Post-trial Memoranda from Floyd v. City of New York (Stop-and-Frisk Litigation)

I haven’t been following the Floyd lawsuit that challenges New York City’s stop-and-frisk practices as closely as I should, and I need to fix that. Just today, I downloaded the postrial memoranda that the defendants and the plaintiffs filed with the district court, to read over the next week or so. In case any of you would like to read these documents, too, I have posted them here (defendants’ memorandum) and here (plaintiffs’ memorandum).

Federal Charges Against George Zimmerman?

I deliberately avoided coverage of the George Zimmerman trial, as I did the Casey Anthony trial, the O.J. Simpson trial, and most other high-profile cases. But upon waking up this morning, I did take notice of Zimmerman’s acquittal and ensuing calls for federal authorities to bring “civil rights charges” against him. This got me to thinking, what civil rights charges? And how likely is it that the federal authorities will file these charges?

Upon review, it appears that the closest “fit” among federal crimes would be 18 U.S.C. § 249, a recently enacted federal hate-crimes statute (officially, The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009). Section 249(a) provides:

(a) In General.—

(1) Offenses involving actual or perceived race, color, religion, or national origin— 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(i) death results from the offense; or
(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
Section 249(a)(2)* is to similar effect, except that it applies to crimes motivated by “the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,” and contains a more elaborate federal jurisdictional “hook.”
What is the government’s track record in section 249 cases? Well, there have been few section 249 prosecutions to date. In looking for cases that have concluded their district-court phase, I could find only the following:
United States v. Maybee: Last summer, in United States v. Maybee – timing-wise, the first appeal of a conviction under section 249 — the United States Court of Appeals for the Eighth Circuit affirmed a defendant’s jury-trial conviction under section 249. Per the government’s appellate brief, the evidence at trial “established that defendant, along with two others, while driving his truck, chased a car occupied by five young Hispanic men and deliberately used his truck to repeatedly strike the victims’ car, ultimately causing the car to crash and burst into flames.” The record also contained abundant evidence that the defendant and his companions (one of whom pleaded guilty to a section 249 charge prior to trial) used racial slurs against the victims just prior to the attack.

United States v. Hatch Earlier this month (July 2013), in United States v. Hatch, the Tenth Circuit affirmed a conviction, upon the defendant’s guilty plea (reserving right to appeal), of conspiracy to violate the statute. According to the Court of Appeals, “In April 2010, a mentally disabled Navajo man—whom the record identifies only as ‘V.K.’—came to [a] restaurant. [Another individual] convinced V.K. to come to [his] apartment. Hatch and [a third person] later joined [them] there. At [the] apartment, the three white men drew on V.K.’s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.’s hair. Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.’s arm.” One of Hatch’s two co-defendants also was convicted upon plea of a section 249 charge; the other was convicted upon plea of conspiracy to violate this law.

In both Maybee and Hatch, the defendants argued that section 249 was unconstitutional, in that Congress lacked authority to enact the statute. Both Courts of Appeals rejected this argument, concluding that the Thirteenth Amendment conferred sufficient authority upon Congress.

United States v. Mullet: Some of you may have heard about this case, in which the defendants were charged with federal crimes for, inter alia, cutting off the beards of their foes within the Amish faith. The lead defendant, Samuel Mullet, Sr., was convicted by a jury of violating section 249, as well as other crimes. More than a dozen co-defendants also were convicted of conspiring to violate the statute.

United States v. Thompson: Here, the defendant pleaded guilty to a single section 249 count. The felony information, filed in the District of Minnesota in July 2011, alleged that Thompson struck an elderly Muslim man of Somali descent while telling him to “go back to Africa.”

United States v. Hall: A 2013 guilty plea by a member of the Aryan Brotherhood. Hall, an inmate in a federal prison in Texas, assaulted another inmate whom he believed was gay.

United States v. Larson: A guilty plea associated with an assault upon a Sikh cab driver in Washington state. The incident took place in October 2012; Larson entered his plea in June 2013 in the Western District of Washington.

United States v. Jenkins: This federal prosecution, brought in 2012, stemmed from the kidnapping and assault of a gay man in Kentucky. Two female defendants pleaded guilty to aiding and abetting a hate crime assault, in violation of section 249. Their two male co-defendants pled not guilty and went to trial. At trial, the men both were convicted of kidnapping and conspiracy charges, but were acquitted of the section 249 crime.

