Sotomayor’s dissent in Utah v. Strieff, Part II

September 6, 2016

Last time I read a portion of a dissent by Justice Sotomayor.[1] The Supreme Court of Utah had held that the Utah police had violated the defendant’s constitutional rights. The United States Supreme Court overruled that decision. In the portion of her opinion I read you last time, Justice Sotomayor explained what happens, not always, but what often happens when police stop people. And she explained what the Supreme Court authorizes police to do. Justice Sotomayor explained the ways that stops of people regardless of innocence of any crime, let alone any crime deserving jail time, can injure decent citizens. I didn’t have time to read you the last part of her opinion, so I will read it now:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes,[2] many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.[3] But it is no secret that people of color are disproportionate victims of this type of scrutiny.[4] For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.[5]

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.[6] They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

***

I dissent.

Justice Sotomayor was born in New York City to parents from Puerto Rico. After compiling stellar records at Princeton and Yale Law School, she became a prosecutor, eventually going into private practice. She spent six years as a federal judge, another decade as a federal appellate judge, and joined the Supreme Court in 2009. She writes from every angle of the criminal justice system, as an experienced prosecutor, attorney, member of the community, and judge. Her citations are to decisions of the United States Supreme Court. Before she left the Court, Justice O’Connor wrote a stinging dissent to one of the decisions Justice Sotomayor cites.[7] She was coming to understand the enormity of what the Court has authorized. But this is the Court we have. Is this the Court we want?

— This commentary was broadcast on WAMC Northeast Report, September 6, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] [Dept. of Justice, Civil Rights Div., Investigation of the Newark Police Department 8, 19, n. 15  [2069]  (2014), online at https://www.justice.gov/sites /default/files/crt/legacy/2014/07/22/newark_findings_7-22-14.pdf.] at 8,

[3] See M. Gottschalk, Caught 119-138 (2015).

[4] See M. Alexander, The New Jim Crow 95-136 (2010).

[5] See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

[6] See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002).

[7] Atwater v. Lago Vista, 532 U. S. 318, 360 (2001) (O’Connor, J., dissenting).


Sotomayor’s dissent in Utah v. Strieff, Part I

August 31, 2016

I want to read you a portion of a recent dissent by Justice Sonia Sotomayor in which she explains what I think many do not understand about what happens when police stop people on the street.[1] I will skip her citations but you can read them on the website. She wrote the last part of her dissent for herself alone. I think it is well worth your hearing that portion of her dissent in Justice Sotomayor’s own words:

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.[2] That justification must provide specific reasons why the officer suspected you were breaking the law,[3] but it may factor in your ethnicity,[4] where you live,[5] what you were wearing,[6] and how you behaved.[7] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[8]

The indignity of the stop is not limited to an officer telling you that you look like a criminal.[9] The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline.[10] Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.”[11] If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”[12]

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.”[13] At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.”[14] Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.[15] And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.[16]

More next time.

— This commentary was broadcast on WAMC Northeast Report, August 30, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] Whren v. United States, 517 U. S. 806, 813 (1996).

[3] Terry v. Ohio, 392 U. S. 1, at 21 (1968).

[4] United States v. Brignoni-Ponce, 422 U. S. 873, 886-887 (1975).

[5] Adams v. Williams, 407 U. S. 143, 147 (1972).

[6] United States v. Sokolow, 490 U. S. 1, 4-5 (1989).

[7] Illinois v. Wardlow, 528 U. S. 119, 124-125 (2000).

[8] Devenpeck v. Alford,  [2070]  543 U. S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. ___,  (2014).

[9] See C. Epp et al., Pulled Over, at 5 (2014).

[10] See Florida v. Bostick, 501 U. S. 429, 438 (1991).

[11] Terry, 392 U. S., at 17.

[12] Id., at 17, n. 13.

[13] Atwater v. Lago Vista, 532 U. S. 318, 323-324 (2001).

[14] Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___,  182 L. Ed. 2d 566, 573 (2012); Maryland v. King, 569 U. S. ___, 186 L. Ed. 2d 1, 30 (2013).

[15] Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33-51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341-1357 (2016).

