Tuesday, June 22, 2021

Alabama U.S. judge shows a proper analysis of current law can deny qualified immunity and hold police officers accountable for use of unreasonable force


 

Part Two

Court records indicate a lawsuit over a white police officer's fatal shooting of a 19-year-old black youth in Mobile, AL, settled for $2.5 million after a federal judge denied the officer's request for qualified immunity. Would similar rulings help increase the chances of cops being held accountable for the injuries they cause? What was U.S. District Judge Terry Moorer's reasoning in denying qualified immunity? Is it a line of reasoning that other judges should follow?

The answers to those questions likely can best be determined by examining Moorer's memorandum opinion in Daugherty v. Hurst, a lawsuit that Shunta Daugherty, the mother of shooting victim Michael Dashawn Moore, filed against Officer Harold Hurst, among other defendants. Here is an outline of how immunity claims entered the picture,  from the memo opinion:

Plaintiff asserts three claims against Officer Hurst - Count I: Fourth Amendment violation brought pursuant to 42 U.S.C. § 1983 against Officer Hurst in his official and individual capacities; Count II: wrongful death pursuant to Ala. Code. § 6-5-410 against Officer Hurst in his official and individual capacities; and Count III: negligence pursuant to Alabama state law against Officer Hurst in his individual capacity.

Officer Hurst asserts qualified immunity as to Count I and state agent immunity as to Counts II and III.

How did Moorer address the qualified-immunity issue, which proved critical to the case's outcome? Let's take a look. (Some citations omitted to make for easier reading):

"The doctrine of qualified immunity protects government officials '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. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). To be protected by qualified immunity, the government official must first demonstrate that he was acting within the scope of his discretionary authority. Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). Next, courts utilize a two-part framework to evaluate qualified immunity claims. Castle v. Appalachian Tech. College, 631 F.3d 1194, 1197 (11th Cir. 2011). The first element is whether the plaintiff's allegations, if true, establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151 (2001)).

The second element is whether the constitutional right at issue was "clearly established" at the time of the defendant's alleged misconduct. Id. at 232, 129 S. Ct. at 816. The first inquiry may be a mixed question of law or fact, but the second inquiry is purely a question of law.  "Both elements of this test must be present for an official to lose qualified immunity, and this two-pronged analysis may be done in whatever order is deemed most appropriate for the case." Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). If a plaintiff fails to establish either one, then the defendant is entitled to qualified immunity.

At this point, Moorer dives into the specifics presented in Daugherty:

Having laid out the framework for analysis, the Court will turn to the situation in this case. Neither party disputes that Officer Hurst was acting in the scope of his discretionary authority. Therefore, the burden shifts to the Plaintiff to establish the two-part framework.

(a) The Constitutional Violation

Plaintiff asserts that Officer Hurst violated Moore's Fourth Amendment right to be free from excessive force by shooting him to death.

The right to be free from unreasonable search and seizure is secured by the Fourth Amendment and "apprehension by the use of deadly force is a seizure." Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694. Additionally, under the Fourth Amendment, an officer's use of deadly force must be reasonable. Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871. An officer may constitutionally use deadly force when the officer:

(1) "has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others" or "that he has committed a crime involving the infliction or threatened infliction of serious physical harm"; (2) reasonably believes that the use of deadly force was necessary to prevent escape; and (3) has given some warning about the possible use of deadly force, if feasible.
Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013). Yet even with these elements, the Court must not "apply them mechanically" and "must still slosh our way through the factbound morass of reasonableness." Id. (citations and internal quotations omitted). Further, as noted by the Eleventh Circuit, "none of these conditions are perquisites to the lawful application of deadly force by an officer seizing a suspect." Penley v. Eslinger, 605 F.3d 843, 850 (11th Cir. 2010); (explaining the elements are not "a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force.'").

An immunity analysis involves a delicate balancing act, one many judges seem to weigh in favor of law enforcement. But Moorer does not take the easy way out:

"In determining the reasonableness of the manner in which a seizure is effected, we must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Scott, 550 U.S. at 383, 127 S. Ct. at 1778 Additionally, "[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S. Ct. at 1872 (citation omitted). This "allow[s] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Plumhoff v. Rickard, 572 U.S. 765, 775, 134 S. Ct. 2012, 188 L. Ed. 2d 1056 (2014).

As previously noted, even in excessive force cases, the facts must be viewed as "what a reasonable jury could find from the evidence viewed in the light most favorable to the non-moving party."  Further, "where there are 'varying accounts of what happened,' the proper standard requires [the Court] to adopt the account most favorable to the non-movants." Smith v. LePage, 834 F.3d 1285, 1296 (11th Cir. 2016). In the case at hand, there are sufficient contradictions and factual issues that preclude the finding that Officer Hurst shooting Moore was constitutionally permissible. Defendants place great emphasis on the fact that Officer Hurst believed that a handgun was present. The Court need not (and should not) reconcile the facts on whether a gun was ultimately present. Even if a gun were present at the scene, precedent has long established that "the mere presence of a gun or other weapon is not enough to warrant the exercise of deadly force and shield an officer from suit." Lundgren v. McDaniel, 814 F.2d 600, 602-03 (11th Cir. 1987) (finding presence of a handgun not dispositive and denying qualified immunity); The Court must look to the surrounding circumstances to determine whether Officer Hurst's actions were objectively reasonable. 

