Thursday, October 11, 2018

Zen and the Art of Motorcycle Seizure: A Biker's Perspective on the Fourth Amendment

Recently, SCOTUS decided Collins v. Virginia (2018), in which the Court, by a 8-1 majority, did not uphold a search involving a motorcycle in a driveway. The story is this:

Police officers investigating traffic violations by a distinct black-and-orange motorcycle came upon the realization that their individual investigations involved the same bike, that the bike was likely stolen, and that it was in the possession of Ryan Collins. The officers found Collins' Facebook page, where he posted photos of said motorcycle parked in his driveway (see image below.)

With these suspicions, and without a warrant, Officer Rhodes drove to the pictured location and parked on the street. He walked toward the bike, which was covered by a tarp. He lifted the tarp and verified that this was, indeed, the motorcycle in question. He radioed the bike's serial number to the station and received confirmation that it was, indeed, stolen. He then replaced the tarp and waited for Collins.

In his subsequent trial, Collins unsuccessfully moved to suppress the evidence, arguing that it was a warrantless search. Eventually, SCOTUS vindicated Collins.

The facts of the case confront two constitutional doctrines: the curtilage doctrine and the car exception to the warrant requirement. Under the former, the curtilage--the area immediately surrounding the house--is to be treated just like the house for Fourth Amendment purposes, which is to say, entering it counts as a search that requires a warrant. Under the latter, searches of "cars and other conveyances," due to issues of mobility and regulation, can be performed without a warrant, provided that there is probable cause.

Justice Sotomayor, writing for the majority, finds that the curtilage doctrine trumps (sorry) the car doctrine. This is because the curtilage is invariably analogized to a house. Imagine, she writes,
a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? The reason, is that the scope of the automobile exception extends no further than the automobile itself.  Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle.

The analysis appears flawless to Fourth Amendment scholars, but not to motorcyclists. Because to me, as a motorcyclist, the fact that sticks out is not the location of the motorcycle, but the fact that it is covered. Many urban motorcyclists cannot afford to garage their bikes, either because they don't have a parking spot, or because the parking spot is taken by a car, theirs or owned by a family member. As a consequence, and to protect the bike from the elements, many people cover their bikes. It's the poor biker's garage, if you will. The problem here is not so much that Officer Rhodes stepped into the driveway--the Virginia proposition to distinguish curtilages based on visibility, which the majority rejects, is actually pretty sensible--but with the fact that he lifted the tarp.

In that respect, this case is more similar to Arizona v. Hicks, a case in which SCOTUS found that moving a turntable that was suspected to be stolen to get its serial number went beyond the "plain view" exception because it actually required interfering with Hicks's possessory interest.

The reason this seems weird to motorcyclists is because the experience of driving, parking, and leaving a motorcycle in public space is different than leaving a car there. Many a motorcyclist will tell you about dismaying experiences they have had in which people have leaned on their bikes, touched them, or even sat on them without permission. Here's how Jax from Sons of Anarchy handles such a problem:




Even if you have less of a stomach for interpersonal violence than Jax, you probably get the sense that the violations are more frequent and, because of the nature of motorcycle ownership, feel more invasive and personal. Lifting the tarp of a motorcycle is, under these circumstances, a privacy invasion that does not have an easy equivalent in the car world, and that might mean that not all conveyances should be treated similarly for Fourth Amendment purposes.

Incidentally, this raises various other issues that are endemic to motorcycles: the storage compartments--back box and sidebags--do they count as a "trunk" for Fourth Amendment exceptions, or as containers? In the latter case, the car exception applies; in the former case, it does not, and the only exception that would allow opening them is search incident to arrest. A lot of the answers to these questions depend on the cultural place of motorcycles in the American understanding, from The Wild One to Easy Rider and beyond. To be continued.

Not Your Typical Kavanaugh Opinion Piece

To a surrounded enemy, you must leave a way of escape.
                                                                                 --Sun Tzu, The Art of War


Last Friday I spoke at a school-wide forum about the Kavanaugh hearings. Since then, several people have come to thank me for voicing a perspective that is fairly uncommon in the progressive milieu. It is one of the pathologies of the partisan culture we now live in that one must subscribe to positions that often lack nuance and sometimes contradict factual and empirical evidence. The people who spoke to me asked me if I would be willing to share my perspective more widely, so here goes.

