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Changes in United States Sentencing Guidelines Could Reduce the Sentences of 46,000 Federal Prisoners, but is It Enough? By Sarah Alexander

Changes in United States Sentencing Guidelines Could Reduce the Sentences of 46,000 Federal Prisoners, but is It Enough?

Sarah Alexander

Introduction

On July 18, 2014, the United States Sentencing Commission (Sentencing Commission) voted to retroactively apply a change in the United States Sentencing Guidelines (USSG) for nonviolent drug offenders.[1] Ultimately, the Department of Justice and the Judicial Conference, as well as many other groups, supported the amendment, which was proposed in April of this year.[2] If Congress does not intervene before November 1st of this year, the retroactive amendment will take effect.[3] I believe this retroactive amendment to the USSG is well-intentioned, but ultimately falls short of the reform needed to bring equality to the justice system. The amendment provides no alternative to prison for non-violent drug offenders. Rather, the amendment reinforces the idea that prison is the only option for drug offenders.

The Amendment

The amendment will make nearly half of all prisoners incarcerated for drug crimes eligible for a sentence reduction.[4] Eligible prisoners may receive a sentence reduction averaging approximately two years, which would result in a sentence reduction of 18.8%.[5]

The Justice Department, at first, pushed back against the proposed amendment, but eventually negotiated the amendment’s postponed effective date of November 1, 2015.[6] Therefore, while the amendments will reduce prison sentences for nearly one-half of nonviolent drug offenders, no prisoner will be released from prison until after November 1, 2015. It is estimated that 46,290 nonviolent drug offenders will be affected by the retroactive sentencing amendment.[7]  However, that number will likely be reduced because the one-year delay will allow approximately 500 prisoners nationwide to finish their current sentences.[8] According to Judge Patti B. Saris, chair of the Sentencing Commission, “[t]he delay will help to protect public safety by enabling appropriate consideration of individual petitions by judges, ensuring effective supervision of offenders upon release, and allowing for effective reentry plans.”[9]

The Amendment’s Effects

The effect of the new sentencing amendments on the federal prison system will have both short and long term effects. The new average drug sentence for nonviolent offenders will be 9 years.[10] This reduction will save up to 79,740 bed years.[11] A bed year is “the equivalent of one federal prisoner occupying a bed for a year.”[12] The number of bed years saved could drastically reduce prison overcrowding. Presently, federal prisons are approximately 32% over capacity.[13] The estimated average cost of one bed year in 2014 is $11,000 per inmate.[14] Therefore, the amendment could possibly save the Bureau of Prisons more than $877,140,000. In Alabama alone, 905 inmates are facing the possibility of a reduced sentence.[15]

Inmates will not automatically be eligible for a reduced sentence.[16] In order to receive a sentence reduction, an inmate must first ask a judge to review the case.[17] The judge will then determine whether the inmate and a reduced sentence would create a risk of public harm.[18] Then the judge will either deny or grant the inmate’s request for a reduced sentence.[19]

Reactions to the Amendment

The amendment received unanimous support from the U.S. Sentencing Commission.[20] The proponents of the amendment rely on the amendment’s reduction of prison costs and the amendment’s protection of the public safety.[21] The Commission conducted a study of offenders released after a similar 2007 amendment reduced the sentences for crack offenders. The Commission found “that those offenders were no more likely to reoffend than offenders who had served their original sentence.” [22] Jesselyn McCurdy, the senior legislative counsel for the American Civil Liberties Union said, “As we continue the march toward fairness in our country’s failed racially biased sentencing policies, we can’t leave behind those who had the bad luck to receive their sentences before the policies were changed…Making these new guidelines retroactive will offer relief to thousands of people who received overly harsh sentences under the old sentencing guidelines.”[23] However, not all involved in the sentencing process are supportive of the amendment. [24]According to an anonymous Justice Department official, some federal prosecutors strongly oppose reductions in sentences for the cases that they have overseen.[25]

While the retroactive amendments are a step towards equality before the law, more action is needed. Sentencing Commission Chairwoman Saris emphasized that “[t]he step the Commission is taking today is an important one, but only Congress can bring about the more comprehensive reforms needed to reduce disparities, fully address prison costs and populations, and make the federal criminal justice system work better.”[26]

Conclusion

The retroactive amendment is viewed as a starting point to prison reform. However, I view the amendment as an attempt to curb the discussion of necessary, wider justice system reform. Rather than address the underlying systemic issue of sentencing nonviolent drug offenders to prison for a physical and mental disease, the amendment distracts the public from the issue with smoke and mirrors. The amendment allows people to feel as though the justice system is fair and equal, when, in reality, the justice system is still disproportionately sentencing minorities to prison for drug offenses.[27] The amendment pushes the ignorant idea that prison will reform these nonviolent drug offenders while offering no other possible disposition. Therefore, while I commend the Sentencing Commission’s unanimous support of the retroactive agreement, I fear that this will be the end of an essential debate in the area of civil liberties and civil rights.

[1] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, News Release (U.S. Sentencing Comm’n, Washington, D.C.), July 18, 2014, at 1.

[2] Id.

[3] Id.

[4] Timothy M. Phelps, Federal Gov’t Moves to Reduce Sentences of 46,000 Drug Offenders, Los Angeles Times (July 18, 2014, 9:10 PM), http://www.latimes.com/nation/nationnow/la-na-drug-sentences-reduced-20140718-story.html.

[5] Brendan Kirby, Thousands of Federal Drug Offenders Could Get Early Release Under Sentencing Comm’n Vote, Al.com (July 18, 2014, 4:11 PM), http://www.al.com/news/index.ssf/2014/07/thousands_of_federal_drug_offe.html.

[6] Timothy M. Phelps, supra note 4.

[7] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1.

[8] Brendan Kirby, supra note 5.

[9] Id.

[10] Id.

[11] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1, at 2.

[12] Id.

[13]  Id. at 1.

[14] U.S. Gov’t Accountability Office, Bureau of Prisons Info. on Efforts and Potential Options to Save Costs (2014).

[15] Brendan Kirby, supra note 5.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1.

[21] Brendan Kirby, supra note 5.

[22] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1, at 2.

[23] Brendan Kirby, supra note 5.

[24] Timothy M. Phelps, supra note 4.

[25] Id.

[26] Brendan Kirby, supra note 5.

[27] See E. Ann Carson and William J. Sabol, Dep’t of Justice Office of Justice Programs, Prisoners in 2011 28 (2012).

