Tag Archives: self-defense and police

Why You Really Can’t Fight City Hall, At Least Over the Police – POLITICO

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In the early morning hours of January 28, 2000, a Black police officer named Cornel Young Jr. —“Jai” to those who knew him—was off duty, dressed in plain clothes, and waiting on a steak sandwich from an all-night diner in a rough section of Providence, Rhode Island. A fight broke out at the front of the restaurant and quickly spilled outside. Someone brandished a gun. Young jumped into action, shouting “Police!” as he rushed through the diner and drew his weapon. Within seconds, he would be bleeding in the snow outside the restaurant, shot multiple times by two white, uniformed officers from his own department. Within hours, he would be dead.

Those are the basic facts, and the sadness of them transcends politics. If Black lives matter and blue lives matter, as they all most assuredly do, the killing of patrolman Cornel “Jai” Young was doubly tragic.

But the tragedy does not end there. As an attorney who has litigated civil rights cases, I can tell you that the tragedy of Jai Young’s story actually ends in a courtroom, some six years after his death, when the city of Providence slipped through a gaping chasm in federal civil rights law—one that has largely escaped scrutiny in the current national push for racial justice reform. It’s called the Monell Rule, and it’s why cities and police departments are rarely held accountable for the actions of police officers.

To learn more about her case, I recently reached out to Leisa Young, Jai’s mother, who fought the city of Providence in court for the better part of five years. She is an impressive woman: a bright, successful, former single mother who lifted herself out of poverty while raising an exceptional son. The pain of his death has hardened with time, the way scar tissue fills a wound that once might have been fatal. When she speaks of Jai now, Leisa’s voice does not crack, though she tends to change the subject.

The story she tells is awash in irony. Jai had entered the police force to change it, and he died, Leisa believes, because of the very problems he wanted to fix. Growing up, Jai had not been immune to the racial profiling so often experienced by young Black males. But his father—from whom Leisa had long since been divorced—was a police officer, and through him Jai developed an interest in community-based police reforms. By joining the force, Jai hoped to change what he saw as a militaristic approach to policing, especially in low-income neighborhoods like the one where he eventually died.

Leisa tells me that one of the cops who shot her son had been his classmate at the police academy and might have recognized him if he had only paused an instant before shooting: “Out of uniform, in that neighborhood, Jai was just another target.”

When asked about the city’s handling of her son’s case, Leisa responds with exasperation—the type of chronic emotional fatigue known only to those unfortunate souls who have spent years fighting a more powerful and highly motivated enemy. You can’t fight city hall, they say. Most people know the phrase; Leisa Young has lived it.

From the very beginning, the city circled the wagons. Just two days after Jai’s death, the mayor of Providence declared in the local press that race had not been a factor in the shooting. In a televised interview, a high-ranking officer predicted the two shooters would be exonerated by the department’s internal investigation, which was just barely underway. Meanwhile, Leisa says, city officials worked privately to convince her that Jai was somehow at fault in his own death because he had been pointing his firearm sideways, “like a thug.” Recalling the accusation now, Leisa dismisses it with a laugh that is somehow charming and bitter at the same time: “Where would he have learned that? In thug school?”

The 2003 verdict has never been overturned, and in the eyes of the law, the violation of Jai Young’s civil rights is an unassailable fact. That verdict almost certainly would have ended the case if Leisa had been suing a trucking company over a traffic accident, or a chemical company over a cancer-causing pesticide. But hers was a civil rights lawsuit against a city government, and though she still does not understand what it means or why, she would spend the next two years trying to overcome something called the Monell Rule.

I first learned about the Monell Rule in 2013, shortly after I accepted my first civil rights case. I had been practicing business law in Texas for 15 years when a friend asked for my help in a case involving threats and extortion by a small-time city government. It was not my area of the law, so I immersed myself in legal research, and it wasn’t long before I encountered this little-known legal rule that, despite its obscurity, plays a massive role in virtually every federal civil rights lawsuit against a city or county government. One case led to another, and I have been fighting the Monell Rule ever since.

To understand it, one must go back briefly to the end of the Civil War, when Congress passed the Civil Rights Act of 1871. The 13th, 14th and 15th Amendments had just been ratified, promising civil rights to emancipated slaves and other citizens. The 1871 law—also known as the Third Enforcement Act—was designed to provide a mechanism for enforcing these constitutional guarantees and it authorizes individual citizens to bring private lawsuits for civil rights violations committed by police and other persons cloaked in the authority of state or local governments. Today, among lawyers, this law is known simply as “Section 1983,” and it remains one of the most important civil rights statutes in the country.