I'll open by saying the obvious: I believe Dr. Ford. Not so much because of any indicia of reliability in her demeanor, but because, for the life of me, I can't see why anyone would put themselves and their family through this particular variation of hell by lying. The incentives all line up toward the opposite direction. I think a mistaken identity is very unlikely here--even though eyewitness identification is a common source of wrongful convictions in sex crimes, that applies to stranger assaults, not to assaults by people familiar to the victim. It is also not unlikely that my sympathy for Dr. Ford also stems from the fact that she and I share the same milieu: she lives, works, dresses, and talks like me. She uses words like "hippocampus" and "sequelae." By contrast, the prospect of an aggressively conservative turn in the Supreme Court frightens me because of the risks it poses to basic civil rights and to American democracy, given the corrupted and unprincipled stance of the Trump administration.

A widely publicized letter signed by law faculty was circulated, in which many people I like and respect challenged Kavanaugh on account of his demeanor, which they perceived to suggest lack of judicial temperament. I did not sign this letter for two reasons.

First, I have years of experience defending people in criminal courts against charges of sexual assault. During my time as a military defender, one of my responsibilities was to represent people in the special military court. What was so "special" about the special court was that its jurisdiction extended to high-ranked officers (colonel and up). These are, of course, career officers; the lower ranks in the Israeli army are occupied by young people aged 18-21 in mandatory service. This puts 40-something-year-old men in regular contact with 18-year-old women, in the context of a hierarchical institution that adds rank and military power to age and seniority. The outcome is that a considerable chunk of my legal practice was devoted to defending career officers against charges of sexual harassment and sexual assault.

My experience with these cases taught me a lot of things. One lesson was that most bad behavior is largely situational (as the Stanford Prison Experiment taught us, and as Ashley Rubin recently reminded us.) Another was that two people could be telling you widely divergent versions of an incident and both would be telling the truth, which is shaped through subjective experiences and feelings to a surprising degree. It also taught me that the best strategy for sex crime defense is to agree with the complainant's version as much as possible. We called this "narrowing the scope of dispute." The less contradictions there are between the prosecution's version and the defendant's version, the less there is to impeach the defendant with.

That Kavanaugh chose as his line of defense absolute denial was against any sort of sensible advice I ever gave a client in these circumstances. It is a sad testament to the partisan culture we live in that people were predisposed to believe him even though his strategy would have been disastrous in court. In addition, Kavanaugh's religious background, and his base of supporters, would have been receptive to a cultural trope that is very common both in Catholicism and in Evangelical Christianity--talking up bad behavior in the past to emphasize change. Had he admitted to being wild and drinking in his adolescence, this milieu would have embraced his rehabilitation as a moral and religious victory. A similar strategy certainly underlined similar confessions from both George W. Bush and Barack Obama about their drug use. Again, that Kavanaugh did not recur to these sympathy-garnering tactics and still prevailed is an indication that the real mechanism behind this confirmation is partisan animosity, rather than factfinding.

But why did he do that? Here's where I differ from my friends who signed the judicial temperament letter. I have spent a lot of time in the company of people who were (falsely OR truthfully) accused of sexual misconduct. I have spent time with their wives. I have heard them react to the complainant's versions. I have seen them contemplate the real possibility that their personal and professional lives will fall apart. And each and every one of them--the guilty and the innocent--reacted in exactly the same way: yelling, tearing up, clenching fists, demonizing their accusers. It is not a peculiar reaction indicating a personal pathology. It is how humans universally react when they face an existential threat.

