Category Archives: Constitutional Rights

SCOTUS Eliminates the “Provocation Rule”

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Confidential Informants, Constitutional Rights, Informant, law enforcement, police, Police Misconduct, Provocation Rule, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , ,

Image result for police raid house shoot open fire

In  County of Los Angeles v. Mendez, the U.S. Supreme Court held that the Fourth Amendment provides no basis to uphold the Ninth Circuit’s “provocation rule,” a doctrine which makes officers liable for injuries caused by their use of force.

BACKGROUND FACTS

The Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous parolee-at-large had been seen at a certain residence. While other officers searched the main house, Deputies Conley and Pederson searched the back of the property where, unbeknownst to the deputies, respondents Mendez and Garcia were napping inside a shack where they lived.

Without a search warrant and without announcing their presence, the deputies opened the door of the shack. Mendez rose from the bed, holding a BB gun that he used to kill pests. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times.

Officers did not find the parolee in the shack or elsewhere on the property.

PLAINTIFF’S CIVIL RIGHTS CLAIMS

For those who don’t know, the “Provocation Rule” holds that if a police officer recklessly promotes a potentially violent confrontation with a Fourth Amendment violation, the officer is liable for any injury caused by a subsequent use of force that results from that confrontation, even if the use of force itself was reasonable.

Armed with the “Provocation Rule,” Mendez and Garcia sued the police deputies and the County under 42 U. S. C. §1983. They advanced three Fourth Amendment claims: a warrantless entry claim, a knock-and-announce claim, and an excessive force claim. On the first two claims, the Federal District Court awarded Mendez and Garcia nominal damages. On the excessive force claim, the court found that the deputies’ use of force was reasonable, but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,.

The Government appealed the case to the Ninth Circuit Court of Appeals. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. It also affirmed the District Court’s application of the provocation rule, and held, in the alternative, that basic notions of proximate cause would support liability even without the provocation rule.

The Government appealed the Ninth Circuit’s ruling to the U.S Supreme Court.

COURT’S ANALYSIS

In short, the U.S. Supreme Court held that the Fourth Amendment offers no basis for the Ninth Circuit’s “provocation rule.” It reasoned that the rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. The Court reasoned that the legal issue is “whether the totality of the circumstances justifies a particular sort of search or seizure.” Tennessee v. Garner.

The Court reasoned that the provocation rule instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force. Problematically, this approach that mistakenly conflates distinct Fourth Amendment claims. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.

“The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “create a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally,” said the Court.

The U.S. Supreme thought this approach was mistaken. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure:

“There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts.”

Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation. Here, reasoned the Court, if respondents cannot recover on their excessive force claim, that will not stop them from recovering for injuries proximately caused by the warrantless entry.

“The Ninth Circuit’s proximate-cause holding is similarly tainted,” said the Court. Its focuses solely on the risks foreseeably associated with the failure to knock and announce—the claim on which the court concluded that the deputies had qualified immunity—rather than the warrantless entry.

My opinion? I concur with  blogger Radley Balko’s insights on this. He blogs about criminal justice, the drug war and civil liberties for The Washington Post, and says the following:

“The cops, on the other hand, engaged in some incredibly sloppy policing that nearly got someone killed. They violated the Mendezes’ Fourth Amendment rights not once, but twice. Then they filled the couple with bullets after they mistook Angel Mendez’s reach for his pellet gun as a threat. Angel Mendez was shot five times, and lost his right leg below the knee. Jennifer Mendez was shot in the back. That was 6½ years ago. They still haven’t seen a dime. And after Tuesday’s ruling, it seems unlikely that they ever will.”

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Seattle Allows Filming Cops

Access Devices, Bellingham Defense Attorney, Body camera, Constitutional Rights, Due Process, First Amendment, law enforcement, Legislation, Obstructing, police, Technology, Whatcom County Criminal Defense, , ,

 

You Have a First Amendment Right to Record the Police | Electronic Frontier Foundation

Great article in the Seattle Times by Daniel Beekman discusses how Seattle’s City Council voted Monday to enshrine in the Seattle Municipal Code the rights of the public to observe, record and criticize police activity without fear of retaliation.

 The only exceptions are when an observer hinders, delays or compromises legitimate police activity, threatens someone’s safety or attempts to incite other people to violence, according to the ordinance sponsored by Councilmember Lisa Herbold.

The First Amendment can offer protections to members of the public when they watch and record police. And a Seattle Police Department policy adopted in 2008 says bystanders may remain nearby and record the incident as long as they don’t interfere.

So, people already were allowed to watch and record police in Seattle. But the council’s vote means the rights of police observers are now recognized in city law.

