REPRESENTING FOREIGN NATIONALS

Juror Bias: 1st Circuit Reverses on Constitutional Grounds to Allow further Inquiry

2009-11-10T15:57:00.000-08:00

Post verdict a juror wrote in USA v Villar,

"I felt compelled to send this to you. I don’t know if I should even be doing this but I don’t care. I know it’s late but I want you to know that there were at least 3 people on that jury who actually listened to the testimony with an open mind. We tried to make the rest pay attention. We made them go through every piece of evidence and every witness. Between us we pointed out every discr[e]p[a]ncy. They made up some story to explain it away. I want you to know that I will go to jail before I ever serve on another jury. It was awful. I’m sorry we couldn’t do anything. We finally decided to not prolong that young man’s hope any longer. We could have stayed there for another week. Their minds were made up from the first day. Here’s one example, A man said “I guess we’re profiling but they cause all the trouble.” Well I won’t keep you longer. Again I am sorry we couldn’t do more. You know if I thought he would have gotten a different kind of jury the next time I think [I] would have kept them there. These people are the salt of the earth and there is no gray in their lives. I really hope they never get into the scales of blind justice because she isn’t. God bless you and Mary keep you safe. USA v Villar

The Court reversed on constitutional grounds, due to the trial court's reliance on Rule 606b to prevent post verdict inquiry.

"While the issue is difficult and close, we believe that the rule against juror impeachment cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant’s right to due process and an impartial jury. In our view, the four protections relied on by the Tanner Court do not provide adequate safeguards in the context of racially and ethnically biased comments made during deliberations. While individual pre-trial voir dire of the jurors can help to disclose prejudice, it has shortcomings because some jurors may be reluctant to admit racial bias. ...... In addition, visual observations of the jury by counsel and the court during trial are unlikely to identify jurors harboring racial or ethnic bias. Likewise, non-jurors are more likely to report inappropriate conduct – such as alcohol or drug use – among jurors than racial statements uttered during deliberations to which they are not privy. "

Immigrants from Mexico and Central America at Risk of Kidnapping

2009-10-26T04:52:00.000-07:00

If it wasn't bad enough, immigrants traveling north from Central America and Mexico are now at risk of kidnapping and murder. New York Times.

"A study by Mexico’s National Human Rights Commission released this year found 9,758 migrants who had been kidnapped as they tried to cross the border into the United States between September 2008 and February 2009. The commission noted that migrants were typically terrified to report such crimes out of fear of being deported by Mexican immigration authorities and that the actual number of victims was probably much higher.
The stories the commission heard in interviews with victims were alarming. There were frequent rapes of female migrants. Fierce beatings were carried out. As a lesson to other captives, the kidnappers killed some migrants who did not hand over the telephone numbers of their relatives.
“They said that if they did not receive payment, they would take away my kidney afterward and throw me into the river so the big lizards would eat me,” a Honduran man who was kidnapped in Tabasco State told commission investigators. "

Refugee Experience: Book Recommendation- "What is What"

2009-10-21T07:01:00.000-07:00

For Second Year - Our blog gives strongest recommendation to: "What Is What" for insights into the trauma that many refugees have experienced and an insight into cultural differences. Linda Friedman Ramirez

Valentino Achak Deng

"What Is the What is the soulful account of my life: from the time I was separated from my family in Marial Bai to the thirteen years I spent in Ethiopian and Kenyan refugee camps, to my encounter with vibrant Western cultures beginning in Atlanta, to the generosity and the challenges that I encountered elsewhere. As you read this book, you will learn about me and my beloved people of Sudan. I was just a young boy when the twenty-two-year civil war began that pitted Sudan’s government against the Sudan People’s Liberation Movement/Army. As a helpless human, I survived by trekking across many punishing landscapes while being bombed by Sudanese air forces, while dodging land mines, while being preyed upon by wild beasts and human killers. I fed on unknown fruits, vegetables, leaves and sometimes went with nothing for days. At many points, the difficulty was unbearable. I thought the whole world had turned blind eyes on the fate that was befalling me and the people of southern Sudan. Many of my friends, and thousands of my fellow countrymen, did not make it. May God give them eternal peace. This book began as part of my struggle to reach out to others through public speaking. "

