#Criminal Traffic Violation Examples in Arizona

[96thdayofrage]

The deadly shootings of unarmed Black men and women by police officers in the U.S. have increasingly garnered worldwide attention over the last few years. The 2014 killing of Michael Brown in Ferguson, Mo., sparked a week of protests that catapulted the Black Lives Matter movement into the national spotlight. Since then, tens of thousands of people across the country have taken to the streets to protest police brutality of Blacks by mostly white officers.

Since 2015, police officers have fatally shot at least 135 unarmed Black men and women nationwide, an NPR investigation has found. NPR reviewed police, court and other records to examine the details of the cases. At least 75% of the officers were white. The latest one happened this month in Killeen, Texas, when Patrick Warren Sr., 52, was fatally shot by an officer responding to a mental health call.

For at least 15 of the officers, such as McMahon, the shootings were not their first — or their last, NPR found. They have been involved in two — sometimes three or more — shootings, often deadly and without consequences.

Those who study deadly force by police say it's unusual for officers to be involved in any shootings.

"Many officers will go their entire career without shooting — sometimes without pulling their gun out at all," said Peter Scharf, a criminologist and professor in the School of Public Health at Louisiana State University and co-author of The Badge and the Bullet: Police Use of Deadly Force. "It's rare."

Not every law enforcement agency releases detailed information about police shootings. The Los Angeles County Sheriff's Department and the Kansas City, Mo., Police Department, for example, refused to release specifics such as officer names or their race, citing open investigations.

Still, NPR reviewed thousands of pages of job applications, personnel records, use-of-force reports, citizen complaints, court records, lawsuits, news releases, witness statements and local and state police investigative reports to examine the backgrounds of the officers and analyze details of each shooting. We also interviewed use of force experts, criminologists, police, lawyers, prosecutors and relatives of victims.

Among NPR's other findings:

• At least six officers had troubled pasts before being hired onto police departments, including drug use and domestic violence. One officer had been fired from another law enforcement agency, and at least two others were forced out.

• Several officers were convicted of crimes while on the force, such as battery, and resisting and obstructing, but kept their jobs. In one instance, officials in a tiny Louisiana parish repeatedly fired and rehired a deputy who got into trouble with the law: three times over 30 years, records show.

• More than two dozen officers have racked up citizen complaints or use-of-force incidents. A Fort Lauderdale, Fla., police officer had 82 reviews over use-of-force incidents but was never found in violation; a Vineland, N.J., officer had more than three dozen use-of-force incidents over a five-year period.

• Several officers have violated their department policies and been cited for ethics violations, including a Hollywood, Fla., officer accused of trying to steer business to his company, and an Arizona state trooper accused of misuse of state property.

• Nineteen of the officers involved in deadly shootings were rookies, with less than a year on the force. One was on the job for four hours, another for four days. More than a quarter of the killings occurred during traffic stops, and 24 of the dead — 18% — suffered from mental illness. The youngest person shot was a 15-year-old Balch Springs, Texas, high school freshman who played on the football team. The oldest was a 62-year-old man killed in his Los Angeles County home. Nearly 60% of the shootings occurred in the South, with more than a quarter in Texas, Georgia and Louisiana, NPR found.

The killings have led to at least 30 judgments and settlements totaling more than $142 million, records show. Dozens of lawsuits and claims are pending.

An examination of individual cases reveals the myriad ways that law enforcement agencies fail to hold officers accountable and allow them to be in a position to shoot again. In many instances, the criminal justice system refuses to prosecute, often resulting in departments putting officers back on the street instead of desk jobs where they have little contact with the public. Other times, police unions protect officers from accountability. And sometimes, departments are so desperate to recruit officers that they ignore warning signs such as an officer's troubled past and hire them anyway.

"Why do they get passes on killing people?" asked Paula McGowan, Foster's mother. "If the system was right ... they would hold these people accountable."

"Unnecessary and unreasonable"

Nathaniel Pickett II was walking back to his $18-a-night room at the El Rancho, a seen-better-days bungalow motel along historic Route 66 in Barstow, Calif. It was shortly after 9 p.m. on Nov. 19, 2015, and Nate, as his family called him, often took evening walks. As the 29-year-old former engineering student crossed the street, he caught the eye of Kyle Woods, a San Bernardino sheriff's deputy. Woods made a U-turn into the motel parking lot, jumped out of his cruiser and approached Pickett, police records show.

He demanded Pickett's name and birthdate. Pickett complied. In fact, he did everything Woods asked of him, including taking his hands out of his pockets. When Woods asked him if he lived at the motel and where he was from, Pickett said he didn't know. When Pickett asked if he had done something wrong, the deputy said he just wanted to talk to him.

"What's the problem?" Pickett asked Woods nine times as the deputy peppered him with questions about whether he had ever been arrested (yes), if he had lived in Barstow all of his life and where he was going.

"There is no problem," Woods responded.

Pickett asked if he could go to his room where he had lived since moving to Barstow seven weeks earlier. Woods would later admit under oath that he knew he had no probable cause to arrest him and that Pickett had the right to walk away. But when he tried, Woods grabbed him and told him to "stop resisting." Woods threatened to use a Taser on him. Pickett put his arms up and was running toward his room — Room 45 — when he tripped and fell in the breezeway. As he scooted backward from Woods, the deputy caught him. The two scuffled while a male citizen volunteer on patrol with Woods watched from a few feet away. Woods punched Pickett 15 to 20 times before pulling out his service weapon and threatening to shoot him. He fired, hitting Pickett twice in the chest — once with the barrel of the gun pressed against the man's chest.

"Ow," Pickett moaned. One of the bullets pierced his heart and left lung. Pickett was pronounced dead at the scene.

Woods, on the force for two years at the time but on the street for just a few months, said he shot him because he feared for his life.

Woods, who is Black, didn't give a statement to police about the incident for 28 days. And when he did, he said that he stopped Pickett after seeing him hop the motel fence. He thought Pickett was trespassing, and he was fidgety, like he might be under the influence, Woods said. Pickett had marijuana in his system, and his blood alcohol level was 0.01%, far below the level to be considered legally impaired, records show.

The deputy never faced criminal charges in Pickett's death, but the victim's family filed civil charges. And when he testified under oath at the civil trial, Woods told a different story: He said he never saw Pickett jump over the fence and that the gate actually was open. He also said it never occurred to him that Pickett could be mentally ill. Pickett was diagnosed with mental illness during his freshman year at Hampton University in Virginia and had been treated through the Mental Health Court in San Bernardino in 2012 after a conviction for resisting a peace officer and "false personation," records show.

Scott DeFoe, who spent two decades with the Los Angeles Police Department, testified as an expert witness at the civil trial. He said that Woods' use of force was "unnecessary and unreasonable."

"This is probably one of the worst cases I have looked at because of the mental health component," DeFoe testified. "There was no crime. ... He ran as he had a lawful right to do."

The jury in the civil trial was unanimous. Jurors agreed that Woods had no right to detain Pickett; used unreasonable or excessive force against him, which caused his death; and delayed getting him medical care. They awarded Pickett's family $33.5 million, one of the largest amounts ever in an officer-involved shooting case.

[allthingsnews]

Phoenix Lawyer Discusses The Impact of Summer on Arizona DUI Charges

Arizona criminal speeding tickets are one of the most common traffic violations. You can get a criminal speeding ticket for exceeding 85 miles per hour, or 20 miles over the posted speed limit. There are also criminal speeding tickets possible if you are going more than 35 miles an hour near a school zone.

In Arizona, criminal speeding is a Class 3 misdemeanor that identifies a speeding violation as a criminal infraction under Arizona Revised Statutes 28-701.02.

This article will talk about how to avoid criminal speeding in Arizona and what happens when you do receive a criminal speeding ticket there.

What are the Types of Criminal Speeding Violations?

There are three methods to obtaining a criminal speeding violation in Arizona, all of which are outlined below.

Traveling at speeds of more than 85 miles per hour is considered Excessive Speed Under ARS 28-701.02a3

Excessive speed is the most frequent sort of criminal speeding violation. Even in a 75 miles per hour speed limit zone, traveling 86 miles per hour is a violation of this section.  

Those who travel through Arizona’s more rural areas, particularly between significant tourist destinations such as the Grand Canyon, Sedona, and Flagstaff, are frequently charged with this type of crime.

Exceeding posted speed by 20 miles per hour Under ARS 28-701.02a2

This is another frequent type of traffic violation, which is generally seen in the major cities of Arizona’s more urban areas. This infraction takes place at any speed that is over 20 mph above the legal limit. Some examples are as follows:

traveling 46 miles per hour or above in a 25 mile per hour zone

traveling 56 miles per hour or above in a 35 mile per hour zone

traveling 80 miles per hour or above in a 55 mile per hour zone

Exceeding 35 miles per hour near a school zone Under 28-701.02a1

The least frequent criminal speeding charge is this one, but it may happen in more populated regions around school zones. This violation must occur within a designated school zone, which usually includes the presence of signs.

Many people are surprised to find out that this infraction is punishable by potential jail time.

Contact:

media@chmlaw.com Colburn Hintze Maletta PLLC 2633 E. Indian School Rd. Suite 110 Phonenix AZ 85016 (602) 902-1953 http://chmlaw.com

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Arizona DUI Defense and DUI Laws

Being arrested for a DUI can be frightening for most people. Many Arizonans charged with DUIs do not have any previous experience with the criminal justice system and do not know what might happen to them.

The experienced DUI attorneys at Colburn Hintze Maletta can help you understand the charges you face and guide you through the process. We are aggressive criminal defense lawyers who work hard to secure the best possible outcomes for our clients.

  How a DUI Defense Lawyer Can Help

Your Phoenix DUI defense lawyer from Colburn Hintze Maletta can help you in the following ways:

Advise you about the DUI laws and what to expect at your court hearings

Negotiate a reduced sentence or reduced charges

Win a dismissal of the charges

Appear with or for you at all hearings

Save money on your court fees

Secure a not guilty verdict at trial

When you retain a DUI defense lawyer from Colburn Hintze Maletta, you are much likelier to secure a favorable outcome than if you try to represent yourself. You will also have an advocate by your side to help you throughout the criminal court process.

Contact:

media@chmlaw.com Colburn Hintze Maletta PLLC 2633 E. Indian School Rd. Suite 110 Phonenix AZ 85016 (602) 902-1953 http://chmlaw.com

[gordonthompsonposts]

Arizona DUI & MVD Points Suspensions

Arizona law authorizes the Department of Transportation Motor Vehicle Division (MVD) to take action against a driver’s license or privilege to drive if they have frequent traffic violations (28 A.R.S. § 3306.A.3).

Various traffic violations lead to the assessment of points, for example, DUI is an 8-point assessment and Speeding a 3-point assessment (17 A.A.C. 4, R17-4-404, Table 1).

The actions MVD can impose include an assignment to complete a Traffic Survival School (TSS) and suspension for the accumulation of points. Restricted licenses are not available during a points suspension, therefore no driving at all is authorized. The accumulation of points within 12 months results in an assignment to: 8-12 points, TSS; 13-17 points, a 3-month points suspension; and 18-23 points, a 6-month points suspension. Accumulating 24 or more points within 36 months results in a 12-month suspension.

Since 1983 the Arizona Supreme Court has made it clear that the MVD can only assess 8 points for DUI convictions from one incident, no matter how many different counts (or charges) of DUI the person has been convicted of. Anderjeski v. City Court of City of Mesa, 135 Ariz. 549. For example, if a person is arrested for one incident of DUI above a .20% alcohol level and is charged with and later convicted of 4 counts of DUI, namely, 1. 28 A.R.S. § 1381.A.1, Driving Under the Influence, 2. 28 A.R.S. § 1381.A.2, Driving With an Alcohol Level of .08%, 3. 28 A.R.S. § 1382.A.1, Extreme Driving With an Alcohol Level of .15% and 4. 28 A.R.S. § 1382.A.2, Super Extreme Driving With an Alcohol Level of .20%, the driver may only be assessed 8 points, not 32 points.

In 2020 the MVD had their computer system reprogrammed, and apparently now their computer system generates 8 points for each charge of DUI a person is convicted of, even if all the charges arose from the same incident. Therefore, if the person in my example above is convicted of 4 DUI charges arising from the same incident, they are assessed 32 points (8 for each charge) and receive a 12-month suspension (of no driving whatsoever), and not the 8 points (and no suspension) the Supreme Court has said applies.

This change in MVD practice is directly contrary to Arizona law. Hopefully this is a computer error which will be fixed shortly. (Today’s date is December 3, 2020.) It is very important to note these points suspension orders are appealable and if anyone receives one, rather than accepting the order, they should immediately request a hearing with the MVD’s Executive Hearing Office to contest the suspension order.

It is also important to note due to MVD’s computer system issues I have seen instances where suspension orders were issued against a person’s license without any notice to the person, and I recommend all my clients, and anyone who is a licensed driver in the State of Arizona, sign up for an AZ MVD Now account as soon as possible. In addition to monitoring the status of your license you can update your address, receive notifications, request a copy of your Arizona Motor Vehicle Driver License Record, and download copies of notices the MVD has mailed to you, even if you did not receive them.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Website: https://www.GordonThompsonAttorney.net

Blog: https://www.GordonThompsonAttorney.net/blog/

Links: https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/28/03306.htm

https://apps.azsos.gov/public_services/Title_17/17-04.pdf

https://apps.azdot.gov/contact_ADOT/Index_EHO.aspx

https://www.gordonthompsonattorney.net/dui-and-az-mvd-now-online-drivers-record-information/

https://azmvdnow.gov/

[bhrarchinerd]

On Sept. 23, Kurt Andreas Reinhold, a 42-year-old Black man, was trying to cross a street in San Clemente, California, when two officers from a special “homeless outreach unit” stopped him. An altercation ensued; minutes later, Reinhold, a father of two and down-on-his-luck former youth soccer coach, was shot and killed. In a cellphone video of the confrontation, Reinhold can be heard demanding, “Where did I jaywalk?”

This is a particularly troubling example of a pattern we see all too often. Black and Brown people, especially men, are routinely targeted by police for jaywalking or simply existing in public space. Often these stops result in an escalating series of fines and fees. In other cases — as in San Clemente, as well as in Sacramento, Seattle and New York City — they can end in violence.

Especially at a time when there is intense focus on police brutality and racism, Reinhold’s death should prompt us to pause and consider who is truly served by jaywalking laws. Their effectiveness as safety measures appears to be limited: Despite heavy handed and selective jaywalking enforcement, pedestrian deaths in the U.S. have increased rapidly in the last decade. As two of the top experts on pedestrian safety in the country, we think it is time for cities to consider decriminalizing jaywalking or eliminating the infraction altogether.

