Friday, September 10, 2021

We're moving!

The Kansas Federal Public Defender Blog is moving! From now on you can find us (and all of our previous blog posts) here at our new site, ks-blog.fd.org

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Thank you for reading, and we look forward to seeing you at our new site!

Sunday, August 29, 2021

Tire chalking: not a valid administrative search

In Taylor v. City of Saginaw 922 F.3d 328 (6th Cir. 2019) (Taylor I), the Sixth Circuit held that chalking tires to enforce parking laws is a search for Fourth Amendment purposes. This holding was a "logical extension of the [Supreme] Court's holding in Jones that a physical trespass to a constitutionally protected area with the intent to obtain information is a search under the Fourth Amendment." Taylor v. City of Saginaw, ___ F.4th ___, 2021 WL 3745345 (6th Cir. 2021) (Taylor II).

Taylor I also held that chalking without a warrant could not be justified by either the automobile exception or the community-caretaking exception.

Last week, in Taylor II, the Sixth Circuit found no reason to depart from Taylor I, and held further that suspicionless chalking cannot be justified as an administrative search.

But alas, in the end, the plaintiff in this 1983 lawsuit loses her case on qualified immunity grounds because, at the time of the chalking she challenged, "every reasonable parking officer would not understand from Jones that suspicionless chalking of car tires violates the Fourth Amendment."

Monday, August 23, 2021

The discriminatory roots of the illegal-reentry statute

Gustavo Carrillo-Lopez was charged with illegally reentering the United States after being deported, in violation of 8 U.S.C. § 1326. Last week, a Nevada district court dismissed his case, ruling that § 1326 is unconstitutional because its passage was motivated, in part, by racial prejudice and it therefore violates the Fifth's Amendment guarantee of equal protection of the law.

The court applied the equal protection standard set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). That prong of equal protection law is meant to ferret out facially neutral laws that are nonetheless enacted with a discriminatory purpose and which disparately impact a specific minority group. Notably, the court rejected the argument that either the criminal context or the federal government’s immigration authority justified a more deferential standard.

The defense called on academic experts to present a detailed and troubling history of the illegal-reentry law. One history professor testified about the 1929 Congress's reliance on eugenics and detailed openly racist remarks directed at Mexican immigrants during the debates on the law. The history of the 1929 law was so racist that the government conceded its racial intent. 

Even though § 1326 was revised and reenacted in 1952, the district court found that the original racist intent, paired with circumstantial evidence surrounding the reenactment, showed that  discriminatory intent was also a motivating factor in the reenactment. The court discussed a number of factors surrounding the 1952 revision, including the lack of discussion about making the provision more punitive, explicit use of slurs by supporters of the legislation, Congress failing to revise the law despite a veto statement describing its racist elements, congressional knowledge of the law’s disparate impact, and passage of another racist law criminalizing Mexican immigrant laborers by the same congress.

The Nevada court recognized that other district courts have considered and rejected similar challenges to § 1326. An appeal seems likely, and either way more litigation in other courts is certain to follow. 

Monday, August 16, 2021

"The police don't look for people like us!"

The quote in the heading of this post is from Judge Calabresi's "sad but respectful" dissent this week in the Second Circuit case United States v. Weaver. His point? That a lack of empathy by those on the bench with people who bear the burden of searches & seizures has led to a "disastrous" Fourth Amendment jurisprudence: 

We are not the ones who are stopped and made to spread eagle. The price for what we believe to be greater public safety will be borne disproportionately by “them,” whoever “they” may be. As a result, we are only willing to say, “stop,” in those situations in which the challenged police practices are ones that might make us the subjects of police actions.

   * * * 

The failure to appreciate a burden because it falls only on others is so universally human that it can only be controlled structurally. . . . Unlike the framers, we have established structural norms that, as to the issues in the case before us and in many other similar areas, make it infinitely easier to let the burdens that accompany possibly desirable actions fall only on “them.” The result is injustice.

In Weaver, the Second Circuit, sitting en banc, reversed a panel decision that an officer's pat-down of Mr. Weaver was unreasonable. Two judges concurred ("reluctantly"), and three dissented (separately, though they each joined the others' dissents).

Read Judge Lohier's concurrence for a deep dive into the problems with the "high crime area" concept (and what evidence falls short of establishing a relevant "high crime area"), as well as for his explanation why "Whren should be reconsidered."

Read Judge Pooler's dissent for a discussion of Whren's "tragic ramifications." 

Read Judge Calabresi's dissent to learn "how . . . we got to such a state in the law," and for the wise observation that an officer's subjective race-based motivation, even if not relevant to the ultimate Fourth Amendment question (per Whren), may nonetheless be relevant to whether or not the officer is a reliable witness with respect to the historical facts of a stop.

