Tuesday, February 21, 2012

Civil Rights Since 9/11 Conference at UT Law

I had the good fortune to attend the “Civil Rights since 9/11” Conference on Feburary 3rd at the law school.  The conference featured several prominent speakers, headlined by Susan Herman, President of the ACLU and author of the recently published book Taking Liberties: The War on Terror and the Erosion of Democracies.  I thought I would take a few minutes to summarize and reflect on one of the panels I took in.

The first panel of the day was on the topic of “qualified immunity” as it applies to high-level government officials being sued for promoting policies that led to the violation of constitutional rights in the wake of the 9/11 attacks.  The panel featured Rachel Meeropol – Staff Attorney, Center for Constitutional Rights, Alexander Reinert – Associate Professor of Law, Cardozo Law School, and Lee Gelernt – Deputy Director, ACLU National Immigrant Rights Project, and was moderated by the law school’s own Jennifer Laurin.  The main thrust of the panel’s discussion was that “qualified immunity,” which protects government officials from liability for constitutional violations, presents a major challenge to post 9/11 civil liberties litigation. No surprises there.  None of the panelists were optimistic that the present Supreme Court was about to reverse course and open the courts to litigants seeking discovery from high-level national security and justice officials, let alone hold these officials liable for violating the constitutional rights of Muslim and Arab-American citizens rounded-up by the FBI and local law enforcement post 9/11. 

Despite their sobering message, however, the panelists raised some interesting questions about the future of post 9/11 civil liberties litigation and the courts’ position on qualified immunity.  One question raised by the panel was whether the trial courts will permit discovery against lower-level officials (prison guards, FBI agents, etc,) while the appellate courts weigh qualified immunity defenses raised by high-level officials.  According to the panel, the trial courts have taken different positions on this issue.  Some courts have allowed discovery to advance against low-level defendants even while the appellate courts address qualified immunity issues, while other courts have delayed all discovery until qualified immunity issues have been resolved. 

The other interesting question raised by the panel had to do with whether the Supreme Court is likely, in the future, to decide any constitutional issues raised in post 9/11 civil liberties suits before ruling on the question of qualified immunity.  Or, whether the Supreme Court is likely to dodge any constitutional issues by upholding the qualified immunity of high-level officials and declining the opportunity to decide any constitutional questions. The answer to this question obviously has major implications for future litigation against high-level government officials for constitutional violations.  Civil liberties advocates and their clients hope that the Court shows a willingness to invalidate certain government policies as unconstitutional, even while shielding high-level government officials from liability.  The opposite would be truly unfortunate and warrant serious consideration as to whether, for the client’s sake, it is worth naming high-level officials as defendants.

The issues surrounding qualified immunity obviously highlight the tensions between national security interests and civil rights and civil liberties.  There are obvious reasons for protecting government officials from private actions seeking to hold them liable for the actions they took to protect the country from serious and imminent threats.  We want our officials to act decisively in response to national emergencies and the fear of being sued should not keep them from doing so.  On the other hand, by its very definition, qualified immunity is qualified and not absolute.  The Court should decide where this immunity ends and what is necessary to overcome it, because fairness and justice require that high-level officials be held equally accountable for policies that lead to severe abuses of constitutional freedoms as the low-level officials who carry out these policies.

A (Small) Victory for the Right to Federal Habeas

Last month, the Supreme Court issued a decision that marks a victory for death row inmates in post-conviction appeals. The case of Maples v. Thomas presented a particularly appalling case of ineffective assistance of post-conviction counsel. Cory Maples, an Alabama death row inmate, had been represented pro bono in his state post-conviction proceedings by two attorneys from the New York offices of Sullivan & Cromwell (Alabama is the only state that does not provide court-appointed counsel in post-conviction). Maples was seeking state post-conviction relief on grounds that his trial counsel had been ineffective. While Maples’s petition was pending in the state trial court, his attorneys left Sullivan & Cromwell and did not inform Maples or the court that they would no longer serve as his counsel. The Alabama trial court denied Maples’s petition and sent notice of the order to his attorneys at Sullivan & Cromwell. The mail was returned, unopened, to the trial court clerk, who took no further action. In the meantime, the 42-day period Maples had to file an appeal expired.