Here’s why.

1.  Jaywalking is a made-up thing by auto companies to deflect blame when drivers hit pedestrians.

Although jaywalking is foundational to the way we think about streets and access today, it is a relatively young concept. As University of Virginia historian Peter Norton explains in his book Fighting Traffic: The Dawn of the Motor Age in the American City, the notion of “jaywalking”  — “jay” being an early 20th century term for someone stupid or unsophisticated — was introduced by a group of auto industry-aligned groups in the 1930s. Prior to the emergence of cars in cities, no such concept existed; pedestrians had free rein in public right-of-ways. But as city streets became sites of increasing carnage in the early days of America’s auto era — about 200,000 Americans (many of them children) were killed by cars in the 1920s — automakers sought regulations that would shift blame away from drivers.

2. The concept of jaywalking encourages drivers to be aggressive toward pedestrians, and for third parties to ignore or excuse pedestrian deaths.

Just as their early proponents hoped, jaywalking laws succeeded in creating a perverse “moral basis” for pedestrian deaths in the minds of the public. We see this reflected today in media reports of pedestrian deaths where the convention is to note the victim “wasn’t in the crosswalk.” This moral framing is so powerful pedestrians who are killed are often slandered as “lazy” or “stupid” by officials charged with keeping them safe.

But this conception is cruel and prevents us from addressing the core of the problem. People don’t deserve to die for the minor offense of jaywalking.

3. Our streets are not designed to make walking safe or convenient.

The core problem lies with street design, not human behavior. Tellingly, pedestrian deaths in cities around the country are concentrated on certain types of roads: wide, fast arterials. For example, in Rockford, Illinois, almost one in four traffic deaths is on a single road: State Street. A similar proportion of pedestrian fatalities Philadelphia take place on Roosevelt Boulevard. These dangerous roads, which lack adequate crossings, lighting and sidewalks, are typically concentrated in Black and Brown neighborhoods.

4. Pedestrians are almost as likely to be struck and killed at an intersection as mid-block.

Support for jaywalking laws rests on the idea that they make us safer. But the data on crossing location and safety is not as compelling as the law suggests.

Federally sponsored research in the 1990s looked closely at the types of situations in which “serious pedestrian crashes” occurred. It found that pedestrians are struck in crosswalks almost as often (25% of the time) as they are struck midblock (26%). In the additional almost 50% of crashes, pedestrians are struck outside of typical pedestrian crossing scenarios — for example, on sidewalks, or walking along the side of the road or highway attending to disabled cars.

5. When pedestrians jaywalk, they are often behaving rationally.

Jaywalking laws are not flexible enough to account for the range of scenarios pedestrians encounter, including prolonged signal timings and delays that give priority to automobiles. In some cases, jaywalking is driven by the fear of crime, particularly in low-income communities. In others, there simply aren’t enough crosswalks, or crosswalks are at the wrong location.

Jaywalking may be the most rational choice given a host of bad options. For example, an investigation into the nation-leading pedestrian deaths in Arizona by the Arizona Republic last year found only about a third of the pedestrians killed in Phoenix were near (within 500 feet of) a crosswalk. The reporters concluded there was a need for more crosswalks, not a crackdown on jaywalkers.

There is strong scientific support for that kind of approach. A 2014 study conducted by the Federal Highway Administration was able to use environmental factors — like the presence of a right-turn lane or the distance between crosswalks — to predict with 90% accuracy whether or not a pedestrian would cross mid-block.

Criminalizing a rational, predictable response to poor infrastructure is unjust.

6. Jaywalking laws are not enforced fairly.

Because police have broad discretion over their response to this petty offense, jaywalking lends itself to biased enforcement.

A 2017 investigation by ProPublica and the Florida Times-Union found that Black people in Jacksonville, Florida, for example, are three times as likely to be stopped and cited for jaywalking as white people. Those living in the poorest neighborhoods were six times as likely. Black men and boys were the most frequent targets.  

The same pattern has been observed just about everywhere it’s been analyzed. An investigation by the Sacramento Bee found that Black residents received 50% of the city’s jaywalking tickets in 2017, despite making up just 15% of the population. Similar patterns have been uncovered in Seattle and New York.

7. Jaywalking stops are frequently explosive.

People stopped for jaywalking are often confused about why they are being stopped. For example, an 84-year-old Asian man was bloodied by police in New York City in 2014. The man, Kang Wong, did not speak English and witnesses told the New York Post he “didn’t appear to understand their orders to stop.” In Seattle, in 2010, a white police officer was caught on tape punching a Black 17-year-old girl when she protested a jaywalking stop.

Often police interpret confusion as lack of cooperation and add on charges — like resisting arrest — or resort to use of force when people complain about being stopped on such a minor offense. But pedestrians who feel unfairly targeted have a point: These laws are enforced arbitrarily, with racially discriminatory effects to questionable safety benefit.

8. The focus on jaywalking reflects the lower political status of those who walk — not the societal harm of the activity.

Pedestrians who are hurt and killed in the U.S. are disproportionately marginalized: Black, Brown, elderly, disabled, poor. Perhaps this is the reason we seize on the jaywalking as the root cause of the problem, rather than offenses by drivers or road designs that create unsafe environments.

9. The safest countries globally allow jaywalking.

The U.K. has about half as many pedestrian deaths per capita as the U.S. (and a much higher walking rate). But the U.K. allows pedestrians legally to cross where they please. Meanwhile, in Norway, the world leader in eliminating traffic deaths, pedestrians are encouraged to cross at certain locations, but there is no rule against jaywalking, and it is certainly not a crime that police go around assaulting people for violating. If the U.S. could match Norway’s traffic safety record, about 30,000 lives a year would be saved, according to the 2018 global status report on road safety by the World Health Organization.

Eliminating jaywalking laws may sound radical, but it’s been discussed before in cities such as Seattle. Other places, like Berkeley, California, are experimenting with new models for traffic enforcement that deemphasize police in favor of crash investigators who are trained to help promote infrastructure changes that improve safety. New York Attorney General Letitia James has advocated for removing police from traffic stops, and a new survey shows a majority of New Yorkers support the idea.

Wider reforms and changes to traffic safety enforcement are needed, from increasing diversity within law enforcement to enhanced data tracking, police training, inclusivity and investment in new social and criminal justice programs. Such efforts must be implemented with a vigilant eye towards reversing existing inequities: Early results from so-called “unbiased” enforcement efforts, such as intelligence-led enforcement, used by cities like Oakland, California, show disparities in traffic stops remain. The time is now, not later, to revisit or eliminate laws like jaywalking that are primarily used as a pretext to stop Black and Brown people — and rarely protected any pedestrians in the first place.

Angie Schmitt is a writer and planning consultant and author of Right of Way: Race, Class and the Silent Epidemic of Pedestrian Deaths in America, which was published in August by Island Press. Portions of this article were adapted from her book.

Charles T. Brown is a senior researcher and adjunct professor at Voorhees Transportation Center at Rutgers University.

[marymosley]

Case Summaries: Fourth Circuit Court of Appeals (July 2020)

This post summarizes published criminal law and related decisions from the Fourth Circuit Court of Appeals decided in July, 2020.

Fourth Amendment claims based on extension of first traffic stop and second traffic stop by U.S. Parks Police of on-duty Secret Service agent could proceed; denial of qualified immunity affirmed; argument that the case presented new context for Bivens claim was waived

Hicks v. Farreyra, 965 F.3d 302 (July 14, 2020). The plaintiff, a U.S. Secret Security agent, was parked on the side of a Maryland interstate highway awaiting a motorcade which he was to lead. His government car had police-like emergency lights and a police antenna. A U.S. Parks Service police officer pulled behind the plaintiff. As the officer approached the plaintiff’s car, he noticed the plaintiff’s weapon and drew his own gun. The plaintiff explained that he was a federal agent and showed the officer his badge. The officer took the plaintiff’s badge and gun to verify his identity. The officer was apparently satisfied that the plaintiff was a federal agent but called other officers to the scene and did not release the plaintiff. The plaintiff missed the motorcade and ultimately was detained at least 40 minutes, even though the park officers had verified his identity within 25 minutes of the initial encounter. Immediately after being released from this stop, the plaintiff was again stopped by one of the same Parks officers, this time for his alleged use of a cell phone while driving (an act illegal in Maryland, but agents and officers in the performance of their duties are exempted from the ban). The plaintiff was again briefly detained and required to show the officer his license and registration. The plaintiff sued under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (allowing an implied civil action for damages against federal agents for certain civil rights violations), alleging the stops were unreasonable seizures in violation of the Fourth Amendment. The officers moved for summary judgment based on qualified immunity, which the district court denied. The officers appealed, and the Fourth Circuit unanimously affirmed.

The district court found that the record, viewed in the light most favorable to the plaintiff, supported the plaintiff’s claims that the first stop was unreasonably extended and that no reasonable suspicion existed as to the second stop. It further ruled that the defendant-officers’ acts of detaining the plaintiff beyond the time it took to verify his identity in the first stop and stopping the defendant without reasonable suspicion the second time would violate clearly established Fourth Amendment law if proven at trial. On appeal, the defendant-officers challenged only the district court’s view of the factual record; they did not challenge whether the allegations would support Fourth Amendment violations or argue that the rights at issue were not clearly established. The Fourth Circuit dismissed this argument, finding that it lacked jurisdiction. The appeal of an order denying qualified immunity is an interlocutory appeal. “[S]uch interlocutory appeals are limited to legal questions: Our jurisdiction extends only to the denial of qualified immunity ‘to the extent it turns on an issue of law.’” Hicks Slip op. at 9 (emphasis in original) (citation omitted).

The court also rejected a challenge that the plaintiff’s claims presented an extension of Bivens, and were disallowed under Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (refusing the extend Bivens claims to new contexts and “disfavoring” expansion of the doctrine). According to the defendants, the trial court erred by failing to sua sponte consider whether the case presented new context under Ziglar. The court noted that Bivens itself involved allegations of Fourth Amendment violations by federal agents. “[T]his case appears to represent not an extension of Bivens so much as a replay.” Hicks Slip op. at 15. Further, the defendants never raised this argument at the trial court, and it was waived on appeal. The district court was thus affirmed in part and the appeal dismissed in part.

SEC civil disgorgement order is not a criminal penalty within the meaning of the Double Jeopardy Clause

U.S. v. Bank, 965 F.3d 287 (July 14, 2020). The Securities and Exchange Commission (“SEC”) investigated the defendant for fraudulent investment activities and obtained an order of disgorgement for more than $4 million dollars based on illegally obtained profits. The defendant was later indicted in the Eastern District of Virginia for some of the same conduct that was the subject of the order. He moved to dismiss, claiming that double jeopardy precluded criminal prosecution based on the earlier civil punishment. The Fourth Circuit rejected this argument, joining the seven other circuit courts that have considered the question. Double jeopardy only protects from subsequent criminal prosecution and does not prohibit other civil penalties. Hudson v. U.S., 522 U.S. 93 (1997), controls whether a penalty is criminal or civil for under double jeopardy principles, and requires courts to conduct a two-part analysis:

[W]hether the legislature, in establishing [the penalty], expressed either expressly or impliedly a preference for one label or the other, [and] . . .  whether the statutory scheme was so punitive either in purpose of effect as to transform what was clearly intended as a civil penalty into a criminal penalty. Hudson at 99.

Here, there was compelling evidence that Congress expressly intended the securities disgorgement as a civil penalty. Under Hudson, only the “clearest proof” suffices to show that a penalty denoted as civil is in fact a criminal punishment, and the defendant’s “proof here is far from clear.” Bank slip op. at 23. The denial of the motion to dismiss was therefore unanimously affirmed.

Judge Diaz wrote separately to concur and would have ruled that an appeal waiver in the consent disgorgement order barred the challenge.

En banc court affirms grant of motion to suppress, reversing prior decision; exigent circumstances based on the sound of gunshots in the area did not justify stop and frisk

U.S. v. Curry, 965 F.3d 313 (July 15; amended July 16,2020). Four Richmond, Virginia police officers were patrolling Creighton Court, a heavily populated neighborhood, as a part of a “focus mission team” in response to recent shooting and homicides. The officers heard gunshots nearby and responded to the area where they believed the shots originated in less than a minute, an open area between apartment buildings. Five to eight people were walking away from the area in various directions in a field between buildings and other people were standing closer to the buildings. Two dispatch calls relayed reports of gunshots in the area but did not provide any further information. The officers spread out and began approaching different people in the field, asking them to show their hands and waistbands and using a flashlight to check for weapons. The defendant and another man were separately walking in the field when an officer stopped them and asked them to raise their hands. The defendant complied and pointed the officer in the direction the shots had come from. When asked to raise his shirt, the defendant complied in a “lackadaisical manner” according to the officer, and eventually two officers patted him down, finding a gun. The defendant was charged with felon in possession of firearm and moved to suppress. The district court granted the motion, finding that officers lacked reasonable suspicion for the stop and that exigent circumstances did not apply. The government appealed, and a panel of the Fourth Circuit reversed. [I summarized that decision here, and Jeff Welty blogged about it here (presciently, I’d note).] On rehearing en banc, the divided full court reversed the three-judge panel decision and affirmed the trial court 9-6.

The government conceded on appeal that no reasonable suspicion supported the stop but maintained that the exigencies of the situation justified the stop and frisk. The majority disagreed. Exigent circumstances are an exception to the warrant requirement arising when an emergency justifies immediate action by the police. See Mincey v. Arizona, 437 U.S. 385 (1987). The “narrow” exception has traditionally been applied to situations involving pursuit of a fleeing suspect, prevention of “imminent harm,” and prevention of destruction of evidence. The government argued that the recent nearby gunshots constituted a threat of imminent harm. The court disagreed.

Though the ‘emergency-as-exigency approach,’ may sound broad in name, it is subject to important limitations and thus is quite narrow in application. For example, the requirement that the circumstances present a true “emergency” is strictly construed—that is, an emergency must be “enveloped by a sufficient level of urgency. Curry Slip op. at 16 (citation omitted).

Further, the exigent circumstances exception is typically applied to the search of private property, not to pedestrian stops, and the court declined to apply the doctrine to these facts.  “[T]he few cases that have extended the exigent circumstances exception to such seizures all involve specific and clear limiting principles that were absent in Curry’s stop.” Id. at 18. The officers here did not have any specific information about the crime or the suspect. According to the court:

[T]he officers approached Curry in an open field, at one of several possible escape routes, in an area that they only suspected to be near the scene of an unknown crime. Likewise, the officers lacked a description of the suspect’s appearance or, more importantly, any indication that the suspect was in the vicinity. . . Id. at 21 (emphasis in original) (citations omitted).