Unfortunately, I don’t know if these cases represent all section 249 prosecutions to date. I may have missed a case, especially if it led to a dismissal or acquittal (making the DOJ somewhat less enthusiastic about issuing a press release).

Nevertheless, it’s pretty clear that the feds don’t file very many section 249 charges. Why? Well, as I’ve written elsewhere, civil-rights crimes can be very difficult to prove. The failure to earn convictions on the section 249 count as against the Jenkins defendants who chose to go to trial underscores the difficulty in proving, beyond a reasonable doubt, the specific intent necessary to establish a hate-crime offense. My sense is that federal prosecutors, aware of these difficulties, properly are reserving section 249 charges for relatively clear-cut cases. (Indeed, section 249 cases are so rare that the DOJ’s press releases for two different cases (Thompson and Hatch) both identified the case as the first to be brought under the Shepard-Byrd Act. Oops.) I have not read anything about the Zimmerman case that would lead me to believe that the section 249 case against him is comparably obvious, but again, I have not been following the case closely.

Turning the page, some of you who recall the federal prosecutions of the police officers involved in the Rodney King beating may wonder about the applicability of those crimes to the Zimmerman case. These offenses, 18 U.S.C. §§ 241 and 242, don’t apply to the Zimmerman matter. The first of these crimes is a conspiracy offense, and you can’t have a one-person conspiracy. Per the Department of Justice’s website, the second of these offenses “makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States,” But Zimmerman wasn’t acting under “color of law” insofar as I can tell, so I don’t think that crime would fit, either.

* An earlier version of this post mistakenly referred to this subdivision as section 249(b).


Green v. Pro Football Inc. d/b/a Washington Redskins et al.

As some of you may have heard, former National Football League linebacker Barrett Green recently filed a lawsuit against the Washington Redskins, their former defensive coach Gregg Williams, and former Redskins tight end Robert Royal.

In this lawsuit, Green brings a battery claim against Royal, a resulting vicarious liability claim against the Redskins, and negligence claims against all three defendants. These claims derive from a career-ending knee injury that Green, then a member of the New York Giants, suffered as a result of a hit by Royal in a 2004 game.

According to the complaint, Williams “instructed and/or encouraged” Royal to injure Green as part of an “bounty” program, whereby “Defendant Redskin players were encouraged to intentionally injure opponents so that they would be forced to leave the game.”

I haven’t seen a copy of the complaint elsewhere, so I thought I’d post it here. It’s an interesting case. Though I am certainly no expert in Maryland law, I tend to agree with Professor Gabe Feldman’s analysis that Green will have a tough row to hoe with this lawsuit, due to statute of limitations and causation issues with his claims.

“Not all analogies are created equal,” and Florida v. Jardines

The other day, I read an interesting article just published in the journal Neuropsychologia, titled “Not all analogies are created equal: Associative and categorical analogy processing following brain damage.” As a matter of course, this article made me think of the United States Supreme Court’s recent decision in Florida v. Jardines, a “dog sniff” case.

In Florida v. Jardines, the Court (by a 5-4 margin) held that police use of a trained scent dog at the front door of a set-back, single-family residence amounted to a Fourth Amendment “search.” In reaching this conclusion, Justice Scalia’s majority opinion distinguished the circumstances from a situation in which a police officer makes a similar front-door approach as a prelude to a so-called “knock and talk.” To the Jardines majority, homeowners have customarily given their implied consent to the latter type of police contact, such that it is not a “search.” No such consent has been given to the dog-sniff technique, the court reasoned, so it is a “search.”

Fair enough, though I can’t wait for the case that’ll arise once technology gets to the point where police officers can take sense-enhancing pills. As I said, the Jardines case came to mind when I read the article on analogies. The abstract for this article provides as follows (with one technical sentence omitted):

Current research on analogy processing assumes that different conceptual relations are treated similarly. However, just as words and concepts are related in distinct ways, different kinds of analogies may employ distinct types of relationships. An important distinction in how words are related is the difference between associative (dog–bone) and categorical (dog–cat) relations. To test the hypothesis that analogical mapping of different types of relations would have different neural instantiations, we tested patients with left and right hemisphere lesions on their ability to understand two types of analogies, ones expressing an associative relationship and others expressing a categorical relationship. . . . We argue that categorical relations additionally rely on the right hemisphere because they are more difficult, abstract, and fragile, and contain more distant relationships.