Immigration Policy: Guilt by Immigration Status - New Report

2009-10-16T09:03:00.001-07:00

Guilty by Immigration Status new report, September 2009," reveals that immigration policing is causing a disturbing pattern of abuses and rights violations – a pattern that has severely and detrimentally affected the livelihood and safety of entire families, workers and communities across the U.S. In particular, the report describes how the Department of Homeland Security (DHS), along with other police, public officials and agencies, routinely trumped the civil rights and constitutional protections of a person in order to question, detain and/or jail them solely
based on their actual or perceived immigration status."

"The pattern of DHS practices and policies illustrated in the report gives evidence to a dramatic expansion and consolidation of an “immigration control regime,” under which the human rights of immigrants, including legal permanent residents and U.S. citizens, are routinely violated at the U.S.-Mexico border and in the U.S. interior. Unless the components of this regime are halted and dismantled, the long-held promise of immigration reform – the lifting of millions of immigrant workers and their families out of a life of fear and exploitation – will be severely undermined. "

Immigration Consequences: Padilla v Kentucky Orall Argument

2009-10-14T06:48:00.000-07:00

Justices Seem Sympathetic, but Question whether they will fashion Remedy. Oral Argument New York Times, October 14, 2009.

Issue: Will the United States Supreme Court recognize a criminal defense attorney's obligation to advise re immigration consequences and provide veteran Padilla relief from removal? See NACDL's Amicus Brief on line.

Racial Profiling: Report re Cobb County Georgia

2009-10-12T17:03:00.000-07:00

New Report from ACLU Georgia. “Terror and Isolation in Cobb: How Unchecked Police Power in Cobb has Torn Families Apart and Threatened Public Safety”
October 2009.

Immigration Crimes: Possession of Authentic Immigration Document can be Crime if Obtained by False Statement

2009-10-07T03:59:00.000-07:00

Update: US Supreme Court has declined certiorari. October 6, 2009. The question remains whether the Government will deport Mr. Krstic.
**

On March 10, 2009, the 9th Circuit reversed the dismissal of an indictment against Defendant Krstic, charged with 18 USC 1546(a), on the grounds that he made false statements and obtained lawful permanent resident visa. United States v Krstic.

" We are confronted with a thorny question of statutory interpretation to discern whether an alien may be prosecuted for possession of an authentic immigration document obtained by means of a false statement.

" The superseding indictment, filed on October 16, 2007, alleged in relevant part that [Krstic] . . . did knowingly possess an alien registration receipt card . . . which [he] knew to have been
procured by means of materially false claims and the I-485 form, styled “Application to Register as a Permanent Resident Or Adjust Status,” is required as part of an application to become a lawful permanent resident of the United States."

"The indictment did not allege that the alien registration receipt card itself was forged, counterfeited, altered, or falsely made. Rather, it simply charged Krstic with obtaining an alien registration card by means of a false statement. Krstic moved to dismiss the indictment, contending that possessing an authentic immigration document procured by means of a false statement does not constitute an offense under § 1546(a). He argued that § 1546(a) criminalizes possession only of an already forged, counterfeited, altered, or falsely made immigration document. The district court agreed with Krstic and dismissed the indictment. The United States timely appealed."

International Human Rights: NLG Asks Holder to Appoint Special Prosecutor

2009-10-05T14:25:00.000-07:00

National Lawyers Guild and other human rights groups issue open letter to Eric Holder

