David's Hope is an education and advocacy agency designed to provide people living with mental illness, and all those involved in their care, the skills and knowledge needed to navigate the behavioral health and criminal justice systems. David’s Hope teaches people how to advocate for themselves and others by empowering them with information, training, resources, and mentoring. Through education and mentoring we hope to create understanding in the community of the issues facing those living with mental illness involved in the Criminal Justice System.
THIS BLOG is NOW RETIRED
I began this blog in May 2009 following the death of Marcia Powell at Perryville State Prison in Goodyear, Arizona. It is not intended to prescribe the path that leads to freedom from the prison industrial complex.
Rather, these are just my observations in arguably the most racist, fascist, militaristic state in the nation at a critical time in history for a number of intersecting liberation movements. From Indigenous resistance to genocidal practices, to the fight over laws like SB1070 and the ban on Ethnic Studies, Arizona is at the center of many battles for human rights, and thus the struggle for prison abolition as well - for none are free until all are. I retired the blog in APRIL 2013.
Visit me now at Arizona Prison Watch or Survivors of Prison Violence-AZ
Rather, these are just my observations in arguably the most racist, fascist, militaristic state in the nation at a critical time in history for a number of intersecting liberation movements. From Indigenous resistance to genocidal practices, to the fight over laws like SB1070 and the ban on Ethnic Studies, Arizona is at the center of many battles for human rights, and thus the struggle for prison abolition as well - for none are free until all are. I retired the blog in APRIL 2013.
Visit me now at Arizona Prison Watch or Survivors of Prison Violence-AZ

David Rovics: We Are Everywhere
To my fellow activists now struggling through life - let this be a reminder that you are not alone and that we desperately need you here. All the injustice, grief, war, and human suffering calls for us to stay and do everything we can about it - you can't help us anymore when you're gone. Don't give up the fight - your last shred of hope may just keep someone else alive, too.

Friday, March 30, 2012
Mental illness in the CJ system: crises and diversions.
From David's Hope:
David's Hope is an education and advocacy agency designed to provide people living with mental illness, and all those involved in their care, the skills and knowledge needed to navigate the behavioral health and criminal justice systems. David’s Hope teaches people how to advocate for themselves and others by empowering them with information, training, resources, and mentoring. Through education and mentoring we hope to create understanding in the community of the issues facing those living with mental illness involved in the Criminal Justice System.
Friday, March 16, 2012
ASPC-Eyman Deaths in Custody: Nolan Pierce, 23.
Our
condolences go out to Nolan's mother, family and friends, and all
those folks whose hearts may have sunk, as mine did, at the news of
yet another homicide in the state prisons. Please feel free to contact
me if I can be of any support (Peggy Plews / 480-580-6807 or prisonabolitionist@gmail.com).
Everyone else with a loved one still alive in Arizona's state prisons: tell your people they need to stop killing themselves and each other, and have them write to me (PO Box 20494, Phoenix 85036) if they're struggling to make it through their sentence because they think they'll be hit next. I swear I'm doing everything I can to get help in there to them, and to get Chuck Ryan out. If they're ordered to hurt someone else in order to stay alive, tell them to stand down and contact me immediately instead - no more of these senseless deaths, people, please. Even horrible, hardened criminals have turned their lives around and done good for their communities - there's a world of possible miracles that await us, if we can survive long enough to realize them...
If anyone has any information about how this fellow died, I'd appreciate hearing from you, too. We can't count on the Az Department of Corrections to give us the straight scoop. If you knew Nolan at all, and can tell me what kind of guy he was outside of being involved in criminal activity, please let me know.
"This
young man was my nephew, my sister's only child. It's impossible to
articulate the devastation the family's been feeling trying to navigate
through this tragic event. It can be challenging to embrace "the
higher view" spiritually while absorbing the "weight" of this
horrendous experience humanistically. He lost his freedom because
because of his choices. We don't know why he lost his life. I've been
struggling through posting anything on FB regarding this, but being a
person who attempts to gravitate toward "the learning" of every
experience, I'm passing it on for others to potentially benefit from. My
feeling is that maybe we all could learn to be more responsible &
accountable in some area of our lives (I know I could) that would
enable us to ascend to greater heights of FREEDOM.... a place where I'm
sure my nephew Nolan Pierce is now.... smiling down on us. We'll be
celebrating his life in Phoenix at the end of the week. May God Bless
Us All...."
Everyone else with a loved one still alive in Arizona's state prisons: tell your people they need to stop killing themselves and each other, and have them write to me (PO Box 20494, Phoenix 85036) if they're struggling to make it through their sentence because they think they'll be hit next. I swear I'm doing everything I can to get help in there to them, and to get Chuck Ryan out. If they're ordered to hurt someone else in order to stay alive, tell them to stand down and contact me immediately instead - no more of these senseless deaths, people, please. Even horrible, hardened criminals have turned their lives around and done good for their communities - there's a world of possible miracles that await us, if we can survive long enough to realize them...
If anyone has any information about how this fellow died, I'd appreciate hearing from you, too. We can't count on the Az Department of Corrections to give us the straight scoop. If you knew Nolan at all, and can tell me what kind of guy he was outside of being involved in criminal activity, please let me know.
------------from APW Facebook (Posted March 21, 2012)------------
Leo wrote:
---from the AZ Prison Watch blog, left under the Comments section 3/22/12--
Mackenzie wrote:
"my name is mackenzie smith, nolans girlfriend.. there arent words that
can explain this feeling, nolan was amazing, he had the biggest heart
with tons of love to give. nolan always had a smile on his face and no
matter how upset someone was or what a hard time they were going threw,
nolan knew how to turn that attitude right around and make anyone smile,
either from his goofy dancing, his endless jokes, or just seeing the
smile on his face. Nolan did some things in his past yes.. but what
teenager doesnt?! He didnt get the chance at making things right, he got
a 25 yr sentence that resulted in taking his life, The man that did
this should not have been in a cell with nolan let alone anyone..
comsidering he was many charges or assulting the staff in 09'... there
will never be anyting we can do to bring nolan back but we can stop this
from happening to other families. may his memory live forever just as
my love from him will. ill be seeing you in heaven baby.. i love you
with all that i am"
Wednesday, March 14, 2012
6th Amendment under attack: Stand up, FIGHT BACK!
I just spent my day with a woman who was coerced into taking a plea on a crime she didn't commit or they would nail her to the wall for the one she actually did. She just did a little over two years for it. Her prosecutor clearly just wanted a moment of fame bragging about her conviction; true guilt or innocence seem to be irrelevant to those people, and I think it's high time we crash this system as well. People are losing their lives as it is anyway - we might as well do this strategically and take the real bad guys down with us when we go...the following excerpt from Alexander's essay sums up my feelings on this quite well:
"People should understand
that simply exercising their rights would shake the foundations of our
justice system which works only so long as we accept its terms. As you
know, another brutal system of racial and social control once prevailed
in this country, and it never would have ended if some people weren’t
willing to risk their lives. It would be nice if reasoned argument would
do, but as we’ve seen that’s just not the case. So maybe, just maybe,
if we truly want to end this system, some of us will have to risk our
lives.”
Resistance Alley, Phoenix
June Artwalk 2011
-------------from the NEW YORK TIMES -------------
GO TO TRIAL: CRASH THE JUSTICE SYSTEM (Opinion)
By MICHELLE ALEXANDER
March 10, 2012
AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause:
“What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”
The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.
Her odyssey began when a Los Angeles police cruiser ran over and killed her 5-year-old son. Consumed with grief and without access to therapy or antidepressant medications, Susan became addicted to crack cocaine. She lived in an impoverished black community under siege in the “war on drugs,” and it was but a matter of time before she was arrested and offered the first of many plea deals that left her behind bars for a series of drug-related offenses. Every time she was released, she found herself trapped in an under-caste, subject to legal discrimination in employment and housing.
Fifteen years after her first arrest, Susan was finally admitted to a
private drug treatment facility and given a job. After she was clean she
dedicated her life to making sure no other woman would suffer what she
had been through. Susan now runs five safe homes for formerly
incarcerated women in Los Angeles. Her organization, A New Way of Life,
supplies a lifeline for women released from prison. But it does much
more: it is also helping to start a movement. With groups like All of Us
or None, it is organizing formerly incarcerated people and encouraging
them to demand restoration of their basic civil and human rights.
I was stunned by Susan’s question about plea bargains because she — of
all people — knows the risks involved in forcing prosecutors to make
cases against people who have been charged with crimes. Could she be
serious about organizing people, on a large scale, to refuse to
plea-bargain when charged with a crime?