In 1961, in a case called Monroe v. Pape, the U.S. Supreme Court ruled that city governments were exempt under Section 1983. The Monroe case involved horrific allegations of racial abuse at the hands of 13 Chicago police officers who had allegedly broken into a Black couple’s apartment and forced them to stand naked in front of their children as they beat the father with a flashlight, degraded him with racial slurs and ransacked the apartment. The Supreme Court ruled that the officers could be sued under Section 1983, but the city of Chicago could not.

Unsurprisingly, the Monroe decision was met with heavy criticism, and the Supreme Court eventually reversed itself—sort of. In Monell v. Department of Social Services of the City of New York, the high court ruled that cities are accountable under Section 1983, but only if the civil rights violation was caused by “official policy” of the city government. The court’s reasoning was based on a strained reading of the 1871 law, and has been often criticized ever since, but the rule established in Monell has nonetheless survived and evolved.

Today, “official policy” can be proven in multiple ways, but the gist is always the same: the civil rights violation must have been caused by a deliberate policy choice made at the highest levels of a city government, or by a pattern of institutional neglect so pervasive and consistent that it constitutes “deliberate indifference” by city policymakers. It is a very high bar, and clearing it often depends on facts and concepts that are inherently elusive.

The Monell Rule is unique to civil rights litigation and exists nowhere else in the legal world. If, for example, an Amazon delivery driver were to negligently cause a traffic accident while on the job, Amazon would ordinarily be liable for the victim’s injuries; there would be no need for the victim to prove that Jeff Bezos or Amazon’s board of directors had caused the accident through their corporate policies or their “deliberate indifference” to the rights of potential accident victims. In the civil rights context, however, that is essentially what the Monell Rule requires. In simplest terms, the Monell Rule is a barrier to government accountability. It puts legal distance between city governments and their employees, allowing cities to avoid responsibility for the on-the- job conduct of their own police officers.

As a practical matter, the Monell Rule blocks the only pathway by which civil rights victims can hold police departments accountable. Victims of police violence have three basic avenues to justice: criminal prosecution of the individual officers involved; a civil lawsuit against the same officers; or a civil lawsuit against the municipality that employs them. The first two avenues have their own unique challenges, such as the high burden of proof in criminal cases, or the qualified immunity standard that protects individual police officers from liability in civil suits. But the first two avenues—even where successful—punish only the individual officers. It is only the third avenue that has the potential to impact municipal police departments as a whole, and the Monell Rule blocks that avenue like a barricade.

Source: Why You Really Can’t Fight City Hall, At Least Over the Police – POLITICO

Black Radical Activists and the Dangers of the Police State – AAIHS

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Black Radical Activists and the Dangers of the Police State

During recent anti-police brutality protests and marches across the United States, American police forces have displayed the very behavior that brought people to the streets in protest. Activists have been harassed, beaten, arrested, shot at with rubber bullets and tear gas, and shot and killed by white vigilantes encouraged by police. Critics have focused their blame on the largely peaceful protestors rather than the violent police forces whose actions have been caught on camera. The police have also used their arrest power to try and stifle protest including, in one incident, arresting the only Black state legislator in Kentucky during a protest against the police violence that killed Breonna Taylor. Police abuse during social justice protests has a long history and has been part of the resistance to the kind of radical political change needed for racial justice. Angelo Herndon’s activism in the 1930s, his frequent arrests, and his unjust imprisonment is part of this long tradition of using police to prevent racial justice and stifle dissent.

In 1937, Herndon published his memoirs titled Let Me Live, where he related his family’s poverty, his employment struggles, and most importantly his radicalization in the Communist Party. The book is sometimes considered one of the first prison memoirs, but some scholars have recently argued that it is a poignant critique of racial capitalism. Herndon’s story of growing up in poverty and facing racial discrimination and police harassment demonstrate what Charisse Burden-Stelly has described as the “mutually constitutive nature of racialization and capitalism.”

