary injunction against alleged inhumane and punitive treatment in a lawsuit brought by civil detainees confined in U.S. Customs and Border Protection facilities in the Tucson, Arizona area. The appeals court ruled that the trial court did not abuse its discretion in granting a preliminary injunction requiring that the defendants provide the detainees with mats and blankets after 12 hours, and properly applied prior precedent, supported by evidence in the record. Doe v. Kelly, #17-15381, 878 F.3d 710 (9th Cir.).

Medical Care

     Overturning a magistrate judge’s denial of a preliminary injunction in a lawsuit claiming deliberate indifference to serious medical needs, a federal appeals court found that the plaintiff diabetic prisoner had specifically alleged that prison officials cancelled his prescribed diet on multiple occasions, forcing him to consume high-sugar meals up to four times a day, contrary to the orders of his unit doctor. Construing the pro se pleadings liberally, the court found that the plaintiff had alleged a pattern of knowing interferences with prescribed medical care for his diabetes, despite his multiple complaints and his official grievance, which were all essentially ignored. These claims were sufficient to state a claim for deliberate indifference and therefore showed a sufficient likelihood of success on the merits of his preliminary injunction. The plaintiff also claimed a substantial threat of irreparable injury. Jones v. TDCJ, #17-10302, 2018 U.S. App. Lexis 2176 (5th Cir.).

Medical Cost Recovery

      Police officers investigating a domestic disturbance went to a home where a man then went into a bedroom and shot himself. They radioed for an ambulance which took the man to a hospital, where he received treatment while officers kept watch over him. Neither the man nor later his estate when he died could pay the hospital bill of almost $30,000, which was then billed to the city. The Colorado Supreme Court overturned rulings by the trial and intermediate appeals court interpreting Colorado’s “Treatment while in custody” statute as entitling the hospital to payment from the city, and assigning police departments (or any agency that detains people) a duty to pay healthcare providers for treatment of those in custody. The high court concluded that the statute did not create any duty to a healthcare provider. However, the hospital’s claim for unjust enrichment survived, and as that claim was contractual, the court held that the Colorado Governmental Immunity Act did not prohibit it, and ordered further proceedings. City of Arvada ex rel. Arvada Police Dept. v. Denver Health, 2017 CO. 97, 403 P.3d 609 (2017).

Prison and Jail Conditions: General

      While death row inmates housed in cells without air conditioning showed that their Eighth Amendment rights had been violated and that it was appropriate to grant injunctive relief, the federal trial court exceeded the bounds of the Prison Litigation Reform Act (PLRA) and Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) by requiring facility-wide air conditioning and setting a maximum heat index. The trial court erroneously addressed the propriety of a maximum heat index, found that it was necessary, and issued a modified injunction that in some instances imposed it. Further proceedings were ordered. Ball v. LeBlanc, #17-30052, 2018 U.S. App. Lexis 2402 (5th Cir.).

Prisoner Assault: By Officers

     As three correctional officers were preparing inmates to walk from the cell house to dinner, an inmate rushed out of his cell and attacked one of them. The other two officers took him to the ground, ordered him to “cuff up,” and claimed that he violently resisted. They denied striking him after he was restrained, but the inmate claimed that he was compliant and restrained in handcuffs when one of the officers used pepper spray on him. He also asserted that the officers then continued to beat him while he was restrained. His version of the incident was supported by his former cellmate and he stayed in the infirmary overnight with various cuts and bruises, a shoulder that appeared abnormal and complaints of pain. The next morning, the facility doctor sent him to a hospital, where another doctor treated his dislocated shoulder about 24 hours after the fight.

     A federal appeals court upheld dismissal of deliberate indifference claims against facility nurses because the plaintiff failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA) on claims against them. It also upheld trial court findings that the officers were more credible than the plaintiff and his witnesses and judgment in favor of all the remaining defendants. It was reasonable to infer from the officers’ testimony that the inmate sustained his injuries, including the facial injuries, when the officers tackled him and wrestled him into submission after he attacked them. Wilborn v. Ealey, #16-2106, 2018 U.S. App. Lexis 2825 (7th Cir.).

Religion

****Editor’s Case Alert****

      A Muslim prisoner showed a genuine factual dispute as to whether his rights were substantially burdened by the prison’s serving him foods that Nation of Islam dietary rules prohibited him from eating. A federal appeals court noted that the defendants failed to offer any institutional interest that they claimed justified the burdening of a prisoner’s rights in receiving a religious diet. The plaintiff claimed that his rights were violated under the First Amendment Free Exercise Clause, as well under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. Summary judgment for the defendants was overturned. Carter v. Fleming, #17-6461, 879 F.3d 132 (4th Cir. 2018).

