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).

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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).


When More Law is Too Much – a Case of Airport Excess

May 19, 2016

A proposal before the Albany County legislature makes it a crime to “interfere[] with or fail[] to submit” to the United States Transportation Security Administration inspection protocols.  It would become a crime to turn around and leave the airport for any reason once one enters the screening area.

Proponents imagine people probing airport security until a vulnerability is found by “start[ing] the screening process at an airport” but leaving before completing it. The legislation’s supporters want travelers to have to go through a secondary screening process which includes a physical search of the person and their luggage, a pat down or more. But this poorly drafted legislation makes it a crime to leave once the traveler approaches the conveyor belt, before luggage has been screened.

The proposal substitutes inconsistent local rules for uniform national ones. Under the vague “interference” language, a person who questions why a security officer wants to search the traveler or her luggage may well be arrested for interfering with security protocols.   The proposal aggravates the problem of “flying while Muslim” – or at least flying in Muslim apparel, though I know from experience here and abroad that the vast majority of Muslims are, like the rest of us, decent, caring, peace-loving and law-abiding, although stopped and searched in very disproportionate numbers.

The New York Civil Liberties Union has described this proposal as “a remedy in search of a problem.”[1] There is no apparent problem this legislation would solve. Under long established rules, the TSA and other law enforcement personnel at the airport have all the authority they need to take action whenever they actually suspect a problem rather than whenever someone turns around because they have to run to the bathroom, had a panic attack or forgot something, which becomes criminal under this proposal.

I’d like to quote an eloquent letter sent to me by psychiatrist Aliya Saeed: “physical searches are quite traumatic for many … including survivors of rape (who are unlikely to want the back of a stranger’s hand next to their crotch, and on their breasts, as practiced currently), transgender individuals, those with emotional and mental health issues, pubescent children, etc. Being forced into an arrest … in a crowded public place, because someone is perceived to be walking away from a checkpoint, instead of … being able to simply leave an intolerable situation, presents  an undue risk …. We know that people with mental illness are far more likely to end up at risk of harm in police encounters because they are often unable to communicate effectively or comply readily with police demands. This presents an unnecessary liability for the law enforcement, and an unacceptable risk…, especially [for] those with mental health issues, history of trauma, autism, or those with limited English proficiency.”

This legislation just isn’t needed – there is no gap in authority to take necessary action when officials reasonably suspect wrongdoing. Instead, this will cost us tax dollars without giving us any benefits while threatening travelers with totally unnecessary harm. This legislation should be withdrawn.

– This commentary was broadcast on WAMC Northeast Report, May 17, 2017.

[1] NYCLU Memorandum Re: Proposed Albany County Local Law E of 2016, establishing a secondary search protocal at Albany County Airport, submitted at a meeting of the Albany County Legislature, Monday, May 9, 2017.


The Code of Silence and the Stereotype of Bravery

March 8, 2016

It’s hard to explain to most people how serious the problems with the police are. Ideology makes people choose sides and blink reality. Urging change is treated by police as pure hostility. There are many good policemen doing everything they can to protect all of us. Equally clearly there are policemen who are there for the power trip from the uniform or from their weapons.

But their solidarity and their code of silence make it a much more serious problem, making all criticism out of bounds and protecting policemen who commit serious crimes or abuses.

Sometimes victim’s families win civil suits but the city pays, which means you and me pay, while the officers will be indemnified. That’s not nearly good enough.

Some police were so brave that they were terrified by a man reaching for his front door key and pulverized him with 41 shots. So brave that a Black man in a winter coat, walking like he had a bad knee, a limp or a package – suggests a gun to them and the encounter ends with his death. Or they decide to take what they think the law is into their own hands in a deliberately rough a ride before considering a trip to the hospital, recently ending one victim’s life in Baltimore. I don’t buy stereotypes, including stereotypes of the police. My blood curdles when officers who should be brave and careful shoot unarmed and law-abiding Black men in the back saying they were scared.