Now, every progressive outlet I know wrote the same op-ed, published the same meme, and made the same tired argument: Privileged white man, just a job interview, yada yada yada, what is he whining about? These arguments and memes completely miss the point. Everyone--yes, everyone, even you--deals with the emotional bind of the entitlement effect. Everyone tends to attribute the benefits and perks of their social position, no matter how high or low, to their own merit, and their deprivations to the failings of others. Everyone subjectively believes that they worked hard to earned what they have and react poorly to the prospect of losing that. That there is entitlement, privilege, and hubris at work here is obvious. This man's problems seem perhaps, to you, as not very big problems compared to those of the poor and disenfranchised. But they are his problems. And, to him, the threat is palpable. His personal integrity has been besmirched, his personal life in tatters in front of the whole world, his family publicly humiliated and pitied by millions. This is the sort of thing that makes anyone react in that way--even people who exhibit calm tempers and evenhanded decisionmaking when dealing with other people's problems. His behavior is not an indication of some sort of unique individual failing. It is the behavior of a person who is threatened and suffering.

My second reason for not signing the letter has to do with a personal decision I have made for the sake of upholding my own values: I do not mob people online for any reason, no matter who they are or how vile their failing is. I do not call for anyone's firing, incarceration, or public shaming. When I join a political struggle--of which there are many--I join it toward something, not against something. I have found that online mobbing, which is rife on both sides of the political divide, carries with it plenty of mobilized rage (a hot commodity these days) and a detectable dose of schadenfreude. My personal experience marinating in these qualities is that they debase and depress me. I want to be part of positive change, not negative bashing.

The progressive variety of the call to mob, trash, annihilate the objectionable person, which I have come to call progressive punitivism, is especially pernicious. For people who overall fight for rehabilitation, for improved prison conditions, for a lessened reliance on confinement and stigma, it is surprising how quickly these lofty ideals are thrown by the wayside the minute they apply to a person they don't like. This is why I refused to get on the bandwagon of diminished protections against prosecutions of police officers, vocally objected to the dangerous  and counterproductive recall campaign against Judge Persky, and spoke up against Oakland Mayor's Libby Schaaf call to lower the burden of proof in trials of people she dislikes. Constitutional protections and a rehabilitative stance are really not worth much if they only exist for the people we like. Changing regimes and preferences might mean that the next target for harshness and stigma might be you or me--as we have daily proof on the federal level--and removing them for one is removing them for all.

Progressive punitivism is not worse than conservative punitivism, but it stings more, because it comes from people who understand the system enough to know better. It also strengthens other pathologies of the progressive left, such as the exclusive and vitriolic ideological purity, which demonizes and ostracizes any potential ally who is not 100% on board with every word you say, and the regrettable tendency to sometimes ignore facts because they are not politically expedient.

An adjacent problem is the fact that, as Jonathan Simon argues in Governing Through Crime, the quintessential American citizen is no longer the yeoman farmer or the small business owner: it's the potential victim. By rewarding (or compensating) victimization, real or potential, with social capital, we have created a situation in which people are essentially forced to deprioritize their personal healing and marinate in their own victimhood as a condition of being heard. It's true on the right, and has shaped some truly atrocious sentencing policies, and it's true on the left, and has shaped some of the more egregious instances in which the overall commendable #metoo campaign became a victim of its own success. My law professor Ruth Gavison used to say that the first and foremost thing we owe victims is that they stop being victims as soon as possible. American public discourse propagates exactly the opposite.

The overwhelming conservative response to the Kavanaugh confirmation, and the energized Republican base as we go into the midterms that may decide the face of our democracy, is proof that the antagonism and demonization of individual wrongdoers is a failing strategy. Whaling on Kavanaugh or Brock Turner (righteous as it might feel) does not, sadly, bring us even a bit closer to eradicating sexual violence. Sexual domination, patriarchal hierarchies, and entitlement based on gender, class, and race, are systemic. People who exploit these to hurt other people do it largely in the context of situational factors that are bigger than their own pathologies. Calling out these pathologies by stigmatizing individual perpetrators and demanding their head on a stick does not lead to deep social reckoning, because it is not an environment that invites any sort of restorative conversation. Demonize people in public and what you'll get is what you got  from Kavanaugh: counteraccusations, yelling, crying, clenched fists. When people's liberty, employment, prestige, and family are at stake, and when they feel attacked, they are very unlikely to feel reflective, and they will not feel safe to offer an apology. More to the point, whatever apology they offer, because of its circumstances, is not something you or I would find genuine (as an aside, one hopes against hope that this experience will have offered Kavanaugh a window of empathy into the lives of criminal defendants and suspects, but I'm not holding my breath. He is likely to remember this as an effrontery, not a teaching moment, to the detriment of us all.)