 Did Moore pose a threat of serious physical harm to the officer? That becomes a key question:

Turning to the different factors, the Court looks to the first factor for guidance. Specifically, whether Officer Hurst had probable cause to believe that Moore posed a threat of serious physical harm, either to the officer or to others, or that Moore had committed a crime involving the infliction or threatened infliction of serious physical harm. According to Officer Hurst, he activated his blue lights to stop the vehicle being driven by Moore and acknowledges that Moore pulled over. Therefore, case law related to car chases is not applicable here and the vehicle itself was not a threat. Further, even if the vehicle were stolen as Officer Hurst states, that alone does not constitute a crime involving the infliction or threatened infliction of serious physical harm. Therefore, the Court turns to whether Officer Hurst had probable cause to believe that Moore posed a threat of serious physical harm either to himself or to others.

The lack of video in this case unfortunately leaves that issue murky. The analysis hinges on Officer Hurst's credibility and whether you believe his version of events. Plaintiff has presented evidence from other witnesses who indicate that Moore did not move in a threatening manner, had his hands up, and did not reach for a gun. There is even a question as to whether a gun was on Moore when he exited the vehicle. Though Defendant tried to get the affidavits excluded, as noted in the opinion on evidentiary rulings, it is not for the Court to decide credibility issues or reconcile conflicting statements by a witness. Much like the analysis in the Perez case, there is no evidence that clearly contradicts the Plaintiff's version of the facts and "the record plainly yields sharply dueling accounts of what happened and why the critical shots were fired." Perez, 809 F.3d at 1221. If you credit those facts presented by Moore's estate as true, as the Court must, then a reasonable jury could conclude that Moore was not a threat of serious physical harm to Officer Hurst or anyone else. It would have been unreasonable for Officer Hurst to shoot Moore under those circumstances. Therefore, the use of deadly force would violate Moore's Fourth Amendment right to be free from excessive force.

Was Moore's right to be free from excessive force clearly established? That now becomes the focus of Moorer's analysis:

(b) Clearly Established Law

Next, the Court must look to whether the violation of Moore's constitutional rights was clearly established. With regard to the second prong of the analysis, courts "recognize three sources of law that would put a government official on notice of statutory or constitutional rights: specific statutory or constitutional provisions; principles of law enunciated in relevant decisions; and factually similar cases already decided by state and federal courts in the relevant jurisdiction." Goebert v. Lee Cnty., 510 F.3d 1312, 1330 (11th Cir. 2007).

In the case at hand, Moore's Fourth Amendment right to be free from the use of deadly force has long been clearly established. Officer Hurst was on fair notice at the time of the shooting from both the Supreme Court and the Eleventh Circuit that the use of deadly force has constitutional limits, and that his use of deadly force would be justified only if a reasonable officer in his position would believe that Moore posed an immediate threat of serious physical harm. Under the Plaintiff's version of events, these circumstances do not exist. There is conflicting evidence as to whether a gun existed or even if it did, whether Moore made any movement which could reasonably be construed as reaching for his gun.

Moreover, as many of these deadly force cases show, there are few cases that will be factually identical. Rather, the Court will also look beyond case law to whether the case at hand is one of "obvious clarity" - i.e., where the officer's conduct "lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to [the official], notwithstanding the lack of fact-specific case law" on point. Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009). Courts have repeatedly held that the constitutional violation is clearly established even though there is no decision in a "materially similar" preexisting case." Cantu, --- F.3d at ---; 2020 U.S. App. LEXIS 28074, at *36-39, 2020 WL 5270645.

If the facts as alleged by Plaintiff are believed, then, at best, Officer Hurst shot a suspect merely backing away with his hands in the air and clearly did not pose a threat and, at worst, continued to shoot him after he was already disabled and on the ground. Even considering the vehicle may have been stolen, the unlawfulness would be readily apparent to any reasonable officer that the deadly force used would be grossly disproportionate.

Our research indicates Moorer's citations to law are correct, and his analysis was rigorous and clear-minded. That means he could reach only one conclusion:

(c) Denial of Qualified Immunity

Therefore, at this stage in the litigation, Officer Hurst is not entitled to qualified immunity on the § 1983 / Fourth Amendment excessive force claim. To be clear, the holding today does not mean that he is entirely precluded from qualified immunity at a later point. There are numerous disputed issues of fact which the fact finder may ultimately resolve in his favor and, therefore, permit the Court to make the legal finding of qualified immunity. At this stage in the proceedings, however, taking the facts and evidence in the light most favorable to the Plaintiff, the Court must hold that as a matter of law the lethal force used by Officer Hurst against Moore was obviously unreasonable and violated clearly established law.

That brings us to state-agent immunity, where Officer Hurst also comes up short:

ii. State Agent Immunity

Officer Hurst also asserts state agent immunity for the two state law claims brought by the Plaintiff. Ala. Code § 6-5-338 gives police officers immunity from tort liability "arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties." ALA. CODE § 6-5-338(a); see also Ex parte City of Tuskegee, 932 So. 2d 895, 903 (Ala. 2005). But an officer can lose that immunity:

(1) when the Constitution or laws of the United States, or the Constitution of [Alabama], or laws, rules, or regulations of [Alabama] enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or

(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.

Ex parte City of Homewood, 231 So. 3d 1082 (Ala. 2017) (quoting Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)). In sum, the test for state agent immunity follows a similar burden-shifting framework as qualified immunity. Hunter v. Leeds, 941 F.3d 1265, 1283 (11th Cir. 2019). First, the officer must show that the claims arise from a law enforcement function. Ex parte City of Montgomery, 272 So. 3d 155, 161 (Ala. 2018) (citation omitted). Then the burden shifts to the plaintiff to show one of the Cranman exceptions applies.

