Guest Post

  • January 17, 2017
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    On Thursday, Jan. 12, the Department of Justice (DOJ) and the Baltimore Police Department (BPD) entered into a consent decree whereby the BPD agreed to stipulated changes in the ways that it conducts policing in the city, specifically in communities of color. In August of 2016 the DOJ had released the results of its investigation into the BPD where it found that the BPD “engages in a pattern or practice of conduct that violates the First and Fourth Amendments of the Constitution as well as federal anti-discrimination laws. BPD makes stops, searches and arrests without the required justification; uses enforcement strategies that unlawfully subject African Americans to disproportionate rates of stops, searches and arrests; uses excessive force; and retaliates against individuals for their constitutionally-protected expression.”

    The following day, on Friday, Jan. 13, the DOJ announced the findings of its investigation into the Chicago Police Department (CPD) where it found that the CPD “engages in a pattern or practice of using force, including deadly force, in violation of the Fourth Amendment to the Constitution.” The DOJ and the city of Chicago “have signed an agreement in principle to work together, with community input, to create a federal court-enforceable consent decree addressing the deficiencies found during the investigation.”

    The DOJ has investigated over two dozen law enforcement agencies during the Obama administration and has entered into consent decrees with many of these departments after investigations typically revealed agency-wide deficiencies in training, supervision and internal investigative oversight. Most often the DOJ investigations found “pattern and practice” violations of constitutional, civil rights and civil liberties protections, as well as widespread instances of excessive force and unlawful stops, searches and arrests, most often in communities of color. Police departments in Los Angeles, Miami, Pittsburgh and Detroit have been under federal oversight in recent years, as well as in Albuquerque and Cleveland. 

  • January 12, 2017
    Guest Post

    by Phil Telfeyan, Executive Director of Equal Justice Under Law and lead attorney in Buffin v. San Francisco

    No person should have to spend even one day in jail solely because he or she is poor. This fundamental axiom of American law is the cornerstone of the movement to end America’s discriminatory money bail system. In the past two years, Equal Justice Under Law has filed 11 lawsuits seeking to end money bail in cities and states across the country. Seven of these suits have led to the end of money bail in those seven cities; our litigation in San Francisco has the potential to end wealth-based detention across all of California.

    On Oct. 26, 2015, 19-year-old Riana Buffin was arrested for stealing from a department store. Under San Francisco’s bail schedule, she could have been immediately released if she had paid $30,000. But because she is too poor to pay that amount, she sat in jail for two days until the District Attorney decided not to press charges. Because of those two days in jail — two days a rich person would not have endured — Ms. Buffin lost her job at the Oakland airport, cutting off an essential source of income for her mother and two younger brothers (all three of whom have disabilities). Nobody thought Ms. Buffin was a danger to society. She had never been arrested before and the DA did not even file charges against her.

    Ms. Buffin is the lead plaintiff in a class action lawsuit — Buffin v. San Francisco — seeking to end San Francisco’s wealth-based detention scheme. The city currently runs two systems of pretrial justice: one for the rich and another for the rest of society. The poorer you are, the worse San Francisco’s justice system treats you.

    After numerous motions to dismiss, United States District Court Judge Yvonne Gonzalez Rogers declared that our legal challenge could move forward on the merits against Sheriff Vicky Hennessy. On Nov. 1, 2017, the Sheriff’s response came in: she and the City Attorney refused to defend money bail. “This two-tiered system of pretrial justice does not serve the interests of the government or the public, and unfairly discriminates against the poor,” the filing stated. Although the Sherriff will continue to enforce the State’s law, “she is not required to defend it, and she will not.”

  • January 11, 2017
    Guest Post

    by Brianne J. Gorod, Chief Counsel for the Constitutional Accountability Center

    The Senate is conducting a confirmation hearing blitz this week and next for 10 of President-elect Donald Trump’s announced Cabinet-level choices. The dizzying speed and compressed time in which these hearings are being held is troubling enough to those who prefer more thoughtful deliberation of anyone who, if confirmed, would wield great power. Worse - because we do not know the extent of the president-elect’s holdings and he has refused to sell his business and put the assets in a blind trust - his nominees could place their boss’s private business interests ahead of their duty to protect the national interest.

    As he appoints agency heads throughout the federal government, Trump is or will be choosing people to lead agencies that not only are investigating or could investigate his businesses, but also that could enrich them. That is why the Senate’s constitutional duty of “advice and consent” is so important: it is supposed to help ensure that nominees can be trusted to work in the interest of the public, not in the interest of the man advancing their careers.

    Of course, the Senate cannot provide informed “advice and consent” without a full picture of the potential conflicts. And it cannot know that full picture unless Trump fully discloses his debts and assets. As if Trump’s imminent collision with the Constitution’s Emoluments Clauses were not enough, this additional possibility of conflict is a significant reason why Trump should release his tax returns, sell his businesses and place an independent trustee in charge of a blind trust.

    The U.S. Constitution provides that the president, and the president alone, nominates the heads of federal agencies and other top federal officers. Each executive branch officer will swear an oath to “support and defend the Constitution.” Unless Trump sells his businesses, he will test the strength and independence of each appointee to avoid decisions designed to serve the president’s private interests.

