Category Archives: Federal Crimes & Prosecutions

Search of Rental Cars

Image result for rental car

In Byrd v. United States, the United States Supreme Court held that while a car thief does not have right to privacy in a stolen car no matter the degree of possession and control, the driver of a rental car can challenge a warrantless search of the vehicle even if the driver is not listed as an authorized driver on the rental agreement.

BACKGROUND FACTS

Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania.

Pennsylvania State Troopers stopped Byrd for a traffic infraction. They learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car.

The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

COURT’S ANALYSIS AND CONCLUSIONS

In a unanimous decision favoring Byrd, Justice Anthony Kennedy wrote, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

The Court added that there can be numerous reasons why a driver unlisted on a rental contract may need to drive the rental car, and that the government had not shown that whether the simple breach of the rental contract would affect the expectation of privacy.

Also, the Court reasoned that one of the main rights attaching to property is the right to exclude others. Also, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude. “This general property-based concept guides resolution of the instant case,” said Justice Kennedy:

“The Government’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy in the car rests on too restrictive a view of the Fourth Amendment’s protections. But Byrd’s proposal that a rental car’s sole occupant always has an expectation of privacy based on mere possession and control would, without qualification, include thieves or others who have no reasonable expectation of privacy.”

The Court rejected the Government’s arguments that an unauthorized driver has no privacy interest in the vehicle. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones v. United States, who had a reasonable expectation of privacy in his friend’s apartment because he had complete dominion and control over the apartment and could exclude others from it:

“The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s friend in Jones owned or leased the apartment he permitted the defendant to use in his absence.”

The Court also rejected the Government’s argument that Byrd had no basis for claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement that the rental company would have voided the contract once he took the wheel. “But the contract says only that the violation may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage,” said Justice Kennedy. “And the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.”

Kennedy’s decision concluded that there remained two issues which the Supreme Court remanded back to the lower courts: (1) whether Officer Long had probable cause to search the car in the first place, and (2) whether Byrd intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.

With that, the Supreme Court vacated Byrd’s conviction and remanded back to the Third Circuit Court of Appeals.

Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Alito also filed a concurring opinion.

Inventory Searches of Cars

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In United States v. Johnson, the Ninth Circuit Court of Appeals held that a suspicionless inventory search is only proper when it is performed to secure and to protect an arrestee’s property and to protect the police department against fraudulent claims of lost or stolen property. Evidence removed from the defendant’s car could not be justified under the inventory-search doctrine where the officers explicitly admitted that they seized the items in an effort to search for evidence of criminal activity.

BACKGROUND FACTS

On April 10, 2014, Multnomah County Sheriff’s deputies located Mr. Johnson—who had an outstanding warrant for his arrest based on a post-prison supervision violation—at the Clackamas Inn, just south of Portland, Oregon. The deputies followed Johnson to a residence in the nearby town of Gladstone and called Portland Police Bureau (PPB) Officers Corona and Ables for assistance in arresting him.

The officers did not approach Johnson at the residence, but instead waited outside. After about 20 minutes, Johnson left, and again the officers followed him. At a nearby intersection, the officers finally stopped Johnson by loosely boxing in his car; one car approached Johnson from behind while another approached from the front, effectively blocking Johnson’s ability to drive away. The cars all came to a stop within a few feet of each other, and although there was enough room for Johnson to pull his car to the side of the road, he instead parked in the lane of traffic, disrupting the flow of passing cars. When approached by the officers, Johnson could not provide proof of insurance for the car, which he was borrowing, nor could he give anything other than the first name of the car’s owner. Johnson did not know how the police could contact the owner.

The officers arrested Johnson on the outstanding warrant. After the arrest, the officers searched Johnson and found a folding knife in his front pocket, $7,100 in cash in $20 and $100 denominations in his rear pants pocket, and $150 in cash in his wallet. Johnson said that he had recently inherited the $7,100 and that he planned to purchase a car with it.

Because Johnson’s car was blocking traffic and because Johnson could not provide contact information for the car’s owner, the officers ordered it to be towed and impounded, pursuant to PPB policy. Prior to the tow, the officers conducted an inventory search of the car, again pursuant to local policy. From the interior of the car, the officers collected a combination stun gun and flashlight, a glass pipe with white residue, a jacket, and two cellphones. From the trunk, the officers collected a backpack and a duffel bag. Officer Corona testified that, when he moved the backpack and duffel in order to search for other items in the trunk, the bags felt heavy and the backpack made a metallic “clink” when he set it down on the pavement. PPB stored each of the seized pieces of property in the County property and evidence warehouse, and the $7,100 was taken into custody by the County Sherriff’s Office. Officer Corona recorded each item seized on an accompanying arrest report; the Sheriff’s Office prepared a property receipt for the $7,100 in seized cash.