Highway Robbery by the Highway Patrol: Civil Asset Forfeiture and Modern Law Enforcement By Brad Hargett

 Highway Robbery by the Highway Patrol:

Civil Asset Forfeiture and Modern Law Enforcement

By Brad Hargett

Introduction

Imagine a family driving along the highway and suddenly being pulled over for a minor traffic violation. Instead of issuing a ticket the officer searches the vehicle and finds over $6,000 in cash. Now imagine that officer threatening the family with money laundering and child endangerment charges unless the parents waive their rights to challenge the seizure of cash. This scenario did not take place in some banana republic without rule of law. This occurred in the great state of Texas and was presumably legal.[1]

How Civil Asset Forfeiture Works

Civil asset forfeiture rests on the legal fiction that property can be guilty of a crime.[2] This leads to bizarre court proceedings such as United States v. Approximately 64,695 Pounds of Shark Fins.[3]  This process is also divorced from the supposedly underlying criminal charges, meaning that even if acquitted of a criminal charge of drug trafficking the defendant’s car may still be seized via civil asset forfeiture.[4] In fact, one study has found that “80% of people whose property was seized by the federal government were never charged with a crime.”[5] Generally, in order to challenge the seizure the property owner must prove his or her own innocence.[6] Under the “innocent owner” defense a property owner is “required to prove a negative: that he did not know or should not reasonably have known that his truck was being used illegally.”[7]

Federal law initially limited seizures to cash or property related to the production of drugs or other crimes.[8] Gradually, agencies were allowed to seize property purchased with the proceeds of such illicit activity.[9] For example, initially, the FBI could seize a house if drug traffickers used it to cut and repackage cocaine. Now, agencies can seize the house of the drug dealer if he used the proceeds from the sale of that cocaine to pay his mortgage. This practice has only increased since the enactment of the Comprehensive Crime Control Act of 1984 and subsequent passage of state civil asset forfeiture statutes.[10]

Civil asset forfeiture has been lauded as a boon to law enforcement in the fight against organized crime, the drug war, and even terrorism. The Department of Justice argued in 2008 that civil asset forfeiture deters crime, incentivizes local police to enforce laws against drug use and distribution, and helps fund cash-strapped police departments.[11] When used properly, the ability to seize ill-gotten proceeds undoubtedly is one of the most powerful weapons against drug cartels and other organized crime.[12] The process affects a criminal organization’s bottom line rather than simply locking up low-level, dispensable members of the gang or cartel.[13] In addition, seized funds are often re-invested in law enforcement equipment and training, theoretically leveling the playing field between cash-flushed cartels and cash-strapped cops.[14]

Problems with Civil Asset Forfeiture

However, this incredibly powerful weapon has the potential to catch innocent citizens in the cross hairs. In states with very little oversight, the civil asset forfeiture process is increasingly seen as an easy way to fund cash-strapped police departments and city governments.[15] Purposefully or not, these practices often affect people least likely to afford the initial seizure much less the cost of hiring an attorney to challenge it. Disputing the popular notion that civil asset forfeiture targets drug kingpins and cartels Lee McGrath, of the Institute for Justice notes that “in reality, it’s small amounts [of money], where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.”[16] It stands to reason then that if aggrieved property owners do not often challenge these seizures there is little reason to reign in the practices. From a law enforcement agency’s perspective budget shortfalls can be compensated for by civil asset forfeiture with no consequences. If civil asset forfeiture was originally considered a deterrent to drug cartels, one is left with the question: In modern execution, where is the deterrent for police abuses?

Reform Efforts

In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA). Notably, this act increased the burden of proof to require the government to show by a preponderance of the evidence that the property is subject to forfeiture.[17] The prior burden of proof was probable cause; in effect, an indictment prima facie evidence that the property was subject to forfeiture.[18] Perhaps the most important aspect of CAFRA was that it clarified the “innocent owner” defense noted above. Subsequently, property owners had a specific guideline to challenge the forfeiture by arguing that the owner “‘did not know of the conduct giving rise to the forfeiture’ or, upon learning of the conduct, did ‘all that reasonably could be expected under the circumstances to terminate such use of the property.’”[19] For example, if a homeowner’s son was selling marijuana out of the home, under federal law, the parent could avoid forfeiture by showing that she was unaware of the drug dealing, kicking the offender out of the home, or informing the police of the illegal conduct.[20] As noted above, the innocent owner defense is problematic because it forces the aggrieved property owner to prove a negative. Nonetheless, the defense was a welcome reform at the dawn of the twenty first century.

In the wake of CAFRA, several states have attempted to reform civil asset forfeitures. For instance, one Maryland state senator has proposed more modest reforms, such as requiring police to publicly “report the types of property seized, the crimes with which they are believed to be linked, and what happened in any related criminal case.”[21] Although this wouldn’t directly benefit an aggrieved property owner, one would hope that public scrutiny would deter some of the worst abuses of the process. Ultimately, this bill stalled in the Maryland state senate.[22] Moreover, even where states have passed reform measures, law enforcement agencies have skirted the reforms by partnering with federal agencies through equitable sharing programs or lobbied for an outright repeal of civil asset forfeiture reform statutes.[23]

Conclusion

In a recent ACRCL blog post, my colleague, Stephen McKitt, recently discussed the turmoil in Ferguson, Missouri by asking the eternal question: “Who watches the guardians?”[24] Unfortunately, in the context of civil asset forfeiture, law enforcement agencies have avoided public scrutiny for far too long. Reform efforts, especially at the state level, are piecemeal and often unsuccessful. Currently, law enforcement agencies have nothing to lose and everything to gain by aggressively seizing assets. The problem is complex and, as such, can only be addressed with comprehensive reforms, including appointed counsel for all aggrieved property owners, public reporting of seizures, restrictions on the use of seized funds, and proper training to reduce roadside abuses. Without such reforms the highway patrol will continue to enjoy a license to engage in highway robbery.

[1] Sarah Stillman, Taken, The New Yorker, Aug. 12, 2013, http://www.newyorker.com/magazine/2013/08/12/taken?currentPage=all

[2] Radley Balko, Utah Lawmakers Quietly Roll Back Asset Forfeiture Reforms, The Washington Post, Jan. 8, 2014, http://www.washingtonpost.com/news/opinions/wp/2014/01/08/utah-lawmakers-quietly-roll-back-asset-forfeiture-reforms/

[3] Stillman, supra note 1.

[4] Abby Simons, Law Requiring Guilt for Forfeiture of Property Sparks Debate, Star Tribune, Mar. 7, 2014, http://www.startribune.com/politics/statelocal/249088941.html

[5] J.F., What Civil-Asset Forfeiture Means, The Economist, Apr. 14, 2014, http://www.economist.com/blogs/economist-explains/2014/04/economist-explains-7

[6] See, Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces 152 (Public Affairs Publishing, 1st ed. 2013).

[7] El-Ali v. State, 428 S.W.3d 824, 826 (Tex. 2014)

[8] Stillman, supra note 1.

[9] Id.

[10] Id.