“Yes, I’m serious,” she flatly replied.
I launched, predictably, into a lecture about what prosecutors would do
to people if they actually tried to stand up for their rights. The Bill
of Rights guarantees the accused basic safeguards, including the right
to be informed of charges against them, to an impartial, fair and speedy
jury trial, to cross-examine witnesses and to the assistance of
counsel.
But in this era of mass incarceration — when our nation’s prison
population has quintupled in a few decades partly as a result of the war
on drugs and the “get tough” movement — these rights are, for the
overwhelming majority of people hauled into courtrooms across America,
theoretical. More than 90 percent of criminal cases are never tried
before a jury. Most people charged with crimes forfeit their
constitutional rights and plead guilty.
“The truth is that government officials have deliberately engineered the
system to assure that the jury trial system established by the
Constitution is seldom used,” said Timothy Lynch, director of the
criminal justice project at the libertarian Cato Institute. In other
words: the system is rigged.
In the race to incarcerate, politicians champion stiff sentences for
nearly all crimes, including harsh mandatory minimum sentences and
three-strikes laws; the result is a dramatic power shift, from judges to
prosecutors.
The Supreme Court ruled in 1978 that threatening someone with life
imprisonment for a minor crime in an effort to induce him to forfeit a
jury trial did not violate his Sixth Amendment right to trial. Thirteen
years later, in Harmelin v. Michigan, the court ruled that life
imprisonment for a first-time drug offense did not violate the Eighth
Amendment’s ban on cruel and unusual punishment.
No wonder, then, that most people waive their rights. Take the case of
Erma Faye Stewart, a single African-American mother of two who was
arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail,
with no one to care for her two young children, she began to panic.
Though she maintained her innocence, her court-appointed lawyer told her
to plead guilty, since the prosecutor offered probation. Ms. Stewart
spent a month in jail, and then relented to a plea. She was sentenced to
10 years’ probation and ordered to pay a $1,000 fine. Then her real
punishment began: upon her release, Ms. Stewart was saddled with a
felony record; she was destitute, barred from food stamps and evicted
from public housing. Once they were homeless, Ms. Stewart’s children
were taken away and placed in foster care. In the end, she lost
everything even though she took the deal.
On the phone, Susan said she knew exactly what was involved in asking
people who have been charged with crimes to reject plea bargains, and
press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”
The answer is yes. The system of mass incarceration depends almost
entirely on the cooperation of those it seeks to control. If everyone
charged with crimes suddenly exercised his constitutional rights, there
would not be enough judges, lawyers or prison cells to deal with the
ensuing tsunami of litigation. Not everyone would have to join for the
revolt to have an impact; as the legal scholar Angela J. Davis
noted, “if the number of people exercising their trial rights suddenly
doubled or tripled in some jurisdictions, it would create chaos.”
Such chaos would force mass incarceration to the top of the agenda for
politicians and policy makers, leaving them only two viable options:
sharply scale back the number of criminal cases filed (for drug
possession, for example) or amend the Constitution (or eviscerate it by
judicial “emergency” fiat). Either action would create a crisis and the
system would crash — it could no longer function as it had before. Mass
protest would force a public conversation that, to date, we have been
content to avoid.
In telling Susan that she was right, I found myself uneasy. “As a mother
myself, I don’t think there’s anything I wouldn’t plead guilty to if a
prosecutor told me that accepting a plea was the only way to get home to
my children,” I said. “I truly can’t imagine risking life imprisonment,
so how can I urge others to take that risk — even if it would send
shock waves through a fundamentally immoral and unjust system?”
Susan, silent for a while, replied: “I’m not saying we should do it. I’m
saying we ought to know that it’s an option. People should understand
that simply exercising their rights would shake the foundations of our
justice system which works only so long as we accept its terms. As you
know, another brutal system of racial and social control once prevailed
in this country, and it never would have ended if some people weren’t
willing to risk their lives. It would be nice if reasoned argument would
do, but as we’ve seen that’s just not the case. So maybe, just maybe,
if we truly want to end this system, some of us will have to risk our
lives.”
Michelle Alexander is the author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”
The Twitter Resistance: NY City Subpoenas Occupiers records.
The mighty 1% is a little scared, people -
That should tell you that we're on to something!
"I'M HERE, AND I'M MAD..."
Occupying Phoenix...
(October 2011)
------------from IN THESE TIMES------------
IN THESE TIMES
Tuesday Mar 13, 2012
8:48 am /
Updated 5:23PM
Several stories in the news this week – and it's only Tuesday – reveal
the scope of the spying and surveillance activities of the NYPD and DA's
office, who are monitoring Occupy Wall Street.
Taken individually, these stories may not seem earth-shattering. Yes,
the NYPD was monitoring Occupy, but the NYPD is sort of legendary for
its overzealous spy and harassment programs (just ask any Muslim New
Yorker or victim of the Stop and Frisk policy). But examined together,
it becomes clear that the NYPD and District Attorney's office are
devoting enormous resources to spying, harassing, and intimidating what
has thus far proven itself to be an overwhelmingly peaceful protest
group.
Kira Moyer-Sims
told her story of police harassment to the New York Times. On Nov. 17,
Moyer-Sims was near the Manhattan Bridge, buying coffee while her
friends waited in a nearby car. The fact that she was more than a dozen
blocks away from an Occupy Wall Street protest didn't stop police
officers from surrounding her and the people in the car. All four were
arrested and taken to a police facility in the East Village where,
according to their lawyer, Vik Pawar, they were strip-searched and had
their requests for a lawyer ignored.
"I felt like I had been arrested for a thought crime," Moyer-Sims told the Times.
Pawar said the police charged Moyer Sims, Angela Richino and Matthew
Vrvilo with obstructing government administration, though the DA's
office declined to prosecute them.
Reporter Colin Moynihan goes on to recap how over the past few months,
according to protest organizers, police officers or detectives have been
posted outside buildings where private meetings were taking place, have
visited the homes of organizers, and have questioned protesters
arrested on minor charges.
“The N.Y.P.D. surveillance does not appear to be limited to unlawful activity,” said Donna Lieberman, the executive director of the New York Civil Liberties Union. “We count on the police, of course, to be on the lookout for terrorists and terrorism, but to think you could be on that continuum just by going to a peaceful protest is nuts.”
One of the examples of harassment in the article is an allegation from
an OWS organizer named Sandy Nurse, who arrived at her apartment
building in Bushwick Dec. 16 to find uniformed officers outside. The
officers told Nurse they were there to conduct a "security check" for a
condition they would not identify.
Nurse told them they could not enter, but an officer nonetheless used
his foot to prevent the front door from closing behind her, followed her
into the entryway vestibule, and threatened to arrest her for
obstruction of government administration. Nurse does not see this visit
as a coincidence, but rather directly tied to her activities with
Occupy.
“It means that they are watching us,” she told the Times. “They know who we are, where we live and where we are organizing.”
Prosecutors have been busy this week subpoenaing the Twitter records of
a previously arrested Occupy Wall Street protester, Jeff Rae, whose
tweets I've referenced many times in this blog. Yesterday, Rae tweeted
"URGENT: The District Attorney in NY has subpoenaed my twitter account,"
and linked to an image of the notice from Twitter that reads:
Dear Twitter User:
We are writing to inform you that Twitter has received legal process, dated March 8, 2012, requesting information regarding your Twitter account, @jeffrae. A copy of the legal process is attached. The legal process requires Twitter to produce documents related to your account.
Please be advised that Twitter will respond to this request in 7 days from the date of this notice unless we receive notice from you that a motion to quash the legal process has been filed or that this matter has been otherwise resolved.
To respond to this notice, please reply directly to this email.
This notice is not legal advice. You may wish to consult legal counsel about this matter.
Sincerely,Twitter Legal
Attached below is a copy of the DA's subpoena that reveals Rae is one of five total accounts subpoenaed.
In October, Rae was arrested during the mass protest on the Brooklyn Bridge.
While it's not yet clear who the other four Occupy defendants are, in
January prosecutors filed a similar subpoena against Malcolm Harris,
another arrested protester.
"I was a little bit blown away," Rae
told Reuters. "It's interesting that in places like Egypt our leaders
applaud people for using Twitter and social media for their movements.
Here, I'm being subpoenaed for using social media."
Rae says his attorney, Paul Mills of the National Lawyers Guild, would file a motion to quash.
Martin Stolar, a NLG lawyer representing Harris, filed a motion to quash as well, but that motion is still pending.
