Citizens Review Board & Professor Huber Spotlighted in Observer

May 22, 2015

On May 15, 2015, our very own supervising attorney (and soon-to-be an Associate CSL Dean for Experiential Education!), Jason Huber, and the Clinic were spotlighted in the Charlotte Observer for our work with Charlotte’s Citizens Review Board (CRB). As our faithful readers are probably aware, the CRB has been a long-standing project here at the Clinic.

The Observer shares the story of David Dardon-Strickland who states that his home was illegally searched by Charlotte-Mecklenburg Police Department (CMPD) officers. The charges officers cited him for after the search were eventually dropped, but his allegations of police misconduct were never addressed. Until now.  The CRB voted to have the first hearing under the new structure that the Clinic, Professor Huber, and other community leaders advocated for and the City Council adopted.

Professor Huber is quoted: “If we get down the road and we see … the results are still the same, then there may need to be some more changes,” Huber said. “I think it’s important to be patient and let the new system play itself out and then take a hard look at the results.” Congrats to the Clinic and Professor Huber for all of their work on this thus far!

To access the article, click here.


Congrats to new CSL Grad & Clinic Alumna, Edith Hinson!

May 21, 2015

Edith Hinson, CSL Class of May 2015 and Spring 2015 Justice Leaguer, has recently been offered admission to Georgetown University Law Center to pursue her Advanced Law Degree. Edith will matriculate this August, and graduate in May 2016 with her LLM with a concentration in Human Rights. Edith plans to thereafter continue serving the underserved through devoting her practice of law to the areas of indigent criminal defense and humanitarian immigration.


Clinic Efforts Featured in the NACOLE Review!

February 24, 2015

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In the most recent issue of the National Association for Civilian Oversight of Law Enforcement’s quarterly publication, the Review, our Clinic was featured! Clinic alumni Isabel Carson and Celia Olson wrote an article with Professor Jason Huber for the Review that highlighted our Clinic’s efforts on the Citizens Review Board (“CRB”) project. The CRB was established to bridge community-police relations here in Charlotte, and our Clinic has worked diligently over the years to create transparency within the CRB. We have had so much success with this project here in our community and continue to advocate for transparency across North Carolina.

To read the article in its entirety, click here and scroll on over to page 5: NACOLE_2015_WINTER. To find out more about our work on this project, click here, here, here, and here.


Immigration, Legislation, and the Tension Between the Two

February 19, 2015

By: Edith Hinson

Since the beginning of November, when it was confirmed that President Obama was going to speak on the issue of immigration, pundits from both sides began speculating as to what he would say. After all – what could he say? The proposed immigration legislation had been stalled in the House for over a year by that time; and yet the need for that legislation was ever-increasing, as more and more migrant children were crossing into the U.S. on their own. The call for immigration reform was roaring, but the legislators were giving it a deaf ear. In an exercise of his executive power, the President decided to take the problem into his own hands and make swift decisions about how to prioritize enforcement of our current laws in a way that is realistic, progressive, fair, and legal.

cns

Photo courtesy of http://cnsnews.com/.

 

“Our immigration system is broken…” [1]

The President chose these words as his opening remarks, and the truth of the statement is blatantly obvious. No matter which side of the issue you fall on, the fact that the current set of laws are being neither followed by the people nor enforced by the agencies demonstrates that the current system is not effective. Whether it is because the people breaking the rules are not being punished or because the conditions of the immigrants’ home countries are getting so volatile, the result is the same. Non-citizens are here in America, and we can either ignore it, or deal with it.

“A bipartisan bill [passed] in the Senate, but…the House refused…to vote [on it.]”

Immigration reform was a key objective of Obama’s platform for election. Pursuant to his promise to make it a priority, he advocated for the DREAM Act [2], which would have granted a pathway to citizenship for certain young immigrants who are seeking education and self-improvement. After intense debate in the Senate, members of both parties came up with a draft they could all live with. Once the Senate passed it, they sent it over to the House of Representatives. Key leaders in the House have since stalled the bill, refusing to allow it to go to a vote. The President, facing intense opposition from the GOP-held House of Representatives, chose to take immediate action in an attempt to alleviate growing tensions across the board.