Immediate Release Contact: Marjorie Cohn, President, marjorie@tjsl.edu New York--Seventeen human rights and civil rights organizations and 45 prominent lawyers and civic leaders have sent a letter to Attorney General Eric Holder last week urging him to appoint a special independent prosecutor to investigate and prosecute Bush officials and lawyers involved in setting illegal interrogation policies. Holder had expanded the mandate of Justice Department lawyer John Durham to include a preliminary investigation but limited Durham's focus to a handful of interrogators who exceeded the limits set by the "torture memos." The groups and individuals stressed that the special prosecutor should come from outside the Department of Justice and not limit the investigation to low-level operatives, but "should investigate and prosecute all those who ordered, approved, justified, abetted or carried out the torture and abuse." The letter cites "political pressure" which has "led to [Holder's] office taking too narrow an approach to the investigation." Signatories of the letter include the National Lawyers Guild, Center for Constitutional Rights, U.S. Human Rights Network, and Psychologists for Social Responsibility, as well as prominent torture survivor Sister Dianna Ortiz. Also signing is the International Association of Democratic Lawyers, the American Association of Jurists and many other international bar associations.
They urge Holder to "hold firm against any attempts by former Vice President Dick Cheney, the CIA directors, and the media to silence those who demand that the United States hold accountable those who have committed and authorized torture." Both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions "expressly require the United States to either extradite or initiate prosecution of persons who are reasonably accused," the letter says, adding "this is a legal obligation." "Whether actionable intelligence was gained is not the issue," the letter in conclusion reminds the Attorney General, and says that he cannot "pick and choose those laws you will enforce." Founded in 1937, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York, and it has chapters in every state.

Resource of Note: Defending Non Citizens in Illinois, Indiana and Wisconsin

2009-10-03T06:21:00.000-07:00

Manual: Defending Non-Citizens in Illinois, Indiana, and Wisconsin , 13 August 2009, Defending Non-Citizens in Illinois, Indiana, and Wisconsin

Immigration Consequences of Criminal Convictions: Law Review Article Ignorance is Bliss

2009-09-28T07:16:00.001-07:00

Ignorance is Effectively Bliss: Collateral Consequences of Criminal Convictions, Silence and Misinformation in the Guilty Plea Process Jenny Roberts American University, Washington College of Law; Syracuse University College of Law Iowa Law Review, Vol. 95, No. 1, 2009

"Abstract: In the 2009-2010 term, the United States Supreme Court will decide if it matters whether a criminal defense lawyer correctly counsels a client about the fact that the client faces deportation as a result of a guilty plea. Under prevailing constitutional norms in almost every jurisdiction, a lawyer does not have a duty to tell her client about many serious but “collateral” consequences of a guilty plea. Yet, in every jurisdiction that has considered the issue, that very same lawyer will run afoul of her duties if she affirmatively misrepresents a collateral consequence. Every jurisdiction, that is, except Kentucky, where the state Supreme Court recently held that when there is no duty to warn about a consequence because it is collateral, misadvice about that same consequence is not a constitutional violation. ".....More......

Terrorism Trial: Kassir sentenced to Life in Prison.

2009-09-15T05:58:00.000-07:00

UpdateSeptember 15, 2009. Kassir sentenced to life in prison. AP.
"Lebanese-born Swede gets life for terror camp plot. A Lebanese-born Swede was sentenced to life in prison Tuesday for plotting to open a terrorism training camp in Oregon in 1999 to help al-Qaida. U.S. District Judge John Keenan called Oussama Kassir "a clear threat to public safety" when he announced the sentence. Kassir was convicted in May on charges that he supported al-Qaida by trying to help open the camp in Bly, Ore. Before the sentence was imposed, Kassir spoke through an interpreter, telling the judge that witnesses during his trial lied. He also said the jury could not have adequately studied the evidence because the deliberations lasted only two hours."

Previously posted: U.S. v. Kassir, 2009 WL 2913651 S.D.N.Y.,2009.September 11, 2009 Court denial of Rule 29 Motion. Kassir charged with multiple counts involving alleged terrorism activities in the United States. 18 USC 2339,

Foreign Adoptions: Report Claims that Guatemalan Army Stole Children

2009-09-12T10:24:00.000-07:00

September 12, 2009, CNN. (CNN) -- The Guatemalan army stole at least 333 children and sold them for adoption in other countries during the Central American nation's 36-year civil war, a government report has concluded. " Around 45,000 people are believed to have disappeared during Guatemala's civil war, 5,000 of them children.