The answer to hurt and violence is not propagating more hurt and violence. The answer lies, I think, in early education. Children are open to the idea that other children--regardless of their gender, color, or wealth--are human beings that can be their friends. Aiming at a diverse group of friends for your young child and prioritizing social experiences that place them in the company of people who live different lives of their own is essential. Teaching children gratitude for what they have can counter the bitterness that can accompany the entitlement effect. Teaching happiness, resilience, and compassion are antidotes to the zero-sum thinking that accompanies the excesses that come with entitlement. If the current administration does not prioritize this kind of administration, let's go to the polls in November and vote for people who will. And let's start the revolution inside our own homes, by instilling a sense of community and mutual responsibility in our children.


Hatred is never appeased by hatred in this world.
By non-hatred alone is hatred appeased.
This is a law eternal.
                                                                      --The Buddha

Wednesday, October 10, 2018

Safe Injections Disappointment: A Call for SF Hamsterdam

The proposal was well thought and empirically backed: According to the principles of harm reduction, the best perspective we have on saving lives that could be claimed by drugs and alcohol, a safe injection site in San Francisco would be a good idea (so would legalizing opioids, but we live in this world, not in a better one.)

Then, Governor Brown, in an incomprehensible statement, vetoed a California bill that would enable San Francisco to pursue a four-year pilot with a safe injection site.

Before we move on to thinking how San Francisco could get around this veto--and I believe it could--let's pause for a moment. Why would Brown veto the proposal? Surely not to curry favor with conservative and moderate California voters--he is not running for reelection. Surely not to curry favor with the Trump administration (we've done our very best, and justifiably so, in the opposite direction.) Surely not to support thoughtful, evidence-based reform, which this proposal surely is. What is going on? Honestly, I don't know, and feel free to chime in with comments.

San Francisco mayor London Breed has declared that she plans to move forward, and so are other cities. But how can San Francisco move forward?

The key to a possible safe injection site lies in the fragmentation of policing and prosecution. As I explained elsewhere, policing in America is conducted on the municipal level. Prosecution is conducted on the county level. San Francisco is one of those rare locations where city and county overlap.

To the extent that the San Francisco District Attorney's office and SFPD are on the same page, there is nothing to prevent San Francisco from establishing enforcement priorities that deemphasize opioid enforcement within a particular area of the city (a-la Hamsterdam from The Wire.)




What Would SF Hamsterdam Entail?

That depends. Hamsterdam could feature merely a lesser-enforcement area, where law enforcement commit to getting involved only if there's violence (agreements like that have been worked out in other contexts, such as Operation Ceasefire.) We would need to carefully thing about protecting the status of employees and volunteers from the helping professions who might offer treatment, 12-step programs, and clean needles at the site, and how to best protect them, and if there's a way to protect them as well, Hamsterdam could feature treatment options as well.

But Won't the Feds Sweep In and Arrest Everyone?

That also depends--this time on how high we are on Jeff Sessions' shit list. Arguably, fairly high--this vile administration has not shied away from attempting to penalize us for our sanctuary city policy--but having a concentrated DEA presence at a municipality might require more energy than the DOJ is willing to spend on a few folks addicted to opioids, with the possible lack of enthusiasm on the part of federal district judges (I'm not sure this is true--Mona Lynch's work has shown judges with a great appetite for draconian sentencing of drug offenders with microscopic quantities, but her book does not cover Northern California.)

What's important to keep in mind, though, is that our status vis-á-vis the feds is the same whether or not there's a state law kosherizing the safe injection site. Possession of narcotics is a federal offense whether or not sanctioned by the state, and we obviously do not have the kind of understanding we used to have with the Obama administration about proper federal priorities in this regard. Even had Brown signed the bill into law, Sessions and the DEA would be able to sweep in, arrest people, and charge them federally with drug laws. Nor do I think the lack of a state law is likely to make them hungrier for these kinds of prosecutions--I think they abhor our state and our city with comparable ferocity (this, by the way, makes Brown's veto even more puzzling.)

