Author Archive for Nicole Shoener

Walter Scott’s Death Should Bring Progress and a Reminder of the Importance of Filming Police Misconduct

walter scott death police misconduct

Walter Scott’s death was the result of a traffic stop that went terribly wrong. A white North Charleston police officer, Michael Slager, shot Walter Scott, an African American, eight times in the back, as Scott ran away, following a traffic stop for a broken tail light. A video shot by a bystander clearly shows that Slager was not in immediate danger. Despite the fact that the Supreme Court ruled in 1985 that it is illegal to shoot a suspect in the back unless there is “reasonable fear of danger to the police officer or the public,” Slager shot Scott in the back anyway.

The officer involved in the shooting was obviously aware of the law, evident by the fact that he stated he “felt threatened” before shooting Scott and that Scott “took my Taser.” Even though the video clearly shows that no CPR was performed until paramedics arrived, the police report falsely states that the officers at the scene performed CPR on Scott. If these blatant lies by Slager are not shocking enough, the video also shows Slager initially walking over to Scott, running back to his firing spot, picking up his Taser, and finally walking 25-30 feet back and dropping it next to Scott’s lifeless body.

Although police misconduct has been a reality for many years, it wasn’t until the brutal beating of Rodney King in1992 that it was brought to national attention. The acquittal of the police officers involved in the beating resulted in riots throughout the City. The similarity between the two cases is that both were caught on film.

Scott’s case stands out among the recent cases of police misconduct, involving the murders of Michael Brown and Eric Garner. Although their deaths resulted in unprecedented national-protests, neither one of the officers involved were indicted for murder. However, the Walter Scott case stands out because Slager was arrested, indicted and charged with Scott’s murder.

Scott’s slaying is likely to provide a similar rallying point for civil rights activists who highlight that the acts of excessive police brutality are targeted largely towards men of color. It is important to note that while both Scott and King have video documentation of the incidents, Eric Garner’s death, caused by a chokehold which was banned by the New York City police department, was also videotaped but did not result in a grand jury indictment of the officer.

The videotaping of police misconduct has been a subject of controversy, as well as the implications of police retaliation against those who film the events. For example, a reporter was detained and assaulted by police officers while attempting to film a protest in the town where Michael Brown was killed by a white police officer. Similarly, in the Garner case, a grand jury did bring an indictment against the man who filmed the incident, allegedly on weapons charges. However, these charges were curiously brought soon after the filming of Garner’s death. Other instances of retaliation have occurred, despite the fact that these filming’s are currently legal.

Police officers are rarely charged for excessive force. Research from Bowling Green State University shows that only 41 officers were charged with murder or manslaughter, in comparison to FBI data that there were 2,781 justified homicides by police in the same time period. The data was collected over a seven year period ending in 2011. Along with these staggering numbers, many legal issues have arisen when it comes to citizens recording the actions of police.

Twelve states currently have a law known as a “two party consent”, including California, Connecticut, Delaware, Florida, Massachusetts, Maryland, Michigan, Montana, New Hampshire, Pennsylvania and Washington. In these states, both parties must know and consent to a recording. However, the laws were initially enacted to protect one’s privacy during a phone call and the Supreme Court has yet to rule that the police have a “reasonable expectation of privacy.”

Nonetheless, due to the increases number of videos documenting police brutality, some states are seeking to place restrictions on private citizens recording the actions of the police. For example, in Texas, a bill has been introduced to make it illegal to tape the police within 25 feet. There are even Texas legislators that are attempting to amend the bill to make it a misdemeanor to film the police at all.

It is important for citizens to know their rights if they have the unfortunate experience of witnessing a shooting, or other forms of brutality, by a police officer.

  • There is right to photograph or videotape any actions that are in plain view if those actions take place in a public space.
  • Unless the police have a warrant, they may not confiscate, or even demand, that a person turn over a photograph or video. Likewise they may not delete anything from a digital video or photograph.
  • If the police feel that a person’s activities are interfering with their ability to perform their job, it is legal for the police to order a person to stop an activity. Therefore, it is important to take pictures and videos far enough away, as to not get caught in the middle of a physical altercation with the police and the alleged suspect.

Without the video of the murder of Walter Scott, at the hands of a white police officer, the story would turned out much differently. Slager likely would not have been indicted and Scott’s name would have been smeared in the media to justify the shooting, as was the case with Garner and Brown. Hopefully, the murder of Scott will result in police accountability and reduce the number of men of color assaulted and killed by the very officers whose job it is to protect and serve.

