Civil rights

  • June 19, 2017
    Guest Post

    *This piece originally appeared on JOTWELL.

    by SpearIt, Associate Professor of Law, Thurgood Marshall School of Law

    Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN.

    Why is it so easy for police to kill Black people?

    The answer to this question is urgent in light of ongoing police violence across the country. Virulent videos of Blacks subjected to police aggression have spread nationwide by phones, computers, TVs and tablets. These troubling, yet spectacular visuals, have pulled the covers back to allow mainstream America to see the dark and ruthless nature of law enforcement. Unarmed Blacks have senselessly died by strangling, tasing, and shooting in the back at the hands of police. Recently reported was an unarmed man shot despite his being on the ground with hands raised in surrender. Another was reportedly killed despite lawfully carrying a firearm. The ample proof of police wrongdoing raises alarming flags about the status quo, where police killing of Blacks is prevalent and successful prosecution of police is not.

    In this article, Devon Carbado offers a compelling answer. He asserts that Fourth Amendment doctrine paves a path for police to engage civilians, especially Blacks, in ways that escalate into violence and death. Police officers are embodied with various levels of discretion in their enforcement efforts, and can be motivated by social motives, including cultural biases. Carbado shows, with meticulous detail, how Fourth Amendment doctrine leaves racism virtually unchecked in policing practices. Rulings by the Supreme Court on search and seizure make it clear that where police have a pretext to stop a person on the street or in a vehicle, the seizure is lawful so long as the officer has a requisite level of suspicion to make the stop. That there is little constitutionally to curb the police’s use of discretionary power when choosing one person over another puts a sarcastic twist on the meaning of “con” law.

  • April 12, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: “The Future of the U.S. Constitution

    by Chiraag Bains, Visiting Senior Fellow, Harvard Law School, Criminal Justice Policy Program. Follow Chiraag on Twitter: @chiraagbains

    Constitutional law is driven in part by public and judicial attitudes about the security of our core American values: liberty, equality, democracy and human dignity. Narratives about the extent to which government threatens, or does not threaten, these values can shape how easy or difficult the courts make it to enforce constitutional rights and how narrowly or expansively courts read those rights. This suggests that the Trump Administration — which has singled out certain minority groups and backed away from civil rights enforcement — might push courts to rethink current doctrine and make constitutional protections more robust.

    With respect to civil rights, two of the most consequential narratives in recent years have been (1) that claims of racial discrimination are overblown and we are approaching a post-racial reality; and (2) that misconduct by law enforcement is limited to the acts of a few bad apples.

    The post-racial narrative is familiar by now. Slavery ended 150 years ago. You will not find a “whites only” waiting room or drinking fountain in America. Minorities run Fortune 500 companies, appear in mainstream media, and serve in Congress. And of course, we elected — and reelected — our first black president. 

    This narrative has played a role in the Supreme Court’s contraction of protections against racial discrimination.

  • February 23, 2017
    Guest Post

    by Harper Jean Tobin, Director of Policy, National Center for Transgender Equality

    Gavin Grimm, a high school senior in Virginia, had to sit through two public school board meetings during his sophomore year while his neighbors openly discussed his body parts and restroom use while pointedly referring to him as a “young lady,” calling him a “freak,” or comparing him to someone who thinks he is a dog. Gavin is a transgender boy. He had used the boys’ restroom at school for weeks with the full support of his fellow students before those school board meetings, where the school district ultimately decided to bar him from the boys’ restroom. For the over two years since then, Gavin has had to make a “walk of shame” to the nurse’s office each time he needs to use the restroom, a daily reminder that his school thinks he isn’t worthy of being treated like his peers.

    There are hundreds of thousands of transgender students like Gavin in schools all across the country. K–12 schools, as well as colleges and universities, began developing policies over a decade ago to answer everyday questions about supporting transgender students. Today, over 40 percent of U.S. K­­–12 students attend schools with local policies or statewide laws or guidelines that clearly support transgender students’ rights to learn in a safe environment and be treated according to their gender identity, including when it comes to using facilities. 