In Let Me Live, Herndon describes his growing awareness of capitalist exploitation as well as the use of police as capitalist agents to control Black bodies. Herndon was born in Wyoming, Ohio in 1913, one of eight children. His family’s precarious financial position declined further after his father died from miner’s pneumonia when he was nine years old. At only thirteen, Herndon and his older brother Leo left home and traveled to Lexington, Kentucky to find work as miners. His first job as a miner, working and living in a segregated community, was a wake-up call. His wages, which were meant to help his whole family, were often consumed by company fees leaving him and his brother barely able to support themselves. Frustrated, the Herndon’s left Kentucky and went to their father’s birthplace, Birmingham, Alabama. Leo found a job, but Angelo remained unemployed. In the process of trying to find work, Herndon met a labor agent who convinced him to leave town for work on a bridge. When he arrived, he realized that he and other Black laborers had been lured to work as slave laborers policed by armed guards and given no wages. Herndon and a few other workers managed to escape, despite being chased by dogs.

Herndon’s time in Birmingham radicalized him further. When he finally found work with a mining company, he was disgusted with the company union that failed to advocate for workers. He witnessed a coworker’s death after management failed to make necessary repairs to the machinery he worked on; he and other employees moved his body out of the way to continue work. While traveling through town he witnessed a conductor beat a Black man who did not defend himself; his frustrations mounted until one day he refused to move on a Jim Crow car, he was left alone after the conductor told people he was crazy. In June 1930 he happened upon an Unemployed Council (UC) leaflet announcing a meeting, this was Herndon’s introduction to political organization and the Communist Party (CPUSA).

Herndon became a UC organizer and began attending meetings, organizing events, and traveling to UC conferences. He respected the UC and CPUSA for embracing an antiracist position and calling for working-class unity and he came to believe that communism was the “only philosophy of living worthy of a thinking civilized man.” Unfortunately for Herndon, the police did not take kindly to communist organizing and especially to a Black communist. As Marion Ross argues, Herndon’s “redness” and “Blackness” made him a criminal in the eyes of the law. His first arrest came when he tried to organize his fellow miners into the United Mine Workers, he was charged with vagrancy, though he was employed, and held in solitary confinement for seven days.

At his trial, the prosecutor focused on the threat Black men posed to white women’s virtue; this was enough for a guilty sentence and twelve months imprisonment and a $500 fine. When the prosecutor painted Herndon as a sexual predator, he was alerting the all-white jury to the belief that the Black body had to be controlled to secure white supremacy. His conviction was eventually overturned in the circuit court, but it was enough to move Herndon to officially join the CPUSA. Soon after he was arrested again walking to a CPUSA Labor Day rally; he was held for eleven days with other prisoners detained for mental illness. After his second arrest, Herndon’s memoir pivots from a story of radicalization to one of fascist police abusing him and his fellow organizers with impunity.

Herndon’s every movement in Birmingham was followed by police who arrested him on any pretense; it became such a frequent occurrence that he claimed it drove him further into the arms of the CPUSA. But it also became too difficult to live there, so in 1931 he took a job with the Trade Union Unity League to help organize longshoremen in New Orleans. Even in Louisiana the police dogged his every move, and he was arrested again. He also became active in the campaign to free the Scottsboro boys, nine Black youths arrested for allegedly raping two white women on a train.

Herndon returned to Alabama to organize for the Scottsboro defense and to try and help with the organization of sharecroppers in Camden County, but he was chased out of town by the threats of a lynch mob. When he arrived back in Birmingham he was arrested right off the train. Herndon did not stay long, he was sent to organize for the UC in Atlanta, GA in 1932. When the city announced it was going to drop over 20,000 people from the relief rolls, Herndon sprung into action. He began producing leaflets and organizing marches, all of which brought law enforcement attention. While picking up mail at the post office he was arrested and charged under an 1861 law to prevent slave insurrections; the place where he was staying was raided and all of his pamphlets and books were seized, later to be used against him in court.

Herndon described his subsequent imprisonment, trials, and conviction as being “crucified by capitalist law and order.” He was held incommunicado until a fellow inmate smuggled out a letter to the International Labor Defense, an organization devoted to defending workers. It was this arrest that prompted Herndon to write Let Me Live; in it he described his months in solitary, then on death row, the “kangaroo court” trial in which the prosecutor went into a “lynch frenzy,” and his conviction and sentence of 18-20 years on a chain gang, a death by labor sentence. This arrest would make Angelo Herndon a household name for radicals raising awareness about the dangers of the police state and its concerted efforts to quash social justice. All told, Herndon would spend two and a half years in jail while his appeals were heard. After the CPUSA mobilized a global defense around Herndon, the charges would eventually be dropped, and he would be free. He later described his imprisonment as an “apprenticeship in the revolutionary struggle.”