According to Beekman, the ordinance says officers should assume members of the public are observing and possibly recording their work at all times. Councilmember Herbold initially proposed the change last year, pointing to high-profile shootings that was recorded by bystanders.

 “The value of video and audio recordings by the public is keenly evident from the recordings in 2016 of the deaths of Philando Castile in Minnesota, Alton Sterling in Baton Rouge … and law-enforcement officers in Dallas and Baton Rouge,” the ordinance says.

Across the country, smartphones are helping regular people hold their police departments accountable. But people watching, recording and criticizing officers have in some instances been arrested, according to a council memo.

Though Seattle police are recorded by patrol-car cameras and are being outfitted with body-worn cameras, civilian recordings are still important, Herbold said Monday.

My opinion? Wonderful! I’ve had many Clients complain that their attempts to record interactions with police result in their cameras being confiscated and being slapped with charges of Obstructing and Resisting police.

I’ve said it once, and I’ll say it again: recording interactions between police and citizens makes everyone behave better and shows proof of what really happened. Kudos to the Seattle City Council.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Armstrong: Prosecutor Not Obligated to Bring Video Evidence

Bellingham Defense Attorney, Constitutional Rights, Discovery, Domestic Violence, Due Process, Evidence, felony, Jury Trial, law enforcement, No Contact Order, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Image result for am/pm store video crime

I’m often asked by Clients, “Why can’t you make the Prosecution get video surveillance evidence from crime scene?” This recent case explains why.

In State v. Armstrong, the WA Supreme Court held that the Prosecutor’s failure to obtain a copy of the AM/PM store’s surveillance video prior to the store’s destruction of the video pursuant to the store’s policy, did not violate the defendant’s due process rights.

FACTS & BACKGROUND

A no-contact order existed prohibiting Defendant Dennis Armstrong from contacting his former partner, Nadia Karavan. Nonetheless, on April 20, 2014, they agreed to meet at a bus stop in violation of the No-Contact Order. As the two talked, Armstrong became angry. He yelled and hit the wall of the bus stop shelter. Armstrong then hit Karavan twice in the face with an open fist.

After a brief struggle, Karavan ran to a nearby AM/PM gas station, and Armstrong followed her. According to the store clerk, Todd Hawkins, the two exchanged words. Armstrong followed Karavan around the store for several minutes, and Karavan asked Hawkins to call the police several times. When Hawkins finally called the police, Armstrong left the store.

Officers responded to the 911 call. Officer Martin noticed that Karavan had a slightly swollen, red abrasion on the side of her face.

Armstrong denied spending time inside the AM/PM. In response, the officers told Armstrong that surveillance video from the AM/PM would show what really happened. The officers repeatedly emphasized the video and told Armstrong that he should “tell the truth” because they had the “whole thing on video.”

The State charged Armstrong with a domestic violence felony violation of a court order.

Before trial and again during trial, Armstrong moved to discharge his counsel. One of his reasons was that counsel failed to give him the surveillance video as he requested. The prosecutor told the court that the State had never possessed the video. The court denied Armstrong’s motions.

At trial, Hawkins (the AM/PM employee) testified that there were about 16 cameras around the store: a few of which covered the gas pumps and one that may have shown a slight, low view shot of the bus stop. Although Hawkins testified that police had requested surveillance video from AM/PM in the past, no officer requested footage from the night of this incident. Hawkins had previously reviewed the video from that night and testified that it showed what he described in his testimony, but per AM/PM policy, the video had since been destroyed.

At trial, the officers gave various reasons why they never collected the video. Officer Martin testified that she heard Officer Elliot ask about the video, but she assumed it was the responsibility of someone else at the scene to investigate the video. Officer Rodriguez testified that he never viewed the video. He simply followed Officer Elliot’s lead when the two were questioning Armstrong. Officer Elliot was unavailable to testify at trial. Detective Rande Christiansen, who had been assigned to do the follow-up investigation on the case, testified that he did not investigate any video from the AM/PM because he did not know such video existed.

The jury returned a general guilty verdict despite the lack of surveillance video evidence.

On appeal – and with other arguments, Armstrong claimed that the police violated his right to due process because they failed to collect video surveillance from the AM/PM after using that video as a tool when interviewing Armstrong at the scene.

ANALYSIS & CONCLUSIONS

Ultimately, the Court held that Armstrong failed to show that the police acted in bad faith when they did not collect video surveillance that was only potentially useful evidence.

The Court reasoned that under the Fourteenth Amendment to the federal constitution, criminal prosecutions must conform with prevailing notions of fundamental fairness, and criminal defendants must have a meaningful opportunity to present a complete defense. Consequently, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense.