[11] John L. Worrall, Problem-Oriented Guides for Police Response Guides Series No. 7: Asset Forfeiture 13-14 (Center for Problem-Oriented Policing, Inc. 2008), available at http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeiture.pdf

[12] Daniel H. Cicchini, From Urbanization To Globalization: Using The Federal Money Laundering And Civil Asset Forfeiture Statutes In The Twenty-First Century Drug War 41 Rutgers L.J. 741, 753 (2010) (discussing efficiency of deterring drug cartel leadership rather than incarcerating low-level offenders via asset forfeiture).

[13] Id.

[14] Balko supra note 6 at 222. Of course this can be troublesome in another sense. For example, when drug interdiction task forces sit on a war chest they may just decide to spend that cash on a deeply discounted MRAP from the Pentagon’s 1033 program. It is not a coincidence that civil asset forfeitures have skyrocketed as suburban police forces are becoming more and more militarized.

[15] Stillman, supra note 1 (noting that the Detroit Police Department has increased seizure raids in response to the city’s bankruptcy and the department’s subsequent budget slashing.)

[16] Id.

[17] Brant C. Hadaway, Executive Privateers: A Discussion on Why the Civil Asset Forfeiture Reform Act Will Not Significantly Reform the Practice of Forfeiture, 55 U. Miami L. Rev. 81, 104 (2000).

[18] Id.

[19] Id. at 107.

[20] Stillman, supra note 1. This example is drawn from the case of Mary Adams.

[21] Ian Duncan, Senator Proposes More Tracking for Asset Forfeiture Cases, Baltimore Sun, Mar. 1, 2014, http://www.baltimoresun.com/news/maryland/sun-investigates/bs-md-sun-investigates-asset-forfeiture-20140301,0,6043652.story; The Georgia legislature proposed a similar measure that included provisions that would strip departments of seized assets for failure to comply with reporting and use restrictions. Legislative Agenda, ACLUGA.org, http://www.acluga.org/get-involved/legislative-work/legislative-agenda/ (last visited October 5, 2014); This bill also failed to pass through the state legislature.

[22] Maryland SB 468, OpenStates.org, http://openstates.org/md/bills/2014/SB468/ (last visited October 5, 2014).

[23] Balko, supra note 2.

[24] Stephen McKitt, Who Guards the Guardians Themselves?, ACRCL Blog, http://alabamacivilrights.wordpress.com/2014/09/16/who-guards-the-guardians-themselves-by-stephen-mckitt/

Oral Argument Preview: Police Mistakes of Law and Traffic Stops in Heien v. North Carolina By: Justin Clark

Oral Argument Preview: Police Mistakes of Law and Traffic Stops in Heien v. North Carolina

By: Justin Clark

Introduction

 

Police officers in the line of duty often have to make split-second decisions based on incomplete information.  Accordingly, the Supreme Court has long acknowledged that the Fourth Amendment gives some considerable room for police mistakes of fact as long as they are reasonable under the circumstances.[1]  In Heien v. North Carolina, the Court granted certiorari to hear a case from the Supreme Court of North Carolina to decide whether a police officer can justify a traffic stop based on the officer’s mistake of law.[2]  The Supreme Court of North Carolina sided with a minority of jurisdictions by holding that a police officer may justify a traffic stop based on a mistake of law, so long as that mistake is objectively reasonable.[3]  However, an overwhelming majority of courts in answering this question have applied a strict per se rule—a police officer can never justify a traffic stop based solely on a mistake of law.[4]  Under an alternative approach, a court will find that where a police officer conducts a traffic stop based on his or her mistake of law, the stop is presumptively invalid.[5] In this respect, this rule is like the majority rule, but it then allows the police officer can rebut this presumption by offering facts that would form an independent legal basis for the stop.[6]

This preview discusses the background facts of Heien.  Second, it discusses the reasoning given by the majority opinion of the Supreme Court of North Carolina.  Third, it offers two criticisms against the minority’s objectively-reasonable rule.  Finally, it examines the possible outcomes the Supreme Court might take in this case.

Background Facts of Heien

The petitioner was a passenger his car being driven by another person down the interstate early one morning.[7]  A police officer was observing traffic from a position on the side of the road.[8]  He decided to follow the petitioner’s car because the driver was looking “stiff and nervous.”[9] When the car slowed down the right brake light of the car did not illuminate.[10]   The officer activated his blue lights and pulled the car over.[11]  He told the driver that the only reason for the stop was for having a “non-functioning brake light.”[12]  However, North Carolina law only requires that a car have “a stop lamp.”[13]  The officer based the stop in his mistaken belief that the law required that cars need to have two working brake lights.[14]  Nonetheless, during traffic stop the officer requested to search the petitioner’s car.[15]   The petitioner consented to the search, which uncovered a sandwich bag containing around two ounces of cocaine.[16]  The petitioner later pled guilty to two counts of attempted cocaine trafficking.[17]  The Supreme Court of North Carolina upheld the traffic stop because the officer’s mistake of law was objectively reasonable under the circumstances.[18]

Lower Court’s Reasoning

The court offered three major justifications for adopting a rule that permits objectively reasonable mistakes of law.  First, allowing objectively reasonable mistakes of law complies with the Fourth Amendment command that the police must only act reasonably, not perfectly.[19]  It reasoned that a rule invalidating every police mistake of law would cause timidity among police officers to stop cars for violating traffic laws out of the “fear that a possible subsequent prosecution for the violation could be imperiled.”[20]  The court further stated that “most motorists would actually prefer to learn that a safety device on their vehicle is not functioning properly.”[21] Second, the court determined that rejecting a per se rule was consistent with the reasonable suspicion standard, which requires that courts look at the totality of the circumstances.[22]  Third, the court appealed to judicial efficiency by treating all police mistakes the same because the difference between mistakes of fact and law will not always be readily apparent.[23]

Criticisms of the Minority Rule

First, the minority rule allows for virtually unlimited police discretion because it fails to provide a cognizable standard to govern police contact with drivers on the road.  The governing standard for reasonable suspicion analysis in the traffic-stop context should be rooted in a violation the law.[24]  The basis for the stop in Heien was not based on a violation of the law.[25]  The Court has granted police officers a lot of leeway in forming a reasonable suspicion that “criminal activity may be afoot.”[26]  Furthermore, an officer can pull someone over for engaging in a series of innocent acts, if those acts, taken together, give rise to suspicious conduct.  [27]  Completely irreprehensible activity, like the broken brake light in Heien, should never give rise to a traffic stop.[28]

Second, the minority rule gives an unfair advantage to police because it holds drivers to a higher standard.  A driver who is pulled over for a traffic violation cannot assert a mistake of law as a defense.[29]  But if the Court adopts the reasoning of the Supreme Court of North Carolina, police officers will be able to raise a mistake of law excuse to justify a traffic stop under the Fourth Amendment.[30]  Proponents in favor of a per se rule against police mistakes of law have argued that the law cannot hold the public to a higher standard than those who are entrusted with enforcing it.[31]