What's most outrageous about these subpoenas is that prosecutors
haven't revealed why they're collecting these tweets or what evidence
they hope to gain from rifling through them. In the meantime, the
collective effect on the Occupy community is a chilling one. Obviously,
being told by the DA's office that you're being treated as an effective
suspect in an unknown crime is intimidating.
In speaking with Occupiers, it's clear many protesters operate under
the assumption that the police are always watching them, and that
everything they say and put on the internet is probably being monitored.
The psychological toll is great. And again, these are largely peaceful
protesters who have done nothing except dare to attempt to exercise
their First Amendment rights. If prosecutors or police know of some
plotting crime cell, then they should make that information public, but
if they're investigating future crimes, or "thought crimes," then what
they're doing is tantamount to systematic harassment.
---
Update: Rae expressed to me surprise and alarm that his Twitter account had been subpoenaed by the DA's office.
"The subpoena for my tweets is stemming from my arrest on the Brooklyn
Bridge along with 700 other people on October 1, 2011. That said the DA
is asking for a month and a half worth of tweets," Rae wrote, adding
"I'm not sure why the DA has targeted me except for the fact that I was
part of Occupy since day 1 and was very vocal reporting what was going
on there on Twitter."
Rae mentioned that, yes, tweets are public, but "I do feel that when
the government is going to go through people's twitter accounts it can
have a chilling effect on freedom of speech."
Jeff Rae's Twitter notice and DA subpoena: Twitter Subpoena
Restoration of Civil Rights for AZ Felons.
From the Office of the Public Defender:
How to restore your civil rights after finishing your felony sentence.
WEDNESDAY, APRIL 11, 2012
Labels:
civil rights restoration,
felonization
Tuesday, March 13, 2012
Katrina revisited: judgment against sheriff reversed.
This is both an astonishing story and significant case, so I'm reprinting it all here. These guys were falsely imprisoned in Orleans Parish following Hurricane Katrina, and it looks like the whole bunch of folks responsible for it are getting off scott free. For how they treated all their prisoners, the sheriff and his people should really be strung up. This goes to show how incredibly hard it is to hold state actors accountable for gross negligence and abuse - hell, even when they commit atrocities, like what prison guards did to Marcia Powell in Arizona, it's hard to get anyone fired, much less prosecuted or sued...
--------------
WAGANFEALD v. GUSMAN
ROBIE J. WAGANFEALD; PAUL W. KUNKEL, JR., Plaintiffs-Appellees,
v.
MARLIN N. GUSMAN, Orleans Parish Criminal Sheriff; WILLIAM C. HUNTER, OPCSO Chief Deputy, Defendants-Appellants.
No. 11-30081.
United States Court of Appeals, Fifth Circuit.
Filed March 12, 2012.
Before: KING, JOLLY, and WIENER, Circuit Judges.
WIENER, Circuit Judge.
Plaintiffs-Appellees
Robie J. Waganfeald and Paul W. Kunkel, Jr. (collectively, "Appellees")
filed this action against several defendants, including
Defendants-Appellants Marlin N. Gusman, Orleans Parish Criminal Sheriff,
and William C. Hunter, Orleans Parish Criminal Sheriff's Office Chief
Deputy (collectively, "Appellants"), under 42 U.S.C. § 1983 for
violations of their Fourth, Sixth, and Eighth Amendment rights. The
Appellees also brought a false imprisonment claim against the Appellants
under Louisiana law. Appellees' claims arise out of their incarceration
in New Orleans at and around the time that Hurricane Katrina struck the
city. After trial, a jury found that Appellants were not liable for
some of those claims, but (1) held Gusman liable for falsely imprisoning
Appellees, and (2) held Hunter liable for denying Appellees' purported
Sixth Amendment right to use a telephone following their arrest. We
reverse the jury's verdict as to both claims for which Appellants were
held liable.
A. Facts
The
facts of this case are largely undisputed. On the evening of Friday,
August 26, 2005, Appellees, traveling by car from Houston, Texas to
Toledo, Ohio, stopped for the night in New Orleans. They checked into a
hotel, then proceeded to the French Quarter, some time after 1:00 a.m.
on the morning of August 27, and remained there for approximately four
hours, consuming several beers each. At approximately 5:00 a.m., two New
Orleans police officers placed Appellees under arrest for public
intoxication under New Orleans Municipal Code § 54-405. Appellees assert
that they were not intoxicated when the arrests took place, but instead
that Kunkel fell to the ground when his bad knee gave out as he stepped
off a curb, and that Waganfeald was attempting to help Kunkel to his
feet.
At the
time of the arrests, Hurricane Katrina was in the Gulf of Mexico and was
estimated to make landfall on Monday morning. For several days prior to
Katrina's estimated landfall, Gusman and his staff prepared the Orleans
Parish Prison ("OPP") to weather the storm with all staff and all
prisoners-an average daily population of 5,800-remaining inside the
complex. At that time, OPP comprised eleven main facilities which held
inmates, as well as ancillary buildings. In the event of serious
flooding, Gusman's plan called for staff and prisoners to "vertically
evacuate" to the upper floors of the OPP facilities. On the morning of
Sunday, August 28, a mandatory evacuation order was issued for residents
of New Orleans, but that order did not apply to OPP staff and
prisoners.
Appellees'
arresting officers took them to the Intake and Processing Center
("IPC") at OPP, at which point Appellees' money, valuables, and cell
phones were confiscated. Appellees were not given an opportunity to make
bail, but instead were placed in the Templeman III facility at OPP,
which could house as many as 1,200 pre-trial detainees. At the time,
Gusman was in charge of OPP, Hunter directed prison operations, and
Warden Gary Bordelon oversaw Templeman III.
Normally,
a number of telephones-both free and collect-were available for inmate
use in the IPC. Collect telephones were also available in the Templeman
III building. For security reasons, cell phones were not allowed in the
prison complex. After being booked, Appellees attempted to make phone
calls using the IPC telephones, but soon discovered that they were not
working. That Saturday, Hunter, who was responsible for the phone
system, became aware that all of the telephones at OPP were inoperable.
Hunter instructed the telephone supervisor, Donald Hancock, to report to
the prison. Hancock examined the system that day and determined that
the telephone service provider's lines were overloaded. Because the
problem was not with the OPP telephones themselves, prison officials
were unable to remedy the problem. Hancock reported his findings to
Hunter at some point that weekend. Sheriff Gusman testified that he was
not made aware of the problem with the phones. Gusman further testified
that, in theory, he or Hunter could have allowed the inmates to use
their cell phones, but Gusman emphasized that prison policy forbids cell
phone use (even by most deputies) because of security risks. OPP phones
remained inoperable throughout the weekend, and Appellees were unable
to make any phone calls during that time.
After
being booked, Appellees were placed in separate cells in Templeman III,
where they remained as Hurricane Katrina approached and then hit New
Orleans at approximately 6:00 AM on Monday, August 29, 2005. Initially,
OPP officials believed that the complex had weathered the storm
unscathed. After the levees were breached and the city flooded, however,
the prison's generators stopped working, and its water and food
supplies were contaminated. As floodwater entered the Templeman III
building, officers evacuated inmates to higher floors. Appellees
experienced insufferable conditions as the water rose in their cells.
Kunkel was locked in his cell until Wednesday evening; Waganfeald was
moved to a miniature gymnasium within OPP. Both Kunkel and Waganfeald
went without food and water for approximately three days. The
temperature was very high; there was no air circulation; the toilets did
not flush. In the midst of this chaos, Appellees believed that the
prison guards had abandoned them, and they had no way of making contact
with the outside world. Both men believed that they might die.
Appellees
were finally moved from OPP on Wednesday, August 31, but this did not
mark the end of their ordeals. They were taken by boat to a highway
overpass, where they, along with thousands of other inmates, continued
to endure heat, hunger, and thirst. Appellees were then placed on buses
and transported out of New Orleans. For about a month, Kunkel endured
further deplorable conditions, first at Louisiana's Hunt Correctional
Institute, and then at the Louisiana State Penitentiary at Angola,
before being released on October 3, 2005. Waganfeald was taken to
Cathoula Parish Prison and was released on October 5, 2005. Other than
an eye infection for which Kunkel received treatment at Angola,
Appellees did not suffer physical injuries, but both men have reported
psychological trauma as a result of these experiences.