The court also reasoned that although the State is required to preserve all potentially material and favorable evidence, this rule does not require police to search for exculpatory evidence. And in order to be material exculpatory evidence – that is, evidence which has value to the defense of which can alter or shift a fact-finder’s decision on guilt or innocence – the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Finally, the court reasoned that the police’s failure to preserve “potentially useful evidence” was not a denial of due process unless the suspect can show bad faith by the State. The presence or absence of bad faith turns on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Also, acting in compliance with its established policy regarding the evidence at issue is determinative of the State’s good faith.

“Armstrong asserts that the video surveillance was potentially useful evidence,” said the Court. “Therefore, he must show that the police acted in bad faith.” According to Armstrong, the police acted in bad faith because they told him during the interview that they were going to collect the video but they never actually collected it. Armstrong describes this as the police acting with an “extreme cavalier attitude” toward preserving potentially useful evidence. The Court further reasoned that beyond this failure to collect the video, Armstrong offers no evidence of bad faith, such as improper motive.

“Armstrong has failed to show that the police acted in bad faith when they failed to collect the surveillance video from the AM/PM. The testimony of the officers indicates that the video went uncollected due to mere oversight. Armstrong has presented no evidence that the police had an improper motive. At most, Armstrong has shown that the investigation was incomplete or perhaps negligently conducted, but that is not enough to show bad faith.”

With that, the Court upheld his conviction.

My opinion? I understand the Court’s opinion insofar as the Prosecution should not be burdened with providing exculpatory evidence, especially if that evidence is unimportant – or not material – to the larger issues of guilt.

However, I would object to the AM/PM employee  discussing the  video as facts that are not admitted into evidence. Under this objection when the attorney claims that “the question assumes facts not in evidence,” what he is really saying is that the facts that are being presented to the witness are presumably not yet in evidence and therefore, how can this witness properly answer the question if those facts have not been put before this jury?

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Immigration Arrests Up 38 Percent Under Trump

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Detention, Immigration, Search and Seizure, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,

Image result for ICE agents arrest

Stephen Dinan of The Washington Times reports that under the Trump administration, arrests of criminal aliens has increased by 38 percent.
Unshackled from the restrictions under the Obama administration, immigration agents and officers are making far more arrests — but are still keeping their chief focus on criminals, authorities said as the released number detailing the first 100 days under President Trump.
Arrests of criminal aliens is up nearly 20 percent, reaching nearly 30,500, while arrests of those without criminal convictions is up 60 percent, reaching about 10,800. Combined, they show a rise of 38 percent in total arrests by U.S. Immigration and Customs Enforcement (ICE), the agency responsible for policing the interior of the country.
Dinan reports that perhaps most striking is surge in at-large arrests made out in the community. Those have risen by 50 percent compared to a year earlier, according to ICE.
While criminals are still the chief targets, ICE said it has reversed the Obama administration’s policy of carving out entire classes of illegal immigrants from any danger of deportation. That’s expanded the potential targets from just a couple million to potentially almost all of the estimated 11 million illegal immigrants now in the U.S.
“These statistics reflect President Trump’s commitment to enforce our immigration laws fairly and across the board,” said Thomas Homan, acting director of ICE.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Sessions Seeks Harsher Prosecutions & Stricter Sentences

Bellingham Defense Attorney, Confidential Informants, Constitutional Rights, Drug Offenses, Due Process, Federal Crimes & Prosecutions, Sentencing, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,

Image result for jeff sessions war on drugs

Today, CNN Reporter Laura Jarrett broke the story that Attorney General Jeff Sessions has a new directive for federal prosecutors across the country: charge suspects with the most serious offense you can prove.