As the abstract indicates, the basic point of the article is that “categorical” analogies are more difficult to draw than “associative” analogies are. In making this argument, the authors assert:

the relationships or mappings between words in categorical analogies are qualitatively different than those in associative analogies. Associative relations between two words are
typically based on actual events (a fish swimming in the sea) that can be directly experienced. The two items co-occur in time and space. In this sense such relationships are concrete. Categorical relationships, even those using concrete words, are less concrete than associative ones. They are feature-based, and not all features are equally important in establishing a relationship. Boxes and bottles are both containers, but some features must be ignored (shape, material) while others attended to (function of containment) in order for a relationship to be established.

Anyway, this article’s thesis would seem to have some application to legal combat, in which parties seek to analogize the present case to other matters in which courts have  reached favorable rulings. If the authors are correct, their work suggests that parties often would do well to brainstorm and stress associative analogies, instead of relying exclusively on categorical likenesses. This point would seem to hold particularly true in situations where the disposition will depend in some measure on custom and tradition, as often is the case in Fourth Amendment “was there a search” matters.

For example,the article got me to thinking about how the result in Jardines hinged upon the absence of a good associative analogy (dog sniff-porch) from the prosecution’s standpoint. Both sides made categorical analogies in Jardines, with the defense likening dogs to heat imagers (per Kyllo) and front-porch use of binoculars, and the prosecution analogizing dog sniffs outside a house to dog sniffs outside a car (Caballes) or luggage at an airport (Place). But Justices Scalia’s analysis did not dwell on favorable categorical analogies (though Justice Kagan’s concurring opinion did), and honed instead on whether or not homeowners grant implied consent to law enforcement dog-sniffs — an analysis predicated upon the lack of a ready associative analogy.

As a matter of course, there’s still the old lawyers’ level-of-generality issue to think about in this context. After all, the government prevailed in the overflight cases of the 1980s even though there was only a “look down-airplane” analogy to rely upon, as opposed to “police officer look down-airplane.” But that’s a nuance, and goodness knows no one reads this blog for those sorts of fine points.

Is the U.S. Attorney’s Office for the District of Massachusetts Really “Particularly Immoral”?

As part of the ongoing conversation over the charging practices of federal prosecutors, prompted by the death of Aaron Swartz, one commentator observed that the United States Attorney’s Office for the District of Massachusetts–which prosecuted Swartz–was, based on her experience, “particularly immoral.”

The writer cited only two instances of perceived “immorality” in support of this charge. I suspect the commentator had other examples in mind, but wished to spare readers a series of war stories. But the accusation, as well as the rather slender evidence advanced to support it, got me to wondering. If one wanted to prove that a particular U.S. Attorney’s office was “particularly immoral,” how would one go about doing it?

Since most of the criticisms of the Swartz prosecution sound in perceived “overcharging” by the prosecutors involved, I decided to focus on “overcharging” as evidence of “immorality.” Here, it’s important to define what I mean by “overcharging,” which people use to describe several distinct, though often overlapping, phenomena. In addressing the issue at hand, I concentrated on those species of “overcharging” in which prosecutors allege crimes with the intent to either reduce or dismiss them as part of a plea bargain to other offenses. Attacks on this type of overcharging don’t (necessarily) accuse the prosecutor of filing charges on “insufficient” proof, whatever that means. Instead, the argument accuses the prosecutor of engaging in an illegitimate practice by using criminal charges as bargaining chips.

So, if this practice amounts to overcharging, and this sort of overcharging represents an “immoral” practice, how to measure it? Here, I tapped a series of datasets I have pulled together from data compiled by the Administrative Office of the United States Courts (AOUSC) and the Executive Office for United States Attorneys (EOUSA), which I have used for other purposes in the past. These datasets reflect the disposition of charges filed in cases terminated in United States District Courts between October 2002 and September 2009. The data can be sorted by judicial district, and thereby yield a picture of charge dispositions in each U.S. Attorney’s jurisdiction.

Now, the data have their flaws. They contain some inputting errors, for one thing. Though they are portrayed as comprehensive, I have spotted at least a few missing cases. The data do not distinguish between cases handled by the local U.S. Attorney’s office, and those prosecuted out of Main Justice. Finally, and most important, while the data relate the charges filed against each federal defendant (with the AOUSC data relating only the five “most serious” charges, as measured by base offense level), the records do not include information specific to each offender (such as his or her criminal history). This gap means that  one can’t divine from the data alone where on the Sentencing Guidelines a particular defendant would fall, if convicted.