Many of those children ended up in the United States, as well as Sweden, Italy and France, said the report's author and lead investigator, Marco Tulio Alvarez.
In some cases, the report said, parents were killed so the children could be taken and given to government-operated agencies to be adopted abroad. In other instances, the children were abducted without physical harm to the parents.
"This was a great abuse by the state," Alvarez told CNN on Friday.
Investigators started examining records in May 2008 for a period that spanned from 1977-89, said Alvarez, the director of the Guatemalan Peace Archive, a commission established by President Alvaro Colom."

Central American Gangs: Documentary Maker Killed in Salvador

2009-09-12T06:01:00.000-07:00

Documentary Film Maker Christian Poveda was found murdered near San Salvador, and four gang members and a police officer have been arrested.
CNN. Poveda's documentary, "La Vida Loca," follows the lives of members of the Mara 18 gang. The documentary has been screened at a handful of film festivals and is slated for wider release later this month. His body was found in an area controlled by that same gang, officials said. The suspects had set up a meeting with Poveda on August 30, at which time they were supposed to kill him and bury his body, El Mundo and El Diario de Hoy reported. But Poveda did not show, heightening gang members' suspicions that he was an informant. He met with the suspects three days later and was shot by Romero, El Mundo said, but in their haste to get away the gang members forgot to bury his body.

****
Sin Nombre: A film worth mentioning again.

"It’s almost impossible to believe that Sin Nombre is Cary Joji Fukunaga’s feature debut; its storytelling is so accomplished, its visual style so crisp, and its heightened naturalism and performances so textured. A social-political thriller in the tradition of American film noir, Sin Nombre is set on the border, where Mexico becomes the crucible and the fearsome gangs of today’s Mexican countryside, the gauntlet, to freedom.

The stories of Sayra, a teenager living in Honduras and hungering for a brighter future, and teen gang members Smiley and Casper, for whom the Mara Salvatrucha is nearly their entire universe, become interlaced on the train to the border, a journey that will determine the future of their lives. Young Casper is already a wary veteran of the "Mara," and his new recruit is the 12-year-old Smiley, full of bravado and looking for status.

The two run afoul of the everyday violence that penetrates their world and find themselves fellow passengers with Sayra on a States-bound freight, hugging the rooftop as their precarious journey unfolds. At once a love story and a chase film, a thrill ride and a vision of an apocalyptic hell, Sin Nombre demonstrates Fukunaga's skill; he envelops us in a nightmare that is all too real for its inhabitants. Sin Nombre is a portrait of hope and desperation and announces the launching of a shining new filmmaking career.

Recipient of the Directing Award: U.S. Dramatic, and the Excellence in Cinematography Award: U.S. Dramatic. CAST : Paulina Gaitan, Edgar Flores, Kristyan Ferrer, Tenoch Huerta Mejía, Diana García, Héctor Jiménez. " Sundance.

Racial Disparity: Complaint to IACHR re US

2009-09-11T07:52:00.000-07:00

September 9, 2009 The Sentencing Project Submits Petition to Inter-American Commission on Human Rights on discriminatory effects of felony disenfranchisement

The Sentencing Project, in conjunction with the Lawyers' Committee for Civil Rights Under Law and the American Civil Liberties Union, has submitted a petition for a hearing before the Inter-American Commission on Human Rights concerning the discriminatory effects of felony disenfranchisement policies in the Americas. The Commission is an agency of the Organization of American States. Among its responsibilities is to conduct regular sessions during the year when petitions from member states highlighting particular issues of concern are reviewed and selected for a full thematic hearing. The Commission will solicit analyses and hear from witnesses on specific policies, ultimately determining whether any requirements of the OAS Charter, the American Declaration of the Rights and Duties of Man, and/or the American Convention on Human Rights have been violated.

Asylum Law: 9th Circuit Denies Relief to Former Member of Kashmir Liberation Front

2009-09-10T15:07:00.000-07:00

Khan v Holder, 9th Circuit, September 9, 2009. Although petitioner claimed that he was only involved in political wing, the Liberation Front was a terrorist organization, per Bureau of Immigration Appeals and petitioner disqualified from political asylum or relief pursuant to the Convention Against Torture.