As with the prior analysis under federal law, there is no dispute that Officer Hurst was acting in a discretionary function when stopping the vehicle and ultimately shooting Moore. Therefore, the Court looks to the second part of the analysis.

For the same factual reasons that Officer Hurst was not entitled to qualified immunity, the Court finds that he is similarly not entitled to state agent immunity as to the allegations of intentional conduct. Accepting the facts in the light most favorable to the Plaintiff, a reasonable jury could conclude that he acted willfully, maliciously, or beyond his authority. . . .

In summary, even taking facts in the light most favorable to the Plaintiff, state immunity shields Officer Hurst from negligent acts, but does not shield him from intentional acts. Therefore summary judgment is granted as to Count III, but denied as to Count II.

What do we learn from the death of Michael Dashawn Moore? We know a movement is afoot in Congress to do away with qualified immunity, and that might be needed. But the Moore case shows that, even under existing law, an officer still can be held accountable for unreasonable use of force that violates constitutional protections. 

It's not often that we find reason to praise a federal judge in Alabama, but we believe it is merited in this case. Moorer was appointed to the U.S. District-Court bench by, of all people, Donald Trump.

Friday, June 18, 2021

Investigation of Trump-era DOJ abuses shows signs of reaching into Alabama and making life miserable for the Jeff Sessions Gang that has held our state back

 

Jeff Sessions and Donald Trump

An investigation into apparent corruption at the Trump Department of Justice (DOJ) -- involving a secret scheme to spy on journalists, Democratic members of Congress, and other perceived enemies -- could reach deep into Alabama, according to a report at banbalch.com. That's because the spying scheme reportedly started under former Trump Attorney General and former U.S. Sen. Jeff Sessions (R-AL). Adding to the intrigue are Sessions' longstanding ties to three legal and corporate entities -- Balch & Bingham, Drummond Company, and Alabama Power -- that have been at the heart of the North Birmingham Superfund scandal, which featured gross environmental racism and a bribery scheme that apparently was largely covered up -- at least as it involved white, conservative politicos, such as Sessions and his allies. 

Here is one more angle to consider: Sessions might be short, but his tentacles are long, and our research indicates they reach some of the state's most hallowed legal institutions, such as the Alabama Supreme Court and the Alabama State Bar, not to mention the state's federal district courts. We have reported for almost 14 years on the corruption that riddles Alabama-based courts -- routinely denying justice for everyday citizens -- and our sources suggest much of that is tied to Sessions and his cronies. Writes Ban Balch Publisher K.B. Forbes, under the headline "As Investigations Probe Political Misconduct by Trump DOJ, Alabama Becomes Ground Zero":

After four years of blogging on the alleged corruption in Alabama, we believe the egregious misconduct by the “Trump machine” in Alabama will become a national embarrassment.

Media and investigators can easily probe disgraced ex-U.S. Attorney for the Northern District of Alabama, Jay E. Town, who appears to have acted as a political agent for the Three Stooges of Alabama (Drummond Coal, Alabama Power, and embattled law firm Balch & Bingham).

All Three Stooges were closely tied to ex-U.S. Attorney General Jeff Sessions (Alabama Power and Balch & Bingham being his number 1 and number 2 lifetime donors respectively when Sessions was a U.S. Senator).

Insiders in D.C. tell us the Congressional and internal DOJ probes will take a hard look at Sessions and his goons.

Former U.S. Attorney General William Barr has already distanced himself from the alleged surveillance of members of the U.S. House of Representatives and their staff members.

Much of this ugliness has roots in the Birmingham-area boardrooms largely populated by white elites -- and Republicans. Writes Forbes:

Two-years ago, The Washington Post revealed new details about the corrupt North Birmingham Bribery Scandal and that how allegedly up to 20 more people at Balch were involved in the conspiracy to suppress African-Americans from testing their toxic property by the EPA. 

After the criminal conviction of a Drummond executive David Roberson and Balch partner Joel I. Gilbert in 2018,  U.S. Attorney Town stunned the public and law enforcement representatives when he declared the two were in essence the only ones involved—a “lone wolf” theory.

During the trial Alabama Power was allegedly unmentionable and never called to the stand.

The trial is over, but the stench seemingly won't go away:

Then in 2020 we obtained the jaw-dropping photos of Town chugging cocktails with Mark A. Crosswhite, CEO of Alabama Power and an ex-Balch partner allegedly at the height of the criminal trial. That lead to our formal complaint with the Office of Professional Responsibility and Town’s resignation last July.

This year, the Three Stooges have shown uncontrolled panic as ex-Drummond executive David Roberson’s $75 million civil lawsuit proceeds.

Even the Alabama Supreme Court unanimously sided against Drummond.

Like the Trump DOJ that gagged media outlets, Drummond tried to gag us, the CDLU, and silence our blog, but the judge prohibited their tactics of fear, suppression and intimidation.

And as a cherry on the top, Alabama Power’s biggest federal employee PAC donation in 2020 was to the Rule of Law Defense Fund, the entity behind the robocalls that spurred the insurrection on January 6th.

As for Sessions' tentacles, consider this from a May 25 Legal Schnauzer post

Why does it matter that Jeff Sessions -- a former U.S. senator from Alabama and once the state's attorney general -- has an apparent affinity for attacks on a free press? Well, it matters to me because I have firsthand  experience with such attacks, having been beaten and abducted from my own home in Birmingham and tossed in jail for five months for daring to report at this blog on government corruption in Alabama and beyond..