These limitations mean that the data don’t yield what would represent one useful measure of overcharging–juxtaposing the maximum possible sentence that would adhere in a case, as charged, against the prosecution’s actual plea-bargain demand to the defendant. But one can tap the data in other useful ways. For example, because the data identify the district in which each case was brought, one might parse, shuffle, and collect the data to rank U.S. Attorneys’ offices along the following lines (among others):

Dismissals in Pled Cases: the percentage of charges that were dismissed in cases resolved by guilty or no contest plea. Here, a high dismissal rate would seem suggestive of aggressive charge-bargaining;

“Most Serious Charge” Reductions: the percentage of cases, resolved by plea, in which the offense designated as the “most serious charge” at the time of initial case filing no longer held this status at the time of case termination. Once again, higher dismissal rates would tend to suggest aggressive charge-bargaining; and

Dismissals of “Bargaining Chips” in Pled Cases: the frequency with which, in pled-out cases, prosecutors dismissed a charge that practitioners widely appreciate as a bargaining chip, such as the firearm enhancement found at 18 U.S.C. 924(c).

I concede that none of these metrics come close to perfection. Even assuming the accuracy of the data, they are subject to skewing influences such as docket composition and prosecutorial tactics such as threatening to file a more severe superseding indictment, instead of “bargaining down” an existing case. But if properly understood and limited, these metrics have their uses. Especially to the extent that the data corroborate each other, they may yield “yellow flags,” spotlighting offices whose practices may warrant further scrutiny (or praise).

So, what do these analyses yield? Well, I am writing up a short essay that relates the results, while trying to clarify what is meant by the term “overcharging.” I should have a draft done within the next week or two; toss me a line if you’d like a copy, or if you edit a law review that has very low standards. For now, I’ll just say that many of the same judicial districts tend to pop up again and again at the extremes of these rankings.

And, toward the point of this post, what about the District of Massachusetts? Well, with the caveat that I still need to double-check the data, it appears that this District (meaning, presumably, the U.S. Attorneys who practice there) has built a record that does not suggest pervasive charge manipulation–at least relative to other U.S. Attorney’s offices. Specifically, among federal districts, the District of Massachusetts had either the second- or the third-lowest charge-dismissal rate over the studied time span (the difference depends on whether one relies on the AOUSC data or the EOUSA data on this point). The District also had the seventh-lowest rate of 18 U.S.C. 924(c) plea-deal charge dismissals.

So, while acknowledging that the measures I used don’t exhaust the possible grounds for a finding of “immorality,” I don’t perceive from my preliminary review of the data much substantiation for the charge that the Massachusetts U.S. Attorney’s office is “particularly immoral.”


Today’s Auction Item: Thomas Jefferson, Pro Se Plaintiff (1817)

Today’s featured auction item consists of a bunch of court documents from a lawsuit that Thomas Jefferson brought in 1817 against a local canal company.  A press release from Christie’s Auction House summarizes these papers as follows:

“An extensive and fascinating archive of legal documents relating to Thomas Jefferson’s lawsuit against the Rivanna Company is the largest Jefferson manuscript – 72 pages in length – ever to be offered at auction (estimate: $250,000-400,000). Included are a Bill of Complaint addressed to Judge John Brown of the Superior Court of Chancery at Staunton, VA, six transcriptions of court documents, and a draft legislative bill, regarding the Rivanna  Co.”

The listing page for the documents provides some pictures, as well as additional details regarding the lawsuit:

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Football and Concussions: Irrefutable Counterproof (Walter Camp’s Football (1896))

It seems like everyone’s talking about football and concussions and lawsuits these days. Concerns that football may cause brain injuries and nerve damage are, of course, nothing new. In this vein (hah!), consider this somewhat less-than-definitive study, as related in Walter Camp’s classic 1896 treatise on the sport, Football:

* * *

Possible Injuries to the Nervous System. There is, however, a form of injury to the nervous system which may be occasioned by violent physical or nervous shock; and it is proper that we should look closely at football and determine whether the player is liable to such injury from the severe blow occasioned by the collision of two players, or the violent throwing of a player to the ground. This attitude of the question has been quite carefully examined by Dr. Morton Prince, of Boston, and the result of his investigations is here communicated, under the date of May 8, 1896, as follows: –

I am very glad, in response to your request, to give you the results of my inquiries into possible injuries to the nervous system from football playing. My inquiries have been directed into a special class of injuries. You must know that persons who are subjected to violent concussions, physical and nervous shocks (whether the shock be slight or severe) are liable to suffer from certain nervous accidents which are technically known as traumatic neuroses; they used to be called spinal concussion and “railway spine,” the latter term being derived from the fact that such injuries are very common after railroad accidents. . . .