B. Proceedings
Appellees filed suit on August 28, 2006, asserting claims under 42 U.S.C. § 1983 for violations of, inter alia,
the Fourth Amendment (based on their allegedly unlawful detention), the
Sixth Amendment (based on their inability to contact counsel by
telephone), and the Eighth Amendment (based on their conditions of
confinement). Their complaint also asserted claims for false
imprisonment under Louisiana law. The named defendants included Gusman,
individually and in his official capacity as Criminal Sheriff of Orleans
Parish; Hunter, individually and in his official capacity as Chief
Deputy Criminal Sheriff of Orleans Parish; Bordelon, individually and in
his official capacity as Warden of the Templeman III jail facility;
various officers of the New Orleans Police Department; the City of New
Orleans; and Mayor C. Ray Nagin.
Appellees
proceeded to trial against Gusman, Hunter, and Bordelon. On October 14,
2010, the jury found Gusman liable for false imprisonment and awarded
compensatory damages of $200,000 to Waganfeald and $259,300 to Kunkel.
The jury found, however, that Gusman was not liable for the Fourth,
Sixth, and Eighth Amendment claims. The jury also rejected the claims
against Gusman in this official capacity, finding that his official
policies were not the moving force behind any violation of Appellees'
constitutional rights. Additionally, the jury found Hunter liable for
violating the Appellees' Sixth Amendment right to counsel, denied
qualified immunity to Hunter, and awarded each Appellee $100,000 for
these violations. The jury rejected the remaining claims against Hunter,
and it exonerated Bordelon on all claims. The district court then
entered judgment later that month.
At the
close of Appellees' case and at the close of evidence, Appellants orally
moved for judgment as a matter of law. The district court denied each
motion. After the jury verdict was announced, Appellants moved for
judgment as a matter of law, or, in the alternative, a new trial. The
district court denied both motions, and Appellants timely appealed.
With regard to issues that were preserved in the district court, we review its denial of judgment as a matter of law de novo, applying the same standard as the district court.1
Judgment as a matter of law is proper "[i]f a party has been fully
heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to
find for the party on that issue[.]"2
"[W]e will uphold a jury verdict unless the facts and inferences point
so strongly and so overwhelmingly in favor of one party that reasonable
men could not arrive at any verdict to the contrary."3
Further, we must review the evidence in the light most favorable to the
jury's determination, and we may not reweigh the evidence or substitute
the jury's reasonable factual inferences for our own.4
The
jury rejected all claims against Gusman relating to Appellees'
conditions of confinement and their inability to make telephone calls.
The jury found Gusman liable for false imprisonment, however, which
under Louisiana law consists of two elements: "(1) detention of the
person; and (2) the unlawfulness of the detention."5 It is undisputed that Gusman detained the Appellees, and thus, the question at issue is whether that detention was unlawful.
The
only basis urged by Appellees that their detention was unlawful is
Gusman's failure to release them when they were not granted a probable
cause determination within 48 hours after their arrest. Under Louisiana
law, a person who is arrested and in custody is "entitled to a
determination of probable cause within forty-eight hours of arrest."6 If such a determination is not timely made, "the arrested person shall be released on his own recognizance."7 This statute tracks the United States Supreme Court's decision in County of Riverside v. McLaughlin,8
in which the Court held that a probable cause determination must
generally be made within 48 hours to comply with the Fourth Amendment.9
As Appellees were arrested at approximately 5:00 a.m. on Saturday,
August 27, 2005, this 48-hour period expired at 5:00 a.m. on Monday,
August 29-just as Hurricane Katrina struck the Gulf Coast. Appellees had
received no probable cause determination as of that Monday morning, but
Gusman continued to detain them.
Appellees
insist that the 48-hour rule permits no exceptions, but the United
States and Louisiana Supreme Courts have indicated otherwise. In Riverside,
the United States Supreme Court stated that if a probable cause
determination is not made within 48 hours, "the burden shifts to the
government to demonstrate the existence of a bona fide emergency or
other extraordinary circumstance."10 Likewise, interpreting the relevant state statute, the Louisiana Supreme Court stated in Louisiana v. Wallace:
In the
absence of a bona fide emergency or other extreme circumstances, all
persons arrested without a warrant for whom a probable cause
determination is not made within 48 hours must be immediately released
from custody on their own recognizance.11
This statement constitutes dicta, as Wallace
did not involve an emergency, but it nonetheless demonstrates that the
Louisiana Supreme Court recognizes an emergency exception to the 48-hour
rule.12 Notably, the emergency exception in Wallace is worded almost identically to the same exception in Riverside,
the decision that led to the creation of the Louisiana statute in the
first place. It is therefore plain that both the federal and the
Louisiana 48-hour rules contain an emergency exception. This aligns with
common sense, because adopting Appellees' position that the 48-hour
rule permits absolutely no exception could lead to any number of absurd
consequences. Thus, in determining whether Appellees' detention was
unlawful, we apply the emergency exception to the 48-hour requirement.
Gusman
maintains that his detention of Appellees falls within this emergency
exception. He also contends that he is immune from liability for false
imprisonment under Louisiana's discretionary immunity statute.13
Appellees counter the latter point by claiming that Gusman waived his
discretionary immunity defense in the trial court and cannot raise it on
appeal. In particular, Appellees note that although Gusman raised
discretionary immunity in his answer and in his post-verdict Rule 50(b)
and Rule 59 motions, he failed to raise the issue in the pre-trial order
or in his Rule 50(a) motion for judgment as a matter of law.14 Appellees themselves may have waived this waiver argument by failing to raise it in opposition to Gusman's Rule 50(b) motion,15
but we do not reach that issue, or the discretionary immunity argument
at all. Rather, we reverse the jury's verdict on the simpler and more
direct ground that Gusman's actions fall within the emergency exception
to the 48-hour rule.16
The
undisputed evidence in this case compels the conclusion that Hurricane
Katrina was a bona fide emergency within the meaning of the emergency
exception to the 48-hour rule. Indeed, if Katrina was not an emergency,
it is difficult to imagine any set of facts that would fit that
description. As the storm bore down on New Orleans, Gusman and his
officers had to provide for the security and safety of approximately
5,800 of their own inmates, plus 130 more inmates who were transferred
from St. Bernard Parish.17
The officers planned to evacuate inmates vertically in the Templeman
III building to higher floors, if necessary. They also stockpiled food
and water in the Templeman III building-on the first floor,
unfortunately.
OPP
initially survived the storm without flooding, but this changed rapidly
after the levees were breached. The water rising on the first floor of
Templeman III quickly reached waist level, the generator went out, and
food and water supplies were contaminated. The electronic system for
controlling the cell doors ceased to function, and officers had to open
the doors manually, which-for some cells on the first floor-required the
officers to dive into the water to manipulate the locking mechanism.
The temperature grew very hot, and the officers allowed the inmates to
break windows for purposes of air ventilation. The officers worked for
many hours with inadequate food, water, and sleep. After the arduous
process of evacuating the inmates was completed, the officers continued
working to evacuate other individuals who were stranded in the
neighborhood. In light of this clear emergency, we hold that the 48-hour
rule was suspended. Consequently, Gusman did not falsely imprison the
Appellees by holding them without a probable cause determination rather
than releasing them into the teeth of the storm on the morning of August
29, 2005.
Appellees
contend that they would not have received a probable cause
determination within 48 hours of their arrest even in the absence of
Hurricane Katrina, because the Municipal Courts did not operate on the
weekends at that time. The jury, however, answered "No" to the following
interrogatory:
Do you
find by a preponderance of the evidence that Sheriff Marlin Gusman, in
his capacity as the Criminal Sheriff of Orleans Parish, had a policy,
practice, or custom of deliberate indifference to arrested individuals'
right to have a probable cause determination made by an impartial judge
or magistrate within 48 hours of an arrest made without a warrant that
was the moving force behind a violation of [Appellees'] constitutional
rights?
If
Gusman had a general policy of detaining individuals beyond 48 hours
without a probable cause hearing, even in the absence of an emergency,
that interrogatory would have to have been answered in the affirmative.
In that situation, the municipal policy would certainly have been
"adopted with `deliberate indifference' to its known or obvious
consequences."18 Further, the municipal policy would be the "`moving force' behind the constitutional violation,"19 as there would unquestionably have been a "direct causal link"20
between Gusman's policy and the violation of the 48-hour rule. But, as
the jury answered "No," and Appellees have not appealed that factual
finding, they cannot rely on Gusman's purported policy of violating the
48-hour rule even in non-emergency conditions.
Gusman's
detention of Appellees was not unlawful because his actions fell within
the emergency exception to the 48-hour rule. Thus, we must reverse the
district court's denial of Gusman's motion for judgment as a matter of
law. We thus do not reach Gusman's additional argument that the jury's
verdict was internally inconsistent.