Friday’s announcement follows a line of several other significant departures from Obama-era domestic policies at the Justice Department, but this decision crystalized Sessions’ position in the criminal justice realm.
In a brief one-and-a-half-page memo, Sessions outlined his new instructions for charging decisions in federal cases, saying that his new first principle is “that prosecutors should charge and pursue the most serious, readily provable offense.”
“The most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences,” Sessions later adds.
While the federal sentencing guidelines are advisory — and take into account everything from a defendant’s criminal history to cooperation with authorities — some judges have felt handcuffed by mandatory minimums, which provide a statutory sentencing minimum of months below which the judge cannot depart.
The move was harshly criticized by the New York University School of Law Brennan Center for Justice, a nonpartisan law and policy institute focused on democracy and justice.
“The Trump administration is returning to archaic and deeply-flawed policies,” Inimai Chettiar, the center’s justice program director, said Friday. “Sessions is leaving little to no room for prosecutors to use their judgment and determine what criminal charges best fit the crime.”
“That approach is what led to this mess of mass incarceration,” she added. “It exploded the prison population, didn’t help public safety, and cost taxpayers billions in enforcement and incarceration costs.”
Sessions also formally withdrew a signature part of Attorney General Eric Holder’s “Smart on Crime” initiative, which sought to target the most serious crimes and reduce the number of defendants charged with non-violent drug offenses that would otherwise trigger mandatory minimum sentences.
“We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers,” Holder wrote in a 2013 memo. “In some cases, mandatory minimum and recidivist enhancements statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution.”
As a result, during the Obama era, federal prosecutors were instructed not to charge someone for a drug crime that would trigger a mandatory minimum sentence if certain specific factors were met: (a) the relevant conduct didn’t involve death, violence, a threat of violence or possession of a weapon; (b) the defendant wasn’t an organizer, leader or manager of others within a criminal organization; (c) there were no ties to large-scale drug trafficking operations; and (d) the defendant didn’t have a “significant” criminal history (i.e., prior convictions).
All of those charging factors are now gone under Sessions’ reign and not surprising, as he has previously telegraphed his desire to prosecute more federal cases generally.
My opinion? We’re bringing back the War on Drugs. As it stands, the federal government typically prosecutes only the most serious offenses, and does so with what can seem to be a crushing investigation and avalanche of evidence. Their resources are vast. Mounting a defense can feel daunting.
Here, the effects of Session’s decision will most immediately be felt in the context of drug crimes. Federal mandatory minimums can be harsh because the sentences are dictated based on drug type and quantity.
Said differently, Sessions decision could bring back the War on Drugs. His actions are already embracing it’s worst features: confidential informants, harsh plea bargains and long sentences.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Proposed Law Evicts Suspected Meth Users From Hotels

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Legislation, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

Image result for meth hotel motel

Interesting article by Marilyn Napier of the Skagit Valley Herald reported that a new state law proposed by the Skagit County Prosecuting Attorney will allow local governments to evict residents from certain buildings contaminated by methamphetamine, even without evidence of manufacturing. The new law takes effect on July 23, 2017.

State House Bill 1757 was created by the problems that arose at Burlington’s Sterling Motor Inn. Apparently, the hotel was found to have widespread high levels of methamphetamine contamination. As a result, the City of Burlington wanted residents of the motel to evacuate because the level of contamination was considered unsafe. Although the residents, some of whom had lived at the motel for years, left voluntarily, the city and Skagit County did not have the legal authority to evict them.

Because of the Clandestine Drug Lab law, the Skagit County Public Health Department was unable to evict the residents because the law required that there be evidence of drug manufacturing.

THE PROPONENTS.

Skagit County Prosecuting Attorney Rich Weyrich and the Washington Association of Prosecuting Attorneys wrote the bill, which was sponsored by Rep. Dave Hayes, R-Camano Island, and was passed by both the state House and state Senate in mid-April.

“This takes away the idea that you have to have evidence of manufacturing meth. Now you just have to show that there is meth residue present,” Weyrich said. Gov. Jay Inslee signed the bill April 25.

Burlington Mayor Steve Sexton said he doesn’t think the Sterling Motor Inn incident is going to be the last time the city deals with a contaminated property.

“I think that (the law) is what it takes for Skagit County to do the job they should do in situations like that,” he said. “This is what the county said they needed.”

A BLIGHT IN THE COMMUNITY.

Apparently, the state health department reported that about 60 percent of the rooms did not have fire safety measures, such as working smoke detectors. Violations also included rodent infestation in the laundry room, storage shed and the electrical panel room.

Beyond the failed health inspection, the motel had been the center of about 200 calls to police in 2015, a number that had continued to increase since 2009. According to police, officers had been called for weapon offenses, domestic violence, drug deals, prostitution, burglary and assault. Harrison added the law is good news for the public.

My opinion? This law is questionably unconstitutional. Although governments can pass laws for public safety reasons, they cannot make laws which violate people’s constitutional rights. Here, an “automatic eviction” lacking due process – or based on evidence which was obtained through unlawful search and seizure – might end up patently violating people’s individual rights. We’ll see what happens.

For more information on Search and Seizure, please refer to my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

And please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Incentivized” Informants

Bellingham Defense Attorney, Confidential Informants, Constitutional Rights, Jury Trial, Legislation, Whatcom County Criminal Defense, , ,

Image result for incentivized informants

Very interesting op-ed piece from Barry Scheck of the Innocence Project discusses how Senate Bill 5038 rightfully confronts and addresses the issue of false testimony by “incentivized” confidential informants in criminal cases.

State Senate Bill 5038 adds to key advances that Washington has already made over the years to improve the administration of justice. “Incentivized” informants are people who are often used by the government in criminal prosecutions to provide information or evidence against defendants in exchange for an explicit promise or expectation of a personal benefit.

