Civil Rights, New York

What it means when police turn their backs

(This article was originally published on Fox News Latino.)

Public servants take an oath to protect and uphold the Constitution and laws. From that solemn oath stems a police officer’s duty to serve and protect the public. The Constitution is merely a reflection of the will of the people.

The rule of law also flows out of the Constitution: the democratic order, public institutions, statutes and regulations, policing itself. Law and order exist because as society we have deemed vital to grant a shield, a weapon, and a salary to the men and women tasked with keeping it.

That’s why New York and the country shook when a deranged gunman shot and killed police officers Rafael Ramos and Wenjian Liu. When you threaten the life of a police officer, you threaten the rule of law itself. Everyone feels unprotected.

But we also feel unprotected when police turn their backs. That’s precisely what happened when scores of people in uniform—ostensibly in mourning over Ramos and Liu’s senseless deaths—turned their backs on Mayor Bill de Blasio during the officers’ funerals.

Turning your back on the mayor is not a protest. A real protest is a legitimate part of the social contract, enshrined in the First Amendment right of free speech. Nothing stops an officer from freely expressing himself or criticizing political leaders when off duty, or in private with colleagues and family members.

But when a police officer—in uniform, armed, and bearing a shield that represents us all—stages an act of defiance in public and in front of an official elected by the public, there’s nothing legitimate or democratic about his actions. It’s insubordination. It’s a violation of their oath to protect and uphold the Constitution and laws.

Suppose for a moment that another lunatic with a gun, the kind that kills public officials, would’ve interrupted the ceremonies. Would any of the back-turning officers have bothered to make the ultimate sacrifice and protect the mayor? Would they even have noticed? Anyone worthy to bear the shield of the state stands at attention in time of crisis, not turn his back.

Which is why this spectacle should not be read through the lens of politics or opportunism; it is instead a constitutional problem. What happened in New York should be a cautionary tale for the United States. Is this the kind of force the country wants enforcing its laws, its ideals, its institutions?

The irony of this episode is that it finds its roots in another constitutional issue: the discriminatory application of stop-and-frisk tactics on New Yorkers of color. Last year, a federal court in Manhattan declared the NYPD’s application of such tactics unconstitutional. But police unions attempted to appeal the ruling, arguing in court that compliance with it dealt a blow to police morale and its bargaining rights with the city. A panel of federal appellate judges roundly dismissed those concerns.

It’s a troubling precedent nonetheless—the notion that police reputation and self-interest somehow trumps compliance with the Constitution. That it trumps the will of the people. The same people who put Bill de Blasio in power. The same people who grew weary of stop-and-frisk and simply asked for fairer treatment from those who took an oath to serve and protect them.

If police turning their backs on an elected leader—on the people—doesn’t get us to rethink the kind of men and women we want defending everything we hold dear, then nothing will.

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Civil Rights, New York

Dante and democracy

(A version of this post first appeared at Latino Rebels.)

It’s all Dante’s fault.

Were it not for his son, Bill de Blasio would probably not have won New York City’s Democratic primary, let alone the mayoralty. And the mess that boiled over last week between the mayor and the NYPD would’ve never happened.

Dante—or rather, the political ad featuring him—was a hit with New Yorkers because of his massive afro, his likeability, and his message on a controversial police tactic.

“He’s the only one who will end the stop-and-frisk era that unf airly targets people of color,” he said in the ad, echoing his father’s unflinching stance on discriminatory policing.

The ad was a smash because it not only captured de Blasio’s policies within the context of family life, but also because Dante looked like many of the thousands of minority youths who were subject to suspicionless stop-and-frisk tactics during the Michael Bloomberg years. When New Yorkers saw Dante, they saw themselves.

Today, police unions and a subset of the NYPD have gone to war with Bill de Blasio over Dante. They have other grievances, too, but they specifically felt the mayor threw them under the bus when he decided to bring up “the talk”—that uncomfortable but necessary conversation nearly every parent or father figure to a young man of color has had over potential dealings with police.

Dante is “a good young man, a law-abiding young man, who would never think to do anything wrong,” said de Blasio at a news conference following the non-indictment in the case of Eric Garner, the Staten Island man who died in a chokehold banned by NYPD policy.

“And yet,” the mayor said, “because of a history that still hangs over us, the dangers he may face—we’ve had to literally train him, as families have all over this city for decades, in how to take special care in any encounter he has with the police officers who are there to protect him.”

These were not fighting words; they were never meant to be. They were simply a candid acknowledgment of a painful reality for many New Yorkers of color, at a moment they needed to hear their lives mattered—and that leaders, institutions, and the rule of law were not out of touch with their suffering.