The
jury found that Chief Deputy Hunter acted in a manner that was
deliberately indifferent to Appellees' asserted Sixth Amendment right to
use a telephone to contact "an attorney and/or family and friends"
following their arrest. The jury also rejected Hunter's defense of
qualified immunity. On appeal, Hunter contends that the district court
erred by denying him qualified immunity because (1) there was no
violation of Appellees' Sixth Amendment right to counsel because that
right never attached, no "critical stage" of the proceedings was
reached, and Hunter did not act intentionally; and (2) even if there
were such a violation, it had not been clearly established that refusing
to allow pre-trial detainees to use cell phones when land lines are
disrupted in an emergency violates the Sixth Amendment.
"A
public official is entitled to qualified immunity unless the plaintiff
demonstrates that (1) the defendant violated the plaintiff's
constitutional rights and (2) the defendant's actions were objectively
unreasonable in light of clearly established law at the time of the
violation."21
A defendant violates clearly established law only if "the contours of
[the] right are sufficiently clear that every reasonable official would
have understood that what he is doing violates that right."22
For a legal principle to be clearly established, "we must be able to
point to controlling authority—or a robust consensus of persuasive
authority—that defines the contours of the right in question with a high
degree of particularity"23 and that places the statutory or constitutional question "beyond debate."24
When a defendant asserts qualified immunity, the plaintiff has the burden of proving that it is inapplicable.25 Qualified immunity should be adjudicated "at the earliest possible stage in litigation,"26
but "if the issue is not decided until trial the defense goes to the
jury which must then determine the objective legal reasonableness of the
officers' conduct."27 We have discretion to decide which prong of the qualified immunity analysis to address first.28
As a
preliminary matter, Appellees contend that Hunter has waived qualified
immunity. Hunter raised qualified immunity generally in his answer and
proposed jury instructions, the district court instructed the jury on
qualified immunity, and the jury found that Hunter's actions were not
objectively reasonable in light of Appellees' constitutional rights.
Hunter did not raise qualified immunity in his pre-verdict motions for
judgment as a matter of law under Rule 50(a),29
but he did in his post-verdict motion for judgment as a matter of law
under Rule 50(b). In response to Hunter's Rule 50(b) motion, Appellees
did not counter that Hunter waived qualified immunity but instead
responded to the merits of that issue. Thus, Appellees have waived their
waiver argument.30
Appellees
also contend that even if Hunter has not waived qualified immunity
generally, he has waived his specific contentions that Appellees' Sixth
Amendment right to counsel never attached and that no "critical stage"
of the proceedings was reached. In lieu of addressing this specific
waiver argument, we hold that even if Appellees had a Sixth Amendment
right to counsel during the period in question, Hunter did not act in an
objectively unreasonable manner in light of clearly established law, so
the district court should have granted him judgment as a matter of law
on qualified immunity.
There
is no dispute that, during the period in question, telephones were made
available to Appellees, but that it was not possible to place calls on
these or any telephones at the facility. Donald Hancock, the telephone
supervisor for the Orleans Parish Criminal Sheriff's Office, testified
that on the Saturday before Hurricane Katrina made landfall, calls could
not be placed from OPP because the telephone service provider's lines
were overloaded. He testified further that because the problem was
external, and the OPP telephones themselves were functioning properly,
there was nothing he could have done to remedy the problem. Hancock
timely reported his findings to Hunter and evacuated New Orleans that
Sunday morning. When Hancock and Hunter spoke again later that day,
Hunter asked Hancock to return and continue working on the phones, but
Hancock again informed Hunter that the problem was external and that
there was nothing he could do.
Appellees
contend that in this situation, Hunter should have allowed them to use
their cell phones to make calls. In accordance with standard procedures,
Appellees' cell phones had been confiscated when they were booked into
the prison. As noted, Gusman testified that inmates are not allowed to
possess cell phones because that would pose a "security risk." He went
on to explain that allowing the use of cell phones would impair prison
officials' ability to record inmates' calls, which is important because
"inmates either make threatening phone calls or try to continue their
illegal activity while in jail." Gusman also stated that, for security
reasons, even deputies are generally not allowed to carry cell phones
while on duty. Gusman testified that he was completely unaware of the
problems with the OPP telephone system during the period in question,
but he acknowledged that Hunter would have had the authority to allow
prisoners to use their cell phones.
There
is no particularized, clearly established law which would have
instructed Hunter that, under the Sixth Amendment, he had to allow
pre-trial detainees to use their cell phones when land lines were
disrupted. Appellees have pointed us to no such authority, and we have
found none. To the contrary, we have ruled that prisoners have "no right
to unlimited telephone use."31
Other courts have observed that "a prisoner's right to telephone access
is subject to rational limitations in the face of legitimate security
interests of the penal institution.'"32
As a general matter, "maintaining institutional security and preserving
internal order and discipline are essential goals that may require
limitation or retraction of the retained constitutional rights of both
convicted prisoners and pretrial detainees."33
Thus, prison officials are "accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain
institutional security."34
In this
case, Hunter faced the security risks that would generally follow from
allowing prisoners to use cell phones, which were exacerbated by the
emergency conditions that were present during the approach, landfall,
and aftermath of Katrina. Inmates were unable to use the land-line
telephones in the OPP not because of any action that Hunter took, but
because of overloaded external lines, a situation beyond any control of
law enforcement. Distributing cell phones to approximately 5,930
inmates, or even just the 1,200 pre-trial detainees in Templeman III,
would have been a creative and potentially beneficial option, but it
would also have added to prison officials' unprecedented logistical
burden as well as the potential security risks. Before Hurricane Katrina
struck, prison officials had no reason to assume that the telephone
lines would be overloaded for a significant length of time; after the
prison flooded, they were overwhelmed with more urgent emergency tasks.
The unprecedented emergency conditions would also have made it very
difficult if not impossible for any counsel that Appellees might have
reached to provide meaningful assistance. We do not suggest (or deny)
that there is a blanket emergency exception to the Sixth Amendment right
to counsel. Rather, we hold only that in light of the security risks
and unique emergency conditions he faced, Hunter did not act in an
objectively unreasonable manner under clearly established law. The
district court therefore erred by not granting Hunter qualified immunity
as a matter of law.
There
is no doubt that Appellees suffered terribly while held in custody after
Hurricane Katrina struck New Orleans. It is equally clear, however,
that (1) Gusman's failure to release Appellees falls within the
emergency exception to the rule that a probable cause determination must
be made within 48 hours, and (2) Hunter's failure to allow Appellees to
use cell phones was not objectively unreasonable in light of any
clearly established law. We therefore reverse and vacate the judgment of
the district court, and remand with instructions to enter judgment in
favor of Gusman and Hunter on all claims asserted by Appellees.
REVERSED, VACATED, and REMANDED WITH INSTRUCTIONS.
Footnotes
1. Julian v. City of Houston, 314 F.3d 721, 725 (5th Cir. 2002).
2. Fed. R. Civ. P. 50(a)(1).
3. Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir. 2001).
4. Id.
5. Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669, 690 (La. 2006).
6. La. Code Crim. Proc. art. 230.2(A).
7. Id. art. 230.2(B)(1) (emphasis added).
8. 500 U.S. 44, 56 (1991).
9. See Louisiana v. Wallace, 25 So.3d 720, 723-24 (La. 2009) (Louisiana statute codified Riverside).
10. Id. at 57.
11. 25 So.3d at 727.
12. See Hulin v. Fibreboard Corp., 178 F.3d 316, 328 (5th Cir. 1999) ("A federal court has a duty to determine state law as it believes the State's highest court would.").
13.
La. Rev. Stat. Ann. § 2798.1 ("Liability shall not be imposed on public
entities or their officers or employees based upon the exercise or
performance or the failure to exercise or perform their policymaking or
discretionary acts when such acts are within the course and scope of
their lawful powers and duties.").
14. See Maryland Cas. Co. v. Acceptance Indem. Ins. Co., 639 F.3d 701,
707-08 (5th Cir. 2011) (when a party fails to raise an issue in a Rule
50(a) motion, it waives the right to raise that issue in a Rule 50(b)
motion).