Oklahoma’s Fraternity Scandal and the First Amendment

A recent video of members of the University Of Oklahoma fraternity Sigma Alpha Epsilon (SAE) chanting racial slurs has recently exploded on the media throughout the country. The chants were not only undisputedly racist, but especially violent in nature. Specifically they chanted “There will never be a ni**** SAE. You can hang him from a tree, but he can never sign with me.”

oklahoma racism scandalThe University of Oklahoma promptly expelled both students who appeared to be leading the chant in the video. Parker Rice, a 19 year old freshman coming right from Jesuit College Preparatory School was the leader of the chant. Another student, Levi Pettit, was also expelled. Both families have apologized profusely. However, Rice is the only involved student who personally apologized.

Were the Students Protected by the First Amendment?

As shocking as this story is, there are several First Amendment Rights that come into question. Were these boys exercising their First Amendment right to free speech? And if so, was the speech protected and therefore not subjected to any legal action, including expulsion from a public university?

A potential lawsuit has been threatened by SAE against the University of Oklahoma for expelling the students. SAE contends that the two students’ immediate expulsion “runs contrary to due process” and that the university has no right to censor speech, despite its hateful content. Other organizations have joined the bandwagon to “protect” the students’ First Amendment rights, including The Foundation for Individual Rights in Education, which is a civil liberties nonprofit. This organization has stated that, as a public university, the University of Oklahoma has no right to punish students solely because of offensive speech.

The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” However, if it does not meet this test, the speech is protected under the First Amendment. For example, the Supreme Court struck down a criminal conviction of the white supremacy group, the Ku Klux Klan, for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence. One could argue the same for the SAE incident which occurred on a bus full of only SAE kids who mostly shared the same views. Additionally, the factors which would be taken into consideration by a court, when deciding whether the speech was intended to incite violence, are that the video was only seconds long and privately recorded. The ruling essentially does not criminalize “mere advocacy.”

Hate speech is actually protected by the Constitution despite being offensive. If the speech is chanted in a private space, as in this incident, amongst people of similar views, it is protected. However, if directed toward African Americans, then if it was extreme enough to incite violence or imminent lawless action, then there would be no constitutional protection. However, the view of courts that have considered campus speech codes and other campus speech restrictions to be subject to first amendment protections. This is also true for fraternity speech, racist or not.

Unfortunately, the critics of the expulsion are legally correct. The students did have a right to free speech in the context in which they expressed it and, although there is an exception for “inciting violence” according to the legal standard, it likely would not apply to this busload of ignorant, drunk, privileged, white college students. Therefore, the public university likely did not have the legal right to expel them. It cannot punish the fraternity members solely for the content of their expression. With that said, both students would have be wise to leave on their own.

Will Racism Ever Stop Plaguing America?

America likes to think as a whole that we are past racism because overt acts such as these are abhorred by the majority. However, this story clearly shows that racism is still present in our society.

I have noticed that in the last few days the Oklahoma story has digressed from the racist video portrayal to the story of the poor frat boys whose lives are ruined. The media will always frame things the way they choose, which is often influenced by the pressure of institutions. But the community’s voice should always remain on point. In this case, it should be emphasized that the student’s actions were clearly wrong and highly offensive, regardless of whether or not First Amendment protections apply.

Police Power Expanded by the Supreme Court

Massive protests have recently spread throughout the nation, expressing outrage at police brutality and the murders of unarmed suspects Michael Brown and Eric Garner.

police powerIn the wake of these protests, on December 15, 2014, the U.S. Supreme Court increased police power and granted officers more discretion when making an arrest. The case involved a traffic stop conducted by North Carolina officer Matt Darisse. After noticing that a right brake light of a car owned by Nicholas Heien, and driven by Mayor Havier Vasquez, the officer decided to pull the vehicle over. However, having a non-working right brake light is not in violation of the North Carolina traffic code. After pulling over the vehicle, Darisse issued a warning for the light but, somehow, convinced Heien to authorize a voluntary search of his car. Officer Darisse later admitted that he pulled over the vehicle, not because of the brake light, but because he thought Vasquez appeared “stiff and nervous,” insofar as he was “gripping the steering wheel at a 10 and 2 [o’clock] position, looking straight ahead.” The driver, Vasquez, is Latino.

After conducting the search, the officer recovered a bag of cocaine. Both Heien and Vasquez were charged with drug trafficking. The legal question presented to the Supreme Court was whether the officer’s mistaken belief about the law constituted a valid stop. If the Court had decided in the negative, the stop violated the defendant’s 4th amendment rights against search and seizure.