“Benefits include anything from reduced or eliminated jail time to improved living conditions behind bars to monetary rewards,” says Scheck. “Recognizing both the value of this testimony to the state and the risk that a witness will be tempted to give false testimony in order to benefit personally, this bill outlines specific information that must be learned and turned over to the defense in the discovery process before trial.” This, says Scheck, will ensure that all parties have an opportunity to properly scrutinize the informant.

“The reality is, some informants lie,” said Scheck. “When they do, they undermine the integrity and the truth-seeking function of our justice system.” In support of his argument, Scheck cited these facts:

• False testimony by incentivized witnesses is a leading cause of wrongful conviction in capital cases nationally, a contributing factor in nearly half of such exonerations.

• Of 349 DNA-based exonerations, 17 percent involved an incentivized witness.

• In Tulia, Texas, 46 innocent people were convicted of drug charges based on the testimony of a single, lying informant.

• Ten Washington state wrongful conviction cases listed on the National Registry of Exonerations involved the use of incentivized testimony.

Scheck believes these numbers demonstrate that this is a national problem, requiring all states to look closely at the safeguards needed to regulate this system. SB 5038 addresses an information gap in the system that will improve accuracy and protect constitutional rights. Prosecutors have a responsibility to know and disclose this information.

In this year alone, in addition to Washington, four states are considering proposals to strengthen or establish new frameworks for assessing informant testimony. Notably, while some proposals go further than others, all of these proposed reforms impose new disclosure requirements around incentivized informants.”

My opinion? For far too long, the world of incentivized informants has been an evidentiary black hole. The testimony of jailhouse snitches, confidential informants and co-defendants should immediately be treated as suspect. Every year that passes without these reforms puts more innocent people at risk and strikes at the heart of the credibility of our justice system. A healthy justice system demands that we ensure that the strongest protections are in place for the innocent.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Inmates Paid $1 Per Day

Bellingham Defense Attorney, Constitutional Rights, Detention, Immigration, Jail, Race & Law, Skagit County Criminal Defense, Thirteenth Amendment, Trump Administration, Whatcom County Criminal Defense, , ,

Image result for private jail

Article from Andy Hurst of KUOW discusses a class action lawsuit says the company running an immigration detention center in Colorado is violating federal anti-slavery laws.

Interestingly, this same company runs the Northwest Detention Center in Tacoma, which is the scene of an expanding hunger strike.

Inmates joining the law suit are paid $1 per day for voluntary work. They want improved quality of food, improved medical care and higher paying jobs. The detention center is run by a private company, GEO Group, which operates under a contract with U.S. Immigration and Customs Enforcement. The group Latino Advocacy said more than 750 people at the Tacoma facility were refusing meals as of Wednesday morning.

Meanwhile, detainees at an Aurora, Colorado, detention center run by GEO Group have filed a class-action lawsuit. It claims the detention center violates federal anti-slavery laws.

Attorney Nina Disalvo is an attorney represents the detainees in Colorado. She said it’s illegal to pay them $1 a day.

“It’s not the market wage that GEO would have to pay if it were absorbing the real cost of running an immigrant detention center,” Disalvo said. “If GEO actually had to hire janitorial staff to clean its facility, it would have to pay that staff a market wage. And it’s not paying the detainees a market wage for this work.”

Disalvo said some of her clients were forced to do janitorial work and clean large areas within the facility without pay. “If they did not do so, they were threatened with or placed in solitary confinement,” Disalvo said. “Our clients allege that forcing people to work under threat of solitary confinement constitutes forced labor under the federal forced labor laws.”

GEO Group has denied the lawsuit’s allegations. A spokesperson for Immigration and Customs enforcement says the agency does not comment on pending litigation. Virginia Kice, ICE spokeswoman, confirmed that detainees at the Northwest Detention Center in Tacoma earn $1 per day for voluntary work. She said about 25 percent of detainees participate in the program, and that no detainees perform unpaid work at the facility.

The Colorado lawsuit could have implications for the Northwest Detention Center. Northwestern University political science professor Jacqueline Stevens said that if the plaintiffs prevail, GEO Group will need to pay out up to hundreds of millions of dollars in back wages and penalties.

“This could mean the end of government contracts with the private prison industry for housing people held under immigration laws, and the return to more sensible policies,” Stevens said.

My opinion?

I’m no fan of private prisons.

For those who don’t know, a private prison or for-profit prison is a place in which individuals are physically confined or incarcerated by a third party that is contracted by a government agency. Private prison companies typically enter into contractual agreements with governments that commit prisoners and then pay a per diem or monthly rate, either for each prisoner in the facility, or for each place available, whether occupied or not. Such contracts may be for the operation only of a facility, or for design, construction and operation.