An Alabama Assistant Attorney General sent a letter to Maples, informing him that he had missed the deadline to file an appeal in the state court and that he had four weeks remaining to file a federal habeas petition. Maples filed a petition for federal habeas relief, but the District Court denied his petition on the grounds that the issue was procedurally defaulted because he had failed to timely appeal the state trial court’s order. The Eleventh Circuit affirmed.

The Supreme Court, in a 7-2 decision, reversed the Eleventh Circuit, holding that Maples had shown the requisite cause to excuse his procedural default. Generally, a federal court may not review a habeas petition when a state court has declined to address the claims raised because the prisoner failed to meet a state procedural requirement. This procedural bar may be lifted only where the prisoner can show cause for the state court procedural default. The Supreme Court has consistently held that attorney negligence in post-conviction proceedings does not qualify as cause. However, the Court held that the exceptionally egregious facts of Maples’s case constituted cause for the procedural bar. A client, the Court held, “cannot be charged with the acts or omissions of an attorney who has abandoned him.”

The victory of Maples may be a small one. It’s likely the holding will be narrowly applied only to cases as extraordinary as that of Cory Maples. But in the realm of federal habeas, where procedural defaults have become the norm and substantive review of the merits the exception, any progress in the rights of indigent petitioners is certainly noteworthy.

On the same day the Supreme Court heard oral argument for Maples, it also heard oral argument for Martinez v. Ryan. Martinez presents the question whether a prisoner has a right to effective assistance of state habeas counsel where state habeas presents the first opportunity to raise an ineffective-assistance-of-trial-counsel claim. The Court has yet to issue its opinion in Martinez. Here’s hoping the Court will continue on the trajectory of upholding, rather than constricting, the rights of indigents in post-conviction proceedings.  

Tennessee's "Don't Say Gay" Bill

A group of Tennessee lawmakers in the state House Education Subcommittee voted Wednesday to place the controversial bill HB0229 on track to be voted on by the full House before their adjournment in the spring. HB0229, colloquially referred to by opponents as the “don’t say gay” bill, would declare it illegal for any “public elementary or middle school [to] provide any instruction or material that discusses sexual orientation other than heterosexuality.” The bill, the product of a cadre of representatives headed by House Education Subcommittee chair Joey Hensley, represents the most recent in a series of attempts by Tennessee conservatives to define what constitutes appropriate discussion of sexual orientation.

The drafters of the bill argue that discussion of homosexuality is a “complex subject with societal, scientific, psychological, and historical implications” and that kids are too immature and unready to appreciate discussion of the matter until they reach high school. Instead, they assert, any discussion of sexuality outside the realm of “natural human reproduction science” should be the exclusive purview of the parents. This casting of the bill as “pro-parent” instead of “anti-gay” has seen the measure receive support from both sides of the aisle, including prominent Tennessee Democrat John DeBerry, who said of the bill “The basic right as an American is my right to life, my right to liberty and my right to the pursuit of happiness . . . Within that includes being able to run my home, raise my children as I see fit and to indoctrinate them as I see fit."

Opponents of the bill assert that it represents another in a long line of efforts by state conservatives to silence and stigmatize discussion of “unnatural” lifestyles, as well as to send a signal that homosexuality is an unwelcome element in educational discourse. Community leaders across the state, such as Rev. Thomas Kleinert of Nashville, encapsulate opponents’ frustration: "Our children have to deal with [homosexuality] long before they've reached sufficient maturity . . . Silence in the classroom only adds to the cloak of pain and shame, whereas open, age-appropriate conversation may give them a chance and the courage to talk to an adult they trust."

The furor around this bill is centered around one of the most salient social issues of the last few years: the role of schools (and, by extension, the government) in influencing the ways children are taught to relate to LGBT individuals. Religious conservatives, traditionally in opposition to gay rights, use laws such as the one contemplated by HB0229 to silence discussion about topics they find immoral, quashing the contribution of dissenting voices. To them, this is beneficial, as it limits potential “negative” influences that would conflict with parents’ intentional indoctrination of their own sexual morays during their children’s formative years.