Multiple sources tell Legal Schnauzer that Sessions and his allies -- Rob Riley, Luther Strange, Doug Jones, and Steve Windom -- have extraordinary influence with the Alabama State Bar. I have reported critically on all of those individuals, except Windom, so is it any wonder I have documented evidence of the Alabama State Bar trying to deny my right (and Mrs. Schnauzer's right) to an attorney in a civil matter involving my unlawful imprisonment? Not to me. Is it possible such skulduggery, which could qualify as obstruction of justice, wire fraud, and perhaps other crimes under federal law, still is going on? That would not surprise me one bit.

The Alabama Supreme Court, of course, oversees the administration of the state's entire court system, including the Alabama State Bar. We have written dozens of posts over the years about rulings from state appellate courts that have little, or nothing, to do with the facts and black-lettter law governing the cases -- not to mention similar rulings from federal district courts in the state. And judges in those federal courts are members of, and influenced by -- you guessed it -- the Alabama State Bar.

Does that mean many of the crooked rulings emanating from Alabama-based courts -- often favoring corporate, legal, and institutional entities, while screwing everyday citizens -- can be traced to Jeff Sessions and (to borrow a phrase from Forbes) "his goons"?

Our educated guess is that the answer is yes. And our fervent prayer is that federal and Congressional investigators, while probing the spying scandal, will dive deeply into Alabama and hold the Jeff Sessions Gang accountable for all they've done to turn Alabama into a sewer.

Our position here at Legal Schnauzer is that Alabama has the natural resources, the strategic geographic location, the weather, the beauty, the funds (if spent wisely), and the charm to become one of the most attractive and desirable states in the country. But we've kept ourselves in the vice-like grips of lowlife Neanderthals like Sessions (and Richard Shelby) for so long that they've held us back to a frightening degree. How unfortunate is that? In my view, Alabama has more unrealized potential than any other state in the country. That statement might not sound like a compliment. But it's a statement filled with hope.

Getting rid of Jeff Sessions -- perhaps via a criminal probe that ends with lock-ups for him and some of his goons -- would be a wonderful first step toward a brighter future for all Alabamians.

Thursday, June 17, 2021

Rioters at U.S. Capitol on Jan. 6 were driven largely by fears that whites will be replaced as the American majority, according to U of Chicago research findings

 


Rioters at the U.S. Capitol on Jan. 6 were driven largely by fears that white people will be replaced by people of color as the American majority, according to a University of Chicago research study. Robert A. Pape, a professor of political science and director of the Chicago Project on Security and Threats, conducted an analysis of 377 Americans arrested or charged in the Capitol insurrection. His findings were unsettling, showing that rioters largely were driven over concerns about what has become known as "The Great Replacement Theory," a topic Tucker Carlson has ranted about on Fox News recently.

What about specifics from the Pape study? Here they are:

The Jan. 6 assault on the Capitol by a violent mob at the behest of former president Donald Trump was an act of political violence intended to alter the outcome of a legitimate democratic election. That much was always evident.

What we know 90 days later is that the insurrection was the result of a large, diffuse and new kind of protest movement congealing in the United States.

The Chicago Project on Security and Threats (CPOST), working with court records, has analyzed the demographics and home county characteristics of the 377 Americans, from 250 counties in 44 states, arrested or charged in the Capitol attack.

Those involved are, by and large, older and more professional than right-wing protesters we have surveyed in the past. They typically have no ties to existing right-wing groups. But like earlier protesters, they are 95 percent White and 85 percent male, and many live near and among Biden supporters in blue and purple counties.

The charges have, so far, been generally in proportion to state and county populations as a whole. Only Kentucky, Maryland, Missouri, and Montana appear to have sent more protesters to D.C. suspected of crimes than their populations would suggest.

Nor were these insurrectionists typically from deep-red counties. Some 52 percent are from blue counties that Biden comfortably won. But by far the most interesting characteristic common to the insurrectionists’ backgrounds has to do with changes in their local demographics: Counties with the most significant declines in the non-Hispanic White population are the most likely to produce insurrectionists who now face charges.

For example, Texas is the home of 36 of the 377 charged or arrested nationwide. The majority of the state’s alleged insurrectionists — 20 of 36 — live in six quickly diversifying blue counties such as Dallas and Harris (Houston). In fact, all 36 of Texas’s rioters come from just 17 counties, each of which lost White population over the past five years. Three of those arrested or charged hail from Collin County north of Dallas, which has lost White population at the very brisk rate of 4.3 percent since 2015.

The same thing can be seen in New York state, home to 27 people charged or arrested after the riot, nearly all of whom come from 14 blue counties that Biden won in and around New York City. One of these, Putnam County (south of Poughkeepsie), is home to three of those arrested, and a county that saw its White population decline by 3.5 percent since 2015.

 Here is where it gets really interesting:

When compared with almost 2,900 other counties in the United States, our analysis of the 250 counties where those charged or arrested live reveals that the counties that had the greatest decline in White population had an 18 percent chance of sending an insurrectionist to D.C., while the counties that saw the least decline in the White population had only a 3 percent chance. This finding holds even when controlling for population size, distance to D.C., unemployment rate, and urban/rural location. It also would occur by chance less than once in 1,000 times.

Put another way, the people alleged by authorities to have taken the law into their hands on Jan. 6 typically hail from places where non-White populations are growing fastest.