According to the ACLU, private prisons have been linked to numerous cases of violence and atrocious conditions. Also, according to the Bureau of Justice Statistics, for-profit companies were responsible for approximately 7 percent of state prisoners and 18 percent of federal prisoners in 2015 (the most recent numbers currently available).

While supporters of private prisons tout the idea that governments can save money through privatization, the evidence is mixed at best—in fact, private prisons may in some instances cost more than governmental ones.

Finally, it appears that immigrants are the ones filling these detention centers. U.S. Immigration and Customs Enforcement reported that in 2016, private prisons held nearly three-quarters of federal immigration detainees. In light of today’s anti-immigrant presidential administration, it’s no coincidence that private stocks for U.S. prisons have increased 100% since Trump’s election.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Incomplete & Misleading Search Warrant

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Franks Hearing, Search and Seizure, Search Warrant, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

Image result for officers lie

In United States v. Perkins, the Ninth Circuit Court of Appeals held police officers must submit copies of explicit images that the officer believes gives probable cause for a search warrant for child pornography to the judge who is considering the search warrant application so the judge can independently determine whether the nude photographs are sexually suggestive.

BACKGROUND FACTS

Canadian Investigation

On December 29, 2012, Charles Perkins, a then-52-year-old citizen of the United States, was traveling through Toronto International Airport on his way home to Washington State after taking a trip to Chile with his wife and mother-in-law. Canadian Border Services Agency(“CBSA”) officers stopped Perkins after learning that he was a registered sex offender. Perkins had a 1987 first-degree incest conviction and a 1990 first-degree child molestation conviction.

A CBSA officer searched the laptop that Perkins was carrying and, in a folder labeled “cperk,” found two images that he believed to be child pornography. A Peel Regional Police (“PRP”) officer also reviewed the images and, based on his review, arrested Perkins for possession of child pornography. CBSA authorities seized the laptop, along with a digital camera and a memory card.

The next day, Canadian police obtained a search warrant and searched Perkins’ luggage. Constable Ullock searched the laptop and found the two images that the CBSA officer had originally discovered.  After reviewing the images, Constable Ullock concluded that they did not constitute child pornography under Canadian law. In his report of the investigation, he describes the two images as follows:

IMAGE #1 Filename 997.jpg Description: This is a Caucasian female that I would estimate to be between the ages of 13 to 15 years of age. The image shows her only from the mid torso up, including her face. The girl appears to be nude and her breasts are clearly visible . . . . In spite of the fact that this girl is under the age of 18, her breasts are not the dominant feature of the image, and there is no obvious sexual purpose to the image. Therefore this image does not meet the Canadian Criminal Code definition of child pornography.

IMAGE #2 Filename 989.jpg Description: This is an image of a Caucasian female that I would estimate to be between the ages of 13 to 14 years of age. This girl is sitting and appears to be taking a picture of herself by holding out a camera with her right arm slightly above her head looking down on her. . . . This girl is completely nude and towards the bottom of the picture a small portion of her vagina can be seen. . . . However in this photo the view of the girls’ [sic] vagina makes it a minor aspect of the photo, and her hair drapes over much of her breasts, which decrease[s] their prominence. Again there is no clear and obvious sexual purpose to the picture, which means it does not meet the Criminal Code of Canada definition of child pornography.

Based on Constable Ullock’s recommendation, the charge against Perkins was dropped on January 10, 2013.

American Investigation

The case was forwarded to Special Agent Tim Ensley of the United States Department of Homeland Security. Agent Ensley received the two images for first-hand review on January 14, 2013. Ensley applied for a search warrant. In his affidavit, Ensley explained that Canadian officers stopped Perkins because of his prior convictions and arrested him after reviewing the images. Also, Ensley’s description of the second image was far different than the Canadian Constable’s:

IMAGE #2 Filename 989.jpg Description: This color image depicts a white female (hereinafter referred to as “child victim”) sitting on what appears to be a bed with one arm stretched out taking a picture of herself. The child victim is completely nude and can be seen in the image from her upper thigh area to the top of her forehead. The child victim’s breasts and genital area are clearly visible. . . . The child victim is young in appearance and appears to be between twelve and fourteen years of age.

Agent Ensley concluded that the second image (hereinafter referred to as the “989.jpg image”) met the federal definition of child pornography. However, his warrant application did not include copies of either image. Also, Ensley failed to state that the charge in Canada had been dropped pursuant to Constable Ullock’s determination that the images were not pornographic. On January 16, 2013, an American magistrate issued the warrant. Officers arrived at his home and confiscated his computers

The Search and Franks Hearing

The search pursuant to the warrant revealed several images of child pornography on Perkins’ computers, and he was charged with one count of receipt of child pornography and one count of possession of child pornography. Perkins moved to suppress the evidence, arguing that the warrant lacked probable cause. Alternatively, Perkins argued that Agent Ensley deliberately or recklessly omitted material facts from the affidavit, entitling him to a Franks Hearing under Franks v. Delaware, 438 U.S. 154 (1978).