In United States v. Chanthasouxat, the Eleventh Circuit adopted rationales from three areas outside of the realm of the Fourth Amendment.[32]   First, it reasoned that a court should never interpret a vague or ambiguous statute against a defendant.[33]  This principle is usually applied to cases involving statutory interpretation of criminal codes, although the relevant provisions in this context are in the motor vehicle code.  Second, allowing the police to “sweep behavior into the statute” that the legislature did not intend runs against the separation of powers doctrine.[34]  Third, allowing the police room to interpret the laws violates the due process because it fails to give reasonable notice to many drivers who are subject to being pulled over for something that is not against the law.[35]

Possible Outcomes in Heien v. North Carolina

The Supreme Court will hear oral arguments on this case October 6, 2014.[36]  The Court should consider adopting a rule that (at the very least) presumes that a mistake of law cannot form the basis for a traffic stop.   It could adopt the majority rule that does not allow stops based on mistakes of law, but this rule is arguably too strict on police officers.[37]  The Court should look to the alternative approach to give the police the chance to justify the stop on some independent grounds, despite his or her mistake of law.[38] If the Court applies the alternative rule in Heien, the stop will not be valid because it is unlikely that the officer will be able to provide another independent reason why he stopped the car, other than the fact that car’s brake light was out.  Whatever the outcome, this case is definitely one to keep an eye on.

[1] See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 185 (1990) (recognizing that the requirement for police acting under the Fourth Amendment “is not that they always be correct, but that they always be reasonable”).  See also Brinegar v. United States, 338 U.S. 160, 176 (1949) (noting that “[b]ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part”).

[2] See  Order Granting Petition for Certiorari to Supreme Court of North Carolina, 2014 U.S. LEXIS 2577 (No. 13-604).

[3] State v. Heien, 737 S.E.2d 351, 356 (N.C. 2012); see also United States v. Martin, 411 F.3d 998 (8th Cir. 2005).

[4] United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998).

[5] United States v. Delfin-Colina, 464 F.3d 392, 399 (3rd Cir. 2006).

[6] Id. at 399-400.

[7] Heien, 737 S.E.2d 351, 352.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13]Id.   N.C. Gen. Stat. § 20-129(g) (2012) (emphasis added)

[14] Heien, 737 S.E.2d 351, 357.

[15] Id.

[16] Id.

[17] Id. at 353.

[18] Id.

[19] Id. at 356.

[20] Id. at 357

[21] Id.

[22] Id.

[23] Id. at 358.

[24] Brief for NACDL as Amici Curiae Supporting Petitioner, Heien v. North Carolina, 2014 LEXIS 2577 (No. 13-604) at 4.

[25] State v. Heien, 737 S.E.2d 351, 357 (N.C. 2012).

[26] Terry v. Ohio, 392 U.S. 1, 30 (1968).

[27] Id. at 22.

[28] Brief for NACDL, supra note 24, at 4.  See also Navarette v. California, 2014 U.S. LEXIS 2930 (Scalia, J., dissenting)

[29] Id.

[30] Heien, 737 S.E.2d 351 (N.C. 2012).

[31] Brief for Professors Charles E. MacLean and Adam Lamparello as Amici Curiae Supporting Petitioner, Heien v. North Carolina, 2014 LEXIS 2577 (No. 13-604) at 16.

[32] 342 F.3d. at 1278 (2003).

[33] Id. at 1278.

[34] Id.

[35] Id. at 1278-79.

[36] Heien v. North Carolina, SCOTUSblog, (http://www.scotusblog.com/case-files/cases/heien-v-north-carolina/) (last visited Sept. 28, 2014).

[37] See generally, Daniel N. Hass, Student Comment, Must Officers be Perfect?: Mistakes of Law and Mistakes of Fact During Traffic Stops, 62 DePaul L. Rev. 1035 (2013).

[38] Brief for MacLean and Lamparello, supra note 31, at 17-18 (arguing for the application of the alternative rule).

Students and Free Speech: A Need for Clarity from the Supreme Court By Anna Carroll

Students and Free Speech: A Need for Clarity from the Supreme Court

By Anna Carroll

            Since its landmark decision in Tinker v. Des Moines Independent Community School District in 1969, the Supreme Court has rarely granted certiorari to hear cases involving students’ rights to freedom of speech under the First Amendment. In Tinker, the Supreme Court held that “[s]chools could restrict speech only where the speech reasonably foreseeably could have resulted in substantial indiscipline, disruption, disturbance, or disorder, or where the speech would have violated the more or less specified rights of other students or of unspecified non-students.”[1] An often-cited quote from the decision states, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[2] However, these grand words along with the actual holding in Tinker left a lot of room for further discussion on the matter of student speech.

            In 1986, a more conservative Court reexamined limits on student speech. In Bethel School District No. 403 v. Fraser, the Supreme Court distinguished politically motivated speech from “offensively lewd and indecent speech” and held that the latter was not protected.[3]  In the 2007 case Morse v. Frederick, the Court further limited student speech by denying First Amendment protections to speech advocating illegal drug use.[4] Justices Alito and Kennedy concurred, securing the majority, but on the understanding that the opinion:

(1) [G]oes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”[5]

Other than Fraser and Morse, the Supreme Court has expanded very little on their ruling in Tinker.  Circuit Courts around the country have been forced to forge their own interpretations of the Supreme Court’s holdings, and, as a result, many circuits have come to different conclusions.  The Third Circuit recently ruled on student speech in B.H. ex rel Hawk v. Easton Area School District, and the Supreme Court denied a petition of certiorari by the school district in March of 2014.[6] Without guidance from the highest court in the land, it is likely that circuits will continue to disagree over what student speech is constitutionally protected. Therefore, the Supreme Court should revisit student speech and provide a more definite structure or balancing approach for lowers courts to follow.

  1. H. ex rel Hawk v. Eaton Area School District

 

  1. The Third Circuit’s Ruling

In 2010, two minors, B.H. and K.M., sued the school district, through their mothers, for suspending them and prohibiting them from attending the school’s formal because the girls refused to remove bracelets imprinted with the phrase “I ♥ Boobies! (KEEP A BREAST).”[7] The bracelets were products of the Keep-A-Breast foundation and were created to promote education about breast cancer and to encourage young women to speak openly and comfortably about real issues women face everyday.[8]  The two girls wore the bracelets in support of Breast Cancer Awareness Day, an event observed by the school.[9] School administrators, fearing the bracelets would cause disruption and potential inappropriate sexual contact amongst students, made an announcement over the school’s loudspeaker banning any bracelets containing the word “boobies.”[10]

The school district did not initially claim that the bracelets were actually disruptive under Tinker, but rather focused on Fraser’s restriction on lewd or offensive speech. For this reason, the Third Circuit chose to center its decision on an interpretation of Fraser rather than the other Supreme Court student speech cases.[11] According to the Third Circuit, Fraser, along with Morse, created three possible categories into which student speech could fall:

(1) [P]lainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that as a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.[12]

The court placed the case before them in the second category because “the bracelets…[were] not plainly lewd and because they comment[ed] on a social issue…”[13] It distinguished Fraser from Hawk by explaining that Fraser only applied to student speech that was “plainly lewd speech,” and, as such, was not of equal importance under the First Amendment in comparison with speech regarding matters of public concern.[14]

The ruling in Hawk provided a pragmatic balancing test for courts in the Third Circuit to apply to student speech cases in the future. However, many circuits still remain divided on issues of student speech. Days after the Third Circuit announced their opinion in Hawk, the District Court for the Northern District of Indiana, in J.A. v. Fort Wayne Community Schools, held that a school district did not violate students’ First Amendment rights by banning the very same “I ♥ Boobies! (KEEP A BREAST)” bracelets.[15] The district court followed what it interpreted as an unambiguous ruling in Fraser and deferred to the school’s interpretation of “lewd” language.[16] It is likely that without a “clear and unambiguous Supreme Court precedent supporting its interpretation,” the Third Circuit’s ruling in Hawk will continue to be resisted by lower courts.[17]

  1. Hawk as a Superior Approach

The court in Hawk relied on Justices Alito and Kennedy’s concurring opinion in Morse in making its ultimate determination.[18]          The concurrence adopted the ruling on the narrowest grounds, and, because Alito and Kennedy’s votes were essential in gaining a majority in Morse, the Third Circuit viewed their concurrence as binding.[19] Unfortunately, this approach of adopting the concurrence was not looked upon favorably by other circuits and even “strained existing precedent in that area.”[20] In the dissenting opinion in Hawk, Circuit Judge Hardiman stated that the majority misunderstood the Supreme Court’s “narrowest grounds” doctrine, which he argued should only apply when there is no true majority opinion.[21] Furthermore, circuits that choose to view Fraser as unambiguous are left with a clear test: If school administrators determine certain speech to be lewd and offensive, then the courts should ultimately defer to those determinations.[22]

Despite the shaky doctrinal grounds behind the Third Circuit’s decision in Hawk, the balancing approach provides a superior method for applying Fraser.[23] Resorting to the simple interpretation of Fraser does not satisfactorily follow the reasoning laid out by the Supreme Court in Tinker:

Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect…In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.[24]

By deferring to the judgment of school officials without further inquiry into the underlying facts, student’s First Amendment rights will undoubtedly be disregarded. Such censorship could lead to a halt of the “robust exchange of ideas” that the Court believes is important for the training of this Nation’s future leaders.[25]

The narrower interpretation of Fraser promotes the censorship of any open discussion of sex, including sexual health and identity.[26] “Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots.”[27] By allowing schools to censor issues in any way related to sex, courts are permitting a huge portion of historically protected speech to become unprotected. “With no possibility of a contextual, fact-sensitive balancing of competing values, even speech that comments on vitally important social and political issues can be undermined by the most innocuous sexual double entendre or crude connotation.”[28]

The Hawk balancing approach greatly reduces the risks that exist in the narrow interpretation of Fraser. In order to create clarity and promote the protection of students’ First Amendment rights throughout the circuits, the Supreme Court should revisit the issue of student speech and provide further clarity on the permissible limitations to the fundamental right.

[1] R. George Wright, Post-Tinker, 10 Stan. J. Civ. Rts. & Civ. Liberties 1, 2 (2014).

[2] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[3] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 679 (1986).

[4] Morse v. Frederick, 551 U.S. 393 (2007).

[5] Id. at 422 (Alito, J., concurring) (citing Id. at 445 (Stephens, J., dissenting)).

[6] B.H. ex rel Hawk v. Eaton Area Sch. Dist., 725 F.3d 293, 293 (3rd Cir. 2013), cert. denied, 134 S. Ct. 1515 (2014).

[7] Id. at 300.

[8] David L. Hudson, Jr., Black Armbands, “Boobies” Bracelets and the Need to Protect Student Speech, 81 UMKC L. Rev. 595, 598 (2013).

[9] Hawk, 725 F.3d at 299.

[10] Id.

[11] Id. at 304.

[12] Id. at 298. The Third Circuit also noted that Tinker’s limitation on disruptive speech was still an effective mechanism against student speech.

[13] Id.

[14] Id. at 304.

[15] J.A. v. Fort Wayne Cmty. Sch., No. 1:12-CV-155 JVB, 2013 WL 4479229, at *1 (N.D. Ind. Aug. 20, 2013).

[16] Id. at *3-4.

[17] Harvard Law Review, First Amendment — Student Speech — Third Circuit Limits Censorship of ‘Ambiguously Lewd’ Speech — B. H. ex rel Hawk v. Easton Area School District, 725 F.3d 293 (3rd Cir. 2013)(en banc), 127 Harv. L. Rev. 1049, 1050 (2014)[hereinafter Third Circuit Limits Censorship].

[18] Hawk, 725 F.3d at 310.

[19] Id. at 310 (citing Marks v. United States, 430 U.S. 188, 193 (1977)).

[20] Third Circuit Limits Censorship, supra note 17, at 1058.

[21] Hawk, 735 F.3d at 325 (Hardiman, Circuit Judge, dissenting).

[22] Third Circuit Limits Censorship, supra note 17, at 1055.

[23] Id.

[24] Tinker, 393 U.S. at 739.

[25] See id.

[26] Third Circuit Limits Censorship, supra note 17, at 1055.

[27] Tinker, 393 U.S. at 740.

[28] Third Circuit Limits Censorship, supra note 17, at 1055.

Who Guards the Guardians Themselves? By: Stephen McKitt

Who Guards the Guardians Themselves?

By: Stephen McKitt

            “Who guards the guardians themselves” or as it was originally written in Latin “Quis custodiet ipsos custodies” is a phrase from the Roman poet Juvenal’s Satires.[1] The line has come to be more popularly recited as “who watches the guardians” and is used modernly as a commentary on abuses of power and lack of oversight amongst those that are charged with governing or protecting citizens.[2] In The Republic Plato suggests that these so called guardians would police themselves and be beyond reproach.[3] Plato goes so far as to say “Yes it would be absurd that a guardian should need a guard”[4]. Of course in this day and age the public understands that authority without oversight leads to corruption and abuses of power, and at least in this respect Plato was mistaken.

In the weeks following the shooting death of eighteen year old Michael Brown by police in Ferguson, Missouri[5] the phrase “who guards the guardians themselves” seems especially relevant.  It forces us to wonder who, if anyone should be held accountable for this tragedy? And if someone should be held accountable, who will be the ones to hold them accountable?