Normally, mistake of law is never a defense for those charged with a crime. The question stands, should the officer’s ignorance of the law remain a justification to legally search a suspect’s car, if they have reasonable suspicion? The Supreme Court decided, yes, the officer can mistakenly believe there is a violation of the law. Therefore, even though the defense of “mistake of law” is unavailable to a defendant charged with a crime, it is readily available to an officer who makes an arrest based on their ignorance of the law. There are many concerns with the ruling including an officer’s potentially lying that they made a mistake, when they really knew the offense was not a violation of any law.

The Supreme Court ruling appears to be directly in violation of the “fruit of the poisonous tree” exception, applied to criminal arrests. This doctrine makes an arrest invalid if it is the direct result of an illegal search. The law states that is that if the source (the “tree”) of the evidence is tainted, then anything gained (the “fruit”) from it is also tainted. The arrest will likely not stand up in court.

It has long been established that, in this type of situation, a suspect’s 4th amendment rights are violated. For example, if a police officer searches a home without a warrant and takes some property as evidence, it is an illegal search. That evidence will be thrown out of court, unless the officer can demonstrate that this evidence could have been obtained by other means.

Furthermore, there are many concerns of the law allowing the police to use stereotyping and racial bias in a search. One of the amicus curiae briefs, filed by the Rutherford Institute, in the Heien case addressed race and ethnicity and the Fourteenth Amendment’s equal protections afforded to criminal defendants. The brief argued that this ruling will allow the police too much discretion in their interpretations of the law, which will inevitably lead to negative impacts on minorities.

Studies have long shown that African Americans and Hispanics are much more likely than whites to be searched, despite constituting a much lower percentage of the population. Studies have also shown that here is an innate psychological bias against minorities within many police departments, based on high crime in low income neighborhoods. In fact, in New York City a number of officers, who fall into a minority classification, recently expressed that they fear white police officers when undercover.

History shows that dictatorships have allowed the police to misuse their power and even carry out criminal acts, with no consequences. The institutionalized racism and classism was all too apparent in countries run by dictators. However, the United States is a democracy. Nonethless, confrontations between the police and those of lower income brackets, are often the stage for violence that ensues between the two.

The police, who are obviously in a position of power, often overreact when making an arrest, soliciting a voluntary search or extracting a confession of a person that they perceive as guilty. In no way am I suggesting that the police force of any city is, as a whole, racist and classist. However, it is inevitable that racism occurs when profiling suspects and these occurrences have resulted in unjustified arrests. Recently, potentially unnecessary arrests have actually resulted in the death of an unarmed suspect who was not physically resisting, for something as minor as selling single cigarettes on a street corner.

The type of unfettered police discretion, granted by the Court in the Heien ruling, has proven to have devastating consequences on both minorities and even the police. After the death of Garner, caused by a chokehold banned by the NYPD, a man murdered two police officers on the streets of New York. He apparently had expressed his anger on social media about the deaths of Mike Brown and Eric Garner. Much of the mainstream media, as well as the NYPD union spokesman, linked the murders to the protests of police brutality throughout the City. However, they minimize the fact that the suspect had a history of mental illness.

The majority of people in opposition to police brutality do not advocate for the murder of police officers. To the contrary, many of the social media posts from the left state that “all lives matter” and condemn the murders. We must not confuse the two situations. Murder, of any person, is wrong. In fact, the daughter of Eric Garner attended the memorial of the murdered officers to show her support to their families. However, the relationship between the police and the community must change. A mutual respect must be established and racial profiling needs to be replaced by the motto of “protect and serve”, as opposed to unfettered police discretion, based on racial profiling. However, the Heien decision will allow these potentially illegal searches and arrests to stand up in court and give the police too much discretion in the handling of suspects.

Obama’s Influence on the Battle over Immigration Reform

The battle over immigration reform has reached a boiling point.

Obama Immigration ReformDuring his presidency, Barack Obama has promised to act on his long-term efforts to reform the country’s immigration policies, and did so by announcing a controversial executive order on November 20, 2014. Obama has been quoted as saying, “I believe that America is a nation of immigrants. Everybody agrees that the system is broken; there has been ample opportunity for Congress to pass a bipartisan immigration bill that would strengthen our borders, improve the legal immigration system and lift millions of people out of the shadows, so that they are paying taxes and getting right by the law.” However, despite America’s “200 year history” of welcoming immigrants, the system has broken down in the last couple of decades.