  • January 11, 2017
    Guest Post

    by Peter Jan Honigsberg, Professor of Law at the University of San Francisco and Founder and Director of Witness to Guantanamo

    Today marks the fifteenth anniversary of the opening of the prison camp in Guantanamo Bay, Cuba. It is an anniversary I had hoped would never happen. Most people thought Guantanamo would close after President Obama announced on his second day in office that he would shutter the prison within a year. He repeated his pledge to close the prison three more times during his tenure. Yet, today, Guantanamo continues to be a black stain on America and negates our claim to be a global leader in human rights and the rule of law. When America accuses other countries of human rights violations, their leaders point to Guantanamo in response.

    Over the past fifteen years, public interest and information about Guantanamo has been scarce. Since Donald Trump announced that he will “load [Guantanamo] up with some bad dudes,” the prison has been back in the news.

    For the past nine years, “Witness to Guantanamo” has created the world’s most comprehensive collection of filmed stories about the prison camp at the U.S. naval base in Cuba. We have interviewed 146 people in 20 countries. Fifty-one of the interviewees are former detainees. We have also filmed interviews with prison guards, interrogators, interpreters, medical personnel, lawyers and high-ranking military and government officials who have worked in Guantanamo or on Guantanamo issues. We are the only organization in the world recording the voices and faces of one of the most important events in the 21st century for history.

    Fifteen years ago today, on Jan. 11, 2002, the first 20 (out of 780) men were dragged and marched onto an American military jet wearing orange jumpsuits, blackened goggles, earmuffs, masks, mittens and woolen caps. Ruhal Ahmed, a former detainee from England, described how their legs and arms were shackled in what was called a “three-piece suit,” with a belly chain and leg irons digging into their legs, their hands tightly shackled to their waists. Their chains were padlocked to the floor and a strap was put over their chest so that they could not move forward. Some of the lucky men were given drugs to manage the brutal 18-hour ride to Guantanamo.

  • January 10, 2017
    Guest Post

    by Stephen I. Vladeck, Professor of Law, the University of Texas School of Law and Author of the New ACS Issue Brief, “The Bivens Term: Why the Supreme Court Should Reinvigorate Damages Suits Against Federal Officers

    It is, of course, a coincidence that the very last oral argument the Supreme Court will hear during the Obama administration and one of the first it will hear during the Trump administration both involve remedies for constitutional violations by federal government officers. And yet, the fortuitous timing only underscores why these two cases—Ziglar v. Abbasi and Hernández v. Mesa—are, as my new ACS Issue Brief explains, likely the most important cases the Justices have heard in decades on the scope of so-called “Bivens suits,” and could well turn out to be among the most significant rulings the Court hands down this Term. [Full disclosure: I am co-counsel to the Petitioners in Hernandez. This post, like the Issue Brief, reflects my personal views, and not necessarily those of the Petitioners or their counsel.]

    The facts of Abbasi and Hernandez are sharply different. In Abbasi, a group of immigrants are seeking to challenge their allegedly unconstitutional treatment while detained as part of the post-9/11 roundup of Muslim and Arab non-citizens in and around New York City. Specifically, the plaintiffs allege that senior government officials—including Attorney General Ashcroft and FBI Director Mueller—knew that they had no connection to terrorist activity and nevertheless chose to subject them to especially harsh, punitive and allegedly unconstitutional conditions of confinement otherwise reserved for terrorism suspects. Hernández, in contrast, arises out of a single Customs and Border Patrol agent’s allegedly unprovoked cross-border shooting of an unarmed 15-year-old Mexican boy. But whereas the cases raise different facts (and other legal questions, including, in Hernández, whether the Fourth Amendment even applies to such a cross-border shooting), both raise a basic question about remedies—and whether the courts can and should recognize damages claims for constitutional violations by federal officers even though Congress has never expressly authorized such suits.

    The “Bivens doctrine” is named after a 1971 case in which the Supreme Court held that, in at least some circumstances, the answer was yes—that courts could infer a cause of action for damages against federal officers directly into the Constitution, at least in the absence of adequate alternatives or what Justice Brennan called “special factors counseling hesitation.” But as the Issue Brief explains in more detail, Bivens was not a bolt from the blue. Going all the way back to the Founding, federal officers had routinely been liable for damages to victims of constitutional violations. It’s just that the pre-1971 practice was to leave such suits to the vagaries of state tort law—a practice that became increasingly incongruous as new constitutional protections lacking state law analogues were recognized and as federal courts more regularly asserted the similar (if not more coercive) power to enjoin unconstitutional federal official action without express statutory authorization. Bivens, then, reflected the Supreme Court’s conclusion that there would be circumstances in which prospective relief or retrospective state-law remedies would be insufficient to vindicate individuals’ constitutional rights—and so retrospective federal remedies would be necessary. In Bivens itself, that meant a cause of action for damages to vindicate Webster Bivens’s Fourth Amendment right to be free from unreasonable searches and seizures.