A week later, Officer Corona submitted an affidavit to secure a warrant to search the seized backpack, duffel bag, and cell phones. The affidavit referred to a 2009 police report (which Corona read after arresting Johnson) that stated Johnson had previously been found with cash, weapons, and drugs in a safe concealed in his vehicle. Officer Corona’s affidavit stated that, based on the circumstances of Johnson’s recent arrest, he had probable cause to believe the bags seized from the trunk would contain similar lockboxes, and that the phones would contain evidence of drug dealing.

A warrant was duly signed by a local magistrate judge, and a search of the backpack revealed a small safe containing two bags of methamphetamine, drug-packaging materials, syringes, and a digital scale. The duffel bag contained Johnson’s personal items, and one of the cellphones contained text messages regarding drug trafficking.

Johnson was indicted on one charge of possession with intent to distribute methamphetamine in an amount of 50 grams or more, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii).

Before trial, Johnson moved to suppress the evidence found in the car and on his person at arrest. Primarily, Johnson challenged the evidence supporting the warrant to search the backpack and cellphones, arguing that it did not amount to probable cause. Johnson also argued that the officers unlawfully manipulated the bags they seized from the car in order to get a sense for what they might contain and that the inventory search of his car was invalid.

The federal district court denied the motion, concluding that there was probable cause to stop and to arrest Johnson on the outstanding warrant, the officers validly impounded Johnson’s car because it was blocking traffic, the subsequent inventory of the vehicle was “lawful because PPB mandates officers to conduct an inventory of impounded vehicles,” and the search warrant was supported by probable cause.

At trial, the government introduced the evidence found in Johnson’s car and on his person, with a particular focus on the items of evidence found in the backpack, the messages from the cellphone, and the $7,100 in cash. The jury found him guilty.

Approximately four months later, Johnson filed a motion for new trial on the basis of, among other things, two pieces of supposedly newly discovered evidence: (1) evidence showing that Johnson had indeed recently received an inheritance; and (2) a receipt from the private company that towed and impounded his car, which stated that they found various additional items of property in the car that were not listed in Officer Corona’s arrest report. After a hearing, the district court denied the motion for a new trial upon the conclusion that none of the supposedly new evidence would have resulted in a likely acquittal.

Johnson was sentenced to 188 months in prison, and he now timely appeals.

LEGAL ISSUE

Whether the trial court erred in failing to suppress evidence that was seized by City of Portland police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.

COURT’S ANALYSIS & CONCLUSIONS

Johnson argued that the officers’ inspection of his car exceeded the constitutionally permissible bounds for an inventory search.

The Ninth Circuit reasoned that as an exception to the warrant requirement of the Fourth Amendment to the United States Constitution, police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic. The purpose of such a search is to produce an inventory of the items in the car, in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Florida v. Wells, 495 U.S. 1, 4 (1990). Thus, the purpose of the search must be non-investigative; it must be conducted on the basis of something other than suspicion of evidence of criminal activity. The search cannot be “a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at 4.

The Court of Appeals further reasoned that an administrative search may be invalid where the officer’s subjective purpose was to find evidence of crime. However, the mere presence of a criminal investigatory motive or a dual motive—one valid, and one impermissible— does not render an administrative stop or search invalid. Instead, the issue is whether the challenged search or seizure would have occurred in the absence of an impermissible reason.

“We thus must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive,” said the Court of Appeals.

“Under our circuit’s law, a suspicionless inventory search does not permit officers to search or to seize items simply because they believe the items might be of evidentiary value,” said the Court.  It reasoned that as explained above, the purpose of such a search must be unrelated to criminal investigation; it must function instead to secure and to protect an arrestee’s property, and likewise to protect the police department against fraudulent claims of lost or stolen property.

“Thus, the officers’ statements directly admitting that they searched and seized items from Johnson’s car specifically to gather evidence of a suspected crime are sufficient to conclude that the warrantless search of the car was unreasonable,” said the Court, citing Orozco; a case where the Ninth Circuit found pretext where the police officers admitted that their subjective purpose was to find evidence of crime.