Herndon recognized what even today some Americans are only just realizing: that the police are not public servants meant to keep the peace, that they are agents of social control. While speaking to other prisoners, Herndon told them that if there was a “decent government” who cared for people’s needs, rather than protecting capitalist profits, fewer people would be imprisoned. Herndon was arrested so many times as a known UC organizer that he lost count; he recruited others to the UC and CPUSA by arguing that they had to make change because we are all “in the same leaky boat.” His memoirs have been described as prison literature, a critique of racial capitalism, communist propaganda, and in the tradition of slave narratives — it is also a book about police abuse and control and policing as a tool to control Black America and working people. It is a narrative that is all too familiar to today’s activists, that policing is a barrier rather than a path to social justice.

Source: Black Radical Activists and the Dangers of the Police State – AAIHS

The Second Amendment’s Second-Class Citizens

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REmembering Philando Castile

July 6, 2016, Philando Castile was murdered by a Falcon Heights cop in the passenger seat of a car, while his girlfriend and her 4 yr old daughter watched. worked in a school cafeteria for over 12 yrs where he served little kids and was beloved among his colleagues.

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The Second Amendment’s Second-Class Citizens

Black citizens of the United States have seldom enjoyed the same right to bear arms that whites do.

DAVID A. GRAHAM    Writer for The Atlantic
JUL 7, 2016
 
 

https://www.youtube.com/watch?time_continue=4&v=cQo-yYhExw0

On social-media, many are already asking why the Second Amendment did not protect Sterling and Castile, and why gun-rights advocates like the National Rifle Association are not speaking out on their behalf. In each case, there are complicated legal questions, and many of the details remain unclear, but it is true that gun-rights groups like the NRA and its allies have typically pushed for laws that would allow citizens broader freedom to bear arms than currently permitted. It is also the case that the interpretation of the Second Amendment has for decades been deeply intertwined with the ways the law protects—and more often fails to protect—African Americans in comparison with whites, a history that begins in earnest in the 1860s, flares up in the 1960s, and is again relevant today.

The Sterling case is the more complicated one. Sterling was a convicted felon, and thus probably was not legally permitted to have a gun. While Louisiana allows open carry of handguns for anyone legally allowed to possess one, concealed carry requires a permit, for which Sterling would have been ineligible. Sterling had allegedly been displaying the gun, which is the reason why police were called.

The crucial point is that the police couldn’t have known when they arrived on the scene whether Sterling’s gun was completely legal or not. An additional irony is that, according to Muflahi, Sterling had begun carrying the gun because he was concerned about his own safety—that is to say, for the very reasons that gun-rights advocates say citizens should be able to, and many argue should, carry guns.

The Castile case looks more straightforward, based on what’s known now. Assuming Castile’s permit was valid, he was placed in an impossible position by the officer. Unlike Sterling, who seems to have been resisting arrest (a fact that in no way justifies an extrajudicial execution by officers), Castile was attempting to comply with contradictory imperatives: first, the precautionary step of declaring the weapon to the officer; second, the officer’s request for his license and registration; and third, the officer’s command to freeze.*

Some activists contend that white men in the same situations would never have been shot. It’s an impossible counterfactual to prove, although there’s relevant circumstantial evidence, such as the fact that black men are much more likely to be shot by police than any other group. Raw Story rounds up stories of white people who pointed guns at police and were not shot. Castile’s shooting is reminiscent of a 2014 incident in which South Carolina State Trooper Sean Groubert pulled a black driver over in Columbia. Groubert asked the man, Levar Edward Jones, for his license and registration, but when the driver turned to get them, Groubert promptly shot him without warning. Groubert seems to have feared—however irrationally—for his safety when Jones reached into the car, but what was Jones supposed to do? He was complying with the officer’s instructions. (Groubert later pled guilty to assault and battery.)

The two shootings give a strong sense that the Second Amendment does not apply to black Americans in the same way it does to white Americans. Although liberals are loath to think of the right to bear arms as a civil right, it’s spelled out in the Bill of Rights. Like other civil rights, the nation and courts have interpreted it differently over time—as an individual right, and as a collective right. But however it’s been applied, African Americans have historically not enjoyed nearly the same protection as their white fellow citizens.