The Executive Order

With intense pressure from both sides of the aisle to do something about the immigration crisis, and with the refusal of Congress to act in such a way that allowed for progress, the President chose to announce new enforcement priorities rather than hold his breath until the House stopped bickering with each other.

Under Article II, Section I, of the United States Constitution, the President is not able to write laws per the executive order clause. Rather, he or she has the authority to review the framework of the current laws and announce to lower enforcement personnel how the law should be applied. Think about the states where marijuana has been legalized. The federal government could identify the purveyors and users of the illegal drug and arrest them, but they have made the executive decision that it is not currently a priority to do so. They would rather target big-time traffickers of heavy narcotics than non-violent marijuana smokers. This is simply an example of members of the executive branch exercising their constitutional right to enforce the laws within their own discretion. [3] Just like it’s not realistic to indict every pot-smoker, the President’s executive order on immigration recognizes it is similarly unrealistic to deport every immigrant. 

The Reason We Allow for Discretion

It all comes down to the bottom line: money. We simply don’t have the money, or the resources, to enforce every law on the books to the “T.” Therefore, the executive branch of the government must decide how to best enforce the laws we have with the resources that are available.

The President summed this up very succinctly in his speech on Nov. 20 when he said, “Let’s be honest—tracking down, rounding up, and deporting millions of people isn’t realistic.” We just simply don’t have the resources and personnel to do such a thing. But when our laws require something that we are literally not able to do, shouldn’t we amend them? This seems to be a logical answer, but that’s not always the case. Sometimes laws are so archaic, it is obvious that they shouldn’t be enforced; and when everyone agrees to not enforce them, it doesn’t necessarily make sense to spend time and money amending them. Additionally, sometimes the timeline of the legislative process is not keeping pace with the escalating need. The latter situation is what’s true here. Therefore, the President had to do something to give consistent direction to the enforcers of our laws on how to best do their jobs.

 The Plan

 The President laid out a clear plan to reform immigration by:

  • Enforcement personnel on the border will be allotted more resources.
  • High-skilled immigrants who demonstrate a clear benefit to our economy will have an easier time getting to the U.S. than those with fewer skills to offer.
  • Non-criminal immigrants with American children who have been in the U.S. for more than five years and are paying taxes will receive temporary stay from deportation.

What does this plan really mean? President Obama explained: “If you’re a criminal, you’ll be deported. If you plan to enter the U.S. illegally, your chances of getting caught and sent back just went up.” 

The Impact

What then is the message? To law enforcement personnel within the country, the message lets them know that they can spend their time and energy locating criminals and removing them from the country. This message also lets the border enforcement know that they are going to get more money to keep up the hard work. After all, since Obama has taken office, border crossings have been cut by more than half. With more resources headed their way, illegal crossings will be further stemmed. And with direction given to the internal enforcement personnel, criminals will be deported and the country will be safer.

It is important to recognize that nothing that President Obama announced on November 20 is written in stone. The relief from deportation that he gave to non-criminal immigrants is contingent on their staying out of trouble, expires in three years, does not lead to permanent residency or citizenship, and is revocable at the will of the executive who is elected into office next year. It is nothing more than an announcement of the priorities that law enforcement officers are to follow, as recommended by the top law enforcer in the nation.

In a way, calling the President’s announcement “reform” is a misnomer. In no way does it reform our system, but perhaps it will be instrumental in reforming our way of thought. Without identifying the problems, we are unable to draft a workable solution. Therefore, once the President’s enforcement priorities are put into practice and we are able to measure the positive and negative changes that transpire, we will be able to take a more educated and progressive step on immigration. Absent action by Congress, however, the piece-meal approach as effected by executives will be the best bet we have to modifying the system to meet our current needs.

[1] The full-text speech is available at http://heavy.com/news/2014/11/president-obama-immigration-reform-speech-full-text/.

[2] DREAM is an acronym for “Development, Relief and Education for Alien Minors.”

[3] U.S. Constitution, Art. II, Section I.


EEOC Cracks Down on Consideration of Criminal Convictions in Hiring

January 21, 2015

By: Gabrielle Valentine

While reducing recidivism has been the driving force behind the Ban the Box initiative, the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“the Guidance”) sheds a new light on the importance of employers following fair hiring standards.[1]  Although the Guidance is not binding on courts, it is of great significance to employers because many courts defer to the Equal Employment Opportunity Commission (EEOC), and companies not complying with EEOC regulations risk being sued by the EEOC.