Is silence, even in the name of parents’ rights, the most sensible policy choice? Recent evidence suggests otherwise. A similar school policy prohibiting discussion of LGBT topics is already the standard in Anoka, Minnesota – a town located in Michelle Bachmann’s notoriously conservative congressional district – and has come under fire recently as a potentially-contributing factor in a number of suicides that occurred over the recent year. Supporters of the “gag rule” on LGBT discourse, such as the Minnesota Family Council, argue that the school district is merely employing a “policy of neutrality” and that discussion of sexual orientation should not advertently attempt to portray representations of homosexuality in a positive light. Such portrayals, they argue, contravene the moral lessons that they are teaching their children, and are so controversial that they do not belong as part of the public curriculum.

The effects of the gag policy look somewhat different from the perspective of the actual teachers and school administrators, however, leading several prominent educators to express their frustration publicly. They argue that the neutrality policy creates arbitrary limits to effective education by disabling discussion of the role of gay rights in American society, the contributions of LGBT Americans throughout history, and the mechanics of sexual attraction in both biology and health classes. More insidiously, however, the policy, in the eyes of Colleen Cashen, a school counselor, creates “an air of shame” and stigmatization, sending the not-so-subtle message to LGBT individuals that any unconventional expressions of their gender/sexual identity will not be tolerated.

The net effect of this is twofold: 1.) It does nothing to stop the repeated instances of homosexual bullying reported at Anoka schools, as school administrators fear that they are being obliged to “ignore, minimize, dismiss, or in some instances, to blame the victim for the other students’ abusive behavior” as a result of the policy. 2.) LGBT students are unable to find guidance in this environment, leading to assumptions that their identity confusion is a source of guilt and lessens their worth as individuals.

Ultimately, the opposition to gag rules, such as the one contemplated in Tennessee, derives from the recognition that discussions about sexual identity and orientation don’t end simply because they are declared off limits by the legislature. By blocking the entrance of the guidance of teachers and trained counselors into the discussion that children are already having about themselves and their peers, Tennessee conservatives may very well be inviting their own climate of stigmatization and isolation. 

Eating Poor in Texas

“We don’t get many people around here buying these . . . vegetables, I mean.”  This poor Wal-Mart cashier—for the life of him he could not figure out what he held in his hand so that he could put the code into the register.  Iceberg Lettuce: 1 – Rural Northeast Texas Health and Wal-Mart Cashier: 0. 

At least that small East Texas town has a supermarket.  Other places are not so lucky.  The United States Department of Agriculture has declared many census blocks around the country “food deserts.”  These areas are defined not by the absence of places to get food at all, but by the absence of healthy food.  Overpriced corner stores lacking basic produce, staples, and cheap prices along with fast food restaurants supply the demand for food in many of these neighborhoods and, in some cases, whole communities.

Houston, Texas, epitomizes the problem.  According to a December 2010 Food Trust study, Houston has among the fewest grocery stores per capita in the country for a total of 185 too few grocery stores overall.  Areas where people are further than a mile from a grocery store can be seen in a map produced by the University of Houston, and predominantly featured are poor, minority neighborhoods.  And the USDA’s Food Desert Locator literally paints the city red with food deserts in which people lack ready access to nutrition.

Poor communities in North Houston, the Fifth Ward, the Third Ward, and other locales around the city are dependent upon public transportation more so than their wealthier neighbors, and as such, what few grocery stores are available are hard to access.  Comparing, for example, the Third Ward to the Greater Houston Metropolitan Statistical Area, in the Third Ward only 51% of people travel to work (and presumably, travel to the grocery store) in their personal car by themselves versus 78% for the area as a whole.  Twenty-one percent of Third Ward residents travel by public transport versus 2% of the Greater Houston area.

However, Houston might also stand as a testament of how to approach this tremendous civil rights challenge of getting people access healthy food within their reach.  At-large councilman of Houston Stephen Costello is pushing the City Council to give tax breaks and other incentives to grocery stores that build in food deserts.  As of November 2011, at least three such incentivized projects were underway; however, while these stores are located close to areas deemed food deserts, none are in Third Ward neighborhoods.  Only time will tell if the city will throw its energy into more of these projects, and furthermore that it will spend its money on targeting the worst-off areas most in need of a good supermarket.