For those who don’t know, a Franks Hearing is a hearing to determine whether a police officer’s affidavit used to obtain a search warrant that yields incriminating evidence was based on false statements by the police officer. The district court denied the motion for a Franks Hearing in its entirety.

On June 6, 2013, Perkins conditionally pleaded guilty to one count of receipt of child pornography. The district court sentenced Perkins to an 180-month term of imprisonment. Perkins appealed.

THE APPEAL

The Court of Appeals examined whether the search warrant contained purposefully or recklessly false statements or omissions. To prevail on a Franks challenge, the defendant must establish two things by a preponderance of the evidence: first, that the officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant, and second, that the false or misleading statement or omission was material, i.e., “necessary to finding probable cause. If both requirements are met, the search warrant must be voided and the fruits of the search excluded.

Here, the Court of Appeals held the lower court mistakenly denied Perkins’ motion to suppress. It reasoned that an officer presenting a search warrant application has a duty to provide, in good faith, all relevant information to the magistrate. Here, Agent Ensley omitted from the search warrant application: (1) the fact that Canadian authorities dropped the child pornography possession charge against Perkins because the images were not pornographic; (2) important portions of Constable Ullock’s description of the 989.jpg image; and (3) copies of the images.

“By providing an incomplete and misleading recitation of the facts and withholding the images, Agent Ensley effectively usurped the magistrate’s duty to conduct an independent evaluation of probable cause,” said the Ninth Circuit. Therefore, Agent Ensley omitted relevant information from the affidavit that resulted in the misleading impression that image 989.jpg was unequivocally child pornography.

Furthermore, the Ninth Circuit held the warrant application was unsupported by probable cause; and that his 20-year prior convictions failed to make it more likely that child pornography would be found on Perkins’ home computers.

Finally, the Ninth Circuit reasoned that the two images found in Perkins’ laptop computer did not establishe a fair probability that there was child pornography on Perkins’ home computer in Washington:

“Other than the fact that the subject is nude, the image lacks any traits that would make it sexually suggestive . . . The subject is not posed in a sexual position with, for example, “her open legs in the foreground . . . She is not pictured with any sexual items. She is sitting in an “ordinary way for her age.” Indeed, if the subject were clothed, this would be a completely unremarkable photo. Viewing the image as a whole, we conclude, under the Dost six-factor test, that it does not depict the ‘lascivious exhibition of the genitals or pubic area.'”

With that, the Ninth Circuit reversed the district court’s denial of the motion to suppress evidence obtained pursuant to the search warrant, and vacated Perkins’ conviction. The case is remanded for further proceedings consistent with this opinion.

Good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Interpreting Gone Wrong

Bellingham Defense Attorney, Constitutional Rights, Interpreter, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Unlawful Imprisonment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for foreign language interpreter terrible inaccurate bad

In State v. Aljaffar, the WA Court of Appeals held that although the court failed to (1) appoint a certified Arabic interpreter during Mahadi Aljaffar’s felony trial, and (2) failed to make a good cause finding prior to utilizing the services of an uncertified interpreter, the defendant nevertheless failed to establish prejudice because he failed to adequetely preserve the Constitutional issues for appeal. Therefore, his convictions were affirmed.

BACKGROUND FACTS.

Defendant Mahadi Aljaffar is a Saudi Arabian national living in the United States on a
student visa. His primary language is Arabic. He was charged in Spokane County
Superior Court with several felony sex offenses arising from incidents involving two
separate women inside a nightclub bathroom.

On the morning of Mr. Aljaffar’s trial, the State said it was unable to obtain the assistance of a certified Arabic interpreter. Washington has only one certified Arabic interpreter and that individual resides in the Seattle area. The State claimed this circumstance made arranging for the assistance of a certified interpreter logistically difficult. Rather than proceed with a certified interpreter, the State proposed proceeding to trial with an interpreter named Imad Beirouty. Mr. Aljaffar objected. The Court overruled his objection. Aljaffar was forced to proceed with the available interpreter. However, the court never made any findings with respect to whether the State had established good cause to proceed without a certified interpreter.

At trial, Mr. Aljaffar testified in his own defense. He denied assaulting the two
female victims, explaining that he is not interested in women because he is gay. He
testified he believed the bar where the assault took place was a gay bar and he did not
realize the bathroom in question was a women’s bathroom.