Under Title VII of the Civil Rights Act, employers may not treat a current or potential employee differently than other current or potential employees on the basis of a protected class such as race, color, religion, sex, or national origin.[2]  This prohibits employers from engaging in activities such as hiring, firing, or demoting based on a protected class.  Title VII also prohibits employers from engaging in standard operating practices and procedures that, while seemingly neutral and non-discriminatory on their face, ultimately have the effect of discriminating against a particular protected class.

Prior to enacting the Guidance, the EEOC recognized that for the previous twenty years, the number of people having contact with the criminal justice system was significantly increasing in the working-age population.[3]  Specifically, the EEOC recognized that arrest and incarceration rates were particularly high for African-American and Hispanic men.[4]  The EEOC notes that African-Americans are arrested two to three times more frequently that others of the general population.[5]  While statistics predict that 1 in 17 white men will spend time in prison during their lifetime, 1 in 6 Hispanic men and 1 in 3 African-American men are expected to serve time in a prison.[6]  Thus, an employer may violate Title VII two ways: (1) if, based on race or national origin, he treats criminal history information differently for different applicants or employees, or (2) he has a practice of uniformly considering arrest and conviction records that, on its face seem non-discriminatory, but actually has the effect of excluding African-Americans and Hispanics from the workplace because of the statistically proven higher arrest and conviction rates.[7]

The EEOC Guidance provides that, for an employer to have a practice of considering an applicant’s criminal history without risking liability under Title VII, the consideration of applicants’ criminal history must be job-related and consistent with business necessity.[8] In determining whether the conviction is consistent with business necessity, the EEOC will consider the following factors: (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct and/or completion of the sentence, and (3) the nature of the job held or sought.[9]

EEOC Pic

While the EEOC did not see much initial success in the enforcement of the Guidance, two recent lawsuits against BMW Manufacturing and Dolgencorp indicate EEOC’s interest in the enforcement of fair hiring standards.  In its suit against BMW, the EEOC alleged that BMW’s background check has a disparate impact on African-Americans by depriving them of employment with BMW and BMW’s logistic services providers.[10]

However, the EEOC faces much opposition because of its practice to conduct background checks when hiring for most positions.  In response to the EEOC’s complaint, BMW filed a motion to compel documents that describe the EEOC’s hiring process in relation to criminal background checks.[11]  The EEOC objected on the grounds that its hiring practices were not relevant to the issue of whether BMW’s practices were consistent with business necessity.[12]  The EEOC’s relentlessness in pursuing “violations” of Title VII in relation to criminal background checks marks the potential for a future of litigation.

Ultimately, the Ban the Box movement is nothing short of a win-win policy for everyone involved.  Not only does the community benefit from reduced recidivism, but following the Guidance shields employers from the risk of EEOC liability while greatly expanding the pool of qualified applicants since many applicants with a criminal history are deterred from even applying for a job.  Furthermore, the “business necessity” analysis applied by the EEOC shields the employer from negligent hiring claims because, for the most part, employers considering the nature of the offense, the time that has passed since the offense, and the nature of the job held or sought will not hire employees that pose a significant threat to the workplace.

[1] The Ban the Box initiative is a movement that asks employers to refrain from requiring individuals to disclose criminal convictions on initial applications. For more information about Ban the Box and the clinic’s work with the initiative please see the following: https://cslcivilrights.com/2014/03/13/i-am-not-my-record/.

[2] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

[3] EEOC Decision No. 915.002, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (2012).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Complaint, EEOC v. BMW Mfg. Co., LLC.

[11] Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.

[12] Brief in Opposition to Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.


Public Education: A Right Entitled to All

January 19, 2015

By: Brandon Pierce

Today was the day: Kevin’s first day of school.  Ten years old, gifted, and sitting with his pencil in hand—Kevin was ready.  The teacher came before the class and gave the instructions for the first assignment:

Gawd muwrein!  I clike fund ans he book? If topher largetwen to climbegan.  What limse anders plast forh.”

One fact I forgot to mention is that Kevin didn’t speak English.  He didn’t even speak Spanish, or any other well-known language in the United States.  Kevin was from a small Guatemalan village where one of over fifty ancient Mayan languages was spoken.  But there he was, in his first American classroom, receiving his American education.