The officers also stopped only the men walking in the area and not other people standing around. This illustrated the “relatively unrestricted nature of the search.” Id. While the exigent circumstances exception may allow this type of search with a known crime or suspect or more controlled geographic area, here it did not. The trial court’s ruling was therefore affirmed.

Judge Wilkinson dissented. He argued that the majority decision would lead to underpolicing of disadvantaged communities. His opinion emphasizes that police were in the area due to so-called “predictive policing” strategies (aimed at crime prevention) and warns that the majority opinion’s “gut-punch” to those strategies will harm high-crime communities.

Judge Richardson also dissented separately, joined by Judges Wilkinson, Neimeyer, Agee, Quattelbaum, and Rushing. They would have found no Fourth Amendment violation based on the exigent circumstances exception and criticized the majority’s limitations on that doctrine.

Chief Judge Gregory wrote separately to concur with the majority and to address Judge Wilkinson’s dissent. His opinion emphasizes the problem of overpolicing in minority communities (while acknowledging the problem of under-policing emphasized by Judge Wilkinson) and responds to the dissent’s criticism that the majority opinion undermines effective policing practices.

Judge Wynn wrote separately to concur, noting that Judge Wilkinson’s dissent relied on statistical data and that the U.S. Supreme Court had recently expressed skepticism of the use of such data in deciding constitutional issues. See Gill v. Whitford, 138 S. Ct. 1916 (2018). He also addressed Judge Richardson’s dissent, arguing that the approach there would allow police to stop frisk anyone in a high-crime area or near the scene of recent gunshots. “[A] consideration of the high crime area alone is anathema under our jurisprudence. Individuals who happen to live in high crime areas are not second-class citizens.” Curry Slip op. at 47 (Wynn, J., concurring).

Judge Diaz wrote separately to concur, joined by Judge Harris. His opinion argues that exigent circumstances may be justified as a special need under City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and finding that case persuasive in this context. [A majority of the panel who initially decided the case in favor of the government relied on a variation of this argument.]

Judge Thacker also wrote separately in concurrence, joined by Judge Keenan. Her opinion also took issue with Judge Wilkinson’s dissent and condemned predictive policing strategies as “little more than racial profiling writ large.” Curry Slip op. at 58 (Thacker, J., concurring).

Pro se inmate stated claims for ADA violations and injunctive relief where prison allegedly acted arbitrarily in denying work opportunities based on the plaintiff-inmate’s medical condition; qualified immunity barred equal protection claims

Fauconier v. Clarke, 966 F. 3d 265 (July 20, 2020). In this Eastern District of Virginia case, the plaintiff was an inmate in state custody and suffered from a neuromuscular disease. He was able to competently perform jobs within the prison despite the disease and received various positive evaluations of his work in prison over time. After he was briefly hospitalized in 2010, the prison allegedly refused to allow the plaintiff to resume his work within the institution. The plaintiff had been allowed to return to his work after other, earlier hospitalizations, and his medical condition had not changed. After the 2010 hospital stay, though, the plaintiff was informed his classification had been changed so that he was no longer eligible for any work whatsoever. After exhausting internal complaint procedures, the plaintiff sued pro se under 42 U.S.C. § 1982 and the Americans with Disabilities Act (“ADA”), alleging equal protection violations and seeking injunctive relief. The district court dismissed the case on its own motion for failure to state a claim and on immunity grounds, and the Fourth Circuit reversed. On remand, the district court granted the defendants’ motion to dismiss, finding in part that the plaintiff failed to state a claim under the ADA or the Equal Protection Clause. The Fourth Circuit again reversed in part.

When the pro se complaint was read liberally, it properly stated claims for ADA and equal protection challenges, and the trial court erred in dismissing on those grounds. However, the trial court’s grant of qualified immunity to the defendants in their individual capacity for all claims was affirmed. The defendants’ actions here were “apparently consistent” with state corrections procedure, and the plaintiff could not demonstrate violations of clearly established law. As to the claims against defendants in their official capacity, the ADA claim could proceed, as could the request for injunctive relief against the director of the state prison system. The district court was therefore affirmed in part and reversed in part.

Death verdict at third capital sentencing trial affirmed

Owens v. Stirling, ___ F.3d. ___, 2020 WL 4197742 (July 22, 2020). The petitioner was sentenced to death in South Carolina in 1997. The state supreme court twice awarded the petitioner a new penalty -phase trial on direct appeal but affirmed the third death verdict. Two post-conviction claims alleging ineffective assistance of counsel at the third sentencing trial were denied on the merits by the state post-conviction court;  a later claim alleging ineffective assistance of trial and post-conviction counsel brought by federal habeas counsel in the state post-conviction court was dismissed as procedurally barred. The petitioner sought habeas relief in federal court, renewing the three claims. The district court granted summary judgment to the defendants, finding the state court determinations on the merits were reasonable applications of federal law as to the first two claims, and that the petitioner failed to meet the standard under Martinez v. Ryan, 566 U.S. 1 (2012), to excuse the procedural default of the third claim. The petitioner appealed, and the Fourth Circuit unanimously affirmed. The state court judgments for the first two claims correctly determined that sentencing counsel did not fail to conduct and present an adequate mitigation investigation and did not err by failing to object to prison disciplinary records on Confrontation Clause grounds. The defaulted claim focused on the failure of sentencing and post-conviction counsel to obtain neuroimaging of the petitioner’s brain, and the Fourth Circuit agreed with the district court that this claim was not substantial under Martinez on the facts of the case. That the court had granted a certificate of appealability on the question did not preclude this finding. The district court’s denial of relief was therefore affirmed in all respects.

Due process violations and claim of ineffective assistance of counsel at state revocation proceeding could proceed; grant of summary judgment reversed

Farabee v. Clark, ___ F.3d ___, 2020 WL 4197527 (July 22, 2020). In this habeas appeal from the Eastern District of Virginia, the petitioner has been in state facilities continuously since the age of 13 as a result of serious mental illness. In 1999, he was found not guilty by reason of insanity and was committed to state hospitals. He was charged with assaulting another patient there in 2000 and was sentenced to time in prison and a suspended sentence. In prison, he incurred more assault charges against an inmate, leading to an additional ten-year prison term in 2003. In 2012, he was released back to a state hospital pursuant to the original commitment order. Three years later, Virginia sought to revoke the petitioner’s period of supervised release from the 2000 conviction based on a recent misdemeanor assault conviction from conduct at the hospital. The original notice of violation alleged only that recent misdemeanor conviction. Counsel was appointed to represent the petitioner at the revocation proceeding, who sought a capacity evaluation. The petitioner would not cooperate with the exam, so the evaluation was completed on record evidence only and the petitioner was found competent. The day before the competency hearing, the state filed an addendum to the revocation report, alleging numerous other violations of the terms of release for various acts of the petitioner between 2014 and 2015. The petitioner sought substitute counsel at the competency hearing, complaining that his lawyer had failed to communicate with him or conduct basic investigation, but the motion was denied. Defense counsel made no challenge whatsoever to the expert opinion at the competency hearing regarding the petitioner’s capacity to proceed.

The day before the revocation hearing, the state sought to amend the revocation report a third time, adding a new allegation that the 2003 conviction violated the terms of release from his 2000 conviction. The defendant never received notice of this amendment prior to the hearing and alleged that he had no contact with his counsel in the time leading up to the hearing. The petitioner complained during the revocation hearing that his attorney was not adequately defending him. The trial court acknowledged the attorney’s “limited ability to question evidence . . . and present argument.” Slip op. at 9. The attorney put on no evidence contesting the revocation or advancing mitigation evidence, instead only asking the court for leniency. The petitioner spoke at length about his attorney’s deficient performance in the case, raised a self defense argument, complained about the timing of the proceedings, and pointed to his longstanding and severe mental health issues. The trial court found a violation based on the 2003 conviction and revoked the suspended portion of the 2000 conviction, activating another term of imprisonment. His trial counsel filed an Anders brief on appeal, and the petitioner filed a pro se brief alleging violations of his rights to due process, speedy trial, and effective assistance of counsel. State courts declined to consider the argument on direct appeal, and the petitioner filed for state habeas. The state supreme court ruled that the due process claims could not be considered via habeas, and that no prejudice could be shown for the ineffective assistance claim. The petitioner then filed multiple habeas petitions in federal court, all of which were dismissed by the district court. The Fourth Circuit granted a certificate of appealability, appointed counsel, and ultimately vacated the revocation order.

On appeal, the state argued that the defendant had no right to counsel whatsoever in the revocation hearing. The Fourth Circuit disagreed. Under Gagnon v. Scarpelli, 411 U.S. 778 (1973), probationers or parolees may be entitled to counsel at revocation proceedings as a matter of due process when counsel is necessary to effectively present the defense case. Where the supervisee requests counsel to assist in defending against the allegations on the merits or in order to present complex or difficult evidence, a presumption of entitlement to counsel arises. The petitioner met the Gagnon standard and had a due process right to counsel on the facts [including the right to effective assistance of counsel].

The court further found that the petitioner stated claims for procedural due process violations based on improper notice of the third amended revocation report and the delay between the violation (his 2003 conviction) and the state’s decision to seek revocation on that basis in 2015. The petitioner also adequately stated a substantive due process claim based on the alleged failure of the state to properly provide for the defendant’s medical treatment (as required by the order of commitment) and the risk to the petitioner’s health posed by continuing to be confined in prison under the conditions. According to the petitioner, instead of treating his mental illness, he has been repeatedly incarcerated and placed in solitary confinement, which worsened his condition. The court noted that prisoners or committed person retain a due process right in necessary food, shelter, and medical treatment, and the allegations here were sufficient to state a substantive due process violation. Any procedural default was excused as necessary to avoid a fundamental miscarriage of justice. In the words of the court:

For many of the reasons already discussed—such as inadequate notice, undue delay, and the potential viability of mitigation evidence—Farabee has established enough facts to show prejudice in order to excuse any procedural default. Moreover, prejudice is presumed when, as alleged here, Farabee’s counsel ‘entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ (citing U.S. v. Chronic, 466 U.S. 468 (1984)). Even absent cause and prejudice, we conclude a fundamental miscarriage of justice would result if Farabee were not allowed to move forward in challenging Virginia’s revocation of his suspended sentence. Id. at 28 (citation omitted).

The district court’s order of dismissal was therefore vacated, and the matter remanded for merits hearing on the due process and ineffective assistance of counsel claims.

The post Case Summaries: Fourth Circuit Court of Appeals (July 2020) appeared first on North Carolina Criminal Law.

Case Summaries: Fourth Circuit Court of Appeals (July 2020) published first on https://immigrationlawyerto.tumblr.com/

[kennethmjoyner]

New ABA Report on the Profession Profiles Nation’s ‘Legal Deserts’ with Few or No Lawyers

Even though the United States has more than 1.3 million lawyers, large swaths of the country have few or no lawyers. In fact, of the country’s 3,100 counties, 54 have not a single lawyer, and another 182 have just one or two lawyers.

This portrait of the nation’s “legal deserts” is part of the 2020 Profile of the Legal Profession being released today by the American Bar Association, a 150-page compilation of statistics and trends pertaining to the legal profession. The second year of the report, this is the first year that it looks at legal deserts.

(I wrote about last year’s report at Above the Law: New ABA Report: Everything You Ever Wanted To Know About The Legal Profession But Didn’t Know Where To Ask.)

Nationwide, there are roughly four lawyers for every 1,000 residents. But that number is misleading, the report says, because it fails to reveal the high concentrations of lawyers in some areas, such as big cities and state capitals, and the sparse concentrations elsewhere, particularly those with large rural expanses such as Arizona and Idaho.

In Arizona, 10 out of the state’s 15 counties have less than one lawyer per 1,000 residents. In Idaho, two-thirds of counties (29 of 44) have less than one lawyer per 1,000 residents, including three with no lawyers and two with only one lawyer.

Nationwide, the report says, 40% of all counties and county-equivalents in the United States – 1,272 of 3,141 – have less than one lawyer per 1,000 residents.

In Idaho, two-thirds of counties have less than one lawyer per 1,000 residents.

“Most people think the access-to-justice problem is strictly urban, but that’s far from true,” ABA President Judy Perry Martinez said in a statement she provided me by email. “In fact, nearly every state in the nation has large stretches of rural counties with few lawyers – or no lawyers at all.”

[Martinez and others will discuss the report in a webinar today at 11 a.m. E.T., Legal Deserts in America: A Threat to Justice For All.]

As Martinez suggests, even many of the states with the largest numbers of lawyers overall have areas where there are few lawyers. In New York, for example, which has more lawyers than any other state, 184,000, Orleans County on Lake Ontario between Buffalo and Rochester has just 31 lawyers for 40,000 residents, or fewer than one lawyer per 1,000 residents.

Similarly, California, home to the second-highest number of lawyers, 168,000, has seven counties with less than one lawyer per 1,000 residents, including Merced County, between San Jose and Fresno, with 0.74 lawyers for every 1,000 residents. By contrast, San Francisco County has 23 lawyers for every 1,000 residents.

Further, simply having lawyers in a county does not mean they are available to provide legal services, the report notes. Many may work for the government as prosecutors, defenders or in other roles, and others may work for corporations or nonprofits.

The report does not delve into the impact on residents of living in a legal desert. But it points out that residents of these areas may “have to travel far to find a lawyer for routine matters like drawing up a will, handling a divorce or disputing a traffic violation.”

Martinez underscored this in her statement:

“Rural residents are disproportionately poor and many are forced to travel long distances to find lawyers to handle routine matters like wills, divorces and minor criminal or civil cases. Finding young lawyers who want to practice in rural areas – and finding money to pay them adequately – is a challenge nationwide. Fortunately, some states, like South Dakota, have found the will and the resources to make it happen.”

The states with the highest number of lawyers per capita overall are:

New York, with 9.5 lawyers per 1,000 residents.

Maryland, with 6.7 lawyers per 1,000 residents.

Massachusetts, with 6.2 lawyers per 1,000 residents.

Connecticut, with 5.9 lawyers per 1,000 residents.

Vermont (the second-small state by population), with 5.8 lawyers per 1,000 residents.

The states with the lowest number of lawyers per capita, 2.1 per 1,000, are Arkansas, Arizona and South Carolina, followed by Idaho, North Dakota and South Dakota at 2.2 lawyers per 1,000.