Read Judge Chin's dissent for an explanation how, "even taking the law as it exists," the police violated Mr. Weaver's rights.

And then get to work.

Wednesday, August 11, 2021

Certificates of innocence for federal exonerees

Have you ever wondered whether and how a person wrongfully convicted of a federal crime can be compensated for that ordeal? Federal law states that the United States Court of Federal Claims "shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned." 28 U.S.C. § 1495. So far so good. But ay, there's a rub: a person seeking such damages must first obtain a certificate of innocence that satisfies 28 U.S.C. § 2513. The person must affirmatively establish innocence; a court determination that the evidence was insufficient to sustain the verdict isn't enough.

Federal courts have interpreted this requirement so strictly that, of 118 federal exonerees listed in the National Registry of Exonerations, only two have received compensation under the federal statute. Jeffrey S. Gutman, Are Federal Exonerees Paid?: Lessons for the Drafting and Interpretation of Wrongful Conviction Compensation Statutes, 69 Clev. St. L. Rev. 219 (2021).

The D.C. Circuit may have just opened the door for one more person to join that select pair. In United States v. Gaskins, the D.C. Circuit reversed a district court's denial of a certificate of innocence and remanded the case for further proceedings.

Read Gaskins if you need to advise a client whose conviction was vacated on insufficiency grounds about the procedure for seeking damages. And read Professor Gutman's article if you want to understand why those damages may be elusive.

Monday, August 2, 2021

Community caretaking: not an open-ended license for impoundment

The police may not impound a car "simply as an excuse to look inside for evidence of a crime." But how do we know when an impoundment is pretextual? The Tenth Circuit offered a roadmap for this inquiry last month in United States v. Woodard, holding that a pretextual impoundment violated the Fourth Amendment.

As the Court explained in Woodard, if a car is parked on private property, impoundment will only pass Fourth Amendment muster if:

(1) the car is blocking traffic, 
(2) the car is posing an imminent threat to public safety, or 
(3) the impoundment is justified by a standardized policy and a reasonable, non-pretextual rationale of community caretaking.

Mr. Woodard's car was about to be stranded in a QuikTrip parking lot upon his arrest on an outstanding misdemeanor warrant. The police impounded the car absent any proper justification. The Tenth Circuit concluded that the impoundment both fell outside the local impoundment policy and was pretextual. On this latter point, the Court considered several factors, and found that every one pointed to pretext:

First, the car was on private property.

Second, the officers did not consult the property owner.

Third, Mr. Woodard asked if he could call someone to pick up the car, and the police refused.

Fourth, the car was not itself evidence of a crime.

Fifth, Mr. Woodard did not consent to impoundment.

Finally, the Court considered the acts and statements of the police that were captured on their body cameras. These included comments from one officer that he thought Mr. Woodard was "fighting a huge drug case" and from another officer that he was going to search the car and “friggin’ light [Mr. Woodard] up with whatever we can.”

Are you challenging an impoundment? Watch those body-cam videos and be sure to read Woodard.

Monday, July 12, 2021

Wives can think for themselves? Who knew!

A drug dealer sends his supplier to pick up a box of cash from the dealer's wife. Can we assume without more that the dealer was his wife's "manager or supervisor," U.S.S.G. § 3B1.1(b), or that he "used . . . affection" to involve her in his drug crimes, U.S.S.G. § 2D1.1(b)(16)(A)?

Of course not. This is the twenty-first century. C'mon people.

See United States v. Sampel2021 WL 2793548 (2d Cir. July 6, 2021) ("Evidence that Sampel told a person to pick up money from his wife does not establish that Sampel “exercised [any] degree of control” over her . . . or that he in any way directed her involvement in the drug business. Likewise, this evidence does not support the conclusion that Sampel used affection to involve his wife in the crimes at issue. Simply put, more is needed.") (reversing and remanding for resentencing).

See also State v. Donkers, 867 N.E.2d 903, 939 (Ohio App. 2007) ("In today's society, regardless of what individual couples believe and practice, the law does not recognize the husband as the 'one public voice' or as the automatic head of household with supreme authority over his nonresponsible feme covert."); United States v. De Quilfeldt, 5 F. 276, 278 (C.C.W.D. Tenn. 1881) ("It is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes . . . ; but to hold it to be presumed as a fact, in all cases where the husband is present, is the relic of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded, and does them no credit."); but see Gray v. State, 527 P.2d 338 (Okla. Crim. App. 1674 1974) (noting "general rule that a wife committing a crime is presumed to have acted under her husband's coercion" if the husband is physically present at the time of the crime).