Supermarkets will solve the problem of food deserts but not the challenge of limited income, and, perhaps equally difficult, the challenge of reconciling healthy eating with years of a different lifestyle.  Efforts to change how people eat will come with a risk of imposing on people new food choices against their preferences, which is doomed to fail.  Thinking of a luckier part of the Fifth Ward in Houston, the meat section of a local H-E-B there is lined for a good fifteen feet with super-sized packages of chicken legs, chicken wings, and chicken thighs.  And if a person does not feel like cooking, a fried chicken restaurant is available near the front.   It seems like a stereotype because it is one, lived out in the form groceries.  This H-E-B has a small produce section, but I saw nary a soul stopping to add greens to her basket.   The meat section: crammed.  All of this is not to judge people for their lifestyles, or even to criticize H-E-B for giving the people what they want.  Instead, I hope to encourage a dialogue of understanding, education, and compromise combined with a discussion of how best to provide easy access to healthy, high quality, affordable food to the poor of cities like Houston. 

Ralph C. Mayrell
Staff Editor

NYPD Stop and Frisk Program Disproportionate Impact on Communities of Color

Earlier this week, the New York Civil Liberties Union issued a press release announcing the results of its most recent analysis of NYPD street stops. The NYCLU has been tracking the NYPD’s stop-and-frisk program since 2002, when the Department first began collecting data on the controversial practice. During this period, the NYCLU reports, the number of documented street encounters increased 603 percent, from 97,296 in 2002 to 684,330 in 2011. In case the numbers aren’t sufficiently compelling, NYCLU Executive Director Donna Lieberman offers a provocative metaphor: “Last year alone, the NYPD stopped enough totally innocent New Yorkers to fill Madison Square Garden more than 30 times over.” Consider this a somber counterpoint to the “Linsanity” currently sweeping the city.

Of course, the total number of stops doesn’t tell the whole story. In fact, it’s the story that’s not being told that warrants the most scrutiny. The numbers don’t tell a story of stops involving whites, Asians, or Native Americans—eighty seven percent of stops in 2011 involved blacks or Latinos, despite the fact that these groups together comprise only fifty two percent of the city’s population. Nor do they tell a story of stops protecting the public from incipient crimes—eighty eight percent of all documented stops since 2002 have resulted in no arrests or summonses. Nor, for that matter, do they even tell a complete story—the stop-and-frisk database is famously plagued by inaccurate reporting, and the statistics can’t even begin to measure the impact of aggressive policing on police-community relations. Every now and again, an essay or op-ed article reminds us of the distinctly personal consequences of routine stop-and-frisks, but by and large, the public equates “police misconduct” with “police brutality.” The veritable epidemic of stops involving blacks and Latinos consistently flies under the radar.

Beyond raising critical issues of civil liberties and civil rights, the stop-and-frisk program creates an environment of mutual suspicion and, for the communities affected, competing impulses to defiance and resignation. Defiance finds expression in protests, online dissemination of videos labeled “NYPD brutality,” and refusals to submit to police authority—whether through non-compliance with an order to “stop” or through claims of ignorance when questioned about a crime. Resignation, for its part, often takes the form of parents raising their children to anticipate police encounters—admonishing them to carry identification and keep their hands out of their pockets—and young people of color growing to expect frisks upon sighting a patrol car or one of the ubiquitous dark-colored sedans that signals the arrival of a plainclothes unit. There may be an estimated eight hundred languages extant in New York, but the non-verbal communication of a drawn firearm or a pat-down is understood by all.

Admittedly, the issue is more complicated than the numbers or the well-worn anecdotes suggest. The NYPD contends that the disproportionate impact of stop-and-frisk on communities of color is attributable to the generally high levels of violent crime in certain neighborhoods (e.g., Crown Heights, East New York, Jamaica, etc.) that happen to house large populations of blacks and Latinos. In this view, stop-and-frisk is a proactive approach to law enforcement—one that focuses on early intervention rather than post-crime investigation—and the NYCLU’s focus on the percentage of civilians released without criminal sanctions is misleading. Indeed, if it’s true that officers are stopping crimes before they occur, then in the vast majority of cases there would be no basis for charging the “suspect.” Moreover, the NYPD points out, in many cases communities want the police presence. The Trespass Affidavit Program, under which landlords authorize the police to question suspected trespassers in private residential buildings, attests to this fact. Perhaps most compellingly, the NYPD argues, policing is a verifiably dangerous job, and we don’t want officers’ hands to be bound when they sincerely believe they’re at risk. Frisks are a self-protective measure that’s minimally invasive and, ideally, used sparingly.