The speech was a mere repeat of Dante’s ad message: how to roll in a city where it seems the law somehow treats minorities unfairly. De Blasio merely repackaged it live, raw, and uncut. It was the message that won him a majority of the votes and the mayoralty.

But it hit a raw nerve with police unions. They took de Blasio’s personal narrative and distorted it as an attack on police—a “broad brush” that, in the words of Patrolmen’s Benevolent Association president Patrick Lynch, “laid on the shoulders” of the NYPD the weight of a history of racism.

Of course, de Blasio’s remarks did none of that. He was speaking to his constituents—the same New Yorkers who identified with Dante and are still grappling with the legacy of stop-and-frisk, “broken windows” policing, and a non-indictment that, even to police supporters, seemed unwarranted. That’s what political actors do in times of crisis.

Lynch missed out on all of this, or at least pretended to miss out on it; he’s also a political actor. The big difference is that he’s not beholden to the Constitution or the interests of the public, but to his own and those of the officers he represents. To Lynch, any crisis is an opportunity—to score points, to secure a contract, to win reelection. He’s as much a politician and a public-relations expert as anything else.

And because he’s those two things, Lynch won’t say if he was the one behind a group of rank-and-file officers who turned their backs on de Blasio at officer Rafael Ramos’ funeral. But his specter remains. And it seems his campaign is working: the NYPD appears to have staged a quasi-walkout, refusing to keep law and order “unless absolutely necessary,” whatever that means.

At this juncture, the only question left for New York City as it heads into 2015—and by extension, America—is whether this is the caliber of men and women it wants enforcing its laws. Because police took an oath to defend the Constitution and to serve and protect people like Dante. And voters gave Bill de Blasio a clear mandate to do just that.

If police find democracy so inconvenient that it’s worth turning their backs on it, they’ve renounced their oath. They have no business bearing an arm and a shield given to them by the people.

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Civil Rights, Immigration

Arizona must grant driver’s licenses to dreamers

(A version of this post first appeared at Latino Rebels.)

In a short order issued Wednesday, the U.S. Supreme Court denied Arizona’s last-ditch request to block issuance of driver’s licenses to undocumented students granted deportation relief under the Deferred Action for Childhood Arrivals (DACA) program.

This lawsuit has been moving through the courts for years. Shortly after DACA was announced in 2012, the administration of outgoing Gov. Jan Brewer issued an order prohibiting beneficiaries under DACA to obtain driver’s licenses, arguing the program’s work authorizations were not sufficient proof of legal status. A number of civil rights organizations joined forces to challenge the legality of Brewer’s order in federal court.

In July, the U.S. Court of Appeals for the Ninth Circuit, the federal appeals court with jurisdiction over Arizona, agreed with the civil rights organizations that Brewer’s policy was likely discriminatory towards undocumented youth. The court ordered the Arizona Motor Vehicle Division to treat the students as they would other noncitizens who can show employment authorization documents as proof of residency.

Dissatisfied with the decision, Arizona asked the same court for a rehearing, which was denied. Finally, Arizona asked the Supreme Court to halt the Ninth Circuit’s ruling. The high court denied that request on Wednesday.

Interestingly, three justices—Antonin Scalia, Samuel Alito, and Clarence Thomas—would have temporarily granted Arizona’s request to halt driver’s licenses. The same justices dissented in the 2012 case Arizona v. United States, which struck down important parts of SB1070, Arizona’s infamous show-me-your-papers law.

The case is not over: Arizona only requested a halt to the order forcing the state to accept DREAMers’ papers for purposes of driver’s licenses. The case is technically still “live” in the lower courts, which means there hasn’t been a definitive pronouncement that Brewer’s policy is unconstitutional.

But given the July ruling and today’s move by the Supreme Court, it’s likely Arizona will seek a settlement with the plaintiffs, unless Gov.-elect Doug Ducey, who has faced pressure to discontinue the policy, continues defending the lawsuit. According to AZcentral.com, Arizona is one of two states preventing so-called DREAMers from obtaining driver’s licenses.

Arizona’s loss before the Supreme Court arrives a day after U.S. District Judge Arthur J. Schwab, a George W. Bush appointee who sits in Pennsylvania, struck down President Obama’s executive action on immigration, which is set to expand the original DACA program to include parents of U.S. citizens and permanent residents, among other provisions.

The ruling, which arrived less than a month since the president’s announcement, has been sharply criticized by legal scholars and commentators. Orin Kerr, a law professor at George Washington University, called the decision “exceedingly strange.”

In a statement reported by The Huffington Post, a Justice Department spokesperson called the Schwab’s decision “unfounded” and noted that an appropriate response was forthcoming.