The Ninth Circuit concluded that the officers’ search and seizure of such evidence cannot be justified under the inventory-search doctrine:

“In the face of such evidence, it is clear to us that the officers’ decision to seize the money, bags, and cellphones from Johnson and his car would not have occurred without an improper motivation to gather evidence of crime.”

Furthermore, the Ninth Circuit reasoned that because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, the district court erred in denying Johnson’s motion to suppress. Therefore, evidence gathered from Johnson and his vehicle was inadmissible.

With that, the Ninth Circuit ruled that the federal district court’s denial of Johnson’s motion to suppress the evidence found on his person and in the car he was driving at the time of his arrest is reversed, his conviction and sentence are vacated, and the case is remanded back to the district court for further proceedings.

My opinion? Good decision. Clearly, the search conducted by police officers in this case went beyond the scope of a lawful inventory search. Please contact my office if you, a friend of family member face criminal charges involving a questionable search. The evidence might be suppressible under a well-argued pretrial motion.

Supreme Court Makes it Harder to Deport Legal Immigrants Who Commit Crimes.

In this Feb. 7, 2017, photo released by U.S. Immigration and Customs Enforcement, foreign nationals are arrested during a targeted enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE) aimed at immigration fugitives, re-entrants and at-large criminal aliens in Los Angeles. (Charles Reed/U.S. Immigration and Customs Enforcement via AP, File)

In Sessions v. Dimaya, the United States Supreme Court held that 18 U. S. C. §16(b), which defines “violent felony” for purposes of the Immigration and Nationality Act’s removal provisions for non-citizens, was unconstitutionally vague.

BACKGROUND FACTS

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California’s first-degree burglary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, the U.S. Supreme Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Relying on Johnson v. United States, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kagan delivered the majority opinion of the Court and concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court’s opinion began by explaining that The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence for which the term of imprisonment is at least one year.

Justice Kagan explained that Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether the particular facts underlying a conviction created a substantial risk; but whether “the ordinary case” of an offense poses the requisite risk.

Justice Kagan reasoned that ACCA’s residual clause created grave uncertainty about how to estimate the risk posed by a crime because it tied the judicial assessment of risk to a speculative hypothesis about the crime’s ordinary case, but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. “The combination of indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony resulted in more unpredictability and arbitrariness than the Due Process Clause tolerates,” said Justice Kagan.

Justice Kagan further reasoned that Section 16(b) suffers from those same two flaws. He explained that similar to the ACCA’s residual clause, §16(b) calls for a court to identify a crime’s ordinary case in order to measure the crime’s risk but offers no reliable way to discern what the ordinary version of any offense looks like. Additionally, its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. “Thus, the same two features that conspired to make ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result,” said Justice Kagan.

Next, Justice Kagan raised and dismissed numerous arguments from the Government that §16(b) is easier to apply and thus cure the constitutional infirmities. “None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate,” said Justice Kagan.

With that, the majority Court concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court was deeply divided. Justice Kagan’s opinion was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. Justice Gorsuch filed an opinion concurring in
part and concurring in the judgment. Justice Roberts filed a dissenting
opinion, in which Justices Kennedy, Thomas, and Alito joined.

Interestingly, it was Justice Gorsuch — a Trump nominee who sided with the four liberal-leaning justices in the ruling — who was the swing vote in this case. Despite his surprise vote, he explicitly left the door open to Congress to act, saying it should be up to lawmakers and not the courts to be explicit about the crimes that deserve automatic deportation for even legal immigrants.

My opinion? This decision is very good for legal immigrants facing crimes which are questionably deportable as crimes of moral turpitude and/or crimes of violence under today’s immigration laws. It’s incredibly difficult to navigate the criminal justice system, and even more so for defendants who are not citizens. Therefore, it’s imperative for legal immigrants charged with crimes to hire competent defense counsel when charged with crimes which may essentially result in deportation. Please contact my office if you, a friend or family member are legal immigrants facing felonies and/or domestic violence crimes.

Drug Offender Recidivism

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A recent Pew Study suggests that imprisoning drug offenders for longer prison sentences does not reduce drug problems in any given state. In other words, there is no statistical data showing a relationship between prison terms and drug misuse.

To test this, Pew compared state drug imprisonment rates with three important measures of drug problems— self-reported drug use (excluding marijuana), drug arrest, and overdose death—and found no statistically significant relationship between drug imprisonment and these indicators. In other words, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.