 Pape's deep dive then gets even deeper:

CPOST also conducted two independent surveys in February and March, including a National Opinion Research Council survey, to help understand the roots of this rage. One driver overwhelmingly stood out: fear of the “Great Replacement.” Great Replacement theory has achieved iconic status with white nationalists and holds that minorities are progressively replacing White populations due to mass immigration policies and low birthrates. Extensive social media exposure is the second-biggest driver of this view, our surveys found. Replacement theory might help explain why such a high percentage of the rioters hail from counties with fast-rising, non-White populations.

While tracking and investigating right-wing extremist groups remains a vital task for law enforcement, the best intelligence is predictive. Understanding where most alleged insurrectionists come from is a good starting point in identifying areas facing elevated risks of further political violence. At the very least, local mayors and police chiefs need better intelligence and sounder risk analysis.

To ignore this movement and its potential would be akin to Trump’s response to covid-19: We cannot presume it will blow over. The ingredients exist for future waves of political violence, from lone-wolf attacks to all-out assaults on democracy, surrounding the 2022 midterm elections.

Let's consider a few questions all of this raises. 

 * If you are obsessed with the New Replacement Theory -- to the point of attacking the U.S. Capitol or taking other destructive actions -- does that mean you are a white supremacist?

* If so, does that mean you are likely to support Russian meddling in U.S. elections -- or to at least not be all that bothered by it? 

* Are white supremacists likely to embrace nondemocratic ideas, to act in traitorous ways?

* Does white supremacy drive some Americans to support political candidates who clearly are incompetent, uncaring, and lacking in integrity? Donald Trump, Mitch McConnell, Mo Brooks, Josh Hawley, and Lindsey Graham are a few such politicos who come to mind.

* Are white supremacists likely to attack friends -- even family members -- who do not share their views?

This last item hits especially close to home. I've seen signs that white supremacy has infiltrated my own family and caused tremendous damage. This seemingly happened when I was in Alabama, while other family members were in Missouri, so I'm not sure how it happened. But I have theories -- and evidence -- and I might address them in upcoming posts. On the other hand, the subject is so painful and distressing -- and embarrassing -- that I'm not sure I want to address it in a public forum. We'll see. For now, I can say these two things: (1) I never thought I would see a day when I felt the slightest embarrassment about my family. But signs of racism are ugly and alarming -- and they can change your perspective in a major way; (2) To those who have suffered at the hands of white supremacists: I know, at least a little bit, how you feel.

Tuesday, June 15, 2021

Family of Alton Sterling, the black victim of a fatal police shooting at Louisiana convenience store, settles lawsuit against Baton Rouge for $4.5 million

The convenience store where Alton Sterling died

 

The family of a black Louisiana man has settled a police-shooting lawsuit against Baton Rouge for $4.5 million. The settlement in the death of Alton Sterling comes about two weeks after news broke about the death of another black man, Ronald Greene, at the hands of the Louisiana State Police, in a case where evidence apparently was covered up for roughly two years. Video suggests Greene was beaten, choked, and tortured at the end of a high-speed chase over an alleged traffic violation. News of the two cases, coming so close together -- in the same locale -- indicates America's policing problem is as intractable as ever, especially in regards to victims of color.

Alton Sterling was fatally shot while he was selling CDs outside a convenience store in 2016. From a report at NBC News:

The family of a Black man who was fatally shot by police in Baton Rouge, Louisiana, announced Friday it has settled a lawsuit against the city for $4.5 million.

Alton Sterling was 37 when he was fatally shot by an officer in 2016. His family filed the suit the next year.

Lawyers for Sterling's relatives said that the settlement would benefit his five children and involve "significant policy changes" for Baton Rouge officers.

"Our hope is that these policy changes, which focus on de-escalation, providing verbal warnings prior to using deadly force and will create a better future going forward for Baton Rouge residents," the lawyers said in a statement.

Sharon Weston Broome, the mayor-president of the city, echoed those remarks, saying in a statement, "As a community, we must work together to implement changes in policy and in our community to ensure that no other families in Baton Rouge will endure this loss, trauma, or heartbreak."

The Baton Rouge Union of Police did not immediately respond to a request for comment Friday evening.

Officer Blane Salamoni was fired and Officer Howie Lake II was suspended in the death.

How could a seemingly innocent incident end in a death? NBC News reports:

Early on July 5, 2016, someone called 911 and reported that a man in a red shirt outside a convenience store had a gun and was acting in a threatening manner, authorities said. Sterling, wearing red, was selling CDs.

Surveillance footage shows Sterling pushing back against the two officers when they appear and attempt to pin him against a car. Lake attempts to shock Sterling with a Taser gun to no avail, and Salamoni then tackles Sterling to the ground.

Salamoni can be heard on the body cam audio yelling profanities at Sterling and then threatening to shoot him in the head.

Sterling appears slightly confused and says, "What I did, sir?"

The shooting occurs shortly thereafter.

 Video provides some clues about the cops' mindset on the matter:

After Sterling is apparently dead, Salamoni can be heard panting, and his hands are seen holding his handgun. He begins going through Sterling's pockets and calls him a "stupid motherf-----" twice.

The U.S. Justice Department and Louisiana Attorney General Jeff Landry declined to pursue charges against the two officers.

Authorities later said Sterling had a pistol in his right pocket and unspecified drugs in his system.

The Washington Post has additional details

Sterling, 37, was shot and killed in July 2016 outside a convenience store where he was selling CDs. Two officers responded to a call about a man threatening someone with a gun and, according to video from the scene, immediately shouted profanities at Sterling while threatening to open fire on him. Although Sterling did have a gun — a loaded .38-caliber handgun found in his right pocket — it was unclear whether he was reaching for it when officers tackled and shot him. (See video at the end of this post.)