The full 147-page Profile of the Legal Profession contains much more information than just its chapters on legal deserts. It also covers law school debt, lawyer demographics, wages, legal education, judges, pro bono, women, legal technology, lawyer well-being and lawyer discipline.

You can download it from the ABA.

  from Law and Politics https://www.lawsitesblog.com/2020/07/new-aba-report-on-the-profession-profiles-nations-legal-deserts-with-few-or-no-lawyers.html via http://www.rssmix.com/

[douglasacogan]

Timely reminders that racial disparities may persist and grow even as the carceral state begins to shrink

The Marshall Project has this notable new piece about arrest rates during the COVID era under the full headline "Police Arrested Fewer People During Coronavirus Shutdowns — Even Fewer Were White: Racial disparities grew in five cities as arrests fell, according to our new data analysis."  Here are excerpts:

As protesters clash with police across the country, they are venting not only their rage about the death of George Floyd at the hands of Minneapolis police, but more broadly their frustration with decades of racial inequality in the American criminal justice system.

These inequalities persisted during the coronavirus outbreak, a new Marshall Project analysis of arrest data found. Even as crime rates fell while much of the country was ordered to shelter in place, arrest data from five U.S. cities suggests racial disparities worsened in March and April.  Across these cities, arrests of white people dropped 17 percent more than arrests of black people and 21 percent more than Hispanic people.

In March, the New York City Police Department made about 13,000 arrests, a 30-percent drop from the same month a year before. While most people in the city were confined to their homes, the changes in arrest practices did not affect residents of all races equally.  White people experienced the largest decreases in arrests, whereas arrests of black and Hispanic people dropped at a much slower rate.

New York is not an outlier. The Marshall Project’s analysis found that arrests in Los Angeles, Baltimore, Pittsburgh and Tucson, Arizona, reflected similar patterns.  As the total number of arrests plummeted through March and April, they didn't drop equally across the board. Arrests of white people decreased far more than the arrests of black and Hispanic people. Though they were much fewer to begin with, arrests of Asians, Native Americans and people of other backgrounds declined faster than arrests of white people.

These disparities in arrests took place during the same time period when some police departments came under fire for how they enforce social distancing orders. In New York City, more than 80 percent of people arrested for violating those orders were black. In major cities across Ohio, black residents were more than four times as likely to be charged with violating stay-at-home orders than their white peers. 

In Los Angeles, New York and Tucson, three cities that break down arrests by the severity of the alleged offense, The Marshall Project found that with each racial and ethnic group, misdemeanor arrests plummeted during the early weeks of the pandemic, while felony arrests, for the most severe crimes, declined slightly.  For example, from February to March, the Los Angeles Police Department made 1,000 fewer arrests for misdemeanor charges, such as driving under the influence or traffic violations. Meanwhile, arrests for felony charges, like aggravated assault and rape, dropped by 100.

These COVID-era data remind me of the data we often now see on marijuana-related arrests in the wake of legalization or decriminalization, where the total number of arrests decline (often significantly) but with racial disparities persisting or even growing.  Here are just a few recent studies on this topic via my coverage at my Marijuana Law, Policy & Reform blog:

New research on racial disparities in traffic stops and searches highlights how marijuana reform reduces searches (but not racial disparities)

"The heterogeneous effect of marijuana decriminalization policy on arrest rates in Philadelphia, Pennsylvania, 2009–2018"

Persistently discouraging news about persistent racial disparities in marijuana enforcement

Interesting data on marijuana arrests in DC after 2014 legalization initiative

Also worth recalling in this context is the notable reality that a number of US states with relatively smaller prison populations often have the most racially disparate prison populations.  This 2016 Sentencing Project report on the topic detailed that the states with the largest disparities in their prison population between whites and blacks were Iowa, Minnesota, New Jersey, Vermont, and Wisconsin.  Notably, all of these states have well below the national average in per-capita prison population.

These numbers do not surprise me because I often notice, in both policies and practices, how disparities and discrimination can find express in the exercise of leniency or mercy.  I see this especially in death penalty administration, when so many different actors in the system (prosecutors, judges, jurors) have formal and/or informal authority to prevent a murderer from being subject to the death penalty.  Disparities can and will result merely not from legal actors being distinctly punitive toward certain defendants, but also from these actors being distinctly willing to act leniently or mercifully toward only certain other defendants.  Other sentencing systems, where prosecutorial charging and bargaining discretion in turn shape judicial sentencing discretion, also surely reflect differential expressions of leniency as well as differential expressions of punitiveness.

I bring all this up not too create cynicism or fatalism about what legal and social change might achieve, but rather to highlight how much work there is to do even as we make progress in reducing the scope and impact of mass criminalization, mass punishment and mass incarceration.  In recent years, I have grown ever more hopeful about the potential, politically and practically, to shrink the carceral state in America.  But the events of this past week provide a critical reminder of our need to keep our eyes on all the prizes that we are aspiring to achieving in this critically important work.

from RSSMix.com Mix ID 8247011 https://sentencing.typepad.com/sentencing_law_and_policy/2020/06/timely-reminders-that-racial-disparities-may-persist-and-grow-even-as-the-carceral-state-begins-to-s.html via http://www.rssmix.com/

[shelawmsluderym09insurance-blog]

car insurance dui

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car insurance dui

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Arizonas Immigration Law Essay or dissertation Example

Arizonas Immigration Law Essay or dissertation Example Often the paper “Arizona’s Immigration Law” is an excellent example of a new law dissertation. Popularly referred to as the actual ‘Show us your written documents law’, Arizona’s immigration rules, SB 1070 is a joint of legislation that will outlaws the main harbouring involving illegal immigrants and also relation committing specific federal immigration crimes like state criminal acts. The law also requires cops to find out a person’s immigration status with the federal government over the course of traffic can stop and other regulations enforcing things if they have valid suspicions. Consequently, the police prevents people some people suspect to generally be illegal extraterrestrials and ask to get identification (Hesson, 2012). I solidly oppose this specific bill. For the reason that the law inside the totality criminalized innocent regular interactions through illegal immigrants. One section of the law prohibits many forms of engagements through illegal aliens, which that refers to while harbouring (Hesson, 2012). But section 2B, the most questionable part of the regulations, which simultaneously works up as the key reason behind my very own objection, is the provision which allows police to avoid people they thought of as extraterrestrials and requirement identification. It is because it creates considerable room pertaining to racial profiling, a clear discriminatory act in which infringes over a person’s city rights (Hesson, 2012). It will as well lead to wrongful detentions plus unwarranted apprehension because it is largely based on the officer’s discretion. This particular law not only wastes the main already minimal resources invested in law enforcers but will in addition compromise the actual ideals which America stands for, fairness and also equality for all. They are a specific violation in the 4th in addition to 14th changes of the YOU AND ME constitution (Hesson, 2012). For over two year period, this legislations has been be subject to countless lawsuit with sencillo rights sets such as the preferably vocal United states Civil Protections Union’s Immigrants’ Right Undertaking contesting conditions of this legal requirements in courts. In 06 2010, the particular Supreme Court docket passed injunctions against two out of the five SB 1070 provisions (Hesson, 2012). The provision, section 2B ended up being allowed (Hesson, 2012). The actual Federal Judge sided along with the Supreme Court and rejected to pass injunctions on the portion that allowed police officers to request a person’s immigration status, substantially to the delight of Arizona’s governor, Jun Brewer. However , the harbouring statue nevertheless remains stopped up by the court.

Business Law: M& M Partnership Essay Instance

The paper “Corporate Law: M& Michael Corporation” can be an outstanding sort of a regulation essay. Does a court have the legislation to pierce the corporate veil in the event that the exact shareholders of the closely stored corporation currently have debts from your previous Restrained Company this was previously proclaimed defunct? Rule declaration A court has the area to pierce the corporate veil in the event that the particular shareholders of the closely placed corporation possess debts with a previous Restrained Company which was previously reported defunct. Examination section Donald rented his place to M& M Corp. which was co-owned by Mickey and Minnie. After gathering rent delinquencies totaling that will $10, 000, M& Mirielle Corp. experienced no assets and ended up being dissolved by way of its couple of shareholders. In spite of having gained a $9,99, 000 wisdom against her tenant, Donald was cannot get her money (Mallor, 2013). Right after an amazing turn of events, Donald realizes that M& N Corp. wasn’t a properly registered corporation. This intended that their shareholders, Minnie and Mickey mouse, were answerable for its money. Minnie and even Mickey next went ahead of time and started off another firm, Best Business, which was usually registered. These folks the only investors (Mallor, 2013). This supposed that Minnie and Mickey mouse were not to generally be held accountable for any financial obligations incurred just by Best. The second company acquired assets instead of the previous 1 and Donald came challenging for his / her money through the two investors. According to this scenario, Minnie and Mickey and the company Greatest were throught as two agencies and non-e would be held liable for typically the debts with the other in respect to the corporate and business law. Conclusion statement The corporate veil can be pierced by a court of law to enable Jesse to get his / her $10, 000 judgment by Minnie plus Mickey’s tools held in Best Corporation. The very court will be able to ignore the limited legal responsibility as given in the management and business law since Best Institution is a closely held corporation and the two Minnie along with Mickey who all owned Donald from past transactions are still the sole shareholders of this different company.

Working in Team Essay Model

The documents “Working inside Group lunch break is a great example of a strong essay at English. We were particularly confronted by the undeniable fact that the school or even college was initially diverse plus served everybody well. I stumbled upon it difficult to move around the campus by myself because of the buses with regard to transport did wonders for precise hours every day alone. Hence, just having the capacity to https://123helpme.me/ observe the stuff happened from the natural environment devoid of stress or possibly hustle was basically most worthwhile. However , I ran across it difficult to participate together the fact that about the various things in the classes environment to make the whole paper. For example , in many other instances and occasions, I found quite a few services as well as things to work well and other very bad. It was types of difficult to sign up for the two numerous extreme points of reality in a assignment along with document. Even while completing this particular assignment As i learned to produce thoughts inside of a logical and also flowing method. This is where My spouse and i start with the particular weak points i quickly build or maybe grown very own essay for you to stronger factors. As much as it was difficult to be a part of the two varied realities on the school setting I learned that I must form and distinguish the two various things from the poor things and also the goods things. The bad products I acquired to put these questions different piece away from the favorable things. Being a member of typically the group, I just learned to share and engage others so as to learn from them. Whenever a person or maybe a friend acquired a point or even suggestion, I actually learned that it had been good to offer him or her a moment space to describe the point. Should i do not go along with the point, I just learned to get the issue within a respectful method. So I valued the work associated with of the all 5 people in another way to.

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Smart Cities: What They Are and Why They Matter

New Post has been published on https://lanpdt.com/smart-cities-what-they-are/

Smart Cities: What They Are and Why They Matter

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Smart Cities: What They Are and Why They Matter

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A “smart city” is the concept of a community, such as a town or city, that uses technology—specifically the Internet of Things—to improve its services.

It may sound at first like something out of science-fiction. But smart city technology is exactly the same technology people are already using in daily life.  Smart city companies have just repurposed it for upgrading a community’s infrastructure. When implemented, smart city projects allow a community to run more smoothly and efficiently.

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What is the Internet of Things?

[/vc_column_text][vc_column_text]The key to understanding smart city technology is knowing about the Internet of Things (IoT). This is an umbrella term for any physical object that is connected to the internet, often through a mobile app. For example, an IoT door lock would be a lock that one could access remotely. The advantage of IoT would be the ability to see on a mobile app that you hadn’t locked the front door of your house. Instead of going home to remedy the situation, you could use an internet connection to lock the door remotely. It is easy to see how the convenience that IoT provides is already a part of life for many individuals.

Of course, accessing the things you need from a remote location is one advantage of the Internet of Things. But there are many others. Some IoT devices are also connected to motion sensors. A smart light, for example, could detect the motion of someone walking into a room. A smart garbage can could send an alert to its owner when it’s time to take out the trash.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column css=”.vc_custom_1559670166608background-image: url(https://lanpdt.com/wp-content/uploads/2019/06/post-smart-cities-003.jpg?id=11935) !important;”][vc_raw_html]JTNDYnIlMkYlM0U=[/vc_raw_html][vc_column_text]

What does this have to do with cities?

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Smart city companies create these same technologiesin a way that improves a city’s government-run services.Here are a few examples of how this might work:

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It’s a pain to drive around looking for a parking spot. Instead, a driver with access to smart city technology could access a mobile app that would show them available spaces. This smart service would make life a lot easier for drivers in a smart city project by eliminating all the extra traffic created by people driving around looking for a parking spot and help them save on gas. And, of course, cutting out that traffic is good for the environment as well. Colombus, Ohio takes its smart parking services further by partnering with smart city companies to provide charging stations for electric vehicles next to certain spaces.

TRAFFIC

A mobile app that provides information on the specific location of bad traffic would also help cities and their citizens in the same ways. It could even suggest alternate, low-traffic routes. This would become a two-way service if the app allowed citizens to report problems like potholes.

WASTE

Instead of picking up trash on routine rounds, a smart dumpster would send an alert to the sanitation department in a smart city project. Notice how this is the same concept as the personal trash can above, only repurposed to serve a city.

WATER USAGE

A mobile app can send alerts to citizens when they have used a certain amount of water in the month. This is an especially innovative example of partnership with a smart city company. It allows the app user to determine their own custom settings and monitor their own water use. And this example is not hypothetical, either; Cary, North Carolina uses this system to send water-usage alerts to their citizens.

POLICE SURVEILLANCE

Smart video surveillance could help the police department keep the community safe. Many cities already use cameras to record traffic violations and criminal activity. A smart camera provided by smart city companies would be equipped with technology to recognize license plates or faces. It could even send an alert to police if there is any suspicious activity.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”2/3″][vc_raw_html]JTNDYnIlMkYlM0U=[/vc_raw_html][vc_column_text]

Bill Gates’s Smart City and GOogle’s Smart CIty

[/vc_column_text][vc_column_text]Some of the most famous tech companies in the world are working on their own smart city projects. For example, Bill Gates’ investment firm, Cascade Investment LLC, announced plans in November 2017 to build an entirely new city close to Buckeye, Arizona.

The future “Bill Gates smart city,” has been named Belmont.  It will utilize solar energy and Arizona’s lenient policies on self-driving cars to implement smart city technology in this new community. Similarly, Google, (or, more precisely, its sibling company Sidewalk Labs) has ambitious plans to build a “Google smart city” in Toronto called Quayside.  This neighborhood will feature smart city technology like raincoats for buildings, heated sidewalks for melting snow in cold weather, and self-driving taxis.[/vc_column_text][vc_raw_html]JTNDYnIlMkYlM0U=[/vc_raw_html][vc_column_text]

Microsoft Smart City

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More relevant to already-existing cities, Microsoft smart city technologies are helping governments meet their citizens’ needs. The government of Aukland, New Zealand has partnered with Microsoft to develop software and apps to improve transportation and parking services and keep track of the feedback citizens provide on social media.