15. See Thompson and Wallace of Memphis, Inc. v. Falconwood Corp., 100 F.3d 429,
435 (5th Cir. 1996) (holding that when the party opposing the Rule
50(b) motion "did not raise the waiver bar in opposing the [R]ule 50(b)
motion, they may not raise that bar on appeal"); see also Ross v. Buckeye Cellulose Corp., 980 F.2d 648,
661 n.20 (11th Cir. 1993) (noting that even if the defendant waived a
particular defense by failing to include it in the pre-trial order, the
plaintiffs waived that waiver by failing to make the waiver argument in
front of the district court); but see Scribner v. Dillard, 141 F. App'x 240, 243 (5th Cir. 2005) (unpublished) (holding that "waiver of waiver" per Thompson
does not apply when defendants failed to raise defense, not only in
Rule 50(a) motion, but at any time prior to the verdict; the defense was
therefore considered waived).
16.
The emergency exception presents no waiver issue: Gusman raised the
exception in the pre-trial order, the district court instructed the jury
on it, and Gusman presses the issue on appeal.
17. See
La. Rev. Stat. Ann. § 15:706(c) ("The sheriff of the parish to which
the prisoner is conveyed shall keep the prisoner safe and secure").
18. Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998).
19. Id.
20. Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001).
21. Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011).
22. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (internal brackets and quotation marks omitted).
23. Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011).
24. al-Kidd, 131 S.Ct. at 2083.
25. Atteberry v. Nocona General Hosp., 430 F.3d 245, 253 (5th Cir. 2005).
26. Id. (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
27. McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).
28. Morgan, 659 F.3d at 371 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
29. FED. R. CIV. P. 50(a).
30. See Thompson and Wallace of Memphis, Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996) (waiver of waiver).
31. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982).
32. Douglas v. Gusman, 567 F.Supp.2d 877, 886 (E.D.La. 2008) (quoting Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir.1994)); see also Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989) (same).
33. Bell v. Wolfish, 441 U.S. 520, 546 (1979).
34. Id. at 547; see also id.
(security considerations "are peculiarly within the province and
professional expertise of corrections officials, and, in the absence of
substantial evidence in the record to indicate that the officials have
exaggerated their response to these considerations, courts should
ordinarily defer to their expert judgment in such matters.") (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)); Whitley v. Albers, 475 U.S. 312,
322 (1986) ("prophylactic" prison security measures are entitled to
deference, even if there exist "arguably superior alternatives").
Monday, March 12, 2012
Criminalization will not arrest our dissent: The Trespass Bill of 2011.
Came across this after seeing it twittered by Naomi Wolf. Good editorial. I had no clue about this legislation. This goes out to all my fellow protesters trespassing and loitering their way through our city courts with me this year...
Tuesday March 6, 2012
ABOLISH THE CAMPING ORDINANCE!!
October 15, 2011
-------------from the firedoglake blog of Jeanne Molloff---------------
H.R. 347 aka The’Trespass Bill’ of 2011 Criminalizes Protest
Tuesday March 6, 2012
By: Jeanine Molloff
As I write this op-ed, I primp for the mirror–looking for the most flattering pose–for my mug shot. Now, don’t get the wrong impression; I haven’t been arrested and charged with a federal felony–yet. Nor is the preparation done in anticipation of a guest stint on “America’s Next Top Model”–but as a common sense reaction to Obama’s predictable signing of the latest assault on the Bill of Rights–namely–H.R. 347 (and it’s companion senate bill S. 1794); aka the “Federal Restricted Buildings and Grounds Improvement Act of 2011.” Sounding more like an appropriations bill authorizing monies for federal grounds LANDSCAPING– this bill, better known to those in the DC beltway as the ‘Trespass Bill’– potentially makes peaceable protest anywhere in the U.S.–a federal felony punishable by up to 10 years in prison.
The legislators responsible for bringing this legislative excrement to life are Representative Tom Rooney (R-Fla.) in the House of Representatives and Senator Richard Blumenthal (D-CT.) leading the Senate version. (Source: http://www.gpo.gov/fdsys/pkg/BILLS-112hr347enr/pdf/BILLS-112hr347enr.pdf) (Source: http://www.govtrack.us/congress/bill.xpd?b=112-1794)
Rep. Thomas Rooney–HR 347 Sponsor…
Rep. Rooney, the proud sponsor of HR 347 has served in the Army as a JAG Corps attorney. Since 2002 he has taught law at West Point with his specialty being Criminal Law and–Constitutional Law. (Source: http://en.wikipedia.org/wiki/Tom_Rooney_(politician) ) Ironically, this ‘constitutional law’ professor has no qualms criminalizing protest and free speech.
H.R. 347 & Senate Companion Bill S. 1794–Criminalizing protest and free speech…
This bill makes protest of any type potentially a federal offense with anywhere from a year to 10 years in federal prison, providing it occurs in the presence of elites brandishing Secret Service protection, or during an officially defined ‘National Special Security Event’ (NSSE). NSSE’s ,( an invention of Bill Clinton’s) are events which have been deemed worthy of Secret Service protection, which previously received no such treatment. Justified through part of ‘Presidential Decision Directive 62 in 1998; Bill Clinton created an additional class of special events explicitly under the authority of the US Secret Service.
Past NSSE Events Such as …SuperBowl XXXVI….
Past NSSE events included the funerals of Gerald Ford and Ronald Reagan, and the national security concern that was–Superbowl XXXVI. Other NSSE protected events include the Academy Awards and the 2008 Democratic and Republican National Conventions. I suppose presidential candidates, no matter how insane they may be are deserving as much security protection and Brad and Angelina’s sex life.
The dangerous part of this ‘executive order’ lies not in the triviality of a SuperBowl receiving taxpayer funded Secret Service protection–but in the convenience manufactured for any President desperate to hide deliberations of groups like the G-8, the G-20 and the World Trade Organization. The classification of such events as NSSE–insures the rich and powerful against any pesky accountability or transparency to the unwashed minions–namely the US public. HR 347 & S. 1794 insulates such events as the G-8, WTO and presidential conventions against tough questions and politically justified protests. (Source: http://www.en.wikipedia.org/wiki/National_Special_Security_Event )
3 Sole Dissenters Against HR 347…
The House vote tally which took place 02/28/12, was 338 for and 3 against. The three dissenters were Rep.Paul Broun R-Georgia, Rep. Justin Amash R-Michigan and Rep. Keith Ellison D-Minnesota. Rep. Ron Paul was reported earlier as having voted against the bill, but that was based on the original vote conducted 02/28/11. Rep. Ron Paul ABSTAINED on the final vote. (source: http://www.opencongress.org/vote/2012/h/73)
Rep. Amash, a rising star in the Tea Party, explained his position on Facebook…
…”Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it’s illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it’s illegal to be in that area and has no reason to suspect its illegal. (It expands the law by changing “willfully and knowingly” to just “knowingly” with respect to the mental state required to be charged with a crime.” ___Rep. Justin Amash (Source: http://reason.com/blog/2012/03/does-hr-347-the-trespass-bill-change-any)
So, Amash as one of the three dissenters has no problem with criminalizing protest on the ‘royal’ grounds of the Congress or the White House, or even a hotel hosting a fundraiser where legislative aristocracy are protected by the Secret Service–his objection lies with the average tourist unwittingly stumbling onto ‘hallowed’ ground occupied by legally anointed royalty from our government.
This bill can be found in pdf form at the following url : (http://www.gpo.gov/fdsys/pkg/BILLS-112hr347enr/pdf/BILLS-112hr347enr.pdf).
As you can see, copies were sent both to Speaker of the House Boehner and Vice-President Biden, subsequently–any claim of rogue congressmen or senators running amuck ranges from disingenuous at best to plain, calloused, obvious lies. Frankly, most members of the House and Senate regarded these two bills as a procedural duty, never questioning the ramifications of this anti-democratic action.
Rooney’s defense of the indefensible–criminalizing dissent…
Rooney’s communication director, Michael Mahaffey dismissed any concerns about civil liberties violations caused by H.R. 347 as…”a whole lot of kerfuffle over nothing. This (HR 347) doesn’t affect anyone’s right to protest anywhere at any time. Ever.” (Source: http://reason.com/blog/2012/03/does-hr-347-the-trespass-bill-change-any)
Mahaffey further added that this bill is nothing more than a benign ‘DC-centric update’ of Section 1752 of title 18, United States Code, designed to safeguard persons under Secret Service protection. Blandly attributing HR 347 as an extension of that protection to the DC area (where such protections fall under the scope of local trespassing ordinances)–Mahaffey explained that…"right now it’s not a federal violation to jump the fence and run across the White House lawn, this bill makes it a federal violation.”