    Enter Title IX. Starting in 1999, a growing number of federal courts began to rule that federal sex discrimination laws applied to discrimination against transgender people. The rulings relied on two major Supreme Court precedents: Price Waterhouse v. Hopkins (1989), which held that discrimination based on gender stereotypes violates Title VII of the 1964 Civil Rights Act; and Oncale v. Sundowner Offshore Services (1998), which stated that Title VII applies to any gender-based discrimination, not just specific scenarios Congress imagined in 1964. Eventually, five federal appeals courts and over a dozen district courts agreed that Title VII, Title IX, and other sex discrimination laws applied to anti-transgender bias, while only a handful disagreed.

  • January 18, 2017
    Guest Post

    by Bill Yeomans, Fellow in Law and Government at American University Washington College of Law

    The election of Donald Trump has thrown the federal bureaucracy into uncertainty and nowhere is that uncertainty felt more strongly than in the Civil Rights Division of the Department of Justice. Trump’s campaign invoked racism, misogyny, xenophobia and disregard for the rule of law – all directly at odds with the fundamental laws that the Division enforces. The nomination of Sen. Jeff Sessions for attorney general confirmed the worst fears of Division lawyers that, once again, it is in the crosshairs of an incoming administration that is hostile to its mission. Many who work there face a decision whether to stay or go.

    I know. I spent 26 years in the Department of Justice, starting in the Jimmy Carter presidency and running through the transitions to Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush. I chose to stay in the belief that the work of combating discrimination remained essential and to challenge the new administration to adhere to the Division’s tradition of formulating its positions through reasoned, legal argument, rather than political fiat. I recognized both that the career attorneys – with their fidelity to the law and knowledge of the Department’s customs and traditions--presented the strongest impediment to radical, lawless change and that even in the most challenging times important work could be done. In the weeks since the election, I have been approached by career attorneys wondering whether the Division will remain a place where they can work. My answer is that it is an intensely personal choice, but that they should understand that they have an important role to play in pressing for continued enforcement of the law and against politically driven retreat. Indeed, the corps of dedicated career employees remains the principal bulwark against the threat of a lawless executive.

    Since its creation in the Civil Rights Act of 1957, the Civil Rights Division has increased opportunity for large segments of the population. It has expanded access to meaningful voting; desegregated police and fire departments; attacked school desegregation; opened housing markets; expanded access to employment and accommodations for people with disabilities; and prosecuted police officers for using excessive force, people who engage in hate motivated violence and those who traffic in human beings. 

  • May 2, 2016
    Guest Post

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

    The city of Cleveland recently settled a federal wrongful death lawsuit for $6 million with the estate of Tamir Rice, a 12-year-old boy shot to death by Cleveland police officers on November 22, 2014. The shooting death of Rice, along with the deaths of Eric Garner, Sandra Bland, Freddie Gray, Michael Brown, Walter Scott and too many others have led to the incisive interrogation of the police narrative in their use of deadly force, particularly in the shooting deaths of men and women of color. Not all such deaths however, have received the widespread condemnation and exposure that the deaths of Rice, et al. saw, exposure that spawned the Black Lives Matter movement.      

    A journalist from the San Francisco Bay area recently sent me a video taken with a police body camera from a May evening in 2014, looking for analysis, context and commentary. The video showed police officers from the city of Hayward, California as well as officers from the Bay Area Rapid Transit (BART) police attempting to take James Greer, a 46-year-old man of color and grandfather who reportedly weighed 380 pounds, into custody on suspicion of driving under the influence. Hayward police had stopped Greer’s pickup truck and administered a brief field sobriety test before making the decision to arrest Mr. Greer. An officer asked Mr. Greer if he suffered from any medical conditions and he replied that he suffered from a hernia and pointed to the area of his stomach. Greer initially cooperated with officers, but then began offering resistance that can best be described as minimal and perfunctory. As is in keeping with standard police practices that are of late far too frequently captured and memorialized via video, Greer was immediately, violently, and decisively slammed to the pavement—on his stomach.          

    I have seen many of these “police videos” and am frequently sought out for comment and perspective on what is depicted. What I saw in the Hayward police video was one of the most shocking, outrageous, offensive, and noxious examples of police excess that I have ever witnessed—this in a career as a police practitioner, academic, observer, and analyst that dates back to the 1970s.