  Resources

     Female Prisoners: Female Offender Manual, Federal Bureau of Prisons (January 2, 2018).

     Prison Operations: Department Operations Manual, California Department of Corrections and Rehabilitation (with 2018 revisions).

      Reference:

Abbreviations of Law Reports, laws and agencies used in our publications.

AELE’s list of recently-noted jail and prisoner law resources.

Cross References

Diet – See also, Medical Care

Diet – See also, Religion

Prison and Jail Conditions: General – See also, Immigration Detainees

Prison Litigation Reform Act: Exhaustion of Remedies – See also, Prisoner Assault

Prisoner Discipline – See also, Access to Courts/Legal Info

Private Prisons and Entities — See also, Access to Courts/Legal Info

[bhattchicagolaw]

Help! I was at a Party and the Police Came.

The post Help! I was at a Party and the Police Came. is available on: The Law Office of Purav Bhatt Criminal Law Blog

My clients bring every scenario in the book to me when I meet them. One of the most common is when my client is at someone else’s house for a party and the police show up. When you are at a party and the police have a valid warrant authorizing a search for contraband, they can legally detain occupants they find on the premises named in the warrant.

However, police may not unreasonably prolong the detention of someone who simply happens to be on the premises as a visitor. In a similar case, the defendant was in the bathroom when police entered with a warrant authorizing a search of the apartment. They prevented her from leaving and questioned her. The court held the detention of the defendant was not lawful. The reason? She did not live in the apartment, and officers did more than prevent her from leaving; they held and questioned her. In a similar case, the court decided that the defendant was seized unlawfully when officers were executing a warrant at the defendant’s brother’s house and, when the defendant pulled into the driveway and parked, officers surrounded the car and ordered the defendant to show his hands.

Police did not detain unreasonably a defendant on the scene of an attempted armed robbery in the defendant had some information about the crime, and police were justified in detaining him as a witness.

Purav Bhatt is a criminal defense attorney serving the Chicagoland area including Cook, Lake, DuPage and Will counties. If you or a loved one has been charged with a criminal offense contact The Law Office of Purav Bhatt at 773-791-9682.

Help! I was at a Party and the Police Came. is courtesy of: https://www.pninjurylaw.com/

[nancyedimick]

Coordinated traffic stops and the Fourth Amendment

(iStock)

A new decision from the U.S. Court of Appeals for the 9th Circuit, United States v. Gorman, touches on an interesting question: If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he can’t get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?

In Gorman, there was a twist: The first officer held the driver for too long. The officer pulled over Straughn Gorman’s motor home for a traffic offense and then he held Gorman for almost a half-hour. He called for a drug-sniffing dog but was told there weren’t any available. Twenty minutes into the stop, the officer gave Gorman his documents back and told him he was not issuing a ticket. The officer continued to question Gorman, however, based on suspicion that Gorman was carrying drug money in the motor home. The stop went on for too long under the time-limiting doctrine articulated by the Supreme Court in Rodriguez v. United States, 135 S.Ct. 1609 (2015).

The officer became convinced that there was drug money in the motor home, but he did not have sufficient probable cause to search the car. He let the driver go, and he then called ahead to a second officer in the next county to get a dog and watch the vehicle. The second officer did so, later pulling over the motor home for a second traffic violation. The dog alerted, and a warrant was obtained to search the motor home. The search revealed $167,070 in cash in various interior compartments. The government brought a civil forfeiture action seeking to keep the cash as the proceeds of illegal drug activity, and Gorman moved to suppress the fruits of the search so it could not be used in the civil forfeiture action.

Held, per Judge Reinhardt: The evidence found following the second stop was a fruit of the unconstitutionally prolonged first stop. As a result, the money was suppressed.

From the opinion:

Here, there is an indisputable “causal connection” between Gorman’s concededly unlawful detention and the dog sniff and its fruits. See id. at 245. The detention unquestionably served as “the impetus for the chain of events leading to” the discovery of the currency. See id. It is clear, moreover, that [the first officer]’s suspicions from the first stop “significantly directed” [the second officer’s] actions in making the second stop and conducting the sniff and search. See id. The close connection between the constitutional violation (the first detention) and the seizure of the currency is apparent.

On the basis of suspicions that accrued during the course of Gorman’s unlawful detention, [the first officer] alerted a separate law enforcement agency, informed [the second officer] of the basis for his suspicions, and requested that he attempt to stop Gorman for a second time, this time with a drug-sniffing dog. [The second officer] promptly estimated Gorman’s location and made a special trip to the highway for the purpose of apprehending him and conducting the dog sniff – the sniff which led to the discovery of the currency. To repeat, there was a direct connection between the Fourth Amendment violation and its fruits. Thus, any evidence obtained from the sniff and search is inadmissible under the “fruit of the poisonous tree” doctrine.