The study found that nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980. These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

The study said that as the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems. To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies. The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings—which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017—reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations. The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

“Although no amount of policy analysis can resolve disagreements about how much punishment drug offenses deserve, research does make clear that some strategies for reducing drug use and crime are more effective than others and that imprisonment ranks near the bottom of that list. And surveys have found strong public support for changing how states and the federal government respond to drug crimes.”

“Putting more drug-law violators behind bars for longer periods of time has generated enormous costs for taxpayers, but it has not yielded a convincing public safety return on those investments,” concluded the study. “Instead, more imprisonment for drug offenders has meant limited funds are siphoned away from programs, practices, and policies that have been proved to reduce drug use and crime.”

My opinion? Public safety should be the number one reason we incarcerate. However, penalties should be the most effective, proportional, and cost-efficient sanction to achieve that goal. This would create more uniform sentences and reduce disparities, while preserving judicial discretion when necessary.

Please contact my office if you, a friend or family member face drug charges. If convicted, your loved ones risk facing an unnecessary amount of incarceration. Only a competent and experienced criminal defense attorney can reduce of criminal charges and/or facilitate the implementation of sentencing alternatives which reduce the amount of prison time an offender faces.

DOL Shared Info With ICE

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According to reporters Shapiro and Davila, the Seattle Times first reported the agency’s practice Thursday, revealing that DOL was handing over personal information to federal authorities 20 to 30 times a month. The policy was surprising to many, given that Washington is among a minority of states to allow undocumented immigrants to get driver’s licenses.

 In another major shift announced in a news release Monday, DOL said it would use emergency rule-making to end its practice of collecting “information that isn’t mandated and could be misused,” specifically information on license applications about where a person was born.

The release did not say whether the application would continue to note the IDs a person used to obtain a license. Those IDs could include a foreign passport or other documents that might signal someone does not have legal status.

The agency also has accepted the resignation of Deputy Director Jeff DeVere. DeVere oversaw compliance with an executive order that Gov. Jay Inslee signed last year, designed to prevent state employees from helping federal officials enforce immigration laws — an attempt to thwart President Donald Trump’s approach to immigration enforcement.

Until questioned by The Seattle Times last week, Inslee’s office didn’t know the extent of DOL’s cooperation with the feds, according to his spokeswoman, Jaime Smith.

The response to the licensing department’s policy of cooperating with ICE was swift and furious. The governor ordered DOL to direct future requests from federal immigration officers to his general counsel. State lawmakers pledged to file a bill to ensure the practice was stopped.

Monday’s announcement from the department included an apology, and made clear that the offices of the governor and Attorney General Bob Ferguson had a hand in the changes.

“We support the Executive Order, but failed to meet the Governor’s intent regarding the protection of this type of information,” DOL Director Pat Kohler said in the news release. “We are sorry that our work did not align with our state’s values.”

She went on to say DOL “did not clearly communicate” the information federal law enforcement was requesting nor seek clarification with the governor’s office and the Legislature about how to handle those requests.

The agency also announced it would review its processes and computer systems with the governor’s and attorney general’s offices; hire a community liaison to ensure DOL practices “meet the needs of all Washington residents”; start a new hotline to answer questions about the issue; and educate agency staff on all policy and procedural changes and the governor’s executive order.

“The recent revelations about our state Department of Licensing’s failure to safeguard certain information from federal immigration officials has shaken and angered many communities” Inslee said in statement Monday. “It has angered me. I understand what’s at stake in getting this right, and the ramifications of what it means when we get it wrong,” the governor said. “I expect every employee in every one of my state agencies to understand this as well.”

Black & Undocumented

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Excellent article by Jeremy Raff of the Atlantic claims that although only 7 percent of non-citizens in the U.S. are black, they make up 20 percent of those facing deportation on criminal grounds.

The reason for higher deportation rates? Research suggests that because black people in the United States are more likely to be stopped, arrested, and incarcerated, black immigrants may be disproportionately vulnerable to deportation.

According to Raff, more than half a million black unauthorized immigrants in the United States—about 575,000 as of 2013. Last week, The New York Times reported that the presence of immigrants from Haiti and Nigeria, who together represent roughly 20 percent of the foreign-born black population, vexed President Trump. The Haitians “all have AIDS,” Trump said in a June meeting with his top advisers according to the Times, while the Nigerians would not “go back to their huts” after seeing America, he said. (The White House denied the comments).

“The criminal-justice system acts like a funnel into the immigration system,” said César Cuauhtémoc García Hernández, a University of Denver law professor who studies the nexus of policing and immigration law. New York University law professor Alina Das said black immigrants are “targeted by criminalization.”