Mahaffey further claimed that this change was requested by the Secret Service itself. (Source: http://reason.com/blog/2012/03/does-hr-347-the-trespass-bill-change-any) To his credit Mahaffey did answer my inquiry with a carefully worded email, explaining further that this bill only offers consistent protection for those requiring Secret Service details such as the President, Vice-President. At the surface the explanation seemed reasonable until closer examination revealed vague terms in the bill regarding the term “knowingly” , “disruptive conduct” and “impede or disrupt the orderly conduct of Government business or offical functions.” (Source: http://www.gpo.gov/fdsys/pkg/BILLS-112hr347enr/pdf/BILLS-112hr347enr.pdf) Furthermore, neither Rep. Rooney or Mahaffey actually answered my question regarding legal precedent, legal case citations, and associated theories. We are merely supposed to take their word for it.
Sloppy Legislation…Vague Wording
The problem with Rep. Rooney’s response via Michael Mahaffey lies in the very nature of protest. Mahaffey claims that this bill does not trample the constitutionally protected right to protest–yet the bill itself criminalizes ‘disruptive conduct’ in such vague terms that a 7th grader disrupting visiting dignitaries receiving Secret Service protection, over any issue–(no matter how trivial), such as school uniforms–would be potentially guilty of a federal felony. What Rooney, and so many government elites cynically ignore is the very nature of protest. Protest in its very nature, is intended to disrupt government business as usual, for without such disruption the protest would be as effective as a leaky condom.
Congressmen like Justin Amash who quibble over the omission of the word “willfully” as justification for arresting and charging citizens with the federal felony of ‘trespassing’; on grounds where a Secret Service protected person happens to be–miss the point. Amash is correct in noting that the omission of the word “willfully” represents an unfair burden to the citizen. In legalese, this omission creates a situation where anyone can be charged with a federal felony for ‘trespassing’ on grounds shared by a person or group receiving Secret Service protection (including NSSE’s); even if the ‘trespasser’ had no knowledge of such protected persons being present. In theory, anyplace where there is a protest–could also be the setting for mass felony charges against constitutionally protected behavior such as the right to protest.
Unfortunately, Amash takes in no further. What he fails to recognize is the constitutional right to protest, to petition a government for redress of grievances. In short, this Congress and this President have established themselves as would be aristocrats and monarchs. This bill represents a legislative Maginot Line separating Congress, the President and the corporations who appear to own them–from the rest of us rabble. Amash’s offering is tantamount to an obese glutton offering crumbs to the starving–symbolically empty and useless.
The Senate’s Response….Dead Silence
To date, no response has been received by the Senate sponsor of HR 347′s companion bill Senate Bill 1794, Senator Richard Blumenthal. In fact, this bill was passed in the Senate by ‘unanimous consent,’ which is significant in terms of senatorial accountability and transparency. To quote www.govtrack.us…
…”This bill passed in the Senate by unanimous consent. A record of each senator’s position was not kept.” (Source: http://www.govtrack.us/congress/bill.xpd?bill=s112-1794) How very convenient for each senator that their position was never recorded–anywhere. No accountability and certainly no transparency–just gross arrogance. ( The House of Representatives DID have a record of each representative’s vote. Here is the link to the House vote record : ( http://www.govtrack.us/congress/vote.xpd?vote=h2011-149).
The following link can be used to contact any member of the US Senate regarding their vote and the lack of transparency on such an important issue. (http://www.senate.gov/general/contact_information/senators_cfm.cfm)
The Senate rule of ‘unanimous consent’ is defended as a method of expediting legislative business otherwise considered inconsequential. The Senate’s ‘volume of precedents’ explains the nature of unanimous consent:
…”Whereas Senate Rules permit virtually unlimited debate, and very few restrictions on the right to offer amendments, these (unanimous consent) agreements usually limit debate and the right of senators to offer amendments.” (Source : http://www.senate.gov/legislative/common/briefing/Senate_legislative_process.htm)
Though a majority of Senate business is dispensed with using ‘unanimous consent’–it is inherently troubling that our Senators view the dismissal of our basic right to ‘peaceably assembly’ as -inconsequential.
In Conclusion…
In this age of ever increasing police militarization and shrinking civil liberties both here at home and worldwide; the US government under President Obama has morphed into a third Bush term. No longer content to stonewall the public with empty slogans issuing from ‘empty suits’–the political class has degraded to writing obviously illegitimate ‘laws’ in a desperate attempt to crush any dissent. As this bill made its way through the illustrious halls of Congress–no open discussion was entertained for an entire year. Not a single member of Congress spoke out against this obscenity. Not a single member of Congress alerted the press. Not a single member of Congress contacted legal advocacy groups such as the ACLU, Bill of Rights Defense Committee or the National Lawyer’s Guild. The silence deafening– if not conspiratorial.
Congress Shall Make No Law…
Just this past year we saw the President who campaigned on ‘hope’ and ‘change’–announce some galling changes, with Congress (for the most part) rubber stamping each and every death blow to what remains of the Bill of Rights. President Obama has claimed the right to declare anyone a ‘terrorist’ or ‘terrorist sympathizer’ based on nothing more than presidential opinion, and order their assassination. (Source: http://www.reuters.com/article/2011/10/05/us-cia-killlist-idUSTRE79475C20111005) No evidence is required–at least that the public can see. We are told to blissfully ‘trust’ our public officials even when they are unworthy of such trust. The galling fact that Rep. Tom Rooney has taught constitutional law to cadets at West Point is chilling in light of this sneaky ‘end-run’ around the 1st amendment. In case Rep. Rooney has forgotten that amendment–I’ll quote it here :
“CONGRESS SHALL MAKE NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”
Perhaps Congress and the President will find their inner patriot and reverse this vile stripping of our rights. It could happen. By the way–can anyone pass the Prozac?
As I write this op-ed, I primp for the mirror–looking for the most flattering pose–for my mug shot. Now, don’t get the wrong impression; I haven’t been arrested and charged with a federal felony–yet. Nor is the preparation done in anticipation of a guest stint on “America’s Next Top Model”–but as a common sense reaction to Obama’s predictable signing of the latest assault on the Bill of Rights–namely–H.R. 347 (and it’s companion senate bill S. 1794); aka the “Federal Restricted Buildings and Grounds Improvement Act of 2011.” Sounding more like an appropriations bill authorizing monies for federal grounds LANDSCAPING– this bill, better known to those in the DC beltway as the ‘Trespass Bill’– potentially makes peaceable protest anywhere in the U.S.–a federal felony punishable by up to 10 years in prison.
The legislators responsible for bringing this legislative excrement to life are Representative Tom Rooney (R-Fla.) in the House of Representatives and Senator Richard Blumenthal (D-CT.) leading the Senate version. (Source: http://www.gpo.gov/fdsys/pkg/BILLS-112hr347enr/pdf/BILLS-112hr347enr.pdf) (Source: http://www.govtrack.us/congress/bill.xpd?b=112-1794)
Rep. Thomas Rooney–HR 347 Sponsor…
Rep. Rooney, the proud sponsor of HR 347 has served in the Army as a JAG Corps attorney. Since 2002 he has taught law at West Point with his specialty being Criminal Law and–Constitutional Law. (Source: http://en.wikipedia.org/wiki/Tom_Rooney_(politician) ) Ironically, this ‘constitutional law’ professor has no qualms criminalizing protest and free speech.
H.R. 347 & Senate Companion Bill S. 1794–Criminalizing protest and free speech…
This bill makes protest of any type potentially a federal offense with anywhere from a year to 10 years in federal prison, providing it occurs in the presence of elites brandishing Secret Service protection, or during an officially defined ‘National Special Security Event’ (NSSE). NSSE’s ,( an invention of Bill Clinton’s) are events which have been deemed worthy of Secret Service protection, which previously received no such treatment. Justified through part of ‘Presidential Decision Directive 62 in 1998; Bill Clinton created an additional class of special events explicitly under the authority of the US Secret Service.
Past NSSE Events Such as …SuperBowl XXXVI….
Past NSSE events included the funerals of Gerald Ford and Ronald Reagan, and the national security concern that was–Superbowl XXXVI. Other NSSE protected events include the Academy Awards and the 2008 Democratic and Republican National Conventions. I suppose presidential candidates, no matter how insane they may be are deserving as much security protection and Brad and Angelina’s sex life.