Of course it’s now legal to carry guns. But not for African-American men. It’s not even legal for African-American men to look like they might be carrying a gun because it scares our policemen and someone often dies. Of course the rest of us are not supposed to react that way – we’d be charged with murder.

We call the police the finest – but many can’t deal with any but instantaneous obedience and agreement. Objections are often met with charges of resisting arrest or interfering with a police officer. My advice to anyone stopped by the police is to sound apologetic and compliant but say absolutely nothing except your desire to talk to an attorney – politely. It’s my advice to stay alive. But too many don’t get the message. They’re Americans who “know their rights” and they’re angry when they’re stopped for no good reason. They don’t respect people who fly off the handle at the first sign of disagreement, using their weapons to get “respect” for the cops.

Boy I’d love to have unqualified confidence in cops and troopers, to respect their bravery, good sense and commitment to police themselves. But fairness, accuracy and justice are far from consistent results of policing. Cops have told me they’d never rat on a brother and would deny what they knew to be true. I’ve had policemen tell me they change the facts to make people guilty of crimes – like convicting Black or young men in the wrong attire of carrying concealed weapons – including hunting rifles in plain view. Judges have told me they believe the police about half the time – they just don’t know which half.

There have been many exposes of police corruption. But when someone tries to stop it, they are ostracized, forced out or worse. Police unions protect police records so that no one, including the press, can get the facts.

That’s the force we have – one that condones bad behavior over codes of decent conduct. That’s not what our Founders dreamed of or what we deserve. It’s not about rogue officers. It’s about the misplaced loyalty that protects bad behavior. I’d lock their guns in the armory until they learned to police themselves and protect us all.

— This commentary was broadcast on WAMC Northeast Report, March 8, 2016.


The Death of Dontay Ivy and “Walking While Black”

March 1, 2016

I’ve been reading District Attorney David Soares’ letter to Mayor Sheehan on the death of Donald (Dontay) Ivy while in police custody. I’d like to discuss some of what came out of the D.A.’s investigation.

Donald Ivy went out to an ATM, to collect disability benefits, intending to come home. David Soares describes Dontay’s first encounter with the police that night. Two officers [quote] “approached … [Dontay Ivy] sitting on the steps of a property in the South End. The officers approached … in an attempt to learn if he was trespassing.” [close quote] Satisfied that he was’t, they left. Have you ever rested on the steps of a building? Did you think you were trespassing? You weren’t and he wasn’t unless the owner or tenant conveyed an objection or he had gone through a lock, door, fence or barricade. For the police, the mere fact that an African-American man was sitting on some steps was enough to check on him.

A little later that evening, Dontay was walking on Lark Street. Soares noted that it was 26 degrees according to “historical weather data.” But the officers’ became concerned because he was wearing a winter coat, what they called “a ‘puffer’ coat,” [close quote] was [quote] “walking heavily on his left arm” [close quote] and [quote] “appeared to be bunching up his left hand into his sleeve.” [close quote] I’ve done that, sometimes to shelter something from the weather, sometimes because one hand was colder, because of the way I’d been using my hands or had somehow restricted circulation in one hand.

According to District Attorney Soares, one officer said [quote] “the way he was walking didn’t seem right.” [close quote] I don’t know why – a crick, a cramp, or a little arthritis. I can imagine someone coming up to me and asking if I was OK. But the officers asked to see Dontay’s hands and wanted to know where he was going. I can’t relate to that from my experience. Can you?

Apparently because Dontay had on a loose fitting winter coat, whatever he was able to afford on his disability check, one of the officers [quote] “was under the impression that Mr. Ivy might have had a weapon, or possibly drugs.” [close quote] That inference was’t backed up by anything found on Mr. Ivy. It’s an inference that could easily be drawn about most of us sometimes, but I suspect few of us have had police make that kind of inference about us – certainly not if we have white skin and decent clothes.