During his testimony, Mr. Beirouty frequently utilized a third person narrative in
recounting Mr. Aljaffar’s testimony. For example, when Mr. Aljaffar’s attorney asked
why he mistakenly chose to use the women’s bathroom, the interpreter stated, “He saw
two bathroom. There is one bathroom with more privacy than the other one.” Also, on cross-examination, the prosecutor asked Mr. Aljaffar whether he was the only male that entered the women’s bathroom. The interpreter Mr. Beirouty responded, “He observed two-two men dressing like women go into the bathroom.” Also, at other times during Mr. Aljaffar’s testimony, Mr. Beirouty provided commentary on what Mr. Aljaffar was saying, rather than interpretation.

The jury found Mr. Aljaffar guilty of two counts of indecent liberties by forcible compulsion and one count of unlawful imprisonment with a sexual motivation.

THE APPEAL.

Mr. Aljaffar filed a timely appeal. The arguments on appeal focus solely on the adequacy of the court appointed interpreter.  At issue is whether the trial court’s use of Mr. Beirouty as an interpreter violated Mr. Aljaffar’s statutory and constitutional rights.

COURT’S DECISION AND ANALYSIS.

Defendant Failed to Exercise His Constitutional Right to a Certified Interpreter.

The Court began by saying that non-English speakers involved in court proceedings are entitled to the assistance of a court-appointed interpreter. This right is guaranteed both by Washington statute and the United States Constitution.  Such a right is implied in the Fifth, Sixth and Fourteenth Amendment.

In light of these rights, however, during trial Mr. Aljaffar only voiced one objection to the use of Mr. Beirouty as an interpreter. Also, while Mr. Aljaffar adequately informed the trial court of his statutory concerns, he never alerted the court to any constitutional issues.

Furthermore, neither Mr. Aljaffar nor his attorney ever said there were misunderstandings with the interpreter or a breakdown in communication. Because the trial court was never asked to address any constitutional concerns, it was never provided the opportunity to remedy problems with Mr. Beirouty’s services prior to the jury’s verdict.

There Was No Good Cause to Excuse Certified Court Interpreter.

The Court addressed the issue of whether the trial court had good cause to excuse a certified interpreter from the proceedings. Here, good cause did not exist to not use a certified interpreter because Mr. Aljaffar was charged with serious felony offenses:

“Not only did he face substantial prison time, his immigration status made him vulnerable to deportation. Given the nature of Mr. Aljaffar’s legal proceedings, the State was obliged to make a substantial, good faith effort to obtain the services of a certified interpreter. There is no record this took place.”

Having determined good cause did not justify the use of an uncertified interpreter, the Court next tumed to the question of remedy.

There Was No Prejudice to the Defendant.

On this issue, the Court held that the trial court’s failure to comply with the certification requirements of RCW 2.43.030 was not prejudicial. Basically, despite having the assistance of counsel and a certified interpreter, Mr. Aljaffar did not present any evidence at the reference hearing and did not challenge Mr. Beirouty’s testimony that he and Mr. Aljaffar had no problems communicating. “Given these circumstances, Mr. Aljaffar’s argument that inadequacies existed outside of his trial testimony lacks factual support,” said the Court.

CONCLUSION.

The Court concluded by saying that the failure to enlist the services of a certified interpreter without good cause was a serious violation. Given the fact that Mr. Aljaffar testified and placed his credibility before the jury, inadequate interpretation could have impacted the jury’s verdict.

Nevertheless, the Court was also satisfied Mr. Aljaffar was not prejudiced by the use of an uncertified interpreter. With that, Mr. Aljaffar’s conviction was affirmed.

My opinion? It’s difficult to say Mr. Aljafar was not prejudiced. Although his defense attorney apparently failed to perfectly preserve the Constitutional issues, he did adequately mention the statutory concerns; which, in my mind, are ultimately rooted in protecting Constitution rights.

Indeed, the fact that interpreter issues were made a matter of record at all by defense counsel should have been enough to preserve the Constitutional issues for appeal. The fact of the matter is, there was an interpreter problem. Period. Otherwise, we’re substituting form over substance and sacrificing Constitutional rights in the process. Hopefully, this case gets appealed.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

Blog Update

Trump To Expand the Federal Death Penalty
... read more »

Can Police Use Deception To Extract Confessions?
... read more »

Can Artificial Intelligence Lead to Wrongful Convictions?
... read more »

Federal Judge Upholds Washington’s Ban on Selling and Distributing At-Home Sexual Assault Kits
... read more »

Consultation Request

Footer Consultation Request

Copyright 2024 Law Offices of Alex Ransom, PLLC   |   Sitemap   |   Website Design by Peter James Web Design Studio
error: Content is protected !!