Other challenges to Obama’s immigration order, from Arizona sheriff Joe Arpaio and a group of more than a dozen conservative governors led by Texas Gov.-elect Greg Abbott, have been initiated in federal courts in Washington, D.C., and Texas.

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Civil Rights, Criminal Justice

Ferguson’s glimmer of justice: Federal law

The failure by a St. Louis grand jury to indict officer Darren Wilson for the death of 18-year-old Michael Brown in Ferguson, Mo., means the quest for justice in state court is likely over.

Now the attention turns to the federal system, where Brown’s family—and Ferguson as a whole—still has a chance to achieve some measure of justice. But the odds are still long.

First is the possibility of a federal indictment against Wilson. Unlike the state case, a federal case won’t center on homicide charges, but on whether Wilson violated Brown’s civil rights. But the criminal civil rights statute isn’t just an average criminal law.

Conceived during the Reconstruction Era alongside other antidiscrimination laws, the statute was passed to protect the rights of blacks enshrined in the Fourteenth Amendment, which promised equality regardless of race. When enacted in the mid-1800s, the intent of Congress was to punish egregious, state-sponsored abuses of power against blacks—lynchings, mob killings, sham trials, unlawful arrests. It’s the same law under which the police officers involved in the Rodney King case were federally indicted.

In determining whether Wilson’s conduct rises to this level of abuse, a key inquiry for the Department of Justice will be whether the officer willfully deprived Brown of his civil rights. That in itself is a really hard case to make because proving “willfulness” requires federal authorities to essentially get inside Wilson’s mind. Did he shoot Brown and thus deprived him of his constitutional rights because he was black?

That’s a huge piece of evidence, and one that—short of a full confession—is extremely difficult to uncover. This explains why FBI has reportedly interviewed hundreds of witnesses, and Attorney General Eric Holder’s statement that “federal civil rights law imposes a high legal bar.” This investigation will remain ongoing for some time.

A second possibility is a private civil rights suit by Brown’s family against the City of Ferguson and Wilson. This kind of litigation—brought under Section 1983 of Title 42 of the United States Code—is very common in federal courts when police brutality or use of force are involved. Landmark civil-rights lawsuits against New York City—including stop-and-frisk, the Central Park Five case, and the wave of arrests following the 2004 Republican National Convention—were brought under Section 1983.

But these cases, too, are rife with complications. Not only is litigation long and protracted, but case law and courts have erected legal barriers—such as qualified immunity and other judge-made justifications—making it really hard for plaintiffs to hold municipalities and officers accountable. Just this year, the Supreme Court handed down two rulings on the same day shielding government officials from liability in the face of seemingly unconstitutional conduct against citizens.

Those potential setbacks aside, the biggest benefit of a civil lawsuit is allowing the Brown family to shape and present its case to a judge and a jury—in a public forum and in whatever manner they please. None of this was available in the criminal case handled by St. Louis authorities. At the very least, the likelihood of unfavorable press for Ferguson for a case that’s already attracted enough media scrutiny might be an incentive for the city to settle with the Brown family. Money will not atone for the death of Michael Brown, but it could signify a loss for a city that is yet to be held accountable.

Lastly, DOJ’s Civil Rights Division is still conducting a “pattern or practice” investigation into the Ferguson Police Department. This process, which could last more than two years, does not look at the Brown case in isolation, but examines in depth Ferguson’s policing practices—including standards for stops, searches, and arrests, racial profiling, handling of citizen complaints, and issues of diversity within the force. Broadly speaking, the inquiry is concerned with the city’s compliance with the Constitution and federal law.

More than prior administrations, Holder’s DOJ has been extremely active and successful in obtaining important consent decrees from law-breaking municipalities. These decrees are legally binding agreements where cities and localities agree to reduce dramatically incidents involving force, conduct further training, and improve community relations. DOJ closely monitors the progress of the offending police departments, and can sue in federal court in the event of noncompliance.

The above legal scenarios within the federal system will take time to yield results, but they offer a glimmer of justice in the wake of a grand-jury outcome that left many with a sense that justice was not served.

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Civil Rights, Criminal Justice, New York

SNL on pot: Off the mark

Thanks to Saturday Night Live, now everyone is up on New York City’s new marijuana policy. If you missed it, here’s the clip.

Now that was funny.

And legally, it was correct: From now on, merely possessing less than 25 grams of weed in public won’t get you arrested. But it will get you a summons, and you’ll have to take a trip to court and pay a fine.

The last part of the video is also correct: Smoking it in public will land you in lockup.