The problem is, statistically and anecdotally, stops and frisks seem to be rather discretionary. According to the most recent statistics published by the Civilian Complaint Review Board (CCRB), the independent agency tasked with overseeing the NYPD, between January and June 2011, 31.3% of all complaints involved at least one allegation of question, stop, frisk and/or search. Under New York law, officers do have broad authority to question civilians suspected of engaging in criminal activity, and, assuming they can articulate a legitimate basis for believing that the civilian was in possession of a weapon, to perform limited self-protective frisks. See People v. De Bour, 40 N.Y.2d 210 (1976). However, not only are these powers fairly tightly circumscribed, but they decidedly do not permit searches of a civilian’s person or possessions—one of the most common allegations investigated by the CCRB. Furthermore, the CCRB’s data is entirely dependent on civilian reporting, and is therefore necessarily incomplete. Like the NYPD’s stop-and-frisk numbers, they paint only a partial picture of life under Mayor Michael Bloomberg and Police Commissioner Ray Kelly.

Stop and frisk is a complicated, and deeply divisive, issue. This piece hasn’t even touched on the practice of questioning civilians in New York public housing developments (in 2010, the CCRB issued a recommendation to the NYPD for retraining of its officers on legal standards), or the breakdown of stops by borough, neighborhood, and Precinct. The bottom line is: This is a conversation that needs to continue year-round, not simply when the newest data is released. 

Texas's New Abortion Ultrasound Law


In Texas Medical Providers Performing Abortion Services v. Lakey, decided last month, the Court of Appeals upheld Texas’s new abortion ultrasound law, holding that Sections 171.012(a)(4) and 171.0122 were not in conflict in an unconstitutionally vague way.  Section 171.012(a)(4) of the new law lists what the physician must do: have a sonogram performed, display the sonogram images, perform a heart auscultation, and provide verbal explanations of the sonogram images and heart auscultation.  The court noted that the Section specifically does not require the physician to ensure that a woman views the sonogram images or that she listens to the heart auscultation of the fetus or the doctor’s explanations of both.  The court acknowledged that physicians are not responsible for a woman’s choice to refuse to look or listen to the information being provided to her.  The court further stated that Section 171.0122 expressly gives the unconditional right of every pregnant woman to refuse to view the sonogram or hear the fetal heartbeat.      

While it may be possible for a woman to avert her eyes to the sonogram of her fetus by turning away, I imagine it would be practically impossible for a pregnant woman to simply not listen to the heartbeat of her fetus.  Having never been pregnant myself, I can only anticipate the emotional weight that the heartbeat of a woman’s fetus carries, but I assume it is both deep and immense.  Pretending that a woman can simply cover her ears when faced with such a sound shows either ignorance or naiveté on behalf of the court.  And given that a woman cannot truly refuse to listen to the heartbeat of the fetus she carries, that the State would force her to listen to it while it continues to allegedly give every woman a right to choose to have an abortion during her first trimester is cruel.  The act basically insinuates that the woman is murdering what could be her future child by blatantly shoving its heartbeat in her face.  Such State-mandated torture mirrors the actions of protesters who stand outside abortion clinics mocking and tormenting the women who enter and places an undue burden on women exercising their constitutional rights to receive abortions.    

Furthermore, the new law provides an exception for rape and incest victims, although they must certify their status as victims in order to avoid the law’s requirements.  The fact that the law includes this exception shows that even those who wrote it must understand that providing a woman with an abortion need not include forcing her to hear the heartbeat of the fetus inside her.  There’s no medical reason to do so.  There’s no ethical reason to do so.  The proposed law forces physicians to become protesters of abortion by requiring them to persecute women who are simply choosing to exercise a legal right.