By now the events of Michael Brown’s death have been well documented by numerous sources, but a brief account of what is thought to have happened is necessary to frame this issue. On Sunday August 9, 2014 a police officer, later revealed to be Darren Wilson, responded to a 911 call about a convenience store robbery.[6] While in route to the store, Wilson encountered Michael Brown who was walking with a friend. The encounter resulted in Wilson shooting Brown to death by Wilson.[7] There are conflicting reports concerning the events that led to Wilson shooting Brown. The police allege that Brown assaulted Wilson and Wilson’s actions were purely in self-defense.[8] While some witnesses on the other hand have come forward and stated that Brown had his hands up and said “don’t shoot” before Wilson shot him.[9] The only undisputed facts of this incident are that an unharmed eighteen year old boy was shot to death by a police officer.

This leads back to the phrase “who watches the guardians”, the guardians in this instance being the police officers in the Ferguson community. In a situation like this, the obvious answer would be that the chief of police would provide oversight and if not him, then the mayor of Ferguson would do so. Sadly, there has not been much done by these two individuals in terms of reconciling what Wilson said happened with what eye witnesses are saying, or easing the concerns of the Ferguson community. So far the Chief of police’s response to the incident has been to allow his officers to turn the city into what could fairly be described as a police state. The Ferguson police force has deployed armored vehicles, tear gas, rubber bullets and made numerous arrests in an effort to, as the mayor phrased it “have and maintain peace”[10]. To be fair, there have been legitimate occurrences of looting and crime in Ferguson following the incident, but even with these instances it is not difficult to consider the Ferguson police’s actions as excessive and in fact there is pending litigation on the issue.[11] Eventually the Governor of Ferguson decided that it would be best to place the State Highway Patrol in charge of the protection of Ferguson.[12]

If the mayor and the Ferguson Police Chief cannot be trusted to provide oversight into the incident, then the next body that would be expected to provide such oversight would be the courts. In theory the district attorney would launch an investigation and if there was sufficient evidence of wrongdoing Darren Wilson would be on trial in criminal court for negligent homicide and he would be possibly civilly liable for his alleged use of excessive force. Putting aside the possible criminal case, the civil case against Wilson would be very difficult to win.[13] This is because officers like Wilson are protected from liability in excessive force cases in two ways.[14] First, qualified immunity absolves government agents of liability unless their actions violate a clearly established right that a reasonable person would have known of.[15] Second, the government agent would be free from liability under the Fourth Amendment if the amount of force he used was found to be what a reasonable officer under the circumstances would have used.[16]Together these two test “result in overprotection” of defendants like Wilson from civil liability.[17] Discounting possible criminal charges being brought against Wilson (although a grand jury has been convened to decide if he should be indicted he is still as of now on paid leave), the courts are unlikely to provide punishment for the abuse of power or lack of oversight spring from Brown’s death.

So again, the question arises “who watches the guardians.” In this instance this task has fallen to the ones the police are tasked with protecting. The normal citizens have taken on the responsibility of holding the police responsible for Brown’s death. They have done this through vigils, marches, social media outrage, and even attempting to block a highway.[18]The normal citizens, feeling that no one else would, have taken action to voice their displeasure with the way the entire incident has been handled.[19] There is no need to recount the countless times throughout history the people themselves have had to hold the guardians accountable, even in this country.[20] With the mayor and police failing them and things like qualified immunity providing powerful protection to defendants like Wilson in the courts, the people have no other recourse than to protest how this incident has been handled. This is the appropriate and necessary response to Brown’s death and how the police handled the subsequent events following it. There have been some cases of looting and violence, but for the most part the citizens of Ferguson have done well in letting the world know that the actions of their “guardians” have so far been unacceptable. Elsewhere in this blog, Ms. Smith argues that things like qualified immunity for police and the tactics used by the officers to “maintain peace” are a necessary evil in order to ensure that communities do not fall apart from the sheer outrage that accompanies events like Brown’s death. If those things are necessary evils to ensure decorum within the community, then the citizen’s of Ferguson’s protest are also necessary. Their actions are necessary to display to the rest of the world that if there is no one else to hold the “guardians” accountable then the people themselves will.

[1]  Juvenal, Satire VI, lines 347-48.

[2] Leonid Hurwicz. But Who Guards the Guardians. American Economic Review. Vol. 98. Jun 2008.

[3] Plato, The Republic, 265 (1991).

[4] Id.

[5]Timeline: Michael Brown Shooting in Ferguson, Mo., usatoday.com (August 14, 2014), http://www.usatoday.com/story/news/nation/2014/08/14/michael-brown-ferguson-missouri-timeline/14051827/

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11]Police used Excessive Force to Quell Ferguson Unrest:Suit, newyorkpost.com (August 29,2014), http://nypost.com/2014/08/29/police-used-excessive-force-to-quell-ferguson-unrest-suit/

[12] Id.

[13]  See generally, Diana Hassel, Excessive Reasonableness, 43 Ind. L. Rev. 117 (2009).

[14] Id. at 117

[15] Id.

[16]Id.

[17] Id.

[18]Wesley Lowery, Ferguson Protest Tries to Shut Down I-70, as Calls Continue for McCulloch to Step Down, Washingtonpost.com (Sep. 10, 2014),  http://www.washingtonpost.com/politics/ferguson-protest-tries-to-shut-down-i-70-as-calls-continue-for-prosecutor-to-step-down/2014/09/10/2cb3a97c-37b4-11e4-8601-97ba88884ffd_story.html

[19]Timeline: Michael Brown Shooting in Ferguson, Mo., supra note 5.

[20] See generally http://www.ushistory.org/

Why We Give Cops Guns: What America Has Forgotten in Light of the Ferguson Shooting By: Shalyn Smith

Why We Give Cops Guns

What America Has Forgotten in Light of the Ferguson Shooting

By: Shalyn Smith

Michael Brown, an unarmed 18-year old black teenager, was shot and killed by police officer Darren Wilson in Ferguson Missouri on August 9, 2014.[1] Brown’s death subsequently caused upheaval in many American communities including Ferguson.[2] After all, it is understandable that people would be outraged by the death of a young man who seemed to have many more years ahead of him.[3] Beyond the protests, and civil unrest however, the true disappointing effect of this tragedy is the shooting has caused many Americans to lose their trust in the police force.[4] Even Michael Brown’s mother, who is now a face for the Ferguson community, has lost her faith in the authority figures[5] that city governments employ for the purpose of providing protection and assistance to Americans daily.[6]

The lack of trust that developed in response to the Ferguson shooting (justified or not) has essentially caused many to forget why police officers are given such deadly tools to execute their job tasks. Specifically, Michael Brown’s death is national news that motivates people to wonder if law enforcement personnel are given “special rights.” [7]

“Special Rights”—The Qualified Immunity Doctrine

The question: “do police officers have special rights?” stems from the fact that Officer Wilson has not been arrested for his actions. [8] The “inaction” of Ferguson prosecutors baffles the grieving community.[9] However, since a DOJ investigation is underway, the community must realize that a grand jury has already decided to hear evidence on this issue.[10]

Elsewhere in this blog, Stephen McKitt also suggests that “special rights” exists. He asks: “Who Guards the Guardians?” and claims that the Ferguson community has responded properly to the shooting. State and federal law simply does not support this assertion even though it is supported by a wealth of passion that is warranted in light of the situation. The federal government has long established that an officer’s use of force is essentially a necessary evil when the force is reasonable. The establishment of the qualified immunity doctrine exempts officers from civil actions in these cases.[11] Case law has defined qualified immunity stating that: “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[12] While the doctrine does not apply in criminal court, it is evidence that state governments are opposed to the idea of permitting lawsuits every time a police officer exerts force on a citizen.