Kevin is one of the over 68,000 unaccompanied minors that have entered the United States illegally since October 2013.  In November 2014, the U.S. Department of Education issued a fact sheet that outlines the basics about the illegal, unaccompanied minors’ rights.  As detailed in the fact sheet, once these minors have been apprehended in the U.S., they are put in the Department of Health and Human Service’s (HHS) custody.  While in HHS custody, the children are sheltered in government centers where they receive educational services.  Most children, like Kevin, are released into the United States under the custody of a family member or legal guardian (known as a ‘sponsor’).  While in the guardian’s care, these children attend classes in public schools, often times without knowledge of the English language.  But who would allow such a thing?  The United States Supreme Court would!

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America: Home of the Educated

“Denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage.” – Justice Marshall (Plyler v. Doe)

In June 1982, the U.S. Supreme Court Justices held in Plyler v. Doe that no state should constitutionally deny any person a free public education on account of his immigration status.  Put simply, undocumented children have the same right to a public education as U.S. citizens.

This issue arose out of restrictive Texas education laws.  With regard to undocumented children, Texas education laws mandated that the state: (1) withhold funds otherwise meant for educating children who were not “legally admitted” into the United States and (2) deny enrollment to those children in Texas public schools.

What did it mean to be “legally admitted” in the United States?  Pursuant to state policy, a person was legally admitted if he: (1) presented documentation demonstrating he was legally present in the United States, or (2) federal immigration officials confirmed such documentation was in the process of being obtained.  Ultimately, a group of students from Mexico that did not satisfy the “legally admitted” criteria filed a lawsuit to challenge the Texas education laws.  The case eventually made its way to the U.S. Supreme Court.  There, Texas’s education laws were held unconstitutional.

The Court based its rationale on the Fourteenth Amendment to the U.S. Constitution.  More specifically, the Court referenced a provision referred to as the “Equal Protection Clause.”  That clause states, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”  Therefore, unaccompanied children in the United States are entitled to public education.

New York State of Mind

Give me your tired, your poor, your huddled masses yearning to breathe free…”                          – Emma Lazarus

Let us consider New York City (NYC): the proverbial gateway into America’s land of opportunity.  For the 2014-15 academic school year, NYC public schools have enrolled over 2,000 unaccompanied minors.  Like Kevin, many of these children have never had one English language course.  To combat this dilemma, NYC schools have implemented the English Language Learners (ELLs) program.  ELLs is a bilingual program that promotes the social and academic development of students who have recently arrived to the U.S. without proficient English skills.  Devora Kaye, NYC’s Department of Education spokeswoman, endorses such progressive actions, reaffirming the Court’s decision in Plyler v. Doe.  She asserts the department’s belief that “every child has a right to a great education, and we are committed to providing children who have escaped violence with the academic foundation and access to services that they need to establish a path to long-term achievement.”

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By contrast, not all of New York’s actions have shown a general consensus toward the notion of “education for all.”  New York Civil Liberties Union (NYCLU) reviewed approximately 20 percent of the state’s school districts.  Within those districts, the NYCLU discovered that the majority has assembled arduous barriers for undocumented students, thus, potentially preventing their enrollment.  Consider this: seventy-three New York school districts require birth certificates for enrollment.  (Nineteen of those districts require the “original” birth certificate.)  In response, the NYCLU urged state education officials to formulate a model universal enrollment form and list of permissible evidentiary documents.  This is meant to develop uniformity within the state’s education system.

What Does This Mean for Other Children like Kevin?

Analysts are certain that more unaccompanied children are coming, but what is unclear is how they will be welcomed.  This dilemma must be met with an unwavering commitment to U.S. values and standards.  Equality and justice have long been the staple of America’s uniqueness.  If we deny those considerations to all mankind, then we have given up our uniqueness in the world.  In sports language, we have forfeited.  In war language, we have surrendered.  In scientific language, we have become neutral.  In short, we have compromised our national value.  Let us reclaim our true selves through equality and justice because education is a right entitled to all!