The debate, now dominating the media, began during his presidency on June 15, 2012, when President Obama created a new policy calling for deferred action for certain undocumented young people, who came to the U.S. as children. The “Dream Act”, also known as the Deferred Action for Childhood Arrivals (“DACA”) was implemented on August 15, 2012, and those affected are appropriately called the “Dreamers”

Although the Dream Act did not create legalization and citizenship, it did, at the very least, initiate important opportunities for some the country’s young undocumented immigrants. Some of the concessions granted include allowing young people to remain in the country without fear of deportation and obtain work permits, which inevitably increases their chances for economic and social incorporation. Many are now afforded the same rights as other aspiring young people such as opening their first bank account, obtaining their first credit card and landing their first professional job.

However, there are many restrictions which exclude the country’s youth from possible deportation including the requirement of entering the U.S. before the age of 16, being under the age of 31 before June 15, 2012, being present in the U.S. for 5 years, graduating from high school or obtaining a GED, being accepted to college and having good “moral character.” Finally, it in no way addressed the constant threat of deportation of their immediate family.

Critics of immigration reform are often quoted as saying, “But who will pay for all these people to stay in our country.” However, they fail to recognize that undocumented immigrants have long contributed to the success of state economies.

Some of the highlights of Obama’s recent historic executive order are as follows:

  • There has been massive exploitation of undocumented immigrants by low pay, but because of the risk of being torn apart from their families, they comply. Additionally, the companies who are paying living wages, are strained by the competition, and will inevitably succumb to these unethical practices.
  • Since his presidency, Obama has worked extensively to secure the southern border with more agents and security than ever in history. For example, in the past 6 years, illegal border crossings has been cut down by more than half.
  • Instead of resorting to an executive action, Obama attempted to work with Congress. In fact, 68 democrats, republicans and independents came together to pass a bipartisan act which would have doubled security agents and allowed undocumented immigrants to stay if they paid a fine, paid taxes and went to back of the line This would have help grow the economy and decrease the deficit. Unfortunately, the House of Representatives refused to allow the bill to pass, despite the constant criticism from the far right on Obama’s efforts to fix the economic disaster, which almost placed the country into a recession before he was even elected.

As Obama explained, deporting millions of undocumented immigrants is not good for the country and far from realistic.  He pointed out that they work hard, support their families with significantly lower wages than equally qualified citizens, worship in community churches, are largely patriotic and most of their children already live in the U.S., many of which are citizens.  In fact, former President Bush, who is very conservative, was quoted as saying immigrants are “part of American lives.” However, there are restrictions to Obama’s order which, contrary to public opinion, actually satisfy most of the concerns from the conservative opposition. The following are the main provisions of the order:

  • Increased resources at the border, with more security.
  • Implementation of a process to make it easier and faster for high skilled immigrants and business entrepreneurs to stay in the country (which big business leaders support.)
  • Immigration laws that are broken, which result in those responsible being held accountable, including the deportation of felons, criminals and gang members, as opposed to families, children and single mothers.
  • The requirements to avoid deportation are an immigrant must be in the country for 5 year, have children who are American citizens or legal residents, register, pass a criminal check and pay taxes.
  • Undocumented immigrants must not enter illegally from this point forward.

In my opinion, the executive order is far from perfect. It gives too many concessions to those who oppose equality. Nonetheless, legal challenges to the order will no doubt be brought by republican controlled Congress, including threats of impeachment constantly looming over the president (especially by the House Speaker John Boehner). Therefore, many of the details of any executive order will be vulnerable to court action. Additionally, Congress will inevitably threaten a government shutdown, mirroring the one that rocked the nation in 2013, which focused on the republicans desire to defund the “Patient Protection and Affordable Care Act”. However, Obama remains defiant in the face of such threats and was steadfast in his promise to take action. Hopefully, the opposition will see the light and allow the country to grow and prosper, while staying true to equality for all.

Disturbing Implications of No-Knock Raids by Police

The Emergence of No-Knock Raids

The Fourth Amendment was founded on the premise that citizens have an inherent right against unreasonable search and seizures as well as an expectation of privacy. The police are required to obtain a warrant before entering a private home. Additionally, prior to the 1970’s and before the “war on drugs,” they were expected to knock, announce themselves, and wait a reasonable amount of time to give the person a chance to respond.

no-knock raid by policeThe police argued that some situations were dangerous enough to allow no-knock raids. Consequently, in the 1980’s, the federal government began to allow such raids and gave the police unfettered discretion. The police began to abuse the law and it was struck down a couple years later. Since then, the courts have slowly allowed the practice to resume, but have supposedly added extra precautions that the police must follow when conducting a no-knock raid, including:

  • A determination that the situation is too dangerous to knock and announce their presence.
  • The suspect would have more time to dispose of a weapon or evidence of a crime.