Microsoft has also partnered with Tel Aviv to make the government more accessible to its citizens and features a two-way system, where citizens can send the government a picture of a problem that needs to be addressed on a “DigiTel Mobile App” while the “Digitel Residents Club” app keeps citizens informed about local businesses and community events. Parents even register their children for school through the app.

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ANY TOWN CAN BE A SMARt CITY

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This short list of examples alone shows how a “smart city project” can take on a variety of forms. On the one hand, this variety can make the term “smart city technology” difficult because it isn’t very specific. Two places that use different smart technologies for unrelated purposes (traffic surveillance and water usage, for example) are both smart cities. A place is “smart” if it applies all of the above examples or just one.

On the other hand, this ambiguity is what makes the idea work so well. Every city is different: a smart city project that could be useful in New Orleans or Dallas would not be practical for our home base in Shreveport, Louisiana. There is a lot of freedom wrapped up in this idea for each city to decide what smart services would best meet the needs of its citizens.

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Coming Up Next…

In our next article, we’ll discuss some of the “smartest” cities in the world, what makes them unique, and what we can learn from them, even in rural areas.  By looking at what these governments have done with smart city technology, we’ll discover simple solutions that small towns can implement to provide services that are more efficient, convenient, and environmentally-conscious.  Subscribe to our newsletter and stay tuned for more.

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Who Profits From Pay-for-Treatment Diversion?

Over the past 20 years, justice system administrators in many jurisdictions have come to rely on diversion programs to reduce the fiscal burden of incarceration for low-level drug offenses, traffic violations, sex crimes, and offenses committed by the mentally impaired.

In theory, they sound like a win-win for both the state and the individual accused of a crime. the individual avoids a jail term and gets specialized help, and the state reduces the fiscal burden of incarceration.

Also in theory, individuals who successfully complete the program walk away with clean records and the state walks away with a balanced budget.

But while diversion addresses some problems, it has brought new challenges and, in some cases, deepened the problems it sought to fix, a conference at John Jay College of Criminal Justice was told.

Advocates at the panel, part of a symposium on “Cash Register Justice,” organized by the Center on Media, Crime and Justice at John Jay (publisher of The Crime Report), said the key problem is that diversion and treatment programs are financially dependent on revenue from fines and fees imposed on program participants and other justice-involved people.

William Maurer.Photo by David Greenwald/Davis Vanguard

“There’s a flaw in this system, […] which is that prosecutors and judges typically charge defendants for accessing these opportunities,” said William Maurer, managing attorney for the Seattle-based Institute for Justice.

“The fact that a defendant has to pay to participate means that while [diversion and treatment programs] look good on paper, they can turn into a serious avenue for abuse,”

“And again, the harm falls most heavily on those who are most financially vulnerable among us.”

Local and state governments also outsource diversion—as well as probation—programs to private contractors.

Becca Curry. Photo by David Greenwald/Davis Vanguard

“People end up with really long payment plans, and often these probation and diversion programs are run by private providers,” said Becca Curry, staff attorney at the American Civil Liberties Union (ACLU) of Colorado.

“{This] builds one degree of separation between the judge and the private providers, which would lead the providers to conduct an inquiry into whether or not the defendant is able to pay.

“That really should be the judge’s job. […] And sometimes we see revocation of probation, just because the company isn’t getting their two cents.”

“Sometimes we see revocation of probation, just because the company isn’t getting their two cents.”

In fact, the panelists believe, for-profit diversion and treatment programs are a net widener of mass incarceration, and a pipeline to debtors’ prison that most adversely affects poor communities of color.

Such is the case in Dekalb County, Georgia, according to Nusrat Choudhury, deputy director of the ACLU Racial Justice Program. There, the county probationer contracts with Judicial Corrections Services (JCS) to supervise those facing charges for minor offenses such as driving without a license.

Choudhury was one of the lead attorneys in the ACLU’s suit against the county probationer for contracting with JCS to systematically extract money from mostly poor residents of color for misdemeanor violations such as driving without a license, other traffic violations, and shoplifting.

‘Sea of Black and Brown Faces’

Walking into the county courthouse, Choudhury noted a “sea of black and brown faces.”

She argued that the abuses in DeKalb County are representative of trends across the state, as Georgia has authorized municipal and county courts to outsource probation services to private contractors.

Choudhury also emphasized that many counties and states are

Nusrat Chodhury. Photo by David Greenwald/Davis Vanguard

dependent upon fees to generate the revenue to provide defense attorneys to the poor. Court officers will often tell defendants that they will have to pay large fees to receive a public defender.

Many individuals, based on the word of their court officer, opt out of paying for a court-appointed attorney. In many places throughout the country, the result is massive underrepresentation of the poor in court.

But Choudhury went even further.

“What we see is not only that so many of these courts are fundamentally lawyer-less, whether it’s a municipal court in Colorado, or a justice court in Mississippi, or a magistrate court in South Carolina, […] sometimes the judges aren’t even lawyers.”

Dami Animashaun, a Civil Rights Corps attorney who has investigated the marijuana diversion program in Arizona’s Maricopa County, explained that diversion programs also often create a slush fund for public prosecutors’ offices.

In Arizona, the possession of even trace amounts of marijuana is a felony. In Maricopa County, he argued, this created an incentive for the public prosecutor to work with police to actively criminalize marijuana and funnel more people into diversion programs.

The county’s strict marijuana enforcement fell most heavily on low-income communities of color. Paying as much as thousands of dollars each in fines and fees for each step of the program, including admittance fees and drug test fees, program participants’ hard-earned dollars gave multimillion-dollar subsidies to the prosecutor’s annual budget.

In fact, the prosecutor’s office brought in almost $2 million annually solely from its marijuana diversion program, and a total of $15 million over ten years.

Animashaun found that if residents did not respond to diversion program notices, the county did not press charges—illustrating, he said, that the prosecutor’s office was in fact not interested in prosecuting such a high number of low-level traffic and drug violations.

Dami Animashaun. Photo by David Greenwald/Davis Vanguard

Rather, he continued, they were interested in the revenue that these diversion programs can generate.

Maricopa County is an example of the danger of tying diversion programs to prosecutorial discretion, according to Animashaun.

Speaking to a room full of journalists covering criminal justice, he also emphasized the importance of investigative journalism in advancing reforms.

The ACLU’s suit was triggered following a journalistic investigation into the Maricopa County Attorney’s Office, which found that County Attorney Bill Montgomery’s staunch opposition to Prop. 205 was rooted in the millions in kickbacks that his office had received from the county’s marijuana diversion program.

Accumulating Bills

Another critical issue of the pay-to-participate diversion approach, is that many people justice-involved individuals fail to keep up with the fines and fees accumulating when they neglect to pay, or can’t pay, the penalty for a first minor offense.

This failure to pay can have disastrous consequences, from probation revocation to diversion program failure. Prior to program admission, participants are often coerced into signing guilty pleas, under the premise that if they finish the program successfully, they will have their record expunged.

But after they fail to pay, they find, to their horror, that they signed away their right to free trial.

“One big worry is that you are admitted to the program, but you can’t get off the program until you pay a certain amount of money,” Animashaun said.

“The reason that’s so bad is because a lot of people entering the program take the burden of a conditional guilty plea,”

The Colorado ACLU found that municipal courts regularly used failure-to-pay as a pipeline to incarceration for those on probation and parole. After state courts declared this practice unconstitutional for not adequately considering defendants’ ability to pay, municipal courts changed their tactics.

Those who fail to pay are now required to appear before a judge every month to explain their continued financial difficulties. If they fail to appear to any of these constant hearings, they can likewise have their probation or parole revoked.

Thus, in Colorado, failure-to-appear has replaced failure-to-pay and is a leading driver in the growth of debtors’ prisons, according to the ACLU’s Becca Curry.

The panelists identified multiple “systemic, scalable solutions” to these pressing justice system issues.

Curry stressed the constitutional importance of adjusting fines and fees for ability to pay.

Nusrat Choudhury argued that many low-level courts such as drug courts can in fact be folded into county or municipal courts. Established since the War on Drugs to deal with a massive influx of drug charges, they are contributing chaos over value to the criminal justice system and should be abolished.

Additionally, Choudhury argued that municipal courts should require judges to be lawyers, or at least have a legal counsel to assist in efficiently administering court proceedings and more accurately interpreting and dispatching the law.

She also believes that it is essential to bring all justice system stakeholders to the table when debating directions for local reform. This way, collective decisions are more likely to be seen to completion.

The symposium, which ended Friday, was sponsored by Arnold Ventures, formerly the Laura and John Arnold Foundation.

Roman Gressier is a TCR news intern. Readers’ comments are welcome.

Who Profits From Pay-for-Treatment Diversion? syndicated from https://immigrationattorneyto.wordpress.com/

[tylerallenlawfirm-blog]

Criminal Traffic Violations in Arizona

Criminal traffic violations are among the most dangerous driving offenses an individual can commit in the state of Arizona.

Examples of criminal traffic violations include: • Reckless Driving • Aggressive Driving • Leaving the Scene of an Accident • Failing to Stop at an Accident Scene • Racing on an Arizona Highway • DUI (Driving under the influence of intoxicating liquor) • DWI (Driving with a blood alcohol content (BAC) of 0.08% or more within two hours of driving) • Extreme DWI (Driving with a BAC of 0.15% or greater within two hours of driving) • Super Extreme DUI (Driving with a BAC of 0.20% or greater within two hours of driving)

The punishments for a criminal traffic violation range from a misdemeanor to felonies that can require lengthy amounts of jail time.

Tyler Allen Law Firm 4201 N. 24th Street, Suite 200 Phoenix, AZ 85016 (602) 456-0545 https://www.allenlawaz.com/areas-of-practice/civil-criminal-traffic-defense/criminal-traffic-violation-attorney/

[freeworldimmigration]

American immigration restrictions inflict immense suffering on immigrants and would-be immigrants. Thousands have died attempting to enter the U.S. through the desert, and others have perished attempting to make sea journeys. Tens of thousands languish each year in detention centers. Others are abused by government agents or criminals. Many are deported from the U.S. after having lived many years here. Millions of undocumented immigrants live anxious lives, not knowing if or when they will be arrested and deported.

Another group is also harmed by the restrictions: American citizens. Like immigrants, they suffer in myriad ways.

To begin with, Latino citizens sometimes must endure profiling by authorities seeking undocumented immigrants. NBC News notes that “Latino and immigrant groups say that due to increased enforcement, being Latino in some places is enough to be pulled over under the guise of a minor traffic stop and be asked to prove American citizenship.” Several years ago Sheriff Joe Arpaio in Arizona (who is no longer sheriff) was ordered by a judge to cease stopping people to check their immigration status because the stops amounted to racial profiling. And “the ACLU, border-town residents, members of Congress and even some border patrol agents argue that the rapid and vast expansion of immigration enforcement in the years since the Department of Homeland Security was created, without expanded oversight to match it, has turned the southern border of the U.S. into an occupied police state, where abuses of power and harassment by agents are an everyday occurrence.”

Some American citizens actually have been detained and perhaps deported by immigration authorities. Over the last decade hundreds of U.S.. citizens have been detained, either at local jails at the request of immigration officials or at immigration detention centers, even though immigration agents do not have the authority to detain citizens. One citizen was imprisoned for over three years because he was mistakenly considered to be a non-citizen. Another spent almost two years in detention. One researcher suggests that some citizens have actually been deported in recent years. Looking further back in history, probably hundreds of thousands of citizens of Mexican descent were deported to Mexico in the 1920s and 1930s.

In addition, deportations and detentions of non-citizens often negatively impact U.S. citizens. This is because, in the words of a report by the Center for American Progress, “undocumented immigrants do not live separate and walled-off lives from the documented, but instead live side by side in the same communities and in the same families.” It is estimated that about 4 million children who are citizens have one or more undocumented parents, and The Washington Post reports that more than 100,000 citizens lose a spouse or parent to deportation each year. (See here and here.)

Deportations separate citizen children from parents and, for families who have not yet experienced deportation, create fear among children that they could be separated from their parents in the future. Detentions also are traumatizing for children. For example, after a father of two U.S. citizens had been in detention for six months, his wife reported that “her 2-year-old son wakes up crying for his father every night, while her 3-year-old daughter has refused to learn to count or tie her shoes until he comes home.” (See also here.) Citizen children also experience raids on homes by immigration agents.

Adult U.S. citizens, like citizen children, suffer when immigration enforcement targets family members. In one case, an American wife of a man facing deportation was diagnosed with situational depression after he was detained. Another American wife accompanied her husband when he was deported but wanted to be able to return to the U.S. with him and their child, stating “’We do not have any family or friends here (London). We are all on our own… We desperately want to come home.’”

Immigration enforcement also hurts many U.S. businesses. Farmers sometimes can’t find enough workers to harvest their crops because of immigration restrictions. (See here and here.) Different kinds of firms suffer if their workers are deported. (See here.) Businesses can be punished for hiring undocumented workers.

At the same time, citizen workers in some cases may endure poor working conditions because employers, using the threat of reporting undocumented coworkers to immigration authorities, can stifle efforts to unionize or report labor violations. As one article noted, “immigrants’ inability to invoke their rights results in weakened employment protections for all American workers—and in some instances, means that American workers are subject to violations of minimum-wage and overtime protections, wage theft, and other forms of employment violations, such as unsafe working conditions.”  In 2009 the AFL-CIO and other organizations reported that

One of the most devastating illegal employer tactics is the threat to call immigration authorities on workers. The chilling impact of employers’ unlawful threats is felt not only by undocumented workers, but by their co-workers. Documented workers and U.S. citizens may be reluctant to organize their workplaces because properly timed threats to turn workers over to immigration authorities can undermine the union election process. And if workers should win a union election, deportation of their undocumented co-workers will dilute the power of the bargaining unit. No industry relies solely on an immigrant workforce. The Census Bureau’s 2007 American Community Survey found that of more than 330 occupations, only two have immigrant majorities. This means that threats to call immigration authorities deprive workers in nearly every industry of their right to a voice at work.