As Adam Winkler wrote in The Atlantic in 2011, one crucial testing ground for a personal right to bear arms came in the aftermath of the Civil War. Blacks in the South encountered a new landscape, one which they were ostensibly free but vulnerable and beset by white antagonists:

After losing the Civil War, Southern states quickly adopted the Black Codes, laws designed to reestablish white supremacy by dictating what the freedmen could and couldn’t do. One common provision barred blacks from possessing firearms. To enforce the gun ban, white men riding in posses began terrorizing black communities. In January 1866, Harper’s Weekly reported that in Mississippi, such groups had “seized every gun and pistol found in the hands of the (so called) freedmen” in parts of the state. The most infamous of these disarmament posses, of course, was the Ku Klux Klan.

In response, General Dan Sickles, who was in charge of Reconstruction in South Carolina, decreed that blacks could own guns. State officials ignored him, so Congress passed a law stating that ex-slaves possessed “full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms.” In the words of the Yale constitutional-law scholar Akhil Reed Amar, “Between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman.”

Black Americans again prominently asserted their right to bear arms during the 1960s. In 1964, Malcolm X was famously photographed holding a rifle as he looked out a window. The image was often misinterpreted as a statement of aggression, as though he was preparing a guerrilla assault. In fact, Malcolm was exercising his own right to own a gun for self-defense, concerned that members of the Nation of Islam—which he had recently deserted for Sunni orthodoxy—would try to kill him. (His fear was, of course, vindicated the following year, when Nation members did murder him.)

In 1967, Black Panthers began taking advantage of California laws that permitted open carry, walking the streets of Oakland armed to the teeth, citing threats of violence from white people and particularly white cops. When people were pulled over, Panthers would arrive on the scene—to ensure that justice was done, they argued, or to intimidate the cops, the cops contended. In response, Republican state Assemblyman Don Mulford introduced a bill to ban open carry. The Panthers then decided to go to the state capitol, heavily armed, to exercise their right.

As theater, it was an incredible gesture. As politics, it was a catastrophe. The sight of heavily armed black men brandishing rifles galvanized support for Mulford’s bill, which promptly passed and was signed into law by Governor Ronald Reagan. It set off a spree of gun-control laws that only began to be rolled back years later—leading to the current regime of permissive laws.

“The gun-control laws of the late 1960s, designed to restrict the use of guns by urban black leftist radicals, fueled the rise of the present-day gun-rights movement—one that, in an ironic reversal, is predominantly white, rural, and politically conservative,” Winkler wrote.

Signs of that shift are visible around the nation now. In Texas, gun owners (largely white) staged an open-carry rally on the capitol grounds in Austin in January, an echo of the Panthers’ rally in Sacramento. (Even some gun advocates looked askance at that move.) Meanwhile, the Panthers’ tactic of carrying guns and watching the police has an echo in the rapidly spreading practice of filming encounters with the police, just as happened in the Sterling and Castile shootings. Black Americans may not enjoy the full protection of the Second Amendment, but technology has offered a sort of alternative—one that may be less effective in preventing brutality in the moment, but has produced an outpouring of outrage.

One common thread through all of these cases is the constant threat of state violence against black Americans: from un-Reconstructed Southern officials; from California police; and today, from police around the country.

Gun advocates frequently argue that more guns, and more people carrying guns, produce a safer society. This, and the contrary claim that they undermine public safety, depend on statistics. But anecdotally, both Castile and Sterling represent cases in which carrying a gun not only failed to make the men safer, but in fact contributed to their deaths. The NRA has not made a public statement on either case, and a spokesman did not immediately reply to a request for comment.

In any case, the American approach to guns is, for the moment, stable. The courts, and particularly the Supreme Court, have inched toward much broader gun rights, including a suggestion of a personal right to bear arms. The death of Justice Antonin Scalia may, in the long term, produce a more liberal court, but that will require reversing years of precedents. In the meantime, spates of mass shootings and a slightly increase in violent crime have produced highly vocal calls for gun control, but there’s little reason to expect those efforts to succeed. To date, they have almost universally failed. In fact, the last few years have brought ever looser gun laws. Quick changes in gun laws, regardless of whether they’re desirable, are a remote possibility. As a result, the most relevant question right now is not whether gun laws should change, but whether existing gun laws apply equally to all Americans—and if not, why they don’t.

This article is part of our Next America: Criminal Justice project, which is supported by a grant from the John D. and Catherine T. MacArthur Foundation.

DAVID A. GRAHAM is a staff writer at The Atlantic, where he covers U.S. politics and global news.  

*This article originally stated that Castile had a legal obligation to declare his weapon to the officer. In fact, in Minnesota, holders of concealed carry permits need only declare their weapons when asked to do so by an officer. We regret the error.