Can Jerry Punish Us for Going Through With It?

Theoretically, yes. There is no realistic scenario in which state law enforcement descends upon San Francisco and arrest safe injection patients; for one thing, they would have to be prosecuted in San Francisco absent a change of venue motion. There is, however, the possibility of monetary sanctions or withholding of state funds. But it's hard to see Brown committed to punish San Francisco for going through with this. He has bigger battles to wage in the month he has left in office.

Should We Try Again After November?

DEFINITELY. I think Gavin Newsom will be open to this idea. He has been consistently pro-legalization in the marijuana context and might sign this into law. He is also advocating for an openly anti-Trump position at the gubernatorial mansion, and sticking a thumb in the eye of Trump by approving this plan statewide might play into his symbolic resistance to the feds.

Bottom line: Activists, do not despair. There is plenty we can do to win both this battle and the overall war against the war on drugs.

Tuesday, May 22, 2018

CCC Voting Endorsements in Upcoming San Francisco Election

San Franciscans go to the ballot boxes on June 5. Here are the CCC blog endorsements for this election:

SAN FRANCISCO MAYOR
We utilize a 1-2-3 ranked choice vote. My #1 choice is, without any reservations, Mark Leno. I've known Mark as an assemblyperson and a senator fr a very long time, especially through his activities at the Public Safety Committee. He has a pragmatic and compassionate approach toward crime control and vast experience in handling a variety of issues, and what's more, he knows how to create coalitions - a very important skill in our city. His politics, and those of Jane Kim, align, but I think he brings to the role experience and cohesion that make him the superior candidate.

#1 Mark Leno
#2 Jane Kim

STATE PROPOSITIONS
Prop 68: $4B Bond for Parks, Drought Protection, Climate Adaption - Yes
Prop 69: Require Diesel Tax to Be Spent on Transportation-Related Items - Yes
Prop 70: Give Republicans & Corporate Democrats Power on Cap’n’Trade Funds - No
Prop 71: Delay Effective Date of Ballot Measures Until All Ballots Are Counted - Yes
Prop 72: Rainwater Capture Systems Won’t Trigger Property Tax Assessments - Yes

REGIONAL MEASURES
Regional Measure 3: Raise Bridge Tolls $3 Over 7 Years to Fund Transportation Projects - Yes

LOCAL PROPOSITIONS
Prop A: Authorize Public Utilities Commission to Issue Clean Energy Bonds - Yes (of course.)
Prop B: Commissioners with conflicts of interest must quit these jobs before becoming political candidates for Board of Supervisors - Yes (this is just sensible, clean politics)
Prop C: Commercial rent tax for child care and early education for all - Yes. Sensible proposition and laudable goal.
Prop D: Commercial rent tax for housing - No. This sounds like a good idea, but the proposition itself is not very sound and would support very little housing.
Prop E: Upholding the ban on flavored tobacco products - Yes. You've probably seen the ads around town stating that "prohibition doesn't work." They are, of course, funded by Newport, the biggest maker of menthol cigarettes. This is a facet of prohibition that exists even in regulatory schemes: these flavored products tend to appeal particularly to teens, which is a segment of the population that needs special protection from tobacco and its harms. Even in Prop. 64, which legalized marijuana, we retained prohibitions and crimes for selling to minors. For more on the tobacco companies' stubborn fight against warning the public of their deadly products, read Siddhartha Mukherjee's excellent book The Emperor of All Maladies.
Prop F: This is crucial: It offers a right to counsel for tenants facing eviction. Sometimes this is a fate worse than what the criminal justice system could dish at you, and civil Gideon rights make a lot of sense. Yes.
Prop G: Parcel tax to offer a raise for teachers. Yes.
Prop H: The San Francisco Police Officer's Association (POA) is strongly pushing this measure, which would give them control over tasing policies, essentially allowing them to establish regulations that will allow San Francisco police to use a taser on someone who is unarmed and poses no immediate physical threat, or on someone who disobeys the police due to mental illness. Vote No. Tasers are extremely dangerous and unhealthy, which is why our Chief of Police, our District Attorney, and our Public Defender oppose the measure.
Prop I: A proposition requiring that San Francisco not steal sports teams from other cities. Do what you want, who cares.