Open borders would end all of this suffering endured by so many American citizens. Citizen spouses and children wouldn’t have to worry about or experience the arrest, detention, and deportation of a loved family member. Citizens themselves wouldn’t be detained or deported. Workers’ efforts to report labor violations or organize wouldn’t be undermined by immigration enforcement, and businesses could depend on a free flow of needed labor. Open borders would benefit immigrants and citizens alike.

from Open Borders: The Case http://ift.tt/2ishMhR

[marymosley]

Case Summaries: Fourth Circuit Court of Appeals (July 2020)

This post summarizes published criminal law and related decisions from the Fourth Circuit Court of Appeals decided in July, 2020.

Fourth Amendment claims based on extension of first traffic stop and second traffic stop by U.S. Parks Police of on-duty Secret Service agent could proceed; denial of qualified immunity affirmed; argument that the case presented new context for Bivens claim was waived

Hicks v. Farreyra, 965 F.3d 302 (July 14, 2020). The plaintiff, a U.S. Secret Security agent, was parked on the side of a Maryland interstate highway awaiting a motorcade which he was to lead. His government car had police-like emergency lights and a police antenna. A U.S. Parks Service police officer pulled behind the plaintiff. As the officer approached the plaintiff’s car, he noticed the plaintiff’s weapon and drew his own gun. The plaintiff explained that he was a federal agent and showed the officer his badge. The officer took the plaintiff’s badge and gun to verify his identity. The officer was apparently satisfied that the plaintiff was a federal agent but called other officers to the scene and did not release the plaintiff. The plaintiff missed the motorcade and ultimately was detained at least 40 minutes, even though the park officers had verified his identity within 25 minutes of the initial encounter. Immediately after being released from this stop, the plaintiff was again stopped by one of the same Parks officers, this time for his alleged use of a cell phone while driving (an act illegal in Maryland, but agents and officers in the performance of their duties are exempted from the ban). The plaintiff was again briefly detained and required to show the officer his license and registration. The plaintiff sued under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (allowing an implied civil action for damages against federal agents for certain civil rights violations), alleging the stops were unreasonable seizures in violation of the Fourth Amendment. The officers moved for summary judgment based on qualified immunity, which the district court denied. The officers appealed, and the Fourth Circuit unanimously affirmed.

The district court found that the record, viewed in the light most favorable to the plaintiff, supported the plaintiff’s claims that the first stop was unreasonably extended and that no reasonable suspicion existed as to the second stop. It further ruled that the defendant-officers’ acts of detaining the plaintiff beyond the time it took to verify his identity in the first stop and stopping the defendant without reasonable suspicion the second time would violate clearly established Fourth Amendment law if proven at trial. On appeal, the defendant-officers challenged only the district court’s view of the factual record; they did not challenge whether the allegations would support Fourth Amendment violations or argue that the rights at issue were not clearly established. The Fourth Circuit dismissed this argument, finding that it lacked jurisdiction. The appeal of an order denying qualified immunity is an interlocutory appeal. “[S]uch interlocutory appeals are limited to legal questions: Our jurisdiction extends only to the denial of qualified immunity ‘to the extent it turns on an issue of law.’” Hicks Slip op. at 9 (emphasis in original) (citation omitted).

The court also rejected a challenge that the plaintiff’s claims presented an extension of Bivens, and were disallowed under Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (refusing the extend Bivens claims to new contexts and “disfavoring” expansion of the doctrine). According to the defendants, the trial court erred by failing to sua sponte consider whether the case presented new context under Ziglar. The court noted that Bivens itself involved allegations of Fourth Amendment violations by federal agents. “[T]his case appears to represent not an extension of Bivens so much as a replay.” Hicks Slip op. at 15. Further, the defendants never raised this argument at the trial court, and it was waived on appeal. The district court was thus affirmed in part and the appeal dismissed in part.

SEC civil disgorgement order is not a criminal penalty within the meaning of the Double Jeopardy Clause

U.S. v. Bank, 965 F.3d 287 (July 14, 2020). The Securities and Exchange Commission (“SEC”) investigated the defendant for fraudulent investment activities and obtained an order of disgorgement for more than $4 million dollars based on illegally obtained profits. The defendant was later indicted in the Eastern District of Virginia for some of the same conduct that was the subject of the order. He moved to dismiss, claiming that double jeopardy precluded criminal prosecution based on the earlier civil punishment. The Fourth Circuit rejected this argument, joining the seven other circuit courts that have considered the question. Double jeopardy only protects from subsequent criminal prosecution and does not prohibit other civil penalties. Hudson v. U.S., 522 U.S. 93 (1997), controls whether a penalty is criminal or civil for under double jeopardy principles, and requires courts to conduct a two-part analysis:

[W]hether the legislature, in establishing [the penalty], expressed either expressly or impliedly a preference for one label or the other, [and] . . .  whether the statutory scheme was so punitive either in purpose of effect as to transform what was clearly intended as a civil penalty into a criminal penalty. Hudson at 99.

Here, there was compelling evidence that Congress expressly intended the securities disgorgement as a civil penalty. Under Hudson, only the “clearest proof” suffices to show that a penalty denoted as civil is in fact a criminal punishment, and the defendant’s “proof here is far from clear.” Bank slip op. at 23. The denial of the motion to dismiss was therefore unanimously affirmed.

Judge Diaz wrote separately to concur and would have ruled that an appeal waiver in the consent disgorgement order barred the challenge.

En banc court affirms grant of motion to suppress, reversing prior decision; exigent circumstances based on the sound of gunshots in the area did not justify stop and frisk

U.S. v. Curry, 965 F.3d 313 (July 15; amended July 16,2020). Four Richmond, Virginia police officers were patrolling Creighton Court, a heavily populated neighborhood, as a part of a “focus mission team” in response to recent shooting and homicides. The officers heard gunshots nearby and responded to the area where they believed the shots originated in less than a minute, an open area between apartment buildings. Five to eight people were walking away from the area in various directions in a field between buildings and other people were standing closer to the buildings. Two dispatch calls relayed reports of gunshots in the area but did not provide any further information. The officers spread out and began approaching different people in the field, asking them to show their hands and waistbands and using a flashlight to check for weapons. The defendant and another man were separately walking in the field when an officer stopped them and asked them to raise their hands. The defendant complied and pointed the officer in the direction the shots had come from. When asked to raise his shirt, the defendant complied in a “lackadaisical manner” according to the officer, and eventually two officers patted him down, finding a gun. The defendant was charged with felon in possession of firearm and moved to suppress. The district court granted the motion, finding that officers lacked reasonable suspicion for the stop and that exigent circumstances did not apply. The government appealed, and a panel of the Fourth Circuit reversed. [I summarized that decision here, and Jeff Welty blogged about it here (presciently, I’d note).] On rehearing en banc, the divided full court reversed the three-judge panel decision and affirmed the trial court 9-6.

The government conceded on appeal that no reasonable suspicion supported the stop but maintained that the exigencies of the situation justified the stop and frisk. The majority disagreed. Exigent circumstances are an exception to the warrant requirement arising when an emergency justifies immediate action by the police. See Mincey v. Arizona, 437 U.S. 385 (1987). The “narrow” exception has traditionally been applied to situations involving pursuit of a fleeing suspect, prevention of “imminent harm,” and prevention of destruction of evidence. The government argued that the recent nearby gunshots constituted a threat of imminent harm. The court disagreed.

Though the ‘emergency-as-exigency approach,’ may sound broad in name, it is subject to important limitations and thus is quite narrow in application. For example, the requirement that the circumstances present a true “emergency” is strictly construed—that is, an emergency must be “enveloped by a sufficient level of urgency. Curry Slip op. at 16 (citation omitted).

Further, the exigent circumstances exception is typically applied to the search of private property, not to pedestrian stops, and the court declined to apply the doctrine to these facts.  “[T]he few cases that have extended the exigent circumstances exception to such seizures all involve specific and clear limiting principles that were absent in Curry’s stop.” Id. at 18. The officers here did not have any specific information about the crime or the suspect. According to the court:

[T]he officers approached Curry in an open field, at one of several possible escape routes, in an area that they only suspected to be near the scene of an unknown crime. Likewise, the officers lacked a description of the suspect’s appearance or, more importantly, any indication that the suspect was in the vicinity. . . Id. at 21 (emphasis in original) (citations omitted).

The officers also stopped only the men walking in the area and not other people standing around. This illustrated the “relatively unrestricted nature of the search.” Id. While the exigent circumstances exception may allow this type of search with a known crime or suspect or more controlled geographic area, here it did not. The trial court’s ruling was therefore affirmed.

Judge Wilkinson dissented. He argued that the majority decision would lead to underpolicing of disadvantaged communities. His opinion emphasizes that police were in the area due to so-called “predictive policing” strategies (aimed at crime prevention) and warns that the majority opinion’s “gut-punch” to those strategies will harm high-crime communities.

Judge Richardson also dissented separately, joined by Judges Wilkinson, Neimeyer, Agee, Quattelbaum, and Rushing. They would have found no Fourth Amendment violation based on the exigent circumstances exception and criticized the majority’s limitations on that doctrine.

Chief Judge Gregory wrote separately to concur with the majority and to address Judge Wilkinson’s dissent. His opinion emphasizes the problem of overpolicing in minority communities (while acknowledging the problem of under-policing emphasized by Judge Wilkinson) and responds to the dissent’s criticism that the majority opinion undermines effective policing practices.

Judge Wynn wrote separately to concur, noting that Judge Wilkinson’s dissent relied on statistical data and that the U.S. Supreme Court had recently expressed skepticism of the use of such data in deciding constitutional issues. See Gill v. Whitford, 138 S. Ct. 1916 (2018). He also addressed Judge Richardson’s dissent, arguing that the approach there would allow police to stop frisk anyone in a high-crime area or near the scene of recent gunshots. “[A] consideration of the high crime area alone is anathema under our jurisprudence. Individuals who happen to live in high crime areas are not second-class citizens.” Curry Slip op. at 47 (Wynn, J., concurring).

Judge Diaz wrote separately to concur, joined by Judge Harris. His opinion argues that exigent circumstances may be justified as a special need under City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and finding that case persuasive in this context. [A majority of the panel who initially decided the case in favor of the government relied on a variation of this argument.]

Judge Thacker also wrote separately in concurrence, joined by Judge Keenan. Her opinion also took issue with Judge Wilkinson’s dissent and condemned predictive policing strategies as “little more than racial profiling writ large.” Curry Slip op. at 58 (Thacker, J., concurring).

Pro se inmate stated claims for ADA violations and injunctive relief where prison allegedly acted arbitrarily in denying work opportunities based on the plaintiff-inmate’s medical condition; qualified immunity barred equal protection claims

Fauconier v. Clarke, 966 F. 3d 265 (July 20, 2020). In this Eastern District of Virginia case, the plaintiff was an inmate in state custody and suffered from a neuromuscular disease. He was able to competently perform jobs within the prison despite the disease and received various positive evaluations of his work in prison over time. After he was briefly hospitalized in 2010, the prison allegedly refused to allow the plaintiff to resume his work within the institution. The plaintiff had been allowed to return to his work after other, earlier hospitalizations, and his medical condition had not changed. After the 2010 hospital stay, though, the plaintiff was informed his classification had been changed so that he was no longer eligible for any work whatsoever. After exhausting internal complaint procedures, the plaintiff sued pro se under 42 U.S.C. § 1982 and the Americans with Disabilities Act (“ADA”), alleging equal protection violations and seeking injunctive relief. The district court dismissed the case on its own motion for failure to state a claim and on immunity grounds, and the Fourth Circuit reversed. On remand, the district court granted the defendants’ motion to dismiss, finding in part that the plaintiff failed to state a claim under the ADA or the Equal Protection Clause. The Fourth Circuit again reversed in part.

When the pro se complaint was read liberally, it properly stated claims for ADA and equal protection challenges, and the trial court erred in dismissing on those grounds. However, the trial court’s grant of qualified immunity to the defendants in their individual capacity for all claims was affirmed. The defendants’ actions here were “apparently consistent” with state corrections procedure, and the plaintiff could not demonstrate violations of clearly established law. As to the claims against defendants in their official capacity, the ADA claim could proceed, as could the request for injunctive relief against the director of the state prison system. The district court was therefore affirmed in part and reversed in part.

Death verdict at third capital sentencing trial affirmed

Owens v. Stirling, ___ F.3d. ___, 2020 WL 4197742 (July 22, 2020). The petitioner was sentenced to death in South Carolina in 1997. The state supreme court twice awarded the petitioner a new penalty -phase trial on direct appeal but affirmed the third death verdict. Two post-conviction claims alleging ineffective assistance of counsel at the third sentencing trial were denied on the merits by the state post-conviction court;  a later claim alleging ineffective assistance of trial and post-conviction counsel brought by federal habeas counsel in the state post-conviction court was dismissed as procedurally barred. The petitioner sought habeas relief in federal court, renewing the three claims. The district court granted summary judgment to the defendants, finding the state court determinations on the merits were reasonable applications of federal law as to the first two claims, and that the petitioner failed to meet the standard under Martinez v. Ryan, 566 U.S. 1 (2012), to excuse the procedural default of the third claim. The petitioner appealed, and the Fourth Circuit unanimously affirmed. The state court judgments for the first two claims correctly determined that sentencing counsel did not fail to conduct and present an adequate mitigation investigation and did not err by failing to object to prison disciplinary records on Confrontation Clause grounds. The defaulted claim focused on the failure of sentencing and post-conviction counsel to obtain neuroimaging of the petitioner’s brain, and the Fourth Circuit agreed with the district court that this claim was not substantial under Martinez on the facts of the case. That the court had granted a certificate of appealability on the question did not preclude this finding. The district court’s denial of relief was therefore affirmed in all respects.

Due process violations and claim of ineffective assistance of counsel at state revocation proceeding could proceed; grant of summary judgment reversed

Farabee v. Clark, ___ F.3d ___, 2020 WL 4197527 (July 22, 2020). In this habeas appeal from the Eastern District of Virginia, the petitioner has been in state facilities continuously since the age of 13 as a result of serious mental illness. In 1999, he was found not guilty by reason of insanity and was committed to state hospitals. He was charged with assaulting another patient there in 2000 and was sentenced to time in prison and a suspended sentence. In prison, he incurred more assault charges against an inmate, leading to an additional ten-year prison term in 2003. In 2012, he was released back to a state hospital pursuant to the original commitment order. Three years later, Virginia sought to revoke the petitioner’s period of supervised release from the 2000 conviction based on a recent misdemeanor assault conviction from conduct at the hospital. The original notice of violation alleged only that recent misdemeanor conviction. Counsel was appointed to represent the petitioner at the revocation proceeding, who sought a capacity evaluation. The petitioner would not cooperate with the exam, so the evaluation was completed on record evidence only and the petitioner was found competent. The day before the competency hearing, the state filed an addendum to the revocation report, alleging numerous other violations of the terms of release for various acts of the petitioner between 2014 and 2015. The petitioner sought substitute counsel at the competency hearing, complaining that his lawyer had failed to communicate with him or conduct basic investigation, but the motion was denied. Defense counsel made no challenge whatsoever to the expert opinion at the competency hearing regarding the petitioner’s capacity to proceed.