[16] A. Goffman, On the Run 196 (2014).


What is Limited Government Anyway?

January 26, 2016

With the presidential primaries underway, the media is choked with talk about getting the government off the people’s backs, restoring limited government, making government let the people alone. But the Koch brothers, the Tea Party, their candidates and supporters are actually saying something very different – they want government to support their definition of their rights and push everyone else out of their way, and most important they want the courts to decide in their favor when others complain that they are trespassing on public land or polluting the air, land and water in ways that injure and interfere with the lives of others. That’s government in their favor.

We lawyers talk about law as a seamless web. That sounds like an idiom but it’s actually very precise. Everything is governed by rules. Judges always decide that someone does or does not have a privilege or a right. Those are all decisions about what the law is. Law always favors someone and disfavors someone else. If someone has a privilege, then everyone else loses when that person does whatever he or she is privileged to do. The question is not, cannot be, whether there is law; the question we have to deal with is whether it is fair and whether it is good for the public. Government off the backs of some means government on everyone else’s back, often leaving you and me poor and defenseless.

Limited government, regulation off people’s backs, are the tropes we hear when a government agency or legislature takes note of bad behavior – fraud, pollution or unconscionable business practices that cause decent people great loss. Unscrupulous companies, some very large and well known, as we discovered during the 2008 financial shock, want no regulations that would set a moral floor under their behavior, allowing more moral enterprises to compete instead of being bankrupted by cut-rate competition from the scandalous moguls. The only regulations that the unscrupulous like are regulations that keeps everyone else out of their way.

So when you hear that trope, look squarely at the privilege these anti-government claimants are defending. You hear it loudest when people are claiming the right to hurt the public. That’s not a claim of freedom that would have made any sense to the Founders of our country.

When the Founders spoke and wrote about government, their central questions were what’s fair and what’s good for the public. Those was central in every aspect of their work from the definition of property rights to the rights the public retained and what the public could and should do for the benefit of the people. Concern for public welfare was central to the building of the Erie Canal that defined the path of commerce in the State of New York for a century and a half, even as the canal was replaced by roads and railroads to continue developing the path the canal had developed. Concern for public welfare was central to the establishment of schools which made Americans among the most educated people on the earth, education that was at the root of all the good things that have happened since.

The Founders believed in public spirit, not a spirit of what the public could do for one’s selfish needs, but a spirit about what each of us could contribute to the improvement of the community, the states and the nation. When President John F. Kennedy told the American people “Ask not what your country can do for you; ask what you can do for your country,” he was channeling the spirit of the Founders.

— This commentary was broadcast on WAMC Northeast Report, January 26, 2016.


Propensity to violate others – taking checks and balances seriously

April 28, 2015

Polls have found that more than 3 American men in 10 would rape or coerce a woman into sexual intercourse if they could get away with it.[i] Those findings have mostly been discussed only in conjunction with the issue of rape. But I think it has a broader meaning. I think it means that there is a proportion of people who will take advantage of defenseless others for their own benefit when they think that they can.

That creates problems in lots of areas. Like soldiers of countries that we think are less civilized then we, some proportion of American soldiers have resorted to forms of torture like waterboarding. Some go berserk, others are mean, but the misbehavior is predictable, if not who will do what. And like police of countries that we think are less civilized then we, some proportion of American police have also victimized demonstrators, people down on their luck, the homeless and racial minorities. That’s certainly not democratic policing. And it’s made worse by codes of silence in some police departments that are almost as sinister and sometimes worse than the codes among thieves.

I don’t think that most police are bad guys. But when we set things up so that people can get away with bad stuff, it is predictable that a significant proportion will. When we hand people guns and then make excuses for whatever they do because it’s a stressful job, we should expect that a significant proportion of them will do very bad things with the freedom we give them. A system of impunity encourages bad behavior. So one question is how we can set up our police forces so that policemen have the right incentives, incentives appropriate to a free and democratic country? Transparency and accountability matter.