Raff reports that while the Obama administration prioritized immigrants with felony convictions for deportation, President Trump’s executive orders effectively made anyone in the country illegally a target for removal. Arrests of non-criminals more than doubled, and among those who have been charged with a crime, the top three categories are “traffic offenses—DUI,” “dangerous drugs,” and “immigration,” which means illegal entry, illegal reentry, false claim to U.S. citizenship, and trafficking, according to ICE. In fiscal year 2017, almost 74 percent of people arrested by ICE had a criminal conviction—arrests the agency uses to argue “that its officers know how to prioritize enforcement without overly prescriptive mandates.”

But Hernández sees something different in the large number of criminal convictions among ICE detainees.

“Racial bias present in the criminal-justice system plays itself out in the immigration context,” he said. “There are so many entry points” to deportation, said Das, and “when you are a person of color who is also an immigrant, you face a double punishment.”

Raff also reports that a 2016 report by the NYU Immigrant Rights Clinic, where Das is the co-director, and the Black Alliance for Just Immigration found that although black immigrants represent about 7 percent of the non-citizen population, they make up more than 10 percent of immigrants in removal proceedings. Criminal convictions amplify the disparity: Twenty percent of immigrants facing deportation on criminal grounds are black.

Today, almost 10 percent of the black population in the United States is foreign-born, up from about 3 percent in 1980. As the number of black immigrants has grown, so, too, have the linkages between cops, courts, and the immigration system.

According to Raff, aside from ICE’s splashier arrests within so-called “sanctuary cities,” most apprehensions nationwide happen inside jails once an immigrant has had contact with local police. This collaboration is a result of decades of legislation and executive action by both Democrats and Republicans. Two years after the passage of his controversial crime bill, former President Bill Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. Known as IIRIRA (pronounced “ira-ira”), the law expanded mandatory detention and the number of deportable crimes. As the federal inmate population doubled, prison-like immigrant-detention centers rose up in tandem.

Raff reports that in the early 1990s, there were around 5,000 immigrants detained each day; by 2001, the population quadrupled. And the Trump administration wants to keep that number growing: The president’s 2018 budget called for increasing the daily detainee population to 51,000, a 25 percent bump over last year.

“Additional detention space does make Americans safer,” argued Jessica Vaughan of the Center for Immigration Studies, a group that advocates for stricter enforcement. Detention also ensures that undocumented immigrants don’t “disappear into the woodwork,” Vaughan said. “The benefit of keeping illegal aliens in custody,” she said, is that “it prevents the release of criminal aliens back into the community to have the opportunity to reoffend.”

Raff reports that while the prison population has begun to dwindle in recent years—the incarceration rate fell 13 percent between 2007 and 2015—immigration detention remains “one of the fastest-growing sectors of the carceral state,” said Kelly Lytle Hernandez, a University of California, Los Angeles, historian who studies the origins of U.S. immigration control.

ICE’s Secure Communities program—which began under former President George W. Bush; was expanded, then killed, under his successor Barack Obama; then reinstated by Trump—provides local police with a national fingerprint database to check suspects for immigration violations. ICE can also deputize local law enforcement to make immigration arrests, a power authorized by IIRIRA. Some 60 law-enforcement agencies across 18 states participate in that program.

“Local police are some of the biggest feeders into the immigration-enforcement system,” said Will Gaona, the policy director of the American Civil Liberties Union of Arizona. “And that’s more true in Arizona”—where Gustave was picked up—“because of S.B. 1070.” That 2010 state law, which has since been emulated in dozens of states, requires police to ask about immigration status if they suspect someone is in the country illegally.

My opinion? Immigration and race relations certainly are hot-button topics in today’s administration. Hopefully,equitable decisions in the criminal justice system can be made which don’t unduly and/or specifically affect immigrants; regardless of their race.

Please contact my office you have a non-American friend or family member who faces criminal charges. Immigration issues play a huge factor in how criminal cases are resolved.

“Revenge Porn” Outlawed by the Feds?

Image result for revenge porn

Excellent article by Brian Murphy and Andrea Drusch of mcclatchydc.com discusses how congressional lawmakers are pushing to make “revenge porn” or “sextortion” a federal crime.

Tuesday, Sens. Richard Burr, R-N.C., Kamala Harris, D-Calif., and Amy Klobuchar, D-Minn., said they’d sponsor the new legislation to make “revenge porn” a federal crime by passing a bill very similar to a bill introduced last year by Rep. Jackie Speier, D-Calif. Speier introduced the bill in the House again Tuesday.