Treating smoking differently probably makes sense from a public-policy perspective; New York City likely has an interest in keeping the air unobstructed and family-friendly for tourists and visitors.

But there’s a fundamental flaw with the video—a detail that, it turns out, is also a key problem with the new pot policy as a whole: Arrests for possession of small amounts of marijuana is chiefly an issue affecting blacks and Latinos, not well-off New Yorkers residing in gentrified areas of Brooklyn.

In the SNL clip, nearly all of the residents awakening to the “new day” of marijuana policing are affluent, light-skinned men and women residing in beautiful, late-19th-century brownstones. The neighborhood looks a lot like Park Slope or Prospect Heights.

That’s a fiction because that’s not the kind of crowd marijuana enforcement has hit hardest. A report issued by the Drug Policy Alliance last month showed that 86 percent of arrestees for pot between January and August—the Bill de Blasio era—are black and Latino. The rate of arrests for whites in the same period was only 10 percent.

The kicker, though, is that the vast majority of arrestees weren’t flaunting the pot in public; they either had it tucked in their pockets or stashed in their cars or belongings. All of this was legal, even before the new mayor took office.

But because of stop-and-frisk and “clean halls,” which subjected hundreds of thousands of young people of color in poorer neighborhoods to unjustified detentions and patdowns, the pot—like magic—appeared in plain view. And once visible to police, it suddenly became a criminal offense.

This, of course, carried a bevy of consequences: a criminal record, difficulty obtaining employment, loss of public benefits and housing, and no more financial aid to pay for school. None of this had an impact on more affluent white kids, even the unlucky few who did get caught.

Which is why the shift to a summons for possessing marijuana is not necessarily better for minority youth. It’s not better because even paying a fine or missing a day’s work can have untold effects. And worse, who’s to say that the NYPD won’t continue targeting young men of color.

A class-action lawsuit pending in federal court in New York contends exactly that: that police issued in excess of 700,000 summonses without any kind of probable cause, just for the sake of meeting quotas. If a judge rules in the class’s favor, there’ll be more reason to doubt the good intentions behind issuing summons for mere pot possession. As it stands, the summons system is a mess.

With so many lingering questions about the new policy, perhaps it’s time New York underwent true marijuana reform, including fairer policing, a more streamlined summons system, and—why not—decriminalization once and for all.

Until then, New Yorkers of color will have little reason to laugh at a dreadlocked Woody Harrelson carrying a bong in public.

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Civil Rights, New York

Law and disorder

In many New Yorkers’ minds, the era of stop-and-frisk left with the prior mayor.

The practice was ruled unconstitutional. Bill de Blasio was elected in large part because of his opposition to it. Its use by police has fallen dramatically. Plaintiffs in the federal case reached a settlement with the city.

None of this seems to matter to police unions. Or maybe it matters too much.

Last week, lawyers representing patrolmen, sergeants, and detectives’ unions tried to urge a federal appeals court in Manhattan to let them intervene in settlement negotiations between the city and the plaintiffs—the very method the parties chose to bring about stop-and-frisk reform. Thanks to the unions’ legal maneuverings, the process remains stalled.

The appellate judges hearing their pleas were unimpressed. And largely skeptical.

“Now, who controls the police department?” asked U.S. Circuit Judge Barrington Parker, Jr. at one point. “Is it the PBA—your clients—or the commissioner?”

U.S. Circuit Judge John M. Walker, Jr. cut to the chase: “What do you hope to gain in the appeal? The city has changed its position. The police force has changed its position. The status quo . . . is simply gone.”

This kind of chastisement was nothing new for the unions. In July, U.S. District Judge Analisa Torres issued a 108-page ruling denying their plea to intervene as defendants in the case. She gave short shrift to their arguments that the original decision declaring stop-and-frisk illegal “burdened and bersmirched” the force and its reputation.

Torres wouldn’t have any of it. She ruled that the police unions’ request was untimely, that the unions had no legal “standing” to join the lawsuit, and that they had “no significant protectable interest relating to the subject of the litigation.”

In other words, too little too late. Judges at the appellate level echoed many of Torres’ criticisms.

Perhaps the tensest moment in the two-hour hearing came when Judge Parker brought up the fact that police unions were still without a contract, and that the whole purpose of this after-the-fact intervention was to get a leg up on negotiations with the city.

“You’re using this motion to intervene to try and accumulate chips,” Parker told Joseph A. DiRuzzo, an attorney representing the Detectives’ Endowment Association, the Captains Endowment Association, and the Lieutenants Benevolent Association. “You want to use this proceeding as leverage in your collective bargaining, and I don’t think that’s permissible.”