The Ferguson community would likely ask: “why shouldn’t the government want to allow lawsuits?” This is a fair question considering that even the Missouri governor states that Michael Brown’s family deserves justice.[13] The policy behind the government providing qualified immunity for government officials is that immunizing them from the plethora of suits they would surely face; protects government resources.[14] If every person the police apprehended had the ability to sue, taxpayer money would be used primarily for litigating these issues. This reasoning is logical because every day, someone in our politically charged society is likely to disagree with the decisions that government officials make. It is difficult to find issues that everyone in society agrees on.

However, the doctrine of qualified immunity does provide for exceptions. An officer must have some form of reasonable fear to use force, and if he does, the force must not be excessive.[15] These are all determinations that would be made if Brown’s family initiated a civil suit against officer Wilson. Additionally, if the DOJ investigation finds a civil rights violation, the Ferguson Police force could face even more sanctions.[16]

 

Solution—Fight The Right Issues

So, in response to Mr. McKitt’s question: “Who Guards the Guardians,” the answer is that Michael Brown’s death cannot be fought as an excessive force issue until other factual determinations are made. The real issue in Ferguson is that the city is facing the threat of a crumbling community. The city has lost hope, and the correct question to ask in Ferguson is “Who Trusts the Guardians?”

Recently, Birmingham Police Chief A.C. Roper suggested that communities can avoid situations like the Ferguson shooting by establishing partnerships between the police force and the community.[17] He states that “once [these problems] start, it is hard to wrap your arms around [them], and so now we’re seeing that [in Ferguson] and it is spinning out of control.”[18] Chief Roper is completely correct. Other communities have seen situations similar to Ferguson lead to great disaster. Most notably, the Rodney King Riots in Los Angeles 22 years ago claimed the lives of 53 people, and Los Angeles citizens viewed LAPD officers as an “occupying army.”[19] Ferguson is not far behind. Police officers have pointed guns at protestors and used tear gas to “quell” demonstrations.[20] In Los Angeles however, the city’s decision to accept the assistance of the federal government enabled it to make steps towards positive change.[21]

Alternatively, some argue that the lack of gun control in the country has caused police officers to naturally assume each suspect is armed.[22] While this view is interesting, the gun control issue is of little concern in Ferguson because even if Officer Wilson was warranted in his use of force, the lack of trust between Ferguson police and the community remains a major issue.

A Beacon of Hope for Ferguson

However, the Rodney King Riots have taught us that cities can change. Just as Los Angeles survived Rodney King’s brutal assault and the acquittal of the officers who harmed him[23], Ferguson can rebuild from Michael Brown’s tragic death. Even if Officer Wilson never enters a courtroom, if the people in Ferguson can trust police officers in the future, the city is better off. It is terrifying to believe that the guns cities provide police officers could result in the death of an innocent young man. What is even more terrifying is that as a result of that gun use, society could stop calling on the police for help in serious matters. True civil unrest and chaos are the fears we hope to avoid when we entrust officers with deadly weapons.

[1] Rachel Clarke and Christopher Lett, What happened when Michael Brown Met Officer Darren Wilson, CNN (Aug. 26, 2014, 5:00 PM), http://edition.cnn.com/interactive/2014/08/us/ferguson-brown-timeline/. See also The Editorial Board, The Death of Michael Brown Racial History Behind the Ferguson Protests, N.Y. TIMES (Aug. 12, 2014), http://www.nytimes.com/2014/08/13/opinion/racial-history-behind-the-ferguson-protests.html?_r=0.

[2] See The Editorial Board supra note 1(discussing the racial history behind the protest).

[3] Michael Brown’s death occurred only days before he was planning to leave for college. Id.

[4] Erin McClam and Aaron Mermelstein, Eric Holder Opens Broad Probe Into Ferguson Police, NBC News (Sept. 4,  2014, 1:14 PM), http://www.nbcnews.com/storyline/michael-brown-shooting/eric-holder-opens-broad-probe-ferguson-police-n195886 (explaining Attorney General Holder’s announcement that the federal investigation of the shooting is a reaction to the “deep mistrust” between officers and the people who live there).

[5] Michael Brown’s mother told CNN: “Just hearing the words come directly from [Holder's] mouth, face-to-face, he made me feel like, one day, I will [trust police officers] . . . . I’m not saying today, or yesterday, but one day, they will regain my trust.” Greg Botelho, Michael Brown’s mother on authorities ‘One day, they will regain my trust’, CNN U.S. (Aug. 21, 2014, 11:14 PM), http://www.cnn.com/2014/08/21/us/michael-brown-parents/.

[6] Pendleton Police Department, Job Description: Police Officer available at http://ppd.pendleton.or.us/jobdes_policeofficer (setting out the duties of one city police department); see also USA Today infra note 7.

[7] Periodicvideos, Michael Brown Supporters want Darren Wilson Arrested, USA Today (Sept. 9, 2014), http://www.usatoday.com/videos/news/2014/09/09/15333377/ (suggesting that “law enforcement is not held to the same standard as everyone else,” and questioning if police have “different laws that apply them”).

[8] Id.

[9] Id.

[10] Missouri gov calls for ‘vigorous prosecution’ of Ferguson shooting case, FoxNews.com (Aug. 20, 2014), http://www.foxnews.com/us/2014/08/20/missouri-gov-calls-for-vigorous-prosecution-ferguson-shooting-case/.

[11] Sheppard, White, & Kachergus, Michael Brown: The Protests in Ferguson and the Doctrine of Qualified Immunity in Excessive Force Cases, SheppardWhite.com (Aug. 21, 2014, 4:50 PM), http://www.sheppardwhite.com/blog/michael-brown-the-protests-in-ferguson-and-the-doctrine-of-qualified-immunity-in-excessive-force-cases/.

[12] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[13] FoxNews.com supra note 10.

[14] Harlow v. Fitzgerald, 457 U.S. at 807-10.

[15] Patrik Jonsson, Mike Brown death, Ferguson riots raise questions about poice immunity, Alaska Dispatch News (Aug. 12, 2014), http://www.adn.com/article/20140812/mike-brown-death-ferguson-riots-raise-questions-about-police-immunity.