Neither of the officers were criminally charged. Blane Salamoni, the officer who fired the shots, was fired from the department in 2018 but, after appealing the decision, was allowed to resign retroactively without compensation or back pay. The other officer, Howie Lake II, was suspended for three days after police officials said he violated the department’s “command of temper” policy.

Sterling’s death was one of several high-profile incidents of police violence that set off a wave of racial justice protests during the summer of 2016 and prompted widespread cries for greater accountability from law enforcement. Hundreds of people were arrested during demonstrations in Baton Rouge. A mural of Sterling was painted at the Triple S Food Mart where he was killed.

In the wake of the fatal shooting, city officials rewrote the police department’s use-of-force guidelines to encourage officers to de-escalate situations when possible and give warnings before using deadly force. The updated guidelines also banned chokeholds and firing into vehicles unless there is an imminent threat.

 

Monday, June 14, 2021

Claims of ignorance from Sessions and Barr about leak investigation of House Democrats have to be falsehoods, according to former Watergate prosecutor

 

Bill Barr and Jeff Sessions, under oath

 

Trump attorneys general Jeff Sessions and Bill Barr are lying when they claim to know nothing about secret warrants to spy on reporters and Democratic members of Congress, among others, a former Watergate prosecutor told MSNBC yesterday. From a report at Raw Story

Former Watergate prosecutor Jill Wine-Banks explained on MSNBC Sunday that there's no way that Attorneys General Bill Barr and Jeff Sessions didn't know about the warrants to spy on reporters, Democratic members of Congress, their staff and families, and [Trump's] own White House counsel.

Barr, Sessions and former Justice Department deputy Rod Rosenstein have all denied they knew of the subpoenas to spy, but Wine-Banks explained that's impossible because something like this would go all the way to the top.

"It may be that the person that they were investigating, had a legitimate predication for the search warrants and that they had some reason to do this," she told MSNBC. "It could have been that he got called by somebody that they were already investigating. It doesn't mean this is normal. It is not normal, and I think the investigation is absolutely critical, holding someone accountable is important to stop this from ever happening again. We can't have members of Congress, the press, and the White House counsel subjected to this. And the reason Don McGahan, of course, is of concern is because he was cooperating with Mueller which made him an enemy of Donald Trump. Donald Trump was calling out [Adam] Schiff, he was calling out [Eric] Swalwell, people who were subject to this search warrant, and he certainly must have felt uncomfortable with his own White House counsel who was cooperating and telling the truth to Mueller. So, that's why it's of concern."

Long-time observers of Alabama politics, who have followed Sessions' machinations as state attorney general and U.S. senator, should not be surprised to learn he has a disconnect with the truth. Sessions' detractors call him "the evil elf" for a reason. How laughable are the claims of ignorance so far? Here is more from Raw Story

Sessions said that he was never briefed on this seizure of records. Barr played fast and loose with the language, saying that he never discussed the leak cases with Trump. That was similar language to Barr's refusal to answer when then-Sen. Kamala Harris (D-CA) questioned him about Trump or anybody else who "asked or suggested" that he open an investigation into his political foes. Barr pretended not to know what the word "suggested" meant and refused to answer.

Host Alicia Menendez asked Wine-Banks if it was possible they didn't have any idea what was going on.

"In my opinion, no, and let me tell you why," said Wine-Banks. "First of all, we had [Osmar] Benvenuto, who was brought in at the recommendation of the U.S. Attorney from New Jersey, who was put in by Barr to replace the New York attorney who he was pushing out. He recommended Benvenuto who came in, and Benvenuto has said -- in a recording, that he briefed Barr at least every other week. So, it is not credible. And if Barr didn't know about this, then Barr is the worst manager, the worst Attorney General ever, because that is his job. The Department of Justice policy requires that there be notice and approval from a higher source. So, it's not something that you can just subpoena a member of Congress' records or a reporter's records without something much more. So, it doesn't pass what I call the 'red face test.' It's like, could I stand up before a jury and say this in front of them without blushing or giggling? The answer is, no, I couldn't."

Sessions' denial is particularly nutty, given this from The New York Times, which broke the story last Thursday

Prosecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

Translation: The leak investigation started on Sessions' watch, and he repeatedly bragged about being a tough guy on leaks, but now he claims to know nothing about what went on. This is a guy who has lied at least three times to Congress about his role in the Trump-Russia scandal, so lying to the press is . . . well, minor-league stuff for this big-league liar.

How uncomfortable could all of this get for Sessions and others? Axios already has labeled it "the emerging scandal of the summer": 

Washington has been served up an unprecedented controversy, and now officials from two branches of government are rushing to get a piece of the scandal spoils.

  • In the spotlight... the Trump-era Justice Department, which seized records from journalists and House Democrats during a leaks investigation over stories about the Russia probe.
  • Now Senate Democrats and the Biden-era Justice Department inspector general are separately launching investigations.

Back in 2017 and 2018, the DOJ obtained a gag order against Apple and subpoenaed the company to hand over data belonging to a dozen people linked to the House Intelligence Committee.

The big picture: "While Justice Department leak investigations are routine, current and former congressional officials familiar with the inquiry said they could not recall an instance in which the records of lawmakers had been seized as part of one," the N.Y. Times reports.

  • The seized records contained no proof of leaks.

The bottom line: The slow drip, drip of stories has now turned into the potential big story of the summer.