The same is true of business, both international and local. When we take all the tools out of the hands of consumers and courts, we should expect a significant proportion of businesses to misbehave and take people for a ride, often for very dangerous rides. And in business the market mechanism can sometimes make things worse because it punishes those businesses which can’t bring their costs as low and their profits as high even when the mechanism is to take advantage of people, take their money, injure, and leave their lives in shambles. Responsible businesses need responsible regulation to keep the competition in line.

The same of course is true in politics. That’s why we value free speech so highly. But as my colleague, Timothy Lytton pointed out in a book called Kosher,[ii] a study of private marketplaces that do and don’t work, accountability depends on a sufficient number of people with intense interest in the subject, people the rest of us trust to check on what is happening, and a way to get the information out. It’s not automatic – there’s too much to know, too much work to find out.

So transparency is only the beginning. We have to have a culture in which we expect to hold people and organizations to account – without fear or favor for any of the groups and institutions that can hurt us. But in law, the Roberts Court seems to be developing the opposite – a legal culture of defenses and protections buried in contracts and doctrine. And in popular culture, stereotypes, ideology and polarization now substitute for facts. Heaven help us.

— This commentary was broadcast on WAMC Northeast Report, April 28, 2015.

[i] See Sarah R. Edwards,  Kathryn A. Bradshaw, and Verlin B. Hinsz, Denying Rape but Endorsing Forceful Intercourse: Exploring Differences Among Responders, 1 VIOLENCE AND GENDER 188, 190 (2014) available at http://online.liebertpub.com/doi/pdf/10.1089/vio.2014.0022. Though the survey size was small and localized, similar results have been reported before. See Only Psychos Think Rape is OK…Right? in Web Info on Sexual Assault and Abuse (University of Illinois at Chicago, Office of Women’s Affairs, Campus Advocacy Network), https://www.uic.edu/depts/owa/sa_rape_support.html collecting some of the studies.

[ii] Timothy D. Lytton, Kosher: Private Regulation in the Age of Industrial Food (Harvard Univ. Press 2013).


Prosecuting the Prosecutor – Thank Heavens

April 7, 2015

Here’s a news flash from the Innocence Project that left me both cheering and in tears:

The Texas State Bar filed a formal accusation of misconduct against the prosecutor in the case of Cameron Todd Willingham, who was executed in 2004 for the arson murder of his three young daughters. The bar accuses the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Cameron’s defense, according to a disciplinary petition filed in Navarro County District Court this month.[1]

I was cheering because it is so rare that anyone takes action against any official in the criminal process who wrongfully assists in the conviction and execution of an innocent person. The U.S. Supreme Court blocks any litigation against prosecutors for murderous misconduct. I was crying because the man wrongfully convicted has long since been put to death.

Gov. Rick Perry refused to grant a stay requested by lawyers for Cameron who had been convicted for setting a fire that killed his three daughters. His lawyers asked Perry to stay execution because a report by an independent arson expert found no evidence the fire was intentionally set.

Calling Cameron a “monster,” Perry replaced members of a commission that dared to review the finding of arson.

At the trial, a jailhouse informant testified that Cameron had admitted the crime and that the informant had not been promised anything by the prosecutor for his testimony. Later a letter surfaced in which the informant reminded the prosecutor of his promise of leniency on other charges.

For me, there are so many lessons. One is that innocent until proven guilty is more than a slogan. Another is that the people who are supposed to be enforcing the law are sometimes actually lawless, doing great harm. A third, is that independent outside investigation of the behavior of the police and the prosecutors is a crucial form of accountability in a democratic society. And a fourth is that it is important that independent groups have the courage to follow up and do their best to right those wrongs without being attacked because they are impartially investigating people whose job description makes them seem sacrosanct.

When she was told that the state bar was taking action, Cameron’s step-mother responded: “Who would have ever thought that all this corruption would happen in small-town America?”

There’s another stereotype that needs to go. The devil lurks in all communities and among people of all colors. Cameron incidentally was white. A decent, honest, law enforcement system is important to all of us without regard to race, sex, faith or any other aspects of our background. And if they could do that to a white family, what kind of justice do we think our African-American brothers and sisters are getting.