The day before the revocation hearing, the state sought to amend the revocation report a third time, adding a new allegation that the 2003 conviction violated the terms of release from his 2000 conviction. The defendant never received notice of this amendment prior to the hearing and alleged that he had no contact with his counsel in the time leading up to the hearing. The petitioner complained during the revocation hearing that his attorney was not adequately defending him. The trial court acknowledged the attorney’s “limited ability to question evidence . . . and present argument.” Slip op. at 9. The attorney put on no evidence contesting the revocation or advancing mitigation evidence, instead only asking the court for leniency. The petitioner spoke at length about his attorney’s deficient performance in the case, raised a self defense argument, complained about the timing of the proceedings, and pointed to his longstanding and severe mental health issues. The trial court found a violation based on the 2003 conviction and revoked the suspended portion of the 2000 conviction, activating another term of imprisonment. His trial counsel filed an Anders brief on appeal, and the petitioner filed a pro se brief alleging violations of his rights to due process, speedy trial, and effective assistance of counsel. State courts declined to consider the argument on direct appeal, and the petitioner filed for state habeas. The state supreme court ruled that the due process claims could not be considered via habeas, and that no prejudice could be shown for the ineffective assistance claim. The petitioner then filed multiple habeas petitions in federal court, all of which were dismissed by the district court. The Fourth Circuit granted a certificate of appealability, appointed counsel, and ultimately vacated the revocation order.

On appeal, the state argued that the defendant had no right to counsel whatsoever in the revocation hearing. The Fourth Circuit disagreed. Under Gagnon v. Scarpelli, 411 U.S. 778 (1973), probationers or parolees may be entitled to counsel at revocation proceedings as a matter of due process when counsel is necessary to effectively present the defense case. Where the supervisee requests counsel to assist in defending against the allegations on the merits or in order to present complex or difficult evidence, a presumption of entitlement to counsel arises. The petitioner met the Gagnon standard and had a due process right to counsel on the facts [including the right to effective assistance of counsel].

The court further found that the petitioner stated claims for procedural due process violations based on improper notice of the third amended revocation report and the delay between the violation (his 2003 conviction) and the state’s decision to seek revocation on that basis in 2015. The petitioner also adequately stated a substantive due process claim based on the alleged failure of the state to properly provide for the defendant’s medical treatment (as required by the order of commitment) and the risk to the petitioner’s health posed by continuing to be confined in prison under the conditions. According to the petitioner, instead of treating his mental illness, he has been repeatedly incarcerated and placed in solitary confinement, which worsened his condition. The court noted that prisoners or committed person retain a due process right in necessary food, shelter, and medical treatment, and the allegations here were sufficient to state a substantive due process violation. Any procedural default was excused as necessary to avoid a fundamental miscarriage of justice. In the words of the court:

For many of the reasons already discussed—such as inadequate notice, undue delay, and the potential viability of mitigation evidence—Farabee has established enough facts to show prejudice in order to excuse any procedural default. Moreover, prejudice is presumed when, as alleged here, Farabee’s counsel ‘entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ (citing U.S. v. Chronic, 466 U.S. 468 (1984)). Even absent cause and prejudice, we conclude a fundamental miscarriage of justice would result if Farabee were not allowed to move forward in challenging Virginia’s revocation of his suspended sentence. Id. at 28 (citation omitted).

The district court’s order of dismissal was therefore vacated, and the matter remanded for merits hearing on the due process and ineffective assistance of counsel claims.

The post Case Summaries: Fourth Circuit Court of Appeals (July 2020) appeared first on North Carolina Criminal Law.

Case Summaries: Fourth Circuit Court of Appeals (July 2020) published first on https://immigrationlawyerto.tumblr.com/

[gordonthompsonposts]

Jaywalking While Black Can Be Dangerous

New Post has been published on https://gordonthompsonattorney.net/jaywalking-while-black-can-be-dangerous/

Jaywalking While Black Can Be Dangerous

Jaywalking While Black

African Americans are disproportionately stopped for Jaywalking throughout the United States according to a July 3, 2017 Op-Ed article in the New York Times, Jaywalking While Black, by Ms. Jane Coaston. As examples Ms. Colson said that in a Sacramento, California neighborhood where 15% of the residents are African-American, 50% of those ticketed for Jaywalking were black. In Urbana, Illinois, from 2007 two 2011, 91% of those ticketed for Jaywalking were black however only 16% of the residents were African-American. Ms. Coaston cited other examples throughout the country.

In most jurisdictions around the country Jaywalking is a civil not a criminal offense and therefore should not be a high priority for police departments are pressed to deal with serious crime. The suspicion is that when blacks are disproportionately stopped for a civil charge like Jaywalking in a white neighborhood, as was happening in Urbana, Illinois is that the African-Americans were being stopped because they were African-American and not because of a problem with Jaywalking.

Jaywalking by African-Americans can in fact turn into something dangerous for them. An example of how the police can turn a civil, low priority civil charge like Jaywalking into a major felony incident took place in Mesa in June, 2017. The incident was subject to a broadcast on Phoenix Television Channel 12. The incident was captured in part on a civilian’s cell phone. In the video Mesa police officers charged, and appeared to have assaulted an African-American who was walking on the sidewalk.  On a body camera video one of the officers said they had observed him Jaywalking. As seen in the video it appears that the police were not simply trying to subdue the African-American but were repeatedly punching and kneeing him. In the story on Channel 12 the civilian who made the video on his phone confirmed that is what he observed the officers doing.  This again was for a possible civil charge of Jaywalking. For the African-American’s conduct in resisting the assault on him by the officers, the officers charged him in Maricopa County Superior Court with Resisting Arrest. Therefore from a simple incident of Jaywalking the African-American was assaulted by police officers and charged with a felony.

  The incident may be viewed by clicking on this site from Phoenix television channel 12.

Ms. Carlson’s New York Times article can be found by clicking on this link.

  Mesa’s Jaywalking City Ordinance

10-7-1:          CIVIL TRAFFIC VIOLATIONS:

Any violation of or failure or refusal to do or perform any act required by Chapters 1 through 7 of Title 10 of the Mesa City Code constitutes a civil traffic violation except as otherwise provided. Civil traffic violations are subject to the provisions of Title 28, Chapter 6, Articles 20 and 21, Arizona Revised Statutes, and amendments thereto. (1771)

10-7-2:          AUTHORITY TO DETAIN PERSONS TO SERVE TRAFFIC COMPLAINT:

Any Police officer or duly authorized agent of the City may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of this Title and to serve a copy of the traffic complaint for any alleged civil or criminal violation of this Title. (1771)

10-3-19:       PEDESTRIAN’S RIGHTS AND DUTIES:

(A)      Pedestrians Subject to Traffic-Control Signals. Pedestrians shall be subject to traffic-control signals as heretofore declared in this Chapter, but at all other places, pedestrians shall be granted those rights and be subject to the restrictions stated herein. (Reso. 990,1771)

(B)       Pedestrian’s Right-Of-Way in Crosswalks. When traffic-control signals are not in place or in operation, the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield to a pedestrian crossing the roadway within a crosswalk when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. A pedestrian’s right-of-way in a crosswalk is modified under the condition and as stated hereinafter. (Reso. 990,1771)

Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle. (Reso. 990,1771)

(C)       Pedestrians to Use Right Half of Crosswalk. Pedestrians shall move, whenever practicable, upon the right half of crosswalks. (Reso. 990,1771)

(D)      Crossing at Right Angles. No pedestrian shall cross a roadway at any place other than by a route at right angles to the curb or by the shortest route to the opposite curb except in a crosswalk. (Reso. 990,1771)

(E)       When Pedestrian Shall Yield. (Reso. 990,1771)

Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. (Reso. 990,1771)

Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles upon the roadway. (Reso. 990,1771)

The foregoing rules in this Section have no application under the conditions stated hereinafter when pedestrians are prohibited from crossing at certain designated places. (Reso. 990,1771)

(F)       Prohibited Crossing. Between adjacent intersections at which traffic-control signals are in operation, pedestrians shall not cross at any place except in a crosswalk, and no pedestrian shall cross a roadway other than in a crosswalk in any business district. (Reso. 990,1771)

(G)      Pedestrians Walking Along Roadways. (Reso. 990,1771)

Where sidewalks are provided, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway. (Reso. 990,1771)

Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction. (Reso. 990,1771)

No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any vehicle. (Reso. 990,1771)

(H)      Drivers to Exercise Due Care. Notwithstanding the foregoing provisions of this Chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway. (Reso. 990,1771)

(I)        Pedestrians Soliciting/Distributing. It shall be unlawful for any person to enter upon or remain on any median or traveled portion of any street or highway to solicit an occupant of a vehicle for employment, business, or contributions; or for distribution of advertisements, merchandise, or other property; or to offer any services. (3271)

  Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.   Website:  https://GordonThompsonAttorney.net

Gordon Thompson Attorney

https://gordonthompsonattorney.net/blog/

[nothingman]

Jeff Sessions’s first visit to the U.S.-Mexico border as attorney general kicked off with a ride in a Black Hawk helicopter. It began just after sunrise at the Davis-Monthan airbase outside Tucson, Arizona, and ended in Nogales, where he delivered a blistering address in which he vowed to take the “fight” to the criminal elements that have turned border communities into “war zones.” The performance was repeated a week later in El Paso, Texas. This time around, Sessions was accompanied by John Kelly, the retired Marine general turned Department of Homeland Security secretary overseeing the nation’s top immigration enforcement agencies. “This is ground zero,” Sessions said. “This is the front lines and this is where we’re making our stand.”

The display was typical of the Trump camp. From the moment he launched his campaign, Trump put a radically reimagined vision of immigration enforcement at the center of his agenda — one that emphasized a wall across the southern border and, at times, the removal of every undocumented immigrant in the country. The justification always had something to do with the tremendous, unprecedented threat emanating from the border and from immigrants. Now that Trump’s 100th day in office is nearly here, the nation has had a glimpse of the president’s response.

Like the Sessions-Kelly border tour, the Trump administration’s approach to immigration enforcement has leaned heavily on a combination of bellicose language and hard-line directives effective at driving intense fear into immigrant communities. Beyond that, advocates and former U.S. immigration officials say, the White House agenda is basically a rehashing of some of the most counterproductive policies of the Obama administration, married to a series of mind-boggling and at times hypocritical proposals that threaten to plunge the already broken immigration system into further disarray, all while undermining public safety in the very areas it seeks to improve.

“What we’ve seen from the Trump administration thus far is certainly a continuation of President Obama’s hard-edged policies regarding immigration law enforcement, accompanied by a particularly vicious form of rhetoric,” César Cuauhtémoc García Hernández, a law professor at the University of Denver, told The Intercept. “The bottom line is that there are many similarities with the Obama administration but, to be sure, President Trump and Attorney General Sessions have ratcheted up the severity of immigration law violations and are trying to further entangle the criminal justice system with the immigration law enforcement system.”

Hundreds of people attend an evening rally at Washington Square Park protesting the building of a wall along the Mexican border and policies harming immigrants and Muslims on Jan. 25, 2017, in New York.

Photo: Spencer Platt/Getty Images

Deporter in Chief

At the core of the Trump administration’s immigration platform are a series of executive orders the president signed off on during his first week in office. One of those orders resulted in the chaotic implementation of a ban on travelers coming to the U.S. from seven Muslim-majority countries. Two others, focused on domestic immigration enforcement, included sweeping implications for the nation’s 11.5 million undocumented immigrants.

In 2014, after years of bitter fighting in Washington over comprehensive immigration reform, Barack Obama announced that his administration would provide protection from deportation to hundreds of thousands of undocumented immigrants living in the country, shifting its enforcement focus to “felons, not families.” The White House, by that time, had overseen the deportation of nearly 2 million people — according to an analysis by the New York Times, two-thirds of those cases involved individuals “who had committed minor infractions, including traffic violations, or had no criminal record at all.” Obama’s DHS secretary, Jeh Johnson, operationalized the policy shift in a memo calling on his personnel to exercise prosecutorial discretion in order to prioritize enforcement of immigration laws against individuals who posed a threat to national security, border security, or public safety.

The memo did not stop the Obama administration from deporting people who lacked criminal records or whose only offense was an immigration violation — a December 2016 analysis by the Marshal Project found roughly 60 percent of the 300,000 people deported after the president’s speech fit that description — and advocates would often argue that splitting the immigrant population into two groups created its own set of problems. Still, defenders of the administration’s efforts say, it was something. At the very least, Immigration and Customs Enforcement was supposed to be targeting its efforts with an eye toward more dangerous individuals, even if the reality on the ground was much different.

Under Obama, the U.S. government focused the bulk of its immigration enforcement efforts on the southern border. Unlike its predecessors, the administration adopted a practice of putting unauthorized border crossers through formal removal proceedings, helping to fuel a rise in deportation numbers that led to Obama’s “deporter in chief” nickname. While enforcement on the border surged, however, in the interior of the country, immigrants with longstanding roots — people who had been in the U.S. several years, for example, or had citizen children — could generally expect that they would not be targeted for deportation.

A woman walks next to a painting of former President Barack Obama at the U.S.-Mexico border fence in San Luis Rio Colorado, in northwestern Mexico’s Sonora state, on Feb. 15, 2017.

Photo: Guillermo Arias/AFP/Getty Images

Trump’s executive orders have undone all that. Including not just convicted criminals, but anyone suspected of having “committed acts that constitute a chargeable criminal offense,” immigrants with prior orders for removal, and several other categories, the administration’s view of who constitutes a priority for deportation is so broad that it makes nearly every undocumented immigrant in the country a target. Trump’s orders called for a potential expansion of expedited removal, a process that allows individuals to be swiftly deported without seeing a judge, and the creation of new immigrant detention centers along the border. The orders also mandated an enormous surge in the hiring of immigration officers and agents, and used the threat of cuts to federal funding as a means to push local law enforcement agencies into deputizing officers as de facto immigration agents.

In February, Kelly signed off on two implementation memos, drafted by a pair of former Sessions aides with no input from career DHS officials, directing his personnel on how to implement the president’s directives. In a budget proposal released the following month, the administration requested $4.5 billion for immigration-related initiatives, including an initial $2.6 billion to begin Trump’s border wall expansion and $314 million to hire 500 new Border Patrol agents and 1,000 new ICE staffers — intended as a first step in the push to 15,000 new hires for the agencies total. The funds are contingent on congressional approval and Democrats have vowed to resist the administration’s immigration agenda.