However, it is not often that a judge denies a no-knock warrant (only about 3% of the time) and 10% of the time judges will issue a no-knock warrant, even if the police asked for a standard warrant. It is important to note that the police are not always required to obtain a special warrant. If they “reasonably believe” there is justification to enter the home without knocking, they are entitle to do so. Consequently, the line has blurred between a justified and unjustified no-knock raid. As such, many critics believe the practice continues to be abused, and again subject only to subjective police discretion.

How No-Knock Raids Have Changed 4th Amendment Protections

Most states have provisions in their laws allowing a homeowner to kill an intruder if they reasonably believe the intruder intends to inflict serious bodily harm or death upon an occupant of the home. There are currently 26 states that go even further and allow “Stand-Your-Ground” laws, which permits a person to shoot outside the home if they feel threatened. An example that is widely known is the George Zimmerman case.

As controversial as these laws are, when an intruder breaks into a home, dressed in black, holding a weapon and screaming, many people will choose to shoot, with the intent to kill and will not be prosecuted. However, these laws will not protect a person if they mistakenly shoot a police officer who is breaking into a house as part of a SWAT operation, even if the homeowner reasonably believes the police officer is an armed intruder (especially if the homeowner has a record). Recently there have been instances of this scenario in the media, with over 20,000 no-knock raids in America each year. However, the outcome of attempted prosecution has varied, many blaming a bias based on race. Below are two such examples that are ripe with controversy.

Texas Cases with Drastically Different Outcomes

In 2013, in the pre-dawn hours, a SWAT team entered Henry Magee’s home through the door, without announcing their presence. Henry had previous arrests on possession of marijuana, as well as a DUI. It is important to note that the police did discover marijuana plants in the home. Magee shot and killed one of the officers and was charged with capital murder. However, he argued that he believed the intruders were entering his home and, in order to protect his pregnant girlfriend, he was entitled to shoot. Consequently, the charges never made it past a grand jury indictment and were dropped. Magee is Caucasian.

Five months later, Marvin Guy, who is black, also killed an officer in a no-knock raid, in almost the exact same circumstances. Although Guy had been convicted of more serious crimes than Magee (robbery and weapons charges), the police entered Guy’s home through a window and found nothing that suggested a crime had taken place. In fact, an ACLU study found that 36% of raids fail to produce evidence of a crime and, in 2003, 10% of 450 raids were wrong-door raids. This variation in circumstances from Magee seems to suggest that Guy was more justified in the shooting. However, the grand jury chose to indict and he now faces the death penalty.

Many argue that these raids, targeted to those suspected of a crime, actually endangers innocent persons within the home. Additionally, statistics show that there has been significant differences involving people of color.

The Consequences of No-Knock Raids

Unfortunately, there often times are no consequences for the police or the subsequent prosecution. The exclusionary rule is supposed to be designed to prevent police from using evidence that was obtained illegally. However, recently the courts have not applied this rule to evidence obtained in an unjustified no-knock raid, if that evidence could have been obtained with a standard warrant.

However, there are certainly consequences for the subject of a no-knock raid. Civilian deaths greatly outweigh police deaths in no-knock raids and, even if a police officer is killed, the suspect is very likely to face a charge of murder, despite a valid claim of self-defense.

Additionally, if an innocent civilian is killed in the raid, it is rare that the police are charged with murder, or even civilly liable. In 2010, a Detroit SWAT team killed 7 year old Aiyana Stanley-Jones as she was sleeping as the bullet pierced her brain. In another case, police in Georgia, killed a 19-month-year-old when they threw a grenade into his crib. Neither officer was convicted of the deaths, mostly due to the argument that there was insufficient evidence the police knew the children were in this house. Compare this with Guy’s argument that he did not know that the police were the intruders.

Overall, no-knock raids are a concern across party lines, eliciting outrage from conservatives, libertarians and liberals alike. SWAT raids affect people of color at a staggering 71%. However, studies have shown that Caucasians are often involved in crimes that are more serious, such as hostage situations. Inevitably, the debate will continue to dominate the media when considering constitutional rights, racial bias and the abuse of police power.