According to the article, Rep. Joe Barton, a Texas Republican who is sponsoring the bill, said he shared a sexually explicit video and text messages with a woman he was seeing after he separated from his second wife. An image from that video of a naked Barton, now 68, appeared on the internet last week, becoming the talk of his hometown and spurring debate over criminal intent.

Barton apologized last week for the leaked video, saying he should have used better judgment. He also suggested he’d been the victim of the crime of revenge porn, which is illegal under Texas’s law, but not federal law.

Barton sent the video to a woman who he saw over the span of several years. In a recorded phone conversation that the woman gave to the Washington Post, Barton asked her not to use the video to hurt his career. She said she had no intention of doing so, but the video surfaced last week from an anonymous Twitter account.

Barton took the incident to the U.S. Capitol Police, but said last week he’d heard no word that an investigation had been opened.

According to Murphy and Drusch’s article, thirty-eight states and D.C. have laws against distributing “revenge porn.” The new federal legislation would make it “unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.”

Murphy and Drusch wrote that North Carolina passed legislation outlawing “revenge porn” in 2015 and updated the provision in 2017. The state law makes it illegal to post nude photos online without the consent of the victim.

The FBI defines “sextortion” as “when someone threatens to distribute your private and sensitive material if you don’t provide them images of a sexual nature, sexual favors, or money.”

In short, the proposed federal legislation would establish federal criminal liability for people who share private, explicit images without consent. In order to prosecute someone under the proposed law, officials would have to prove the defendant was aware of a substantial risk that the victim expected the image would remain private and that sharing could cause harm to the victim.

“Perpetrators of exploitation who seek to humiliate and shame their victims must be held accountable,” said Harris, the former attorney general of California who prosecuted operators of “revenge porn” sites. “It is long past time for the federal government to take action to give law enforcement the tools they need to crack down on these crimes.”

The bill provides up to five years in prison and/or unspecified fines.

My opinion? Washington State has already outlawed “revenge porn” as a Class C Felony under the “Disclosing Intimate Images” statute RCW 9A.86.010. Other states have also followed suit. It appears the feds are simply catching up.

Immediately contact my office if you, a friend or family member face criminal charges for distributing suggestive content online. It’s imperative to find a competent criminal defense attorney who can possibly suppress the evidence and/or convince prosecutors and judges to reduce or dismiss these egregious charges.

The Feds on Crime Under Jeff Sessions

Image result for prosecutor jeff sessions

 of the Washington Post describes the dramatic and controversial changes in policy Jeff Sessions has made since becoming the Attorney General under President Trump months ago.
“From his crackdown on illegal immigration to his reversal of Obama administration policies on criminal justice and policing, Sessions is methodically reshaping the Justice Department to reflect his nationalist ideology and hard-line views — moves drawing comparatively less public scrutiny than the ongoing investigations into whether the Trump campaign coordinated with the Kremlin.”
Apprently, Sessions has even adjusted the department’s legal stances in cases involving voting rights and lesbian, gay, bisexual and transgender issues in a way that advocates warn might disenfranchise poor minorities and give certain religious people a license to discriminate.
“The Attorney General is committed to rebuilding a Justice Department that respects the rule of law and separation of powers,” Justice Department spokesman Ian Prior said in a statement, adding, “It is often our most vulnerable communities that are most impacted and victimized by the scourge of drug trafficking and the accompanying violent crime.”

Immigration
Zapotsky and Horwitz write that unlike past attorneys general, Sessions has been especially aggressive on immigration. He served as the public face of the administration’s rolling back of a program that granted a reprieve from deportation to people who had come here without documentation as children, and he directed federal prosecutors to make illegal-immigration cases a higher priority. The attorney general has long held the view that the United States should even reduce the number of those immigrating here legally.

Zapotsky and Horwitz said that in an interview with Breitbart News in 2015, then-Sen. Sessions (R-Ala.) spoke favorably of a 1924 law that excluded all immigrants from Asia and set strict caps on others.

“When the numbers reached about this high in 1924, the president and Congress changed the policy and it slowed down immigration significantly,” Sessions said. “We then assimilated through 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

According to Zapotsky and Horwitz, Vanita Gupta, the head of the Justice Department’s civil rights division in the Obama administration who now works as chief executive of the Leadership Conference on Civil and Human Rights, said Sessions seems to harbor an “unwillingness to recognize the history of this country is rooted in immigration.”