The dangerous part of this ‘executive order’ lies not in the triviality of a SuperBowl receiving taxpayer funded Secret Service protection–but in the convenience manufactured for any President desperate to hide deliberations of groups like the G-8, the G-20 and the World Trade Organization. The classification of such events as NSSE–insures the rich and powerful against any pesky accountability or transparency to the unwashed minions–namely the US public. HR 347 & S. 1794 insulates such events as the G-8, WTO and presidential conventions against tough questions and politically justified protests. (Source: http://www.en.wikipedia.org/wiki/National_Special_Security_Event )
3 Sole Dissenters Against HR 347…
The House vote tally which took place 02/28/12, was 338 for and 3 against. The three dissenters were Rep.Paul Broun R-Georgia, Rep. Justin Amash R-Michigan and Rep. Keith Ellison D-Minnesota. Rep. Ron Paul was reported earlier as having voted against the bill, but that was based on the original vote conducted 02/28/11. Rep. Ron Paul ABSTAINED on the final vote. (source: http://www.opencongress.org/vote/2012/h/73)
Rep. Amash, a rising star in the Tea Party, explained his position on Facebook…
…”Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it’s illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it’s illegal to be in that area and has no reason to suspect its illegal. (It expands the law by changing “willfully and knowingly” to just “knowingly” with respect to the mental state required to be charged with a crime.” ___Rep. Justin Amash (Source: http://reason.com/blog/2012/03/does-hr-347-the-trespass-bill-change-any)
So, Amash as one of the three dissenters has no problem with criminalizing protest on the ‘royal’ grounds of the Congress or the White House, or even a hotel hosting a fundraiser where legislative aristocracy are protected by the Secret Service–his objection lies with the average tourist unwittingly stumbling onto ‘hallowed’ ground occupied by legally anointed royalty from our government.
This bill can be found in pdf form at the following url : (http://www.gpo.gov/fdsys/pkg/BILLS-112hr347enr/pdf/BILLS-112hr347enr.pdf).
As you can see, copies were sent both to Speaker of the House Boehner and Vice-President Biden, subsequently–any claim of rogue congressmen or senators running amuck ranges from disingenuous at best to plain, calloused, obvious lies. Frankly, most members of the House and Senate regarded these two bills as a procedural duty, never questioning the ramifications of this anti-democratic action.
Rooney’s defense of the indefensible–criminalizing dissent…
Rooney’s communication director, Michael Mahaffey dismissed any concerns about civil liberties violations caused by H.R. 347 as…”a whole lot of kerfuffle over nothing. This (HR 347) doesn’t affect anyone’s right to protest anywhere at any time. Ever.” (Source: http://reason.com/blog/2012/03/does-hr-347-the-trespass-bill-change-any)
Mahaffey further added that this bill is nothing more than a benign ‘DC-centric update’ of Section 1752 of title 18, United States Code, designed to safeguard persons under Secret Service protection. Blandly attributing HR 347 as an extension of that protection to the DC area (where such protections fall under the scope of local trespassing ordinances)–Mahaffey explained that…"right now it’s not a federal violation to jump the fence and run across the White House lawn, this bill makes it a federal violation.”
Mahaffey further claimed that this change was requested by the Secret Service itself. (Source: http://reason.com/blog/2012/03/does-hr-347-the-trespass-bill-change-any) To his credit Mahaffey did answer my inquiry with a carefully worded email, explaining further that this bill only offers consistent protection for those requiring Secret Service details such as the President, Vice-President. At the surface the explanation seemed reasonable until closer examination revealed vague terms in the bill regarding the term “knowingly” , “disruptive conduct” and “impede or disrupt the orderly conduct of Government business or offical functions.” (Source: http://www.gpo.gov/fdsys/pkg/BILLS-112hr347enr/pdf/BILLS-112hr347enr.pdf) Furthermore, neither Rep. Rooney or Mahaffey actually answered my question regarding legal precedent, legal case citations, and associated theories. We are merely supposed to take their word for it.
Sloppy Legislation…Vague Wording
The problem with Rep. Rooney’s response via Michael Mahaffey lies in the very nature of protest. Mahaffey claims that this bill does not trample the constitutionally protected right to protest–yet the bill itself criminalizes ‘disruptive conduct’ in such vague terms that a 7th grader disrupting visiting dignitaries receiving Secret Service protection, over any issue–(no matter how trivial), such as school uniforms–would be potentially guilty of a federal felony. What Rooney, and so many government elites cynically ignore is the very nature of protest. Protest in its very nature, is intended to disrupt government business as usual, for without such disruption the protest would be as effective as a leaky condom.
Congressmen like Justin Amash who quibble over the omission of the word “willfully” as justification for arresting and charging citizens with the federal felony of ‘trespassing’; on grounds where a Secret Service protected person happens to be–miss the point. Amash is correct in noting that the omission of the word “willfully” represents an unfair burden to the citizen. In legalese, this omission creates a situation where anyone can be charged with a federal felony for ‘trespassing’ on grounds shared by a person or group receiving Secret Service protection (including NSSE’s); even if the ‘trespasser’ had no knowledge of such protected persons being present. In theory, anyplace where there is a protest–could also be the setting for mass felony charges against constitutionally protected behavior such as the right to protest.
Unfortunately, Amash takes in no further. What he fails to recognize is the constitutional right to protest, to petition a government for redress of grievances. In short, this Congress and this President have established themselves as would be aristocrats and monarchs. This bill represents a legislative Maginot Line separating Congress, the President and the corporations who appear to own them–from the rest of us rabble. Amash’s offering is tantamount to an obese glutton offering crumbs to the starving–symbolically empty and useless.
The Senate’s Response….Dead Silence
To date, no response has been received by the Senate sponsor of HR 347′s companion bill Senate Bill 1794, Senator Richard Blumenthal. In fact, this bill was passed in the Senate by ‘unanimous consent,’ which is significant in terms of senatorial accountability and transparency. To quote www.govtrack.us…
…”This bill passed in the Senate by unanimous consent. A record of each senator’s position was not kept.” (Source: http://www.govtrack.us/congress/bill.xpd?bill=s112-1794) How very convenient for each senator that their position was never recorded–anywhere. No accountability and certainly no transparency–just gross arrogance. ( The House of Representatives DID have a record of each representative’s vote. Here is the link to the House vote record : ( http://www.govtrack.us/congress/vote.xpd?vote=h2011-149).
The following link can be used to contact any member of the US Senate regarding their vote and the lack of transparency on such an important issue. (http://www.senate.gov/general/contact_information/senators_cfm.cfm)
The Senate rule of ‘unanimous consent’ is defended as a method of expediting legislative business otherwise considered inconsequential. The Senate’s ‘volume of precedents’ explains the nature of unanimous consent:
…”Whereas Senate Rules permit virtually unlimited debate, and very few restrictions on the right to offer amendments, these (unanimous consent) agreements usually limit debate and the right of senators to offer amendments.” (Source : http://www.senate.gov/legislative/common/briefing/Senate_legislative_process.htm)
Though a majority of Senate business is dispensed with using ‘unanimous consent’–it is inherently troubling that our Senators view the dismissal of our basic right to ‘peaceably assembly’ as -inconsequential.
In Conclusion…
In this age of ever increasing police militarization and shrinking civil liberties both here at home and worldwide; the US government under President Obama has morphed into a third Bush term. No longer content to stonewall the public with empty slogans issuing from ‘empty suits’–the political class has degraded to writing obviously illegitimate ‘laws’ in a desperate attempt to crush any dissent. As this bill made its way through the illustrious halls of Congress–no open discussion was entertained for an entire year. Not a single member of Congress spoke out against this obscenity. Not a single member of Congress alerted the press. Not a single member of Congress contacted legal advocacy groups such as the ACLU, Bill of Rights Defense Committee or the National Lawyer’s Guild. The silence deafening– if not conspiratorial.
Congress Shall Make No Law…
Just this past year we saw the President who campaigned on ‘hope’ and ‘change’–announce some galling changes, with Congress (for the most part) rubber stamping each and every death blow to what remains of the Bill of Rights. President Obama has claimed the right to declare anyone a ‘terrorist’ or ‘terrorist sympathizer’ based on nothing more than presidential opinion, and order their assassination. (Source: http://www.reuters.com/article/2011/10/05/us-cia-killlist-idUSTRE79475C20111005) No evidence is required–at least that the public can see. We are told to blissfully ‘trust’ our public officials even when they are unworthy of such trust. The galling fact that Rep. Tom Rooney has taught constitutional law to cadets at West Point is chilling in light of this sneaky ‘end-run’ around the 1st amendment. In case Rep. Rooney has forgotten that amendment–I’ll quote it here :
“CONGRESS SHALL MAKE NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”
Perhaps Congress and the President will find their inner patriot and reverse this vile stripping of our rights. It could happen. By the way–can anyone pass the Prozac?
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