The report continues that one officer [quote] “noticed what appeared to be a tied-off plastic baggy of the sort used to package drugs on the ground, about ten to twelve feet away from Mr. Ivy, near where he had been walking.” [close quote] If I had to explain every plastic bag found near me when I’m out for a walk, neither the police nor I would have time for anything else. And plastic bag stories are so common in cases where police are trying to justify a search that everyone in the criminal process has become enormously skeptical. It later turned out that the bag was empty.

After they questioned him further, they decided to pat Dontay down. According to the police, he consented, but reacted to being touched by pulling his hands down. Soares’ letter says, “From interviews with members of the Ivy family, we are led to believe that, as part of his mental illness, Mr. Ivy did not like to be touched.” [close quote] Mr. Ivy was under medication for his illness. Let me add that I have learned, from experience and from some direct remarks, that many African-Americans do not like to be touched even in ways that are completely unexceptional in the U.S., including a tap on the shoulder which got me a withering look from a speaker at an event of an organization of which I was a board member.

Obviously things kept getting worse until, as David Soares summarized the findings of the medical examiner, [quote] “Mr. Ivy suffered from an underlying condition that made him particularly susceptible to a heart attack brought on by the stress of the incident with the police.” [close quote] By the time of his death, that stress included the officers attempt to handcuff him, Ivy’s attempt to flee, a chase, subduing Ivy with handcuffs, leg restraints, a police baton and several taser strikes.

Clearly before the stress killed him, the stress led Ivy to do some things that were unwise, that I as an attorney would have advised against had I been able to reach him. But people doing stupid things under stress is a fact of being human. Interestingly, at one point, one of the officers told Dontay they were going to detain him because he couldn’t follow the officer’s instructions to keep his hands up, adding [quote] “You’re making me a bit nervous.” [close quote]

It’s striking how ordinary all this is – Dontay’s behavior before the police stopped him; his obvious fear of the police and what they were doing is also ordinary, especially in the Black community; the officers’ fear that Ivy had a gun, even though based on a string of inferences from very ordinary behavior, and fear about a possession which, under recent U.S. Supreme Court cases, would arguably have been within his rights.

But from all those very ordinary facts, a man is dead and the D.A., the grand jury, the police chief and the Mayor all apparently find no one blameworthy. What it means is that for [quote] “walking while Black,” [close quote] a man needs the savvy of a criminal defense lawyer and the courage to deal with stressful situations by focusing on how scared the police are because of the color of his skin.

— A shorter version of this commentary was broadcast on WAMC Northeast Report, March 1, 2016.


Do the police really have no time to do anything but shoot?

August 4, 2015

Perhaps you read the NY Times story over the weekend about the self-described expert in police killings, William Lewinski, who justifies every police killing on the ground that the policeman had no time to protect himself, no time to do anything but shoot. Victim’s back turned, no time. Hand in pocket, no time. Victim doing what the officer told him to do, no time. All the evidence contradicts the statement of the officer, no time.

On Lewinski’s logic, we should all not only carry weapons, we should shoot everyone on sight, because we have no time to react, so we should all practice  preemptive killing – dead men can’t shoot us. What we should really do is move to Iraq or Syria because that’s a matter of course there. Shoot, shoot, shoot.

And understanding that the police are taught by nut-jobs like Lewinski to shoot pro-actively, what we should really do is go out like armed vigilantes and attack the police systematically, kill ‘em all so they can no longer attack us. And in case you hadn’t noticed there have been groups that have targeted the police and for just that reason.

Lewinski’s approach is good only for the undertakers. I don’t know what the undertakers give him but they should chip in a lot because they will certainly benefit from a shoot on sight society.

Of course if you or I actually took that advice, we’d be charged with murder. But the rules don’t apply to the police. We can’t shoot unarmed people but police can – and get away with it. We can’t shoot people in the back but police can – and get away with it. We can’t tell a bunch of lies about what happened that are contradicted by the provable facts and get away with it but police can – and get away with it. Thanks to Lewinski.