Thursday, June 10, 2021

Kansas City settles police-brutality lawsuit for $725,000, where victim survived under facts similar to those in the Minneapolis death of George Floyd

Kansas City officers make an arrest

 

What might have happened to George Floyd if he had survived his encounter with police brutality in Minneapolis -- if he had lived through officer Derek Chauvin pressing a knee on his neck for more than nine minutes? A recently settled lawsuit in Kansas City, MO, provides a clue.

The Kansas City matter involved circumstances similar to those present in Floyd's death -- except the victim survived, and his lawsuit was settled for $725,000. Tom Porto, of the Popham Law Firm, represented the teen and his family in the civil matter.From a report at the Columbia Missourian

Kansas City has agreed to a $725,000 settlement of an excessive force complaint filed after a police officer allegedly forced his knee onto the neck of a teenager who prosecutors said was not resisting arrest.

The settlement arises from a confrontation in a fast-food restaurant in November 2019. The teenager was in a car that sped away from officers but eventually stopped. The teenager and a man inside got out, put their hands in the air and got on their knees, according to court documents.

Although the teen was not resisting, Police Sgt. Matthew Neal put a knee on his neck, causing him to have difficultly breathing, prosecutors said. He was treated for cuts, bruises and broken teeth. He was not charged with any crime arising from the confrontation.

The officer, however, does face criminal charges:

Neal was charged in August with third-degree assault in the case. He has pleaded not guilty. He has been suspended with pay since the charge was filed. Another officer who was on the scene, Dylan Pifer, was not criminally charged and remains on active duty.

The settlement was approved Nov. 17. The Kansas City Star reported the amount after filing an open records request.

This is not an unusual outcome -- in fact, KC cops seem to be slow learners -- as a Kansas City Star editorial makes clear, under the headline "A new $725,000 settlement? KCPD excessive force cases are costing taxpayers millions":

Kansas City’s agreement to pay $725,000 to settle a police excessive force case is an outrage, another sad episode in an all-too-familiar pattern at police headquarters downtown.

The payment, agreed to in November, compensates the family of a teenager stopped by officers in November 2019. The teenager emerged from a car after a short chase, and was allegedly assaulted by Sgt. Matthew Neal of the Kansas City Police Department.

The young man’s teeth were broken, according to prosecutors, and his head was cut open. Neal allegedly knelt on the suspect’s neck until the young man said he was unable to breathe.

Other officers stood and watched. Neal has been charged with felony assault.

The incident was “an abomination,” Mayor Quinton Lucas said this week. Last year, we said it revealed a crisis in the Kansas City Police Department.

The available evidence shows the family is entitled to payment for the teenager’s suffering, and the Board of Police Commissioners has approved the settlement.

But the payment won’t come from commissioners’ pockets. It won’t come from Police Chief Rick Smith’s pocket. It won’t come from Neal’s pocket, even though he continues to draw a salary from taxpayers while facing criminal charges.

No, the cost of Neal’s violent, foolish act will be paid by taxpayers (some of it may come from the state). And because taxpayers are paying the bills, the police department has little incentive to improve its record or fix its brutality problem. Instead, Smith and others clearly see the payout as a mere cost of doing business.

This isn’t the first time. Last year, The Star revealed $6.3 million in police settlement payments related to the actions of just one former officer. Millions more have been paid for other claims.

Reducing or eliminating excessive force payouts must be at the top of the department’s agenda this year. To do that, of course, the Kansas City Police Department must reduce or eliminate police brutality.

Tuesday, June 8, 2021

Was former Drummond exec David Roberson's guilty verdict driven largely by trial court's improper decision to try him jointly with Balch & Bingham lawyer?

David Roberson

 

Was former Drummond Company executive David Roberson found guilty in the North Birmingham Superfund bribery case because he was tried jointly with a lawyer from Balch & Bingham -- the very lawyer who had falsely assured Roberson his actions, and those of his company, were fine and legal?

That seems to be the primary question raised by an opinion from the U.S. 11th Circuit Court of Appeals, upholding the convictions of Roberson and Balch attorney Joel Gilbert. The appellate ruling makes clear that Roberson's attorneys timely moved to sever the two trials, but District Judge Abdul Kallon -- apparently in the interest of "judicial economy" -- ruled for joinder. The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief stating that trials should be conducted separately when one defendant stands to be prejudiced by a joint proceeding, especially where an attorney and client are tried together.

It appears the 11th Circuit largely ignored the amicus brief in upholding Roberson's conviction. (More on the NACDL brief in an upcoming post.) But the nagging question remains: Was a man found guilty because of a joint trial, when he likely would have been acquitted if he had been tried alone? Is "judicial economy" more important than dispensing justice, than getting it right? Those seem to be the kind of troubling questions that produce mixed opinions in legal circles and probably merit en banc review of the full 11th Circuit -- and perhaps, if necessary, clarification from the U.S. Supreme Court. Here's how the 11th Circuit framed the issue in its 37-page opinion:

Roberson . . . argues that the district court should have severed the trial pursuant to Federal Rule of Criminal Procedure 14(a), and failure to do so led to events requiring a new trial. Roberson states that because of joinder he was unable to properly present a reliance on the advice-of-counsel defense. Roberson argues that certain evidence was excluded at trial because it inculpated Gilbert, even though that evidence supported Roberson’s defense that he relied on counsel, Gilbert, in believing his actions were legal. Specifically, the trial court excluded a portion of an FBI agent’s written summary of Roberson’s interview with the FBI in which Roberson states that he had checked with Gilbert to ensure “there was no problem with what they were doing.”