“On issue after issue, it’s very easy to see what his worldview is of what this country is and who belongs in this country,” she said, adding that his view is “distinctly anti-immigrant.”

 

Police Oversight & Sentencing

Zapotsky and Horwitz write that questions about Sessions’s attitudes toward race and nationality have swirled around him since a Republican-led Senate committee in 1986 rejected his nomination by President Ronald Reagan for a federal judgeship, amid allegations of racism. In January, his confirmation hearing to become attorney general turned bitter when, for the first time, a sitting senator, Cory Booker (D-N.J.), testified against a colleague up for a Cabinet position. Booker said he did so because of Sessions’s record on civil rights.

Sessions ultimately won confirmation on a 52-to-47 vote, and he moved quickly to make the Justice Department his own. Two months into the job, he told the department’s lawyers to review police oversight agreements nationwide, currying favor with officers who often resent the imposition of such pacts but upsetting those who think they are necessary to force change.

Zapotsky and Horwitz also said that Sessions imposed a new charging and sentencing policy that critics on both sides of the aisle have said might disproportionately affect minority communities and hit low-level drug offenders with stiff sentences.

“Allies of Sessions say the policy is driven not by racial animus but by a desire to respond to increasing crime,” write Zapotsky and Horwitz. “The latest FBI crime data, for 2016, showed violent crimes were up 4.1 percent over the previous year and murders were up 8.6 percent — although crime remains at historically low levels. The Bureau of Prisons projects that — because of increased enforcement and prosecution efforts — the inmate population will increase by about 2 percent in fiscal 2018, according to a Justice Department inspector general report.”

Zapotsky and Horwitz wrote that Larry Thompson, who served as deputy attorney general in the George W. Bush administration and is a friend of Sessions, said that although he disagrees with the attorney general’s charging policy, he believes Sessions was “motivated by his belief that taking these violent offenders off the streets is the right way to address the public safety issues.”

Civil Rights & Hate Crimes

According to Zapotsy and Horwitz, Sessions’s moves to empower prosecutors have led to a concerted focus on hate-crimes prosecutions — a point his defenders say undercuts the notion that he is not interested in protecting the rights of minorities or other groups. Prosecutors have brought several such cases since he became attorney general and recently sent an attorney to Iowa to help the state prosecute a man who was charged with killing a gender-fluid 16-year-old high school student last year. The man was convicted of first-degree murder.

But while civil rights leaders praised his action in that case, Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, said that it “stands in stark contrast to his overall efforts” to roll back protections for transgender people.

Shortly after he became attorney general, Sessions revoked federal guidelines put in place by the Obama administration that specified that transgender students have the right to use public school restrooms that match their gender identity. In September, the Justice Department sided in a major upcoming Supreme Court case with a Colorado baker, Jack Phillips, who refused to bake a wedding cake for a same-sex couple because he said it would violate his religious beliefs.

Sessions recently issued 20 principles of guidance to executive-branch agencies about how the government should respect religious freedom, including allowing religious employers to hire only those whose conduct is consistent with their beliefs. About the same time, he reversed a three-year-old Justice Department policy that protected transgender people from workplace discrimination by private employers and state and local governments.

The Justice Department has similarly rolled back Obama administration positions in court cases over voting rights.

In February, the department dropped its stance that Texas intended to discriminate when it passed its law on voter identification. And in August, it sided with Ohio in its effort to purge thousands of people from its rolls for not voting in recent elections — drawing complaints from civil liberties advocates.

At a recent congressional hearing, Sessions said the department would “absolutely, resolutely defend the right of all Americans to vote, including our African American brothers and sisters.”

According to Zapotsky and Horwitz, critics say that Sessions’ record shows otherwise. “We are seeing a federal government that is pulling back from protecting vulnerable communities in every respect,” Clarke said. “That appears to be the pattern that we are seeing with this administration — an unwillingness to use their enforcement powers in ways that can come to the defense of groups who are otherwise powerless and voiceless.”

My opinion? Watching the actions of the feds – and especially the top federal prosecutor for the United States – gives us a litmus test which defines the shape of things to come on a more local level. The reason why it’s important to watch the movements of federal prosecutions is because they impress upon – and persuade – the priorities of state prosecutions.

Let’s see what happens.

Black Men Sentenced Longer

PHOTO: Study says black men serve longer sentences for same crime than white men.