The White House also requested $1.5 billion to support the expansion of the nation’s immigrant detention system. An internal DHS report on the implementation of Trump’s executive orders, obtained by the Washington Post, revealed that ICE has so far identified 27 facilities that could house more than 21,000 additional immigrant detainees. The New York Times, meanwhile, reported that the administration is considering rolling back standards intended to ensure the well-being of detained immigrants in order to quickly fill those beds.

A U.S. Border Patrol honor guard attends a ceremony for fallen agents at the Border Security Expo on April 12, 2017, in San Antonio, Texas.

Photo: John Moore/Getty Images

Among the many U.S. immigration enforcement officials who attended this year’s 11th annual border security expo in San Antonio, Texas, the most closely watched component of Trump’s directives appeared to be his call for the hiring of 5,000 new Border Patrol agents and 10,000 new ICE agents. During a panel, Benjamin Hoffman, the Border Patrol’s chief of strategic planning and analysis, said the proposed hiring surge presented unique challenges for his agency. Border Patrol currently employs roughly 19,500 agents, Hoffman explained, but is mandated to employ more than 21,000.

“We have not hit that yet and haven’t for a while,” Hoffman said. “There’s a real concern that a lot of the 10,000 agents that ICE is going to hire will be coming from the ranks of the U.S. Border Patrol. I don’t blame them … but that makes it difficult.”

Huge post-9/11 hiring surges within the Border Patrol have fueled corruption and soaring rates of excessive force and misconduct complaints lodged against agents. Asked to increase its ranks once again, Border Patrol leadership is now considering relaxing some of its rules surrounding polygraphs for would-be agents who come from law enforcement or military backgrounds — a proposal that has raised concerns among critics, given the agency’s recent history. Senior Border Patrol officials have maintained that they will prioritize quality over quantity as they move forward in the hiring process.

In a decision that appears to reflect the administration’s prioritization of deportations, Daniel H. Ragsdale, deputy director of ICE, told attendees at the Texas expo that the vast majority of personnel hired for his agency — “about 8,500” — would be devoted to its Enforcement and Removal Operations wing, while the remaining 1,500 would be directed to ICE’s Homeland Security Investigations program, which investigates transnational criminal organizations, money laundering, and a host of other issues in addition to immigration violations.

That breakdown should raise concerns, said John Sandweg, formerly the acting director of ICE from 2013 to 2014, especially if claims by Sessions and others in the administration about a desire to tackle transnational organized crime are to be taken seriously. “They’re talking about the gangs and MS-13,” Sandweg told The Intercept. “HSI guys are federal special agents who go undercover and infiltrate the gangs, get up on wires, work with U.S. attorneys offices to bring prohibited possession charges or gun charges or whatever charges they can against them and put them in prison and/or deport them.”

“ERO, on the other hand, lacks that training, lacks the skills, and lacks the legal authorities,” Sandweg went on. “They can’t do wiretaps. They can’t bring cases for prosecution. They don’t do undercover operations. That’s not what their skill set is. So to say we’re going to plus up 85 to 15 percent on the ERO side, and then you throw this rhetoric out there about MS-13, it’s just, it’s hypocritical.”

The fate of ICE’s powerful investigative wing under the Trump administration could have important implications, Sandweg added. “Are you going to see them forcing ICE-HSI to start abandoning the criminal enforcement work and the national security work?” he asked. “HSI has the second largest number of agents on the joint terrorism task forces across the country. Are you going to see them downsize their participation on JTTFs just so they can see them upsize the number of people they’re arresting for deportation?”

During the Bush years, HSI played a key role in supporting highly controversial worksite raids targeting undocumented immigrants and their employers. The practice was rolled back under Obama, though it wasn’t ended, as HSI increasingly turned its focus to national security, organized crime, and financial crime investigations (during that time, HSI also became involved in gang investigations that have drawn their own share of criticism).

HSI has participated in a number of enforcement actions under Trump, including at worksites, though the rate of the operations has not approached that of the Bush years. Whether that will continue to be the case remains to be seen. As a senator, Sessions was a vocal critic of ICE’s turn away from worksite enforcement, suggesting the attorney general might support seeing his counterparts at DHS ramp such operations back up.

Asked during a panel at the Texas conference if his agency would be diving back into the worksite enforcement business, Peter T. Edge, HSI’s associate director, said, “We don’t conduct worksite enforcement raids and as far as worksite enforcement as an investigative area, it’s one of the areas that we enforce and we fully expect to be given clear and more concise direction on what type of worksite enforcement efforts we’ll be conducting in the future.”

Juan Parras, right, and Junior Matute rest on their beds at the Senda de Vida migrant shelter in Reynosa, Mexico, March 22, 2017. Matute said his brother was deported from the United States to Honduras and then murdered in February 2016. Parras said he was deported one year ago from California, where he left behind three sons.

Photo: Rodrigo Abd/AP

Families, Not Felons

With Trump’s orders in place, attorneys around the country have reported a drop in undocumented immigrants reporting crimes and showing up to court appearances, a shift advocates have attributed to ICE agents increasing arrests at courthouses. Viral videos and stories of mothers and fathers who have spent years living in the U.S., in some cases attending regular check-ins with ICE officials, being arrested and deported have compounded an intense fear coursing through immigrant communities. Meanwhile, on the border, apprehensions have dropped to levels not seen in decades, a development the administration’s top officials have pointed to as a sign of their effectiveness in office.

Discussing the president’s orders at the Texas expo, Kate Christensen Mills, a former assistant director for congressional relations at ICE, now with the Monument Policy Group, said the public should expect to see more individuals with longstanding community ties arrested under the Trump administration. Because those individuals have spent years in the U.S., they will be more likely to fight their cases, Mills said, and as a result will spend more time locked up and fighting their deportation, all of which will cost taxpayers more money.

“If you’re going to have a decrease in people coming across the border, obviously ICE is going to have an increase in interior enforcement,” Mills explained. “Some of these people are going to have to be put in detention. Some of them are going to have ties to the community. So processing them through the Department of Justice and the immigration courts is going to take a little bit longer because they are going to have lived here for a long time.”

Natalie Asher, ICE’s acting assistant director for field operations at ERO, conceded that with her agency’s ramped-up operations in the interior, arrests of noncitizens who “have more at stake” become more likely, and that those arrests can lead to longer stays in detention. “We continue to prioritize, but the volume that’s coming at us is far larger than what we can really address on a regular basis,” Asher said.

In accordance with Trump’s executive orders, ICE is actively recruiting local law enforcement agencies to sign up for a program that deputizes officers to act as immigration officials in the investigation, detention, or apprehension of undocumented individuals. The program, known as 287(g), has long been criticized by advocacy organizations and law enforcement professionals, who argue that such agreements foster fear of local authorities in immigrant communities. ICE is pressing on with the collaborations nonetheless. In the DHS progress report obtained by the Washington Post, officials said they had identified more than 50 jurisdictions interested in applying for the program.

“By the end of this year, the hope is that we will have 63 online to sort of serve as force multipliers,” Asher said of the effort.

Asher insisted that ICE agents continue to “exercise prosecutorial discretion as we come upon individuals who may be amenable to removal proceedings and who may be amenable to detention.” In practice, Asher said, prosecutorial discretion is “like anything in old cop work. You have two seats in the car, two beds at the jail, you’ve got five individuals in front of you. You look to take the worst of the worst. That’s the same thing that we do as well.”

Whether ICE is taking the “worst of the worst” has been called into serious question. This month, the Washington Post reported that arrests of undocumented immigrants with no criminal record have more than doubled under the Trump administration. The paper described the push as “the clearest sign yet that President Trump has ditched his predecessor’s protective stance toward most of the 11 million undocumented immigrants in the United States.”

While the numbers provided important insights into ICE’s arrests thus far, some pertinent facts about the data were perhaps less than clear. Indeed, the “noncriminal” ICE arrests seen during the first three months of the Trump administration are more than double those reported over the same period in 2016 — in fact, the numbers from this year are more than those from 2016 and 2015 combined. However, the number of noncriminal arrests over the first three months of 2017 is lower than the number of noncriminal arrests during the same period in 2014. During that three-month period, which was before the Obama-era prioritization memo was issued, ICE arrested 7,483 noncriminals and 21,745 criminals, compared to 5,441 noncriminals and 15,921 criminals under Trump.

Jeanette Vizguerra hugs her youngest child, Zury Baez, 6, while addressing supporters and the media as she seeks sanctuary from Immigration and Customs Enforcement at First Unitarian Church on Feb. 15, 2017, in Denver.

Photo: Marc Piscotty/Getty Images

In other words, the Trump administration appears to be moving enforcement back to a pre-2014 prioritization memo framework, in which immigrants with clean criminal records are fair game for enforcement.

To draw deeper conclusions about of ICE’s enforcement actions so far would require more data, and experts say that has become an increasing challenge under the Trump administration. For years, the Transactional Records Access Clearinghouse at Syracuse University has used Freedom of Information Act requests and court records to provide a public accounting of ICE’s enforcement activity. In a recent report, published last week, the TRAC team reported that the filing of so-called notices to appear — the paperwork that initiates proceedings in immigration court — have shown no increase under Trump, while the number of individuals held in detention as their cases are processed has shot up significantly.

When asked if the fact that notices to appear have not gone up means that the White House is not overseeing an immigration crackdown, Susan Long, director of the TRAC program, told The Intercept that the picture is more complex. “It’s only a piece,” Long said. “The major reason it’s only a piece is because of ICE’s intransigence and lack of transparency.”

Under the Trump administration, Long explained, ICE has stopped turning over enforcement data that it released under previous administrations, including case-by-case information regarding arrests. As a result, number crunchers at her office can only provide a partial picture of immigration enforcement nationwide. Critically, Long said, ICE no longer provides information on the individuals targeted with so-called detainers, a tool ICE uses to request the arrest or detention of immigrants from local law enforcement. “That’s a key thing that they’ve started withholding,” Long explained. “We used to get the entire criminal history of each person they targeted with a detainer — so the most serious criminal convictions, when they were charged, when they were convicted, their sentence that was meted out, and any other charges in their whole history and the status of those charges.”

According to Long, ICE’s justifications for withholding the data have been “all over the map,” including claiming that past disclosures were merely voluntary and that the data in question does not exist. As a result of ICE’s position, Long argued, the public is lacking critical information needed to accurately assess Trump’s immigration enforcement practices. “They’re really central issues as to what they’re doing to enforce the law,” she said.

Sandweg, the former acting director at ICE, said that based on the information that has emerged, it appears ICE has set its sights on individuals with prior orders for removal from the country — a population that as of February included 12,370 people currently in government custody and 960,483 individuals who were not. That segment of the noncitizen population is made up “primarily of people who have very sympathetic cases, people that ICE never felt compelled to go out and find because they generally were not criminals, they had family members,” Sandweg said.

The Obama administration’s 2014 decision not to prioritize removal of these individuals, imperfect as it may have been in practice, went beyond humanitarian concerns, Sandweg explained — there are actual resource constraints on ICE that require enforcement to be targeted. “During my time at ICE, the priorities, just focusing on public safety nexus, border, convicted criminals, or people arrested for serious offenses … that population alone is more than the current ICE can handle,” Sandweg said. “It’s more than the system can handle. It’s way more than the immigration courts can handle. So it’s not like you’re being soft on enforcement or dialing back on enforcement, it’s just that you’re targeting the enforcement.”

“With the same resources and the same backlog in the immigration courts and the same number of officers, they’ve now started going after this other population, which is this noncriminal, final order population, these very sympathetic cases you read about,” he added. “When they spend their time on those cases though, it means some criminal is getting out of jail free.”

Given what he’s seen so far, Sandweg believes the Trump administration is playing a dangerous numbers game. “The way it’s being operationalized, it seems very clear to me, is that they’re trying to drive up their numbers, the numbers of total people being deported, as high as possible,” he said. “Despite the rhetoric about saying ‘we’re going to focus on criminals,’ the actions they’re taking really say they’re really focused on driving up numbers because they’re focused on this population with final orders.”

An enforcement operation conducted by U.S. Immigration and Customs Enforcement in Los Angeles on Feb. 7, 2017.

Photo: Charles Reed/U.S. Immigration and Customs Enforcement/AP

Margo Schlanger, a University of Michigan law professor who served as chief of civil rights and civil liberties at DHS from 2010 to 2011, said it will take time before the impact of the Trump administration’s enforcement practices to show up in deportation numbers. As she pointed out, the administration has yet to expand its use of expedited removal nationwide, as the president’s executive orders indicated it might. Still, she argued, a number of the administration’s efforts so far could make the nation’s already struggling immigration system even worse.

During his appearance in Arizona earlier this month, Sessions called on prosecutors across the country to increase enforcement of several crimes directly relevant to immigrant communities, including statutes surrounding the harboring of undocumented individuals and the falsification of documents. It’s an effort that has been tried before, and one that contributed directly to a build-up in immigrant detention and the massive backlog of cases in the immigration courts today — for several years now, immigration crimes have been the most frequently prosecuted offense on the federal docket.

As a fix, Sessions has vowed to streamline the hiring process for immigration judges, with an aim of filling 125 positions in the next two years. That’s easier said than done, Schlanger said.

“You can’t just on-board immigration judges,” she pointed out. And even if the administration does add more judges, she added, the quality of the cases those judges hear matters, because just as ICE’s resources are limited, so too are the DOJ’s.

“DOJ has a choice about where it’s going to spend its prosecutorial resources, and it could spend it on chump change immigration violations or it can spend it on things that actually achieve something worthwhile,” Schlanger said. If the administration falls into a habit of making “easy” arrests in order to drive up numbers — targeting people who voluntarily check in at ICE offices or show up at courts, rather than tracking down dangerous individuals — it could end up doing more damage than good, she argued.

“If you’re trying to deport the most people, you actually trade numbers against public safety,” Schlanger explained. “The more people you deport, the less public safety you buy, because you’ve got a certain amount of resources and it’s super easy to arrest law-abiding homebodies.” In other words, she said, “By doing more you accomplish less.”

“I wouldn’t say we’re there yet,” she added. “But the ship looks like it’s turning.”

Top photo: Mario Vargas, center, waits with his wife, Lola, left, and their daughter Athena in their attorney’s office before the deportation hearing of Mario in Los Angeles, California, on Feb. 9, 2017.

The post Trump Targets Undocumented Families, Not Felons, in First 100 Days appeared first on The Intercept.

via The Intercept