STATE OFFICES
Governor: Gavin Newsom. I will not apologize for this. Newsom is a solid choice with lots of experience in politics, and given that California will be opposing Trump in and out of court, experience and backbone is more important than political purity.
Lieutenant Governor: Gayle McLaughlin
Secretary of State: Alex Padilla
Controller: Betty Yee
Treasurer: Fiona Ma
Attorney General: Dave Jones
Insurance Commissioner: Ricardo Lara
Board of Equalization, District 2: Malia Cohen

FEDERAL OFFICES
U.S. Senator: Kevin de León, who is taking a brave, strong position against the Trump Administration and its Nazi bans and policies. (I've heard valid points in support of Diane Feinstein, and I think that would also be a reasonable choice here: experience is arguably very important in the situation in which we find ourselves.)
Congress, District 12: Nancy Pelosi
Congress, District 14: Jackie Speier

STATE LEGISLATURE
State Assembly, Districts 17: No Endorsement
State Assembly, Districts 19: Phil Ting

JUDGES

Good arguments on both sides of this one. I was initially inclined to support the defense attorneys running for judge:

Superior Court Judge, Seat 4: Phoenix Streets
Superior Court Judge, Seat 7: Maria Evangelista
Superior Court Judge, Seat 9: Kwixuan Maloof
Superior Court Judge, Seat 11: Niki Solis

It's important to mix things up on the bench, and judges with public defender backgrounds are woefully rare. We need people on the bench who come from the opposite end to dilute the prosecutorial groupthink that prevails there.

But folks who are familiar with the sitting judges remind me that just because something makes political sense in general does not mean it is relevant on the particular. The way to diversify the judiciary is to elect defense attorneys in the first place, not to replace folks that might not necessarily be the ones that need replacing. So, consider your options.

Which brings me to another judicial issue. This is hugely important.

I'd like to add a word here on the Santa Clara ballot. As many readers probably know, there's a huge effort there to recall Judge Persky because of the much publicized Brock Turner sentence. This is a cynical effort to exploit #metoo sentiments and our distaste for Turner to unseat a fair and balanced judge who has followed probation recommendations and who does not discriminate against defendants of color (we know; we checked his record.) Scaring judges with public mobbing yields only one result: harsher sentences, and the first people in line to suffer are defendants of color that look nothing like Brock Turner. This is pointless virtue signaling and identity politics on steroids, designed to appeal to well-meaning but misinformed voters, and while it purports to be about feminism and equality, its outcome will be the exact opposite. Vote on the facts, not on hype and mob hysteria. VOTE NO ON THE RECALL. SUPPORT JUDGE PERSKY.

SCHOOL OFFICES
State Superintendent of Public Instruction: Tony Thurmond

Tuesday, April 17, 2018

No Big Surprises: Deportation Law Triggered by Criminal Convictions Declared Vague

Today, the Supreme Court decided Sessions v. Dimaya, in which the respondent appealed his deportation. It is an interesting decision both legally and politically.

The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. The definition of "aggravated felony" includes several enumerated crimes, and also a residual definition of a "crime of violence", which reads as follows:

“(a) an offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Dimaya, a documented immigrant from the Philippines, had two convictions for burglary, neither of which involved violence. Nonetheless, immigration authorities found that the convictions satisfied the "aggravated felony" residual clause, and therefore triggered automatic deportation.

Today, SCOTUS struck down the definition as unconstitutionally vague. Justice Kagan, reminding us that the court applies "the most exacting vagueness standard. . . in removal cases", relied on Johnson v. United States to argue that the law in its current form does not provide sufficient warning about deportation consequences of criminal convictions.