The government does not contend that the “fruit of the poisonous tree” doctrine is applicable only if the impetus for the second stop came from the unlawful portion of Gorman’s detention. Even if it did, however, our conclusion would be the same, because the facts here show clearly that part of the impetus for the second stop did come from the unlawful portion of Gorman’s detention. It was only after the stop’s mission had been completed that [the first officer developed suspicion that the car motorhome was being used to carry drug money… . ] Given that sequence, we need not determine whether it would be appropriate to divide an unlawful detention into lawful and unlawful parts for purposes of “fruit of the poisonous tree” analysis

Reinhardt adds:

The coordinated action at issue in Gorman’s case offers a prime illustration of the value of the “fruit of the poisonous tree” analysis. The analysis allows us to see the officers’ conduct in Gorman’s case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitution’s requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops… . The Constitution guards against this kind of gamesmanship because the Fourth Amendment’s protections extend beyond the margins of one particular police stop and can extend to the integrated and purposeful conduct of the state.

Putting aside whether this “fruit of the poisonous tree” analysis is correct under Utah v. Strieff, I’m more interested in whether the second stop would be allowed if the first stop had not been prolonged. That is, can officers coordinate stops, watching for new traffic violations to stop a car to make sure a drug-sniffing dog will be present?

Reinhardt drops the following footnote on this issue:

Because we conclude that the seized currency is inadmissible as the “fruit of the poisonous tree,” we do not consider the argument that the second stop, taken independently, was itself unconstitutional. It could well be argued, for example, that performing the routine records checks during the second stop (which in Gorman’s case took significantly longer than usual because the central dispatch was delayed in responding to [the second officer]’s inquiry) unreasonably prolonged Gorman’s roadside detention because [the second officer] knew in advance what the results of those redundant checks would be, as he correctly assumed [the first officer] already had done them and knew [the first officer] had found no probable cause to search the vehicle. [The second officer’s] checks therefore served no purpose other than to prolong the traffic stop.

I’m not sure what I think of this, but it seemed like an interesting question worth flagging for the Fourth Amendment nerds among our readership.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/14/coordinated-traffic-stops-and-the-fourth-amendment/

[wolfandpravato]

Coordinated traffic stops and the Fourth Amendment

(iStock)

A new decision from the U.S. Court of Appeals for the 9th Circuit, United States v. Gorman, touches on an interesting question: If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he can’t get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?

In Gorman, there was a twist: The first officer held the driver for too long. The officer pulled over Straughn Gorman’s motor home for a traffic offense and then he held Gorman for almost a half-hour. He called for a drug-sniffing dog but was told there weren’t any available. Twenty minutes into the stop, the officer gave Gorman his documents back and told him he was not issuing a ticket. The officer continued to question Gorman, however, based on suspicion that Gorman was carrying drug money in the motor home. The stop went on for too long under the time-limiting doctrine articulated by the Supreme Court in Rodriguez v. United States, 135 S.Ct. 1609 (2015).

The officer became convinced that there was drug money in the motor home, but he did not have sufficient probable cause to search the car. He let the driver go, and he then called ahead to a second officer in the next county to get a dog and watch the vehicle. The second officer did so, later pulling over the motor home for a second traffic violation. The dog alerted, and a warrant was obtained to search the motor home. The search revealed $167,070 in cash in various interior compartments. The government brought a civil forfeiture action seeking to keep the cash as the proceeds of illegal drug activity, and Gorman moved to suppress the fruits of the search so it could not be used in the civil forfeiture action.

Held, per Judge Reinhardt: The evidence found following the second stop was a fruit of the unconstitutionally prolonged first stop. As a result, the money was suppressed.

From the opinion:

Here, there is an indisputable “causal connection” between Gorman’s concededly unlawful detention and the dog sniff and its fruits. See id. at 245. The detention unquestionably served as “the impetus for the chain of events leading to” the discovery of the currency. See id. It is clear, moreover, that [the first officer]’s suspicions from the first stop “significantly directed” [the second officer’s] actions in making the second stop and conducting the sniff and search. See id. The close connection between the constitutional violation (the first detention) and the seizure of the currency is apparent.