Excessive Tasing

Image result for police tasing

In Jones v. Las Vegas Metropolitan Police Dept., the Ninth Circuit Court of Appeals held that any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public. However, such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime.

BACKGROUND FACTS

In the early morning of December 11, 2010, Officer Mark Hatten of the Las Vegas Metropolitan Police Department pulled over Anthony Jones for a routine traffic stop. Hatten ordered Jones out of the car so he could pat him down for weapons. Jones obeyed at first but then started to turn toward Hatten. Scared of the much larger Jones, Hatten drew his firearm, pointed it at Jones and ordered him to turn back around. Instead, Jones sprinted away.

Hatten called for backup and pursued Jones. Hatten didn’t believe deadly force was necessary because Jones hadn’t threatened him and didn’t appear to have a weapon.

As he waited for other officers to arrive, Hatten used his taser to subdue Jones. Hatten fired his taser twice, causing Jones’s body to “lock up” and fall to the ground face down with his hands underneath him. Hatten proceeded to kneel on Jones’s back in an attempt to handcuff Jones, keeping his taser pressed to Jones’s thigh and repeatedly pulling the trigger.

Hatten continued to tase Jones even after backup arrived. Backup consisted of four officers: Richard Fonbuena on Hatten’s right side, who helped handcuff Jones; Steven Skenandore, who controlled Jones’s legs and feet; Timothy English at Jones’s head, who applied a taser to Jones’s upper back; and Michael Johnson, who arrived last and ordered the tasing to stop. Johnson wanted his officers to “back off on the tasers so that Jones’s muscles would relax.” According to Johnson, Jones “didn’t look like he was physically resisting” and there were “enough officers” to take Jones into custody.

In all, Jones was subjected to taser shocks for over ninety seconds: Hatten tased Jones essentially nonstop that whole time—with some applications lasting as long as nineteen seconds—and, for ten of those seconds, English simultaneously applied his taser.

Once the officers stopped tasing Jones, his body went limp. They sat him up but Jones was nonresponsive and twitching; his eyes were glazed over and rolled back into his head. The officers tried and failed to resuscitate him. Jones was pronounced dead shortly thereafter. The coroner’s report concluded that “police restraining procedures”—including the tasings—contributed to Jones’s death.

Jones’s parents sued the Las Vegas Metropolitan Police Department and all of the officers involved in restraining Jones. They alleged Fourth and Fourteenth Amendment violations as well as various state law torts. However, the lower district court granted summary judgment for the defendants on all claims. The plaintiff’s appealed.

LEGAL ISSUE

Whether police officers are entitled to qualified immunity when they’re alleged to have caused the death of a suspect by using tasers repeatedly and simultaneously for an extended period.

COURT’S ANALYSIS & CONCLUSIONS

As a preliminary matter, the Court of Appeals held that under Fed. R. Civ. P. 17, the lower district court abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party and thus cure the defective complaint.

Next, the Court of Appeals addressed the issue of whether the officers were reasonable in the degree of force they deployed. They held that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable and that a jury could reasonably conclude that the officers knew or should have known that these actions created a substantial risk of serious injury or death:

” . . . any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public.”

The Court also reasoned that that such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime. Furthermore, it reasoned that given that there was clearly established Fourth Amendment law and a jury could reasonably conclude that the officers used excessive force, the question of qualified immunity must proceed to trial.

Furthermore, the Court held that the plaintiff’s state law battery and negligence claims were triable, and should not have been dismissed by the lower district court. It said that while there was no evidence that any of the officers acted out of hostility or improper motive, there was a factual dispute as to whether the repeated and simultaneous tasings were so excessive under the circumstances that they amounted to willful or deliberate disregard of Jones’s rights. The Court of Appeals therefore remanded plaintiffs’ battery and negligence claims.

In a twist, however, The Court of Appeals affirmed the lower district court’s dismissal of the
Fourteenth Amendment claim. It said that even assuming all the facts Plaintiffs alleged, there was no evidence that the officers acted with a purpose of harming Jones that was unconnected to a legitimate law enforcement objective.

In another twist, the Court of Appeals held that the Plaintiffs’ false arrest and false imprisonment claims failed because there was no evidence that the decision to arrest Jones lacked justification, let alone that it was made in bad faith. The Court of Appeals therefore affirmed the dismissal of that claim.

My opinion? A well-reasoned, good decision. Although the Court of Appeals upheld the dismissal of some of the Plaintiffs’ claims due to lack of evidence, the Court was ultimately convinced that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable. Good decision.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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Suite #1420
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