. . . It occurred to me that if the generally accepted view regarding the exciting cause of these accidents be true, they should be common among football players. . . .

. . . With a view to determining whether such injuries may result from football accidents, I wrote the attending surgeons, or those in charge of the principal football teams of the country, asking whether they had ever known a player to suffer from a traumatic neurosis as a result of a football accident.

All of my correspondents stated that they had never seen any injury of the kind I have described result from football accidents. I may further state that, while I myself have seen a great many injuries of the kind resulting from all sorts of accidents, I have never seen a single case which was due to football playing. From this evidence I think there is little doubt that whatever may result from football playing, traumatic neuroses are not caused by the game.

Yours truly,

Morton Prince, M.D.

This would seem to dispose of the hypothesis that there might be injury to the nervous system from the violence exercises of the game.

* * *

Well, that settles that. I dare you to find any fault or room to quibble with a hey-do-you-remember survey of several clearly unbiased team doctors, and the consistent opinion of a single physician. Of course, more than 300 young men died from football-related injuries between 1890 and 1904. But nerve damage? As Ralph Wiggum would say, unpossible.

I am being a bit unkind here. Morton Prince was, in fact, a very well-regarded physician of that era, and one of the fathers of American psychology. But he was also quite the partisan on the football question; it’s obvious that he loved the sport. When, in 1926, Forum magazine presented a debate framed by the question, “Shall We Abolish Intercollegiate Football?,” Prince–an septuagenarian by that time–argued “no.”

Interestingly, Upton Sinclair advanced the case for abolition in the Forum debate. The caption for article relates, in relevant part, as follows: “YES, says Upton Sinclair, outspoken California radical. Football is simply a means of keeping college students from thinking. It injures the bodies of the players and the minds of everybody.”  I think we can see from this caption why Time magazine once referred to Sinclair as “a man with every gift except humor and silence.”

(Incidentally, if any of you want to peruse diagrams of the various plays that teams could run before the rules permitted forward passes, follow this link to page 350+ of the Camp text.)


United States v. Jones (the GPS case): the Motion to Suppress and Other Court Documents

I haven’t figured out quite yet how I’m going to integrate the United States Supreme Court’s recent decision in United States v. Jones into my criminal procedure course next fall.  (I’d better figure it out pretty fast, since I’m teaching the course at two different schools next semester. Eep.)

To get a better grasp of the facts behind the decision, I downloaded the pertinent Motion to Suppress (as later supplemented, and with its exhibits), Opposition Brief, and Order from the originating United States District Court’s website, via PACER. I’ve made these documents available at this link, if any of you want to download them for your own use.

Just as a head’s up, the “lead” document on this web page is Jones’ Omnibus Pretrial Motion (with its attack on the GPS device being found at pages 17-18 of the motion); links to other, related documents, including the Supplement to the Omnibus Motion (in which Jones raised additional arguments regarding the use of the GPS device) can be found at the bottom of the page.

Advice for Interviewing for a Prosecutor Position

Many of my students want to become prosecutors. Since I used to be a deputy district attorney, some of these students visit me before their interviews with local prosecutors’ offices, seeking advice.

To the extent that this advice is any good, I see no need to limit it to Santa Clara students. So, for what they are worth, following are the suggestions that I offer. As caveats, I suspect that other, better, advice exists elsewhere on the Internet; and while much of the text below is uncontroversial, others may disagree with some of what I write.  Finally, I should add that portions of this advice probably also apply to interviews with local public defenders’ offices, though I lack personal knowledge on this point.

To save space on this blog’s face page, I’ll relate my advice after the jump.

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San Quentin Prison Intake Register, 1888-1891

This interesting item was up for sale in a December 2011 auction at Bonham’s Auction House.  Or at least, it was going to be up for sale, until it was withdrawn.  One wonders why; I personally have no idea whether it’s legal, or illegal, to sell what used to be state property.  I’d guess that it all depends upon the circumstances that surround how the property fell into private hands.