On the basis of suspicions that accrued during the course of Gorman’s unlawful detention, [the first officer] alerted a separate law enforcement agency, informed [the second officer] of the basis for his suspicions, and requested that he attempt to stop Gorman for a second time, this time with a drug-sniffing dog. [The second officer] promptly estimated Gorman’s location and made a special trip to the highway for the purpose of apprehending him and conducting the dog sniff – the sniff which led to the discovery of the currency. To repeat, there was a direct connection between the Fourth Amendment violation and its fruits. Thus, any evidence obtained from the sniff and search is inadmissible under the “fruit of the poisonous tree” doctrine.

The government does not contend that the “fruit of the poisonous tree” doctrine is applicable only if the impetus for the second stop came from the unlawful portion of Gorman’s detention. Even if it did, however, our conclusion would be the same, because the facts here show clearly that part of the impetus for the second stop did come from the unlawful portion of Gorman’s detention. It was only after the stop’s mission had been completed that [the first officer developed suspicion that the car motorhome was being used to carry drug money. . . . ] Given that sequence, we need not determine whether it would be appropriate to divide an unlawful detention into lawful and unlawful parts for purposes of “fruit of the poisonous tree” analysis

Reinhardt adds:

The coordinated action at issue in Gorman’s case offers a prime illustration of the value of the “fruit of the poisonous tree” analysis. The analysis allows us to see the officers’ conduct in Gorman’s case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitution’s requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops. . . . The Constitution guards against this kind of gamesmanship because the Fourth Amendment’s protections extend beyond the margins of one particular police stop and can extend to the integrated and purposeful conduct of the state.

Putting aside whether this “fruit of the poisonous tree” analysis is correct under Utah v. Strieff, I’m more interested in whether the second stop would be allowed if the first stop had not been prolonged. That is, can officers coordinate stops, watching for new traffic violations to stop a car to make sure a drug-sniffing dog will be present?

Reinhardt drops the following footnote on this issue:

Because we conclude that the seized currency is inadmissible as the “fruit of the poisonous tree,” we do not consider the argument that the second stop, taken independently, was itself unconstitutional. It could well be argued, for example, that performing the routine records checks during the second stop (which in Gorman’s case took significantly longer than usual because the central dispatch was delayed in responding to [the second officer]’s inquiry) unreasonably prolonged Gorman’s roadside detention because [the second officer] knew in advance what the results of those redundant checks would be, as he correctly assumed [the first officer] already had done them and knew [the first officer] had found no probable cause to search the vehicle. [The second officer’s] checks therefore served no purpose other than to prolong the traffic stop.

I’m not sure what I think of this, but it seemed like an interesting question worth flagging for the Fourth Amendment nerds among our readership.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/14/coordinated-traffic-stops-and-the-fourth-amendment/

[teachanarchy]

Within his first week as president, Donald Trump signed an executive order denying federal funding to sanctuary cities. To answer educators’ questions about sanctuary cities, Teaching Tolerance turned to an expert, Naomi Tsu. She’s an attorney who oversees the Southern Poverty Law Center’s Immigrant Justice Project.

What is a sanctuary city? A sanctuary city is a place that has decided to keep local resources to solve local problems. Some people think “sanctuary” means the city is harboring fugitives. That’s a misunderstanding of the term. A better term than sanctuary might be local control or safe city. I’ll use the terms sanctuary city and safe city interchangeably. A sanctuary city has limited the extent to which it will volunteer resources in support of federal immigration enforcement agents’ responsibility to enforce federal immigration law. These limits can take many forms: saying no to federal requests (known as “detainers”) to conduct joint patrols; refusing to jail an individual who has posted bond and a judge has said can be released; or refusing to gather more information—such as immigration status—than is needed to determine if an individual is eligible to receive services.

Any public place can take this path. Cities are the best-known examples, but counties, states, universities and school districts have also asserted that it’s not their responsibility to enforce immigration law.

Do sanctuary cities violate federal law? No, sanctuary cities do not violate federal law. Federal law requires public entities to share and maintain information that has been gathered on an individual’s citizenship or immigration status. Federal law does not require compliance with federal requests to prolong detention. It does not impose an affirmative duty to gather information about place of birth or immigration status. It does not require localities to give local resources to assist federal immigration agents in carrying out their federal immigration enforcement responsibilities. So long as a local sanctuary policy does not limit communication or maintenance of information on a person’s immigration or citizenship status, it will not run afoul of federal law, and I know of no policies that restrict the sharing of such information.

Why would a city—or another entity—decide to designate itself as a sanctuary? There are many reasons a city might choose to become a sanctuary. One reason is to keep residents safe. Law enforcement officers have said it’s important for members of immigrant communities to feel safe reporting crime—without being afraid of deportation of their family, friends or neighbors—so that criminals can be caught. If people who ask the police for help get swept up into deportation proceedings, others become afraid to call the police when they need help, and criminality flourishes.