Parker said that the city is now under a newly appointed police chief and a newly elected City Council, both of which want the NYPD to operate differently.

“That’s the democratic process,” Parker said. “That’s something you have to live with.”

And with that, the same appellate court that last year sent shockwaves through the legal community—such that its transgressions were documented in the Georgetown Journal of Legal Ethics—may have atoned for its sins and given New Yorkers a sense that it just might rule in accordance with the people’s wishes.

Because, in the end, the stop-and-frisk saga was and is all about constitutional rights and democracy. It’s not about the unions’ bargaining rights or the force’s safety, performance, or reputation. Every moment the unions spend arguing it’s about any of those things, they’re opposing the will of the people.

Because it was the people who grew weary of stop and frisk. It was the people who could no longer tolerate further racial profiling and abuse. It was the people who marched, protested, and pressed their elected officials to pass legislation aimed at curbing discriminatory policing. And ultimately, it was the people who voted for de Blasio to settle the years-long litigation and initiate reforms to the NYPD.

All of those reform efforts are for now suspended. And will be for as long as police unions insist on fighting democracy.

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Civil Rights, New York

Manhattan appeals court chastises police unions over stop-and-frisk

A federal appeals court in Manhattan grilled lawyers representing police unions attempting to disrupt settlement negotiations following a landmark ruling that held New York City liable for constitutional violations against blacks and Latinos.

Three judges from the U.S. Court of Appeals for the Second Circuit questioned the unions’ motives in seeking intervention so late in the litigation — a move that, in practice, has delayed implementation of reforms to the NYPD’s criticized stop-and-frisk policies.

“Now, who controls the police department?” asked U.S. Circuit Judge Barrington Parker, Jr. at one point during the nearly two-hour-long hearing. “Is it the PBA—your clients—or the commissioner?”

U.S. Circuit Judge John M. Walker, Jr. was more pointed.

“What do you hope to gain in the appeal?” he asked. “The city has changed its position. The police force has changed its position. The status quo . . . is simply gone.”

That status quo was the city’s use of stop-and-frisk, which the U.S. Supreme Court has said is legal if conducted with reasonable suspicion. But for almost a decade, former Mayor Michael Bloomberg and Commissioner Raymond Kelly endorsed the practice and defended it in court, denying that the city applied it in a racially discriminatory manner.

But in August 2013, after a lengthy trial, U.S. District Judge Shira Scheindlin ruled the NYPD’s stop-and-frisk policy unconstitutional. The Bloomberg administration appealed the ruling, but Mayor Bill de Blasio — who won the election due in large part to his opposition to stop-and-frisk — dropped the appeal shortly after he took office. His administration quickly entered into settlement negotiations with the plaintiffs in the case.

Unhappy with the city’s change in position, the police unions got involved, claiming in legal filings that stop-and-frisk reform “burdened and besmirched” the force and its reputation.

In July, U.S. District Judge Analisa Torres, in a 108-page decision, roundly denied the unions’ claims. She ruled that the police unions’ request was untimely, that the unions had no legal “standing” to join the lawsuit, and that they had “no significant protectable interest relating to the subject of the litigation.”

The judges at Wednesday’s hearing echoed many of Torres’ criticisms, and forcefully brought the unions to task for using the legal process to get a leg up in contract negotiations with the city.

“You’re using this motion to intervene to try and accumulate chips,” Parker told Joseph A. DiRuzzo, an attorney representing the Detectives’ Endowment Association, the Captains Endowment Association, and the Lieutenants Benevolent Association. “You want to use this proceeding as leverage in your collective bargaining, and I don’t think that’s permissible.”

Parker said that, as a result of last year’s election, the city was now under a newly appointed police chief and a newly elected City Council, and that both wanted the NYPD to operate differently.

“That’s the democratic process,” Parker said. “That’s something you have to live with.”

Despite the appellate court’s skepticism to the unions’ arguments, this same three-judge panel — which also includes U.S. Circuit Judge José Cabranes — sent shockwaves through the legal community last year when it removed Judge Scheindlin from the stop-and-frisk proceedings, stating she had “ran afoul” of judicial code-of-ethics provisions by virtue of some interviews she gave in the media and other procedural considerations.

That order, which halted implementation of Scheindlin’s order pending appeal, was roundly criticized by legal experts and court observers, some of whom accused the court of inserting itself in New York City’s mayoral election. The court, apparently in response to the outcry, later back-tracked and issued a new opinion clarifying that Scheindlin had not engaged in misconduct, but stood by its decision to keep her off the case. The bizarre turn of events inspired an article in the Georgetown Journal of Legal Ethics.

A ruling on the police unions’ motion to intervene is expected later this year.

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