Also important is the fact that Justice Neil Gorsuch, Trump's appointee to the Supreme Court, voted with the four liberal Justices to vacate the law. While newsworthy, this is hardly a surprise for those familiar with Gorsuch's record on criminal justice. He has publicly and consistently spoken against the abundance of criminal laws on the books and his position on overcriminalization and vagueness was well known at the time of his appointment.

Moreover, today's decision relies on Johnson, a pro-defendant decision on a similar issue authored by Justice Scalia, also a conservative who would side with defendants in cases involving overcriminalization and vagueness.

While encouraging and fair, today's decision is hardly surprising... except, perhaps, at the White House, where consistency of opinion is valued less than dogged personal loyalty.

Sunday, April 8, 2018

ICE Agents Enter Santa Clara Jail

About a week ago, the Chronicle broke this story:

The Santa Clara County Sheriff’s Office allowed federal deportation officers to enter the jail it operates and interview four inmates this month in violation of the agency’s pro-immigrant sanctuary policies, officials said. 
The interviews occurred March 7 and 8, around the time that U.S. Immigration and Customs Enforcement officers visited San Francisco County Jail and interviewed an inmate there in a breach of the city’s sanctuary rules, which restrict local cooperation in deportation efforts. 
That incident prompted an apology from San Francisco Sheriff Vicki Hennessy. But while the recent ICE forays into the jails expose the growing tension between federal immigration authorities and many California leaders, the content of the interviews — and the potential consequences to the inmates — remains unknown. 
Santa Clara County Sheriff Laurie Smith, in a statement to The Chronicle, said members of her staff “mistakenly” let ICE officers into the jail. After learning of the incident, she said, the office “reevaluated and strengthened the clearance procedures in which all law enforcement agencies are permitted to enter our facilities.”

This incident raises some interesting Tenth Amendment issues, which are of course in the news almost daily. We all know that immigration is within the provenance of the feds and not a state matter. But what this actually means, in terms of the broad range between cooperation and obstruction, largely depends on who you ask. Just a few days ago, our fascist-in-chief recurred to his usual mode of spewing bile from his seeping id, Twitter, to complain that "something should be done" about Oakland Mayor, Libby Schaaf, who warned her constituents about an upcoming ICE raid (most of whom, by ICE spokesperson's own admission, were peaceful Oakland residents with no records--he was asked to lie about this and resigned his position as a consequence.) Whether what Ms. Schaaf did amounts to obstruction is debatable: our xenophobic administration would claim that it does, I would claim that it does not.

But what about the Santa Clara jail? On a subsequent ICE visit, the federal agents were denied entry into the jails, a corrective move corresponding to the Sheriff's statement that their entry was a "mistake." In times of darkness, uniformed goons depend on their uniforms and badges to scare people, and that can include local authorities, into submission. This should be an object lesson for every Sheriff in California.

Prosecutors in Orange County Sued for Obtaining Unlawful Confessions

More distressing news from the OC. The Guardian reports:
Prosecutors and sheriff’s deputies in California’s Orange County used jailhouse informants in an extraordinary and long-running scheme to illegally obtain confessions from criminal defendants, the American Civil Liberties Union (ACLU) is alleging in a new lawsuit. 
The suit, filed early Wednesday, alleges that the district attorney’s office and sheriff’s department in the suburban county south of Los Angeles routinely employed prisoners – including hardened gang members – as informants and used “threats of violence to coerce confessions” from defendants, violating their rights to an attorney. 
The ACLU cited a mountain of evidence, amassed in criminal cases over the past five years, that prosecutors obtained material illegally, suppressed parts favorable to the defence, and sought to cover up the existence of the scheme. 
“For 30 years, the Orange County sheriff’s department and district attorney’s office have been operating an illegal informant program out of the jails,” the ACLU lawyer Brendan Hamme told the Guardian. “They’ve used it to coerce information from defendants, including with threats of death, and at the same time they’ve been systematically hiding evidence of that program. These sorts of tactics are offensive to basic constitutional principles and ethical duties.”
The sensitivity of using jailhouse informants is well known and well documented. Whether the choice of this dubious, and often unreliable, method for obtaining information is malicious or attributable to tunnel vision, it raises very serious questions about dereliction of duty on the part of those who have the most power in the criminal justice system.