Lights, Camera, Arrested: Filming the Police Can be Risky Business

January 5, 2015

By: Brandon Pierce

Daniel Saulmon, charged with resisting, delaying, and obstructing an officer, spent four nights in a California jail—simply because he used a cell phone to film police officers on a public street.[1]  Fortunately, for Mr. Saulmon, his cell phone recording showed the exact opposite.  The video showed Saulmon being arrested only after he failed to provide the arresting officer with some form of identification.

Certainly that was not the first time a person attempted to film police officers in public.  The media has covered over and over and over and over again the developing trend of “citizen-journalists” using cell phones to film officers.  In many instances, police have barraged these citizens with demands to turn off their phones, have confiscated phones, and, like in Saulmon’s case, have arrested individuals who attempted to capture them on video.

Consider this: the First Amendment to the United States Constitution protects our freedom of speech against governmental censorship.  Law enforcement officers are public officials, serving on behalf of the government.  So the right to film law enforcement without legal repercussions would seem like a legal no-brainer, correct?  Well, many courts are still split over that supposition, and are working to find some resolution.  The United States Supreme Court has yet to weigh in on the issue, after denying certiorari to Anita Alcarez v. ACLU of Illinois in 2012.[2]

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Why is this happening?

In 2012, the American Civil Liberties Union of Illinois (ACLU) asked the United States Court of Appeals for the Seventh Circuit that very question.[3]  The ACLU’s issue arose as a result of Illinois’s 1961 Eavesdropping Act.[4]  The statute prohibited the use of an eavesdropping device to record or hear any oral communication without “the consent of any communicating party.”  Violating the statute constituted a Class 4 felony, punishable with one to three years of imprisonment.[5]  However, law enforcement was granted even greater protection: violation of the statute against a police officer upgraded the charge to a Class 1 felony.  Thus, the punishment became more severe with a possible four to fifteen year prison sentence.  The ACLU challenged the statute’s constitutionality.  Ultimately, the Seventh Circuit held that the Act’s prohibition of openly filming police officers in public “burdens First Amendment rights directly, not incidentally.”[6]  Therefore, it is perfectly legal for citizens within the Seventh Circuit to record police officers performing their duties in public.

By contrast, in 2010, the Third Circuit refused to recognize filming the police in public as a First Amendment right.[7]  In that case, Brian Kelly was arrested for filming a police officer during a traffic stop.  The Pennsylvania Wiretap Act was used to justify the arrest.  The Act prohibits “the interception or recording of a conversation without the consent of all communicating parties.”[8]  When confronted with this issue, the Third Circuit held that due to “insufficient case law,” there was no right to videotape a police officer during a traffic stop.

The Importance of Your Right to Film the Police

Ensuring transparency within the law enforcement is a powerful public interest.  Filming the police affords valuable evidence of government misconduct, which is becoming easier to do each day.  Today’s technology has created multiple avenues for citizens to stream police conduct via Internet, often times, in a matter of seconds.

However, in states where courts have ruled in favor of the right to lawfully film police officers, there still exists the misconception that it is illegal.  That misconception was so pervasive that the New York City Police Department had to be reminded through an official memo circulated to each of its officers.  According to Daily News, the memo reminds officers that “members of the public are legally allowed to record police interactions,” and that “intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

Considering the national attention regarding police conduct, the NYPD’s memo is extremely timely, as more people are starting to film police interactions.  The public is more informed about how police officers are executing their duties when citizens are allowed to film and distribute police videos.  Additionally, it promotes accountability and transparency within civilian and law enforcement relations.  Ultimately, when police officers know they are being filmed, officer misconduct is less likely to occur.  Therefore, a citizen’s right to film the police is just and necessary; its legality, however, is still being debated throughout the nation.  For now, filming police officers in public places remains a risky business.

[1] http://photographyisnotacrime.com/2012/11/24/california-man-jailed-four-days-for-recording-cops/

[2] http://www.supremecourt.gov/orders/courtorders/112612zor_f204.pdf

[3] ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (2012).

[4]http://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+14&ActID=1876&ChapterID=53&SeqStart=33800000&SeqEnd=35000000

[5] Illinois Compiled Statutes (ILCS) – 730 ILCS 5/5-4.5-45.

[6] ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (2012).

[7] 622 F.3d 248, 262 (3d Cir. 2010).

[8] 18 Pa. Cons. Stat. § 5703.


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