To me this is a reflection of the problems we have been addressing with respect to police killing of unarmed people, even a child recently, and the Supreme Court’s indifference to injustice in what should be a system of criminal justice, not a system of official lynching. We need to be willing to see and stop misbehavior wherever it happens.

— This commentary was broadcast on WAMC Northeast Report, April 7, 2015.

[1] See https://www.themarshallproject.org/2015/03/18/willingham-prosecutor-accused-of-misconduct and http://www.innocenceproject.org/news-events-exonerations/prosecutor-in-willingham-case-faces-misconduct-charges?utm_source=Main+IP+Email+List&utm_campaign=3a08bbb832-2015_February_Newsletter_02272015&utm_medium=email&utm_term=0_016cb74fd6-3a08bbb832-350279237


Killing Garner

December 9, 2014

Are we safer with or without the police around? When juries, grand juries and prosecutors regularly decide that plain, on camera, evidence doesn’t show murder, what protects people?

It’s too dangerous to put your key in your front door like Amadou Diallo a few years ago. It took 41 bullets to meet that threat and shoot him in the back. It’s too dangerous to hold your hands up like Michael Brown in Ferguson – hands up can be interpreted as threatening. It’s too darn dangerous to complain “I can’t breathe” like Eric Garner – we know from sexual politics that people understand “I can’t” to mean “I can!” On camera they could see just how dangerous a man can be when he can’t breathe. And any Black kid with a toy gun is toast.

The police talk about bad officers. Most are not looking for a chance to show just how tough they can be toward inoffensive or defenseless people. But don’t let the so-called good cops off easily when there are no repercussions, when the “good cops” stand with the “bad cops” because it’s a dangerous job, so that there are no enforceable rules of behavior toward civilians and anything the police do goes but nothing civilians do – especially if they’re African-American. The culture of silence gives us no reason for confidence. No firings, no powers for civilian review boards, plus judges and prosecutors who stand by the cops regardless, like the judge who told me he believed my client but found him guilty because “I couldn’t do that to the police.” Are those who stand-up-for-the-cops-no-matter-what any better than the Romans who liked to watch Christians thrown to lions?

Black families have “the conversation” with their kids about how to deal with the police. Actually I’m also better off when I don’t argue with the police, don’t claim to know my rights. Most of my clients were Black. I gave them the same advice plus keep quiet and politely ask for an attorney.

Apologists for the police have used the conversation to say it was Eric Garner’s and Michael Brown’s fault that they were killed. They should have done what they were told. Then they wouldn’t be dead. But so what? I teach my law students that they should not expect their clients to know what to do and what they need to tell their lawyers. The lawyers are the professionals. The lawyers are trained. The lawyers must expect themselves to shape the encounter usefully and help the clients do what needs to be done.

It is a lot too simple and too self-satisfying to blame the victim. The Americans ISIS beheaded shouldn’t have been there if they knew what was good for them but that gave ISIS no excuse to behead them. Some women might not have been raped if they made themselves look ugly but that’s no excuse to rape them. I took part in a rape case where a young man was charged with raping an older, shriveled charwoman – not looking pretty doesn’t necessarily protect women. But no matter, none of them, pretty or ugly, young or old, should have been raped. It doesn’t help to blame the victim. Blaming Brown and Garner and Diallo and the 12 year old kid doesn’t make a lot of sense to me – none of them did anything that justified execution. Do we have to take the guns out of their hands to convince the police to use their heads?

—  This commentary was broadcast on WAMC Northeast Report, December 9, 2014.

References

On Eric Garnder’s death, http://www.nytimes.com/2014/12/04/nyregion/officer-told-grand-jury-he-meant-no-harm-to-eric-garner.html?action=click&contentCollection=U.S.&region=Footer&module=MoreInSection&pgtype=article


Hostility toward Israel and hostility toward Jews

September 23, 2014

Some hostility toward Israel is just anti-Semitic. Some hostility toward Israel is Palestinian nationalism. Some is sympathy for the Palestinians generated by an enormously successful PR campaign. And some is self-inflicted. But all of us should be concerned. The policies of the Israeli government don’t represent me – nor should they. But they affect me. Read the rest of this entry »


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