Immigration Detention: Chinese national with No Criminal history finally released

2009-09-10T13:40:00.000-07:00

New York Times, September 10, 2009. For Immigrant, a Path Out of the Dark Maze of Detention. Holding tight to her sister’s hand in the bustling streets of New York’s Chinatown last week, Xiu Ping Jiang looked a little dazed, like someone who has stepped from a dark, windowless place into a sunny afternoon. In a sense, she has. For a year and a half Ms. Jiang, a waitress with no criminal record and a history of attempted suicide, was locked away in an immigration jail in Florida. Often in solitary confinement, she sank ever deeper into mental illness, relatives say, not eating for days, or vomiting after meals for fear of being poisoned. More...

Civil Rights: Deported LPR Receives Settlement for Illegal Detention

2009-09-09T12:15:00.001-07:00

States WithoutBorders blogs re this case, in which a Lawful Permanent Resident was illegally detained and deported.

Terrorism Trials: Juror Reports on the al-Kassar Trial

2009-09-08T06:09:00.000-07:00

For complete article, see "The City" magazine on line." Inside a Terror Trial: How a Manhattan jury reached its verdict in the government’s case against international arms dealer Monzer al-Kassar."

Immigrants: The Isolation of Elderly Immigrants in the United States

2009-08-31T13:36:00.001-07:00

New York Times, August 30, 2009." In this country of twittering youth, Mr. Singh and his friends form a gathering force: the elderly, who now make up America’s fastest-growing immigrant group. Since 1990, the number of foreign-born people over 65 has grown from 2.7 million to 4.3 million — or about 11 percent of the country’s recently arrived immigrants. Their ranks are expected to swell to 16 million by 2050. In California, one in nearly three seniors is now foreign born, according to a 2007 census survey. Many are aging parents of naturalized American citizens, reuniting with their families. Yet experts say that America’s ethnic elderly are among the most isolated people in America."

Terrorism Trials: Magistrate Questions Sufficiency of Evidence

2009-08-31T05:21:00.001-07:00

The government is prosecuting seven men in North Carolina for conspiring to engage in terrorist activities. The men recently appeared before US Magistrate Webb, who questioned the sufficiency of the government's probable cause. However, the Magistrate also ordered the men detained.

How can the government argue that statements such as, "I want to go to the beach" is sufficient evidence to detain and indict individuals; and what was the motivation of the confidential informant?

'But Webb pressed on. He pointed out the prosecutor's argument that the suspects were sometimes talking in code, with Hysen Sheriff once talking about "going to the beach." Prosecutors argued that the "beach" really meant violent jihad. Webb balked at the idea that he was supposed to consider "beach" as the "functional equivalent of jihad" without knowing why the witness was credible. The judge's concerns weren't enough to allow any of the men to go free until trial, despite promises from some family members that they could take care of the suspects outside of prison and the arguments from attorneys that the men had strong ties to the community. " Huffington Post.

International Law and Remedies: IACHR Petition in case of Extraordinary Rendition

2009-08-28T05:07:00.001-07:00

International Tribunal Takes Up Case Of Innocent Victim Of CIA Extraordinary Rendition Program

Petition Filed By ACLU Seeking Justice For Kidnapping And Torture Of Khaled El-Masri Moves Forward. CONTACT: Robyn Shepherd, (212) 519-7829 or 549-2666; media@aclu.org NEW YORK