A second reason some cities become sanctuaries is to protect local budgets. Federal immigration agents ask sheriffs to jail immigrants (“prolonged detention”), but the federal government generally does not reimburse sheriffs for the cost of housing individuals in prolonged detention. In addition, a city or county that is not a sanctuary risks having to defend against—and perhaps losing—a civil rights lawsuit. Several courts have held that prolonged detention is without legal basis and violates the federal Constitution’s ban on unreasonable seizures. These courts have further held that a city is not off the hook for having prolonged detention at the request of the federal government.

A third reason is to provide access to services on a fair and equal basis to all who are eligible for them. Many schools, for example, seek to educate all children regardless of where they were born. (In fact, education without regard to place of birth is required under the law.) A school is not required to gather information about where a child was born, and having that information could draw a subpoena to release it to federal immigration agents. To avoid being embroiled in that mess, and to fulfill the responsibility to educate children, many schools have decided to disentangle by not gathering information about place of birth or citizenship.

What did the president just do in his executive order on sanctuary cities, and what’s his argument? The president’s recent series of immigration executive orders reframe immigration, seeking to move it from being a system that connects families and allows international travel into a new frame as a national security risk. The executive order provisions on sanctuary cities direct federal agencies to withhold federal grant money from “sanctuary jurisdictions” that do not share information that the city or school has collected on immigration status and citizenship.

In addition, the executive order says that the attorney general has broad discretion to label a place as a “sanctuary” if it “hinders the enforcement of federal law,” and to take “appropriate enforcement action” against such jurisdictions. This vague language does not spell out what constitutes “hinder[ing]” federal law and is likely to trigger lawsuits to determine its scope and its constitutionality.

How will the president’s executive orders affect sanctuary cities? As a practical matter, the president’s executive orders should not affect sanctuary cities’ federal funding because no city refuses to share or maintain collected information about immigration status or citizenship. Nevertheless, the confusion created by the executive orders will take a toll on cities and other actors. President Trump asserted in one executive order that sanctuary jurisdictions are violating federal law. While that assertion is incorrect under a fair reading of federal law, it is disconcerting to think of the awesome powers of the federal government arrayed against cities and schools that have disentangled from federal immigration enforcement to maintain local control or better serve their students and residents.

How are sanctuary cities responding to the executive orders? Sanctuary cities are responding in a variety of ways to the executive orders. Many—probably most—are quietly going about serving their residents just as they were doing before the president signed these executive orders. Some others have prioritized the avoidance of federal ire and have announced that they will offer any local resources requested by the federal government in carrying out its immigration enforcement responsibilities. Some others have publically announced that they will continue to focus on local needs.

Some people have compared sanctuary cities to northern states that passed personal freedom laws to oppose the Fugitive Slave Act before the Civil War. Does that hold water? This country has a rich history of resisting unjust laws, and it’s helpful to look to history for strength and perspective. Sanctuary policies as enacted thus far are quite a bit less radical than the personal freedom laws passed to oppose the Fugitive Slave Act. If framed in comparison to the Fugitive Slave Act, current sanctuary policies are the equivalent of local officials in the 1850s declining to join a slave hunter posse in searching for or detaining escaped slaves. Some churches and other houses of worship are discussing providing refuge for immigrants from immigration enforcement agents, and these efforts are more akin to the personal freedom laws passed in the 19th century. But current sanctuary policies merely decline to provide assistance, access or local resources requested by federal agents seeking to deport individuals.

What about sanctuary schools? What’s that about? Sanctuary schools are campuses and districts that are disentangling themselves from immigration law. Some schools are establishing privacy policies that govern information collection and dissemination, such as banning inquiry into immigration status or country of birth or requiring a court order before sharing confidential records. Other schools are limiting federal immigration authorities’ access to sensitive locations, such as school campuses, by requiring immigration agents to obtain a warrant signed by a judge in order to enter a campus.

For educators who live in sanctuary cities, how can they best support undocumented students and families? Is there specific information they should have? Educators who live in sanctuary cities can help undocumented children and families by providing practical support, offering moral support and by serving as a bridge between communities. Educators can help answer families’ questions about what is happening or can [help] undocumented families make a safety plan in case a family member is detained or deported. You can invite long-term residents to meet immigrant students or neighbors, or ask friends to help demystify immigrants and welcome the newcomers. You can advocate for your school leaders to develop privacy policies that reduce the chance that your school will help to deport a student or parent. For ideas and resources, see the resources available here, here and here.