Let's take a closer look at the evidence that was excluded, because Roberson was jointly tried with Gilbert, compared to FBI evidence the jury was allowed to see. First, here is the evidence that was allowed:

The full passage at issue, with the portions excluded at trial underlined, states:After the Hubbard trial, Roberson considered what they were doing, i.e., contracting with a state representative, in light of the ethics law but determined that the area targeted by the campaign was not in Robinson’s district. Roberson stated that they (Drummond) have always been very careful, and he (Roberson) has a reputation to maintain. Roberson had a conversation with Gilbert about ethics considerations.

Here is the underlined portion that was kept from the jury:

Roberson had a conversation with Gilbert about ethics considerations. Roberson wanted to know if it was a problem for him (Roberson) to be associated with the effort because he was a lobbyist. Gilbert later told Roberson that he checked with Greg Butrus and Chad Pilcher at Balch, and there was no problem with what they were doing.

What are the legal issues in play here? This is how the 11th Circuit explains them:

Roberson claims this exculpatory evidence was critically important to his advice-of-counsel defense. Roberson also argues that the exclusion of portions of the FBI interview distorted the meaning conveyed by the admitted portions and rejects that any other evidence presented at trial was curative of this omission as the government undermined that evidence in its closing . . . . Although Roberson raised the motion to sever early in the district court’s proceedings, we focus first on the district court’s later denial of a motion for a new trial because if the district court was correct in denying the motion for a new trial then “its earlier rulings not to sever–when it had even less evidence of potential prejudice before it–were necessarily correct.” Blankenship, 382 F.3d at 1121–22. In evaluating whether a motion for a new trial should have been granted, first the court must assess whether there is a risk of prejudice. See Zafiro v. United States, 506 U.S. 534, 538–40 (1993). Next the court must ascertain whether severance was the necessary remedy, as “[t ]here are only two circumstances in which severance is the only permissible remedy[;]” (1) when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants,” or (2) to “prevent the jury from making a reliable judgment about guilt or innocence.” Blankenship, 382 F.3d at 1122–23 (quoting Zafiro, 506 U.S. at 539).

That raises three key questions: 

(1) Was there a "serious risk" of prejudice from Roberson being tried with Gilbert? Answer: Of course. Even the 11th Circuit goes on to admit as much:

(2) Was there a serious risk that a joint trial would compromise a specifiic trial right of one of the defendants (in this case, Roberson)? You can read the underlined passage above, which was excluded from the jury, and see it did, in fact, ruin Roberson's advice-of-counsel defense. You also can see that Roberson's attorneys were correct when they argued the allowed passage was pretty much meaningless when not accompanied by the disallowed passage. Heck, the allowed passage contains a reference to "Hubbard," and some jurors might not even have known what that meant. The disallowed passage goes directly to Roberson's question to Gilbert about actions he and Drummond were taking, were they legal -- but the jury never heard it, wiping out the advice-of-counsel defense that likely would have led to a Roberson acquittal.

(3) Was the jury prevented from making a reliable judgment about guilt or innocence? Well, the jury was prevented from hearing a key portion of Roberson's defense, so the answer clearly is yes.

How did that happen? The 11th Circuit explains, sort of:

Roberson argues that pursuant to the rule of completeness, but for the fact that Gilbert was his co-defendant, the omitted passage would have been read into evidence.See FED.R.EVID. 106. Roberson claims this exculpatory evidence was critically important to his advice-of-counsel defense. . . .  

The Confrontation Clause prohibits the admission of a non-testifying defendant’s confession if that confession directly inculpates another defendant. See Bruton v. United States, 391 U.S. 123, 126 (1968). The district court redacted the portions of the FBI’s Roberson interview at issue pursuant to Bruton

Do the three issues and questions noted above, coming straight from the 11th Circuit's opinion, override Bruton?     And what about that rather important issue of prejudice? The 11th Circuit seems to admit it                  existed, because of the joint trials, but it goes into a litany of what sound like excuses to defend         Kallon's actions and ultimately responds with a collective shrug:

The only evidence Roberson claims he was prevented from introducing at trial were the redacted portions of the FBI report. Although this evidence lends additional support to Roberson’s advice-of-counsel defense, its exclusion is not misleading with respect to the portion that was admitted, given the other evidence presented, and essentially was cumulative. 

Translation: Yes, the advice-of-counsel evidence was important, but its exclusion was not THAT big a deal.

In sum, the exclusion was not so prejudicial as to compromise Roberson’s ability to present his defense or deny him a fair trial.

Translation: Yes, Roberson was prejudiced, but a little bit of prejudice is fine in a federal criminal case. 

The 11th Circuit's casual approach to exclusion of a key part to Roberson's defense runs counter to the trial court's jury instruction, as noted in Footnote 27 of the 11th Circuit's ruling:

As the jury instructions noted, “[e]vidence that a defendant in good faith followed the advice of counsel would be inconsistent with the unlawful intent required for each charge in this case.”

In everyday language: If Roberson had not been tried with Gilbert, he would have been able to raise a complete advice-of-counsel defense, and that likely would have shown he did not have the unlawful intent required for a criminal conviction.

The Roberson case teaches, essentially, that we now have a criminal "justice" system that tolerates prejudice, that "judicial economy" trumps fundamental justice, and exclusion of a critical defense is perfectly fine.

Have we really sunk that low? Will Americans continue to tolerate this in courts that are taxpayer funded, but largely unscrutinized?