Thursday, July 30, 2020

Two judicial views of the "two Americas"

This post is long but worth it, as are the various opinions written by the judges in United States v. Curry. The question to be resolved by the en banc Fourth Circuit was straightforward: did exigent circumstances justify the suspicionless stop and search of Bill Curry? But the resulting opinions are an evaluation of predictive policing, its effectiveness, and its racism.

A short summary of the facts: Four officers responded to gunshots heard near a public housing community in Richmond, Virginia. They drove to a nearby field where they saw several black men walking away, including Bill Curry. An officer stopped Curry, told him to put his hands up, demanded that he lift his shirt, then eventually restrained and searched him, revealing a firearm. Curry moved to suppress the firearm.

The government admitted that the officers did not have reasonable suspicion to stop Curry, but argued that exigent circumstances allowed the stop and search. Under this theory, officers could have stopped and searched anyone in the vicinity because they were investigating the gunshots. The Fourth Circuit rejected this argument. In the context of an investigatory stop of a person, the court limited the exigent-circumstances exception to situations where officers have identified a discrete group or area, and then engaged in minimally intrusive searches in the immediate aftermath of a known crime. Here, none of those requirements were met.

Judge Wilkinson's dissent starts thus: "We face again in this day of sad and unhappy truths the divide between what are already two Americas.” But the two Americas of Judge Wilkinson's view are one "where citizens possess the means to hire private security or move to safer neighborhoods" and a second where "crime moves to fill the vacuum left by the progressive disablement of the law's protections." Judge Wilkinson warns that the majority opinion signals the end of "predictive policing," which uses "big data and machine learning" to "identify likely areas of crime" and "stop criminal offenses before they occur."

Chief Judge Gregory pens one of the three concurrences, focusing mainly on responding to Judge Wilkinson. Chief Judge Gregory writes that Judge Wilkinson's "recognition of a divided America is merely a preamble to the fallacy-laden exegesis of 'predictive policing' that follows.” He describes the over-policing of minority communities, and cites Frederick Douglass and James Baldwin to note the “long history of black and brown communities feeling unsafe in police presence.” He writes that “we know that many of our fellow citizens already feel insecure regardless of their location. In a society where some are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles, it is still within their own communities—even those deemed ‘dispossessed’ or ‘disadvantaged’—that they feel the most secure.” Chief Judge Gregory argues that communities should not be forced to make the false choice to either give up constitutional protections against suspicionless searches seizures or forego governmental protection entirely. 

Chief Judge Gregory argues that the important point is not the strategies police officers use to decide how and where to deploy their resources, but "how they, upon arrival, engage with the people in those neighborhoods." He suggests no "tough on crime" or "smart on crime" approach will work without engagement with the community. Curry and others tried to point the officers toward the location of the gunshots but the officers were “aggressive, discourteous, and ineffective.” They “ignored the assistance and the shooter got away.”

Sunday, July 19, 2020

"Thank you for getting in the way."

You should watch the excellent John Lewis documentary, 'Good ...

Tenth Circuit Breviaries

Fourth Amendment

In United States v. Cortez, the Tenth Circuit held that officer questioning did not unreasonably delay a traffic stop, and that the development of reasonable suspicion justified further questioning and detention until Border Control arrived.

On the way to that holding, the Court reminded us that district courts should not evaluate suppression claims "in the light most favorable to the government." Rather, they "must assess the credibility of witnesses and determine the weight to give to the evidence presented; the inferences the district court draws from that evidence and testimony are entirely within its discretion." 

Fifth Amendment/Miranda

Also in Cortez, the Tenth Circuit reconfirmed that no Miranda warnings are necessary before officer questioning during an ordinary traffic stop.

Previously, in Tenth Circuit Breviaries

If you missed last week's Breviaries, you can read them here.

Monday, July 13, 2020

Police-Prosecutor Codependence

As we call for police accountability, let's remember this is just one front in the fight. Police often escape consequences because they are protected by prosecutors who, in turn, have little to no accountability. The Washington Post ran an opinion piece by D.C. public defender Rachel Cicurel, Don’t stop with the police: Check racism in the prosecutor’s office. She reviews widely substantiated statistical evidence of prosecutorial bias against people of color and recounts her own experience in the courtroom as "prosecutors fight to keep officers’ misconduct secret after they’ve unconstitutionally targeted, stopped and searched a person of color." And she offers another painfully familiar refrain: "I’ve listened to prosecutors absurdly claim that a chronically ill black man was as likely to contract covid-19 at home as he was inside a crowded, filthy jail." She closes with a call for prosecutorial accountability. While they hide behind policy, practice, and management, "the truth is: They do have a choice."