The Inter-American Commission on Human Rights (IACHR) has accepted a petition filed by the American Civil Liberties Union onbehalf of Khaled El-Masri, an innocent victim of the CIA's extraordinary rendition program. The U.S. government has two months to respond to allegations of kidnapping and torture summarily rejected by U.S. courts in 2007. "The United States has an opportunity to reverse one of the most shameful legacies of the Bush administration and finally give an innocent victim of the extraordinary rendition program his day in court," said Steven Watt, senior staff attorney with the ACLU Human Rights Program. "The State Department should fully engage in this process and comprehensively address the gross violation of El-Masri's human rights, including his forcible disappearance and torture. To date,the United States hasn't so much as acknowledged its involvement inEl-Masri's extraordinary rendition." In 2003, El-Masri, a German citizen, was kidnapped and flown to aCIA-run "black site" in Afghanistan, where he was secretly detained and tortured for months. Although his innocence was clear soon after his detention, the CIA continued to hold El-Masri for four months before flying him to Albania and abandoning him on a hillside in the dead ofnight. El-Masri has never been charged with a crime. In 2005, the ACLU sued former CIA Director George Tenet and threeU.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. Constitution and universal human rights laws. In March 2007, a federal appeals court dismissed the lawsuit because of the government's assertion of the "state secrets"privilege. The U.S. Supreme Court let that decision stand when it refused to hear the case in October 2007.

"The United States, which has historically been a leader in ensuring access to justice for human rights violations around the world, has effectively closed the courtroom door to all victims of the Bush administration's torture regime," said Ben Wizner, staff attorney with the ACLU National Security Project. "To date, not a single victim of torture by the U.S. has had his day in court. A review of Mr. El-Masri'scase by the IACHR will shed much-needed light on the abuses perpetrated against him and will finally offer a victim of the U.S. torture and rendition program a venue in which his claims can be meaningfully addressed." The Obama administration recently announced that it will continue to render individuals it suspects of involvement in terrorism to detentionin other countries, but that it will monitor all cases to ensure thatsuspects are not mistreated. "Any transfer of detainees in U.S. custody to other countries must fully comply with domestic and international human rights law," said JenniferTurner, researcher with the ACLU Human Rights Program. "Examining the Bush administration rendition program and holding accountable those whobroke the law will help to ensure that the same mistakes aren't repeated by the Obama administration." The IACHR is an autonomous body created by mandate of the Organizationof American States to promote and protect human rights in the Americas.The ACLU petition asks that the IACHR declare that the extraordinary rendition program violates the American Declaration of the Rights and Duties of Man; to find the U.S. responsible for violating El-Masri's rights under that declaration; and to recommend that the U.S. publicly acknowledge and apologize for its role in violating El-Masri's rights through forcible disappearance, arbitrary detention and torture. Attorneys filing the petition on El-Masri's behalf are Watt, Turner and Jamil Dakwar of the ACLU Human Rights Program and Wizner and Melissa Goodman of the ACLU National Security Project.

The ACLU's petition is available online at www.aclu.org/safefree/torture/34837lgl20080409.html

Human Rights: Human Rights USA Position on Prosecutions

2009-08-25T11:07:00.000-07:00

Independent Prosecutor Must Have Power to Investigate Senior Officials Who Authorized Human Rights Violations‏:

Human Rights USA welcomes the news that Attorney General Holder has decided to appoint a prosecutor to investigate interrogations that may have violated U.S. obligations not to torture.

As we explained on our blog earlier this month, the Attorney General should ensure that the scope of the investigation includes senior government officials responsible for directing, approving, or authorizing the use of such techniques. Based on information currently available to the public, it is apparent that lawyers for the Bush administration wrote legal memoranda approving techniques that clearly violate the Geneva Conventions and U.S. laws. To investigate only the CIA interrogators who exceeded the broad rules set by the administration is to repeat the faulty investigations conducted by the former administration. The focus of the investigation appears to be too narrow to include all individuals responsible for the abuses committed during the last administration.

An investigation into crimes committed by low-level CIA interrogators is an attempt to again blame detainee abuse on just a few "bad apples." This kind of limited investigation does not reach the heart of the problem: the administration authorized tactics that violated accepted standards of domestic and international law. Unfortunately, failing to fully investigate the abuses at issue could have international repercussions for the United States. Human Rights USA has closely followed this matter for many months and has called for the current administration to uphold the United States' international human rights obligations.

Our efforts include petitioning the Inter-American Commission on Human Rights earlier this year. On March 20, 2009, representatives from Human Rights USA, in collaboration with the representatives from the Center for Constitutional Rights and the American Civil Liberties Union, appeared during the thematic hearing on accountability for major human rights