Think what Lewinski and others of his ilk would have to tell the police if, like most of us, they weren’t armed. They’d have to tell the police to use their heads, not their guns. They’d have to tell the police to cool tempers instead of raising them. They’d have to tell the police that the best response to a disagreement isn’t a hole in the head. They’d have to tell the police that a traffic stop isn’t ground for ending someone’s life.

What a different world it would be if we learned to live together, if we learned that there is a difference between civilization and a jungle, if we learned that the default rule is respect for human beings, respect for life, liberty and the pursuit of happiness as the Declaration of Independence tried to tell the world. What a different world it would be if police in America acted like our servants, not our rulers, that they don’t have a God-given right to issue commands but that like most of us, the magic word is “please.”

It’s time to imitate the British and take the guns out of the hands of the cops and leave to special rules those more unusual occasions when guns should be issued for specific jobs and reasons. The ordinary rule must be to use our heads instead of blowing away everyone in sight, leaving only death and destruction in the wake of the police.

— This commentary was broadcast on WAMC Northeast Report, August 4, 2015.


Terry v. Ohio Deserves History’s Dustbin

April 14, 2015

Madison, Wisconsin; Ferguson, Missouri, Staten Island, New York; the list is endless and growing. And the tears keep flowing. Mostly young Black men deprived of their lives without benefit of any opportunity to defend themselves. They can’t defend themselves physically because that will be treated as a threat on the officers’ lives. They never get a chance to hire an attorney and defend themselves in court. It’s all over before it starts. More lives gone. More families grieving. That, apparently, has become American “justice.”

The Constitution says that we have the right to be free of “unreasonable searches and seizures … and no Warrants shall issue but upon probable cause ….” Probable cause became the standard for the constitutionality of an arrest or seizure of property. In 1968 the Warren Court decided a case known as Terry v. Ohio.[1] In that decision, the Warren Court said that the police do not have to have probable cause to stop and frisk someone. They said “reasonable suspicion” was enough. Although the Warren Court laid the foundations for a much more just society, making clear that segregation by race is “inherently unequal” and unconstitutional, mandating one person one vote and insisting on the enforcement of most of the Bill of Rights, Terry v. Ohio begat the reenactment of the racist patrols that kept the Blacks down on the farm throughout the post-Civil War segregated South, now expanded throughout the nation.

Terry v. Ohio is the source of the irritation of our Black fellow citizens by constant interruptions in their daily business, constant demands that they submit to searches, constant expressions not of cordial greetings from the police but constant demands that our Black fellow Americans obey and respect “the man.”

Terry v. Ohio is a source of many of the interactions between minorities and police that have gone disastrously wrong. It ramps up every exchange. There’s no “Hi, how are you?” It’s “turn around with your hands up” and from that moment everyone is on edge –minority individuals because they are out of control and don’t know what is going to happen to them, the cops because they are now ordering people around and expecting the worst. Indeed, when someone is ordered to put their hands up, any motion that doesn’t look right to the officer now looks dangerous. Everything ramps up. Adding insult to injury, we have statistics – nine-five percent of those stops are useless nonsense.

We would have less crime without Terry v. Ohio. There would be less anger without Terry v. Ohio. African-Americans would be less convinced that the world is determined to keep them down without the irritants enforced under Terry v. Ohio. We would be safer without Terry v. Ohio.

Indeed we were safer before Terry v. Ohio. In the world I grew up in, racial minorities were not a significant source of street crime. The world that so many of us, Black and white for different reasons, have learned to fear, is a post-Terry v. Ohio world.

There’s something else I’d do – I’d give the police a choice – no guns without full civilian accountability, fully empowered civilian review boards with the power to investigate, subpoena and see all documents and interview all witnesses without restrictions, without privileges, contractual barriers or anything else that prevents a full and impartial investigation. And I’d insist that cops turn on their cameras before they stop, seize, arrest or otherwise prevent us from doing our business without restraint.

— This commentary was broadcast on WAMC Northeast Report, April 14, 2015.

[1] 392 U.S. 1 (1968).


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