Prosecutors often choose to protect police. They fight against disclosing Giglio information. If they lose the fight, they ask for protective orders that preclude the defense from using information in other cases. They invoke the heavy burden of Armstrong to deter discovery of racially discriminatory policing and prosecutorial practices, such as stash house sting operations. They invoke the good-faith doctrine to save bad searches that targeted people of color. And the list goes on. Yet prosecutors are rarely called out for perpetuating the  misconduct.  

Understanding the myriad reasons that prosecutors choose to protect police is the first step toward reform. To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct, 100 BULR 895 (2020), looks to legal precedent and social sciences to show "the persistent, codependent relationship between police and prosecutors exacerbates police misconduct and violence and is aided by prosecutors in both legal and extralegal ways." While suggesting policy and legislative reforms, the article does not really contemplate defense initiatives. 

That is our responsibility. One approach is systematic Giglio litigation tied to faithful collection, tracking, and publication of impeachment information. With that data, we can challenge the prosecution's continued reliance--or codependence--on reprobate police. Meaningful data is a powerful tool for change.    

Want to read more? Here you go: Jonathan Abel, Brady’s Blind Spot:Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stanford Law Review 743 (2015). 

Let's get to work.

-- Melody

Tenth Circuit Breviaries

ICE holds & pretrial release

The Bail Reform Act does not preclude removal under the Immigration and Nationality Act. And "the government does not need to make a choice between a criminal prosecution or removal." Thus, a district court that releases a person before trial in a criminal case is not required (or, it seems, even authorized) to order ICE not to remove that person during the period of pretrial release. So said the Tenth Circuit in United States v. Barrera-Landa.

Fourth Amendment

Anthony Kapinski shot and killed two other men during a fracas in a crowded parking lot, and then fled. The investigating detective interviewed eyewitnesses and reviewed surveillance videos of the event. The detective secured a warrant for Mr. Kapinski's arrest by way of an affidavit that did not mention the surveillance videos. Those videos ultimately supported Mr. Kapinski's claim of self defense, and he was acquitted at trial. He sued the detective and the city for false arrest and malicious prosecution. The district court granted the detective summary judgment. Mr. Kapinski appealed.

The Tenth Circuit affirmed in Kapinski v. City of Albuquerque. The Court held that the detective's omission of any mention of the videos in the search-warrant affidavit was not material. Even with the videos, the affidavit provided probable cause. And there was insufficient evidence that the omission was reckless, especially in light of the detective's inclusion of other self-defense-supporting facts in the affidavit.


In United States v. Wyatt, the Tenth Circuit reversed Mr. Wyatt's two convictions for conspiracy to sell guns without a license, because the district court failed to instruct the jury that any conspiracy had to be wilful, that is, that the conspirators had to know that what they had agreed to do was unlawful. But the Court rejected Mr. Wyatt's argument that the evidence was insufficient to prove the charged conspiracies.

ACCA predicate offenses

In United States v. Cantu, the Tenth Circuit held that Mr. Cantu's prior convictions for Oklahoma drug offenses were not ACCA predicates. This was because Oklahoma defines "controlled dangerous substances" more broadly than the ACCA defines controlled substances. The Tenth Circuit rejected the government's argument that the Oklahoma statute is divisible as to each controlled substance. The takeaway? First, read Cantu to learn how divisibility works. Second, always review the statutes underlying your client's prior drug convictions. If, at the time of your client's prior offense, those statutes covered drugs not covered by federal law, you may have a good argument that your client's prior conviction is not a sentence-enhancement predicate.

Thursday, July 9, 2020

Which gun with which offense?

A person convicted of a drug crime with a mandatory minimum is eligible for the safety valve--and thus freed from the mandatory minimum--if, among other requirements, he did not "possess a firearm or other dangerous weapon. . . in connection with the offense." 18 U.S.C. § 3553(f). In United States v. Hodgkiss, the Eighth Circuit held that “the offense” strictly means the offense of conviction, and does not include relevant conduct. In Hodgkiss, the defendant pleaded guilty to a drug-trafficking offense in April 2018 that did not involve a gun, and also pleaded to possessing a weapon during a different drug-trafficking offense two months later. The court held that the defendant did not possess the gun in connection with the April 2018 drug-trafficking offense he was convicted of, even if both episodes were part of the same relevant conduct for sentencing guideline purposes.