[16] FoxNews.com supra note 10.

[17] Periodicvideos, Birmingham Police Chief A.C. Roper on Ferguson, Fox 6 WBRC (2014), http://www.myfoxal.com/Clip/10494259/birmingham-police-chief-ac-roper-on-ferguson.

[18] Id.

[19] Monica Alba, What Ferguson Cops Can Learn From LAPD Response to Rodney King Riots, NBCNews (Sept. 8, 2014, 4:53 AM), http://www.nbcnews.com/storyline/michael-brown-shooting/what-ferguson-cops-can-learn-lapd-response-rodney-king-riots-n197071.

[20] Id.

[21] Id.

[22] BlueKing, Police With No Guns, Daily Kos Blog (Aug. 13, 2014, 8:48 AM), http://www.dailykos.com/story/2014/08/13/1321257/-Police-With-No-Guns#.

[23] Alba supra note 19.

Developments in Voting Rights Jurisprudence: Alabama Legislative Black Caucus v. Alabama By Jason “Jay” Malone

Developments in Voting Rights Jurisprudence: Alabama Legislative Black Caucus v. Alabama

By Jason “Jay” Malone

An interesting case is set to be argued before the United States Supreme Court in October 2014. The case, Alabama Legislative Black Caucus v. Alabama, concerns the practice of “packing” so called minority-majority voting districts with more minority voters.[1] The Supreme Court will decide whether the practice of “packing” violates any portions of the United States Constitution or the Voting Rights Act of 1965.[2]

            The original lawsuit was filed in the Middle District of Alabama by a coalition of black Alabama lawmakers, the Alabama Democratic Conference, and other plaintiffs.[3] The defendants named in the lawsuit include Robert Bentley, Governor of Alabama, and Jim Bennett, Secretary of State of Alabama.[4] The lawsuit alleged that Alabama Republican lawmakers, upon establishing a super majority in both the Alabama Senate and House of Representatives, redrew voting districts in a manner that violates § 2 of the Voting Rights Act and  the Fourteenth and Fifteenth Amendments of the United States Constitution.[5] Specifically, the plaintiffs alleged that the districts redrawn in accordance with the 2010 Census were created in order to dilute the influence of minority voters throughout the state.[6]

            The plaintiffs presented testimony of several Alabama Democratic lawmakers as evidence against the defendants.[7] The Democratic lawmakers testified that the reapportionment had a negative effect on the voting strengths of minorities in their districts and across the state.[8] To counter, Representative Jim Bennett and Senator Gerald Dial, Chairpersons of the Permanent Legislative Committee on Reapportionment of the State of Alabama, testified about the guidelines that the committee used in reapportionment in accordance with the 2010 Census.[9] Senator Dial testified regarding six guidelines the committee followed:

First, the Committee wanted to comply with the requirement of one person, one vote by making the districts as equally populated as possible. Second, the Committee wanted to avoid future litigation about compliance with the requirement of one person, one vote. Third, the Committee wanted to comply with the Voting Rights Act. Fourth, the Committee wanted to comply with section 5 of the Voting Rights Act, which it understood to require that it not reduce the number of majority-black districts or the approximate levels of black population within those districts. Fifth, the Committee wanted to draw districts to avoid incumbent conflicts. Sixth, the Committee wanted to preserve communities of interest when possible.[10]

The committee’s guidelines were structured in light of several Supreme Court rulings in regards to reapportionment. The Supreme Court’s long standing “one person, one vote” principle controlled the committee’s guidelines.[11]As the name of the principle suggests, the court stated that reapportionment should be conducted in a manner that one person’s vote in a state or congressional election is counted equally as that of another person’s vote in a different part of the state.[12] Another case that influenced the committee found that a population deviation of ten percent in a given voting district could violate the principle of “one person, one vote.”[13]

            Ultimately, a divided three-judge panel dismissed the claims of the plaintiffs.[14] In addressing the vote dilution claim made by the plaintiffs, the court used principles set forth by the Supreme Court in Thornburg v. Gingles.[15] In order to establish a prima facie case, a plaintiff must: “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district, the minority group must be able to show that it is politically cohesive, and the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.”[16] “After the plaintiff has established the three Gingles elements, the plaintiff must also establish that the totality of the circumstances supports a finding that the voting scheme is dilutive.”[17]

            The trial court found that the plaintiffs did not meet the first Gingles element because “they failed to prove that an additional majority-black district could be created anywhere in the State.”[18] The court also found that the plaintiff’s dilution claim failed as well because the record established otherwise.[19] The court found that the plaintiff’s failure to show that the legislature could have drawn the map with a smaller population deviation was critical to their claim.[20] The court also found legislature’s ability to keep the amount of “minority-majority” Senate and House districts the same persuasive.[21] Furthermore, the court found that even if the plaintiffs had satisfied all three of the Gingles elements, the totality of the circumstances would still support a finding that voting dilution did not occur.

            In trying to convince the court to hear the case, the appellants argued that “packing of the majority black districts necessarily increases the political segregation of African-Americans and reduces their ability to influence the outcome of legislative elections in the rest of the state.”[22] The appellants also believe that the new voting districts were drawn “based on race to an unconstitutional and unjustified degree.”[23] The appellees believe they drew the districts in accordance with all of the relevant legal precedents.[24] It will be interesting to see the Court’s ruling on this issue as the Court continues to work in the area of voting rights with notable cases such as the one at hand and Shelby County v. Holder

[1] Ala. Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1236 (M.D. Ala 2013).

[2] Lyle Denniston, New Ruling Due on Racial Gerrymandering, SCOTUSblog (Jun. 2, 2014, 3:22 PM), http://www.scotusblog.com/2014/06/new-ruling-due-on-racial-gerrymandering.

[3] Ala. Legislative Black Caucus v. Alabama, 989 F. Supp. 2d at 1236. 

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 1259.

[8] Id. at 1259 – 1265.

[9] Id. at 1276.

[10] Id. at 1273.

[11] Id.

[12] Reynolds v. Sims, 377 U.S. 533, 560 (1964).

[13] Larios v. Cox, 300 F. Supp. 2d 1320, 1340 -1341 (N.D. Ga. 2004), aff’d, 542 U.S. 947 (2004).

[14] Ala. Legislative Black Caucus, 989 F. Supp. 2d at 1237. 

[15] Id. at 1279.

[16] Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).

[17] Ala. Legislative Black Caucus, 989 F. Supp. 2d at 1280.

[18] Id. at 1281.

[19] Id. at 1284.

[20] Id.

[21] Id. at 1285.

[22] Adam Liptak, Justices Enter Into Dispute Over Districts Alabama Set, The New York Times, June 2, 2014, http://www.nytimes.com/2014/06/03/us/politics/supreme-court-to-hear-challenge-to-alabama-redistricting.html?_r=0.

[23] Id.

[24] Id.

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