Although it doesn't appear that the Tenth Circuit has addressed this statutory-interpretation question directly, this holding is consistent with what the Tenth Circuit has said. For example, in United States v. Hargrove, 911 F.3d 1306, 1328 (10th Cir. 2019), the court emphasized that for the safety-valve requirements, possession of a weapon does not include a codefendant's weapon, and means an "active possession whereby there is a close connection linking the individual defendant, the weapon and the offense.”  

Thursday, July 2, 2020


In honor of Independence Day, we offer the words of Frederick Douglass, excerpted from his 1852 speech to the Rochester Ladies' Anti-Slavery Society: "What To The Slave Is The Fourth Of July?"

1852) Frederick Douglass, "What, To The Slave, Is The Fourth Of ...Feeling themselves harshly and unjustly treated by the home government, your fathers, like men of honesty, and men of spirit, earnestly sought redress. They petitioned and remonstrated; they did so in a decorous, respectful, and loyal manner. Their conduct was wholly unexceptionable. This, however, did not answer the purpose. They saw themselves treated with sovereign indifference, coldness and scorn. Yet they persevered. They were not the men to look back.
As the sheet anchor takes a firmer hold, when the ship is tossed by the storm, so did the cause of your fathers grow stronger, as it breasted the chilling blasts of kingly displeasure. The greatest and best of British statesmen admitted its justice, and the loftiest eloquence of the British Senate came to its support. But, with that blindness which seems to be the unvarying characteristic of tyrants, since Pharaoh and his hosts were drowned in the Red Sea, the British Government persisted in the exactions complained of.
The madness of this course, we believe, is admitted now, even by England; but we  fear the lesson is wholly lost on our present ruler.
* * *
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. 
* * *
Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.

Read the entire speech here. And have a safe holiday.

Tuesday, June 30, 2020

Judicial endorsement of police "experts"

When are police officers "experts," and what message does their designation as experts send to the jury?

In United States v. Cristerna-Gonzalez, the Tenth Circuit clarified the law governing “expert” testimony by the police.

First, the Court clarified the boundary between “Opinion Testimony by Lay Witnesses,” Fed. R. Evid. 701, and “Testimony by Expert Witnesses,” Fed. R. Evid. 702. The lay opinion rule “does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness.” This means that “knowledge derived from previous professional experience falls squarely within the scope of Rule 702 [governing expert testimony] and thus by definition outside of Rule 701 [lay opinion testimony].” In the context of police testimony purporting to interpret drug code language, “testimony based on knowledge derived from the investigation of the case at hand is typically regarded as lay testimony, opinion testimony premised on the officer’s professional experience as a whole is expert testimony.” Although not addressed in Cristerna-Gonzalez, the lay/expert boundary is crucial because it determines whether a summary of expert testimony must be provided and whether Daubert is implicated.

Second, citing a federal rules of evidence treatise and the ABA’s Civil Trial Standards, the Cristerna-Gonzalez panel signaled its disapproval of the common prosecution tactic of causing the trial judge to endorse a witness as an “expert” in front of the jury. The panel cited particularly helpful language from the comment to the relevant ABA Civil Trial Standard:
[T]here is no need for the court to announce to the jury that it has found that a witness is an expert or that expert testimony will be permitted. The use of the term “expert” may appear to a jury to be a kind of judicial imprimatur that favors the witness. Because expert testimony is not entitled to greater weight than other testimony, the practice of securing what may appear to be a judicial endorsement is undesirable.
The takeaway?

1. Object at trial to expert testimony from police officers if the government did not comply with the notice requirements of Rule 16 or any pretrial scheduling order.

2. Has there been notice? Before trial, challenge the officer's qualifications and the basis for his or her proposed testimony (is it really based on sufficient facts or data?). In other words, put the government through its Rule 702/Daubert paces.

3. Did you lose that challenge? Move the district court in limine to prevent the government from seeking to have the court endorse the officer as an "expert" in front of the jury.

--Tom Bartee

Sunday, June 28, 2020

Tenth Circuit Breviaries

Fourth Amendment

In Hinkle v. Beckham County, Oklahoma, the Tenth Circuit held that an officer had probable cause to arrest based on information that the person arrested owned (or had a connection with) a trailer that had been reported stolen. It did not matter that the person informed the officer that the information was mistaken---"a soon-to-be-arrestee's bare proclamations of innocence" do not dissipate probable cause.

But the arrestee's body-cavity strip search upon admission into the jail was unreasonable under the Fourth Amendment. There was no justification at the time of the search--that is, no decision had been made that the arrestee would be placed in the jail's general population (in fact, he was placed in segregation), and there was no cause to believe that he was concealing evidence of a crime.

Evidentiary Issues

In United States v. Cristerna-Gonzalez, the Tenth Circuit affirmed Mr. Cristerna-Gonzalez's drug convictions, finding no reversible error in (1) the unobjected-to admission of expert law-enforcement testimony (no plain-error); (2) the unobjected-to admission of modus-operandi evidence consistent with Fed. R. Evid. 404(b) (no error, much less plain error); or (3) the admission over objection of irrelevant and prejudicial testimony suggesting a connection between this case and a notorious drug cartel (this was error, but it was harmless).

Sentencing: Procedural & Substantive Reasonableness

In United States v. Pena, a carjacking/gun/methamphetamine case, the Tenth Circuit affirmed an upward-departure sentence of 360 months' imprisonment--more than twice the high end of Mr. Pena's guidelines range. The district court addressed the statutory factors and adequately explained the sentence.

Thursday, June 25, 2020

Dig. Dig deeper.

Racial profiling. Excessive force. On the street, police misconduct looks obvious. In the courtroom, it's a different matter. How do we go about proving an officer's race-based motivation, or a police department's take-no-prisoners culture? There are loose lips and smoking guns out there. If we just dig deeply enough, we might find, for instance, that the department's training materials include this image (small print above image: "protecting and serving the POOP out of you"):

Or we might find that the department's training materials include---grossly-out-of-context---a link to a Chris Rock comedy routine replete with fake and real video clips of police officers beating Black people, including Rodney King.

That evidence came to light in the excessive-force case Wright v. City of Euclid.

Is the Euclid Police Department unique? I doubt it. If we look a little harder, what else might we find?

Remember, for instance, Foster v. Chatman, in which a state open-records request yielded documentary evidence that the prosecutors' peremptory strikes of Black prospective jurors at Timothy Foster's capital-murder trial were racially motivated.

Evidence is out there. We are unlikely to get it through criminal discovery. So let's put on our investigator pants and get to work.

Tuesday, June 23, 2020

The Doctrine of Chances and Rule 404(b)

While driving drunk in the wrong lane of a highway inside the Ute Mountain Ute Reservation, Timothy Merritt struck an oncoming car, killing one of that car’s passengers and injuring another. A jury convicted him of second-degree-murder and assault.

On appeal, the Tenth Circuit approved the admission at Merritt’s trial of three other DUI-related acts. Two of the other acts were prior convictions. The third was a drunk-driving arrest that occurred while Merritt was on bond in the federal case.

The Tenth Circuit reasoned that other acts tended to prove that Merritt had the requisite awareness of the serious risk of harm associated with drunk driving, rendering his decision to drive reckless and wanton, thereby supporting a finding of malice aforethought. The Tenth Circuit rejected Merritt’s argument that driving drunk does not evince an awareness of the riskiness but rather suggests the opposite.

In assessing the admissibility of the drunk driving incident while on bond, the Tenth Circuit considered the government’s argument that the similarity of that incident to the charged crime implicated the “doctrine of chances.” Under this doctrine, the similarity of the charged conduct to other conduct increases the likelihood that the incidents are not innocent random events. After seemingly signaling that the doctrine might apply, the Court decided not to decide, reasoning that any error in the admission of the evidence was harmless.

Applying the doctrine of chances to prove mens rea is fraught with the danger that the jury will misuse the other-crimes evidence. As with other-crimes evidence generally, the problem is one of dual relevance: the evidence supports the improper inference of bad character as well as the proper inference of intent. The improper chain of inference, prohibited by FRE 404(b), has two steps. Step One involves inferring from a past crime that the defendant has a bad character. Of course, this inference is itself empirically weak. Beyond that, the inference creates the risk that the jury might convict just to punish the defendant for her criminal past. Step Two involves inferring from this bad character that the defendant must be guilty. This creates the risk that the jury will overvalue the bad character evidence, failing to recognize that bad character is empirically a poor predictor of behavior on a particular occasion.

When used to prove the actus reus (as opposed to the mens rea) of a crime, the doctrine of chances does not necessarily implicate character concerns. A classic use of the doctrine is to prove that an initially unexplained death that is discovered to be similar to other deaths associated with the defendant was actually a homicide. The warrant for this inference is that common sense tells us that these similar deaths are very unlikely to represent mere coincidences. This use of the doctrine certainly implies the defendant’s bad character, but that implication is a side effect, not a necessary link in the inferential chain. But when the doctrine of chances is ostensibly used to prove mens rea, the close connection between a person’s intent and their character makes it unlikely that a lay jury could follow a limiting instruction—even crafting an intelligible instruction conveying this distinction would be difficult. If nothing else, Merritt at least flags the issue, allowing defense lawyers to anticipate and prepare to battle its use.

---Tom Bartee

Sunday, June 21, 2020

Tenth Circuit Breviaries

Fourth Amendment (traffic stop)

The 15 minutes it took an officer to gather information from the El Paso Intelligence Center (EPIC) did not unreasonably extend a traffic stop where the parties agreed that the officer had reasonable suspicion of drug trafficking. So concluded the Tenth Circuit in United States v. Morales, reversing the district court's suppression order.

Fifth Amendment (confessions)

An FBI agent interviewed Shane Young in a county jail. The agent showed Mr. Young a federal warrant for his arrest and said "I'm on your side." The agent proceeded to advise Mr. Young that he had talked to the judge who had reviewed the case, and that Mr. Young could "buy down" his time with the judge by giving information. The agent also misadvised Mr. Young about the amount of time he was facing. These were false representations of law and fact that rendered Mr. Young's resulting statements involuntary, and the district court should have granted his motion to suppress. United States v. Young.

Sixth Amendment (counsel)

A mid-trial waiver of the right to counsel was not made knowingly and intelligently in United States v. Hamett. The district court (1) failed to discuss the the charges with Mr. Hamett and refused to give him time to review the elements as set out in the jury instructions before he decided to waive counsel; (2) incorrectly advised Mr. Hamett that he was facing up to 20 years' imprisonment, when in fact one charge against him carried a maximum of life imprisonment; and (3) failed to apprise Mr. Hamett of any possible defenses.

Fed. R. Evid. 404(b)

In United States v. Merritt, a DUI-based second-degree murder case, the Tenth Circuit approved the admission of other DUI-related incidents at trial. We will blog about this case in more detail later this week.

Collateral Estoppel

In 2016, in United States v. Arterbury, a district court in Oklahoma suppressed child pornography seized as a result of the PlayPen NIT warrant, finding that the warrant was void ab initio, and therefore Leon's good-faith exception did not apply. The government appealed, but then dismissed its appeal and asked the district court to dismiss the indictment against Mr. Arterbury without prejudice. The district court granted the motion.

Fast forward to 2017 and United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), an appeal from the district court of Colorado. There the Tenth Circuit held that Leon's good-faith exception applied to the execution of the same PlayPen NIT warrant.

In 2018, the government secured a second indictment against Mr. Arterbury based on the same evidence as the first indictment. Mr. Arterbury moved the district court to enforce its original suppression order. The district court denied the motion; Mr. Arterbury entered a conditional plea and appealed.

In 2020, the Tenth Circuit held that the district court erred in declining to enforce its original suppression order, because Mr. Arterbury had "established the elements of federal criminal collateral estoppel under the common law." The what elements under the what law? Read Arterbury for a primer on the difference between collateral estoppel based on double jeopardy/due process, and collateral estoppel based on the federal common law.

Thursday, June 11, 2020

Rethinking traffic stops

Whether you're a pedestrian stopped for walking in the street, a bicyclist stopped for riding on the sidewalk, or a driver stopped for anything from a busted taillight to speeding, traffic stops can be annoying. Or frightening. Or deadly.

Why does this keep happening?

Criminal law: the stinginess of the exclusionary rule

The exclusionary rule was designed to deter police misconduct during traffic stops and otherwise. It's a start. But it will never be enough, for a host of reasons, including the fact that the rule is defined by judges and justices who are far removed from the reality of the streets. See Hudson v. Michigan, 547 U.S. 586, 599 (2006) (expansion of exclusionary rule not necessary to deter violations of knock-and-announce rule because "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously").

Civil law: qualified immunity

In Hudson, Justice Scalia cheerfully assured us that the exclusionary rule did not need to be expanded because, "[a]s far as we know, civil liability is an effective deterrent" to police misconduct. Id. at 598.

Earlier this week, the Fourth Circuit put the lie to that nonsense in a decision decrying how perverted the qualified-immunity doctrine has become:
Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. The district court’s grant of summary judgment on qualified immunity grounds is reversed, and the dismissal of that claim is hereby vacated.
Estate of Jones by Jones v. City of Martinsburg, W. Va, ___ F.3d ___, 2020 WL 3067925 (4th Cir. June 9, 2020).

Rethinking the law: eliminate traffic enforcement

As dewy-eyed lawyers, we want to believe that the courts and the constitution can remedy police violence. But maybe it's time to think beyond the courtroom walls. Can safe streets and sidewalks be achieved without the intervention of armed, militarized agents of the state? Talk amongst yourselves. And check out these statements from the Minneapolis group Our Streets Minneapolis, and the national group Safe Routes Partnership.

Sunday, June 7, 2020

Tenth Circuit Breviaries

Fourth Amendment

While an officer may ask a passenger for identification during a traffic stop, the passenger's failure or refusal to provide it does not establish probable cause for an arrest. This point of law is clearly established in the Tenth Circuit. And thus the district court properly denied an arresting officer qualified immunity in Corona v. Aguilar.

A district court must not "view the evidence in the light most favorable to the government" when deciding a motion to suppress. Rather, it must "assess the credibility of witnesses and determine the weight to give the evidence presented." So the Tenth Circuit reminded district courts in United States v. Goebel.

In Goebel, the Tenth Circuit also held that a police officer had reasonable suspicion to detain Mr. Goebel based on a combination of factors (that you can read for yourselves), and that the detention was not unreasonably prolonged. Nor was any delay causally linked to the officer's discovery of evidence. 

Fifth Amendment

A brief conversation on a public sidewalk between the officer and Mr. Goebel while Mr. Goebel was detained was not a custodial interrogation for Miranda purposes. And Mr. Goebel's other statements were Mirandized, knowing, and voluntary (and not incriminating in any event).


No plain error in United States v. Trujillo, where the district court accepted Mr. Trujillo's 18 U.S.C. § 922(g) guilty plea without advising him that he was required to know he was a felon to be convicted. This was not structural error (the Tenth Circuit disagrees with the Fourth Circuit here), and Mr. Trujillo failed to show (under the third plain-error prong) that absent the error, he would not have entered the plea (given his 6 prior felonies and 4 prior years in prison). And even if he had met that prong, he would lose under the fourth prong: "Where the evidence of Defendant's knowledge of his felony status is 'overwhelming and uncontroverted,' the real threat to the 'fairness, integrity, and public reputation of judicial proceedings' would be if Defendant were permitted to withdraw from a plea unequivocally supported by the facts and for which Defendant has no defense."

Sentencing: substantive reasonableness

In United States v. Sandoval, the Tenth Circuit rejected Mr. Sandoval's claim that his 27-month within-guideline prison sentence for assault was substantively unreasonable. More specifically, the Circuit held that USSG  § 2A2.2, the assault guideline, is not manifestly unreasonable because it does not distinguish between intentional and reckless conduct. Nor was a downward variance required by the fact that Mr. Sandoval's adjusted offense level for a reckless assault was only one level below the base offense level for involuntary manslaughter. 

Thursday, June 4, 2020

A Police State in America?

The Insurrection Act of 1807. The Anti Riot Act of 1968. What are these tools, and when can our government use them against us, the people?

In an opinion piece today in the New York Times, Federal Public Defenders Lisa Lorish and Juval Scott trace the history of these provisions and warn us about their reach. AG Barr has threatened to criminally charge protesters under the Anti Riot Act---a law that one district court has found substantially infringes on the constitutional rights to free speech and free assembly. Take heed, defenders, and get ready.

Wednesday, June 3, 2020

Joint Statement From the Federal Defenders on the Killing of George Floyd

The moral arc of the universe, as Dr. Martin Luther King Jr. said, bends towards justice. And yet, we all saw that arc snap again under a police officer’s white knee on George Floyd’s Black neck for eight minutes and forty-six seconds. That knee has been placed on too many Black necks before and too often without repercussions.

This time must be different. While we can kneel in solidarity with Mr. Floyd, we also must stand up and demand that racism, overt and implicit, be acknowledged and confronted.

As federal public and community defenders, we represent the overwhelming majority of those charged with crimes in federal court, most of whom are minorities, of all colors and orientations. We have witnessed “wars” on drugs and crime become dog whistles for hate and racism. Intentions to make communities safe are hijacked by other insidious agendas. The war on crime is a new Jim Crow that permeates our criminal justice system. Daily, we see charges that are too harsh, sentences that are too long, and a system that turns a blind eye to oppressive structural racism because it seems to fear “too much justice.”

George Floyd died face down, gasping and begging to breathe. It is well beyond time for us all to say, “Enough.”

We are better than this; we can be just and empathetic. We can do what is right and what is moral. We can keep communities safe by holding out our hand to help, aware of our own failings and biases.

And in this crucible of anger, we take a breath, and begin to repair the moral arc and bend it back towards justice.

As federal defenders, we stand with many like George Floyd who have been held down and denied their humanity. It is our job, our calling. It is our privilege. For George Floyd and all of our clients, we renew our longstanding commitment to fight daily for equal justice.

* * * * *

Read the statement with signatures on here.

Sunday, May 31, 2020

One-third of all Americans killed by strangers are killed by police

Last month, George Floyd was murdered by a Minneapolis police officer. The criminal complaint filed late last week against the officer states that the officer "had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous."

Police kill all the time. Indeed, there were only 27 days in 2019 when police did not kill someone. And law enforcement’s victims are much more likely to be black.

Horrific, and likely underestimated. Statistician Patrick Ball, who has tracked state killings in 30 countries, points out that when a police killing occurs on video, as Mr. Floyd’s did, “police are very likely to report this case to the FBI because they know the FBI will hear about it.” But “conversely, if a person is killed by police without the presence of witnesses,” the killing “is unlikely to be reported at all.” So unless the killing was recorded on camera, it is unlikely to be reported in national statistics.

Using advanced statistics to account for unreported police killings, Mr. Ball’s research concludes that “eight to ten per cent of all American homicide victims are killed by the police. Of all American homicide victims killed by people they don’t know, approximately one-third of them are victims of the police.” While national statistics may not accurately record police killings, local communities know. Justin Feldman, a social epidemiologist at the NYU School of Medicine, explains that “if it’s not you being killed by police, it’s someone you know or someone in your community.”

Police have recently killed black men for suspected forgery, selling cigarettes, reaching for a driver’s license, and sitting at home. These killings have a profound effect on the communities they traumatize. 

In a rare departure from the norm, the officer who killed Mr. Floyhas now been charged with third-degree murder and second-degree manslaughter. But the charges may not represent a full-throated prosecutorial response. And they are certainly not enough to alleviate the effects of centuries of state-sponsored violence.

And so. The next time a judge wonders why your client ran from the police, explain that your client knew that his life was in danger, and that the police would not be held accountable for what might happen.

Some courts have recognized this reality. See, e.g., United States v. Brown, 925 F.3d 1150, 1156 (9th Cir. 2019) (“flight can be a problematic factor in the reasonable suspicion analysis because some citizens may flee from police for their safety”; “[t]here is little doubt that uneven policing may reasonably affect the reaction of certain individuals—including those who are innocent—to law enforcement”) (citing Illinois v. Wardlow, 528 U.S. 119, 126-40 (2000) (Stevens, J., concurring in part and dissenting in part)); Miles v. United States, 181 A.3d 633, 641-42 (D.C. App. 2018) (discussing reasons people might flee, including fear in the face of police shootings of African Americans); Commonwealth v. Warren, 58 N.E.3d 333, 342 (Mass. 2016) (“the finding that black males in Boston are disproportionately and repeatedly targeted for [police] encounters suggests a reason for flight totally unrelated to consciousness of guilt”); Dancy v. McGinley, 843 F.3d 93, 110 (2d Cir. 2016) (“Indeed, it is natural for people to take an interest in police activity nearby out of a desire to avoid some minor misstep, such as a minor traffic violation, which would involve them unnecessarily with the police.”). Help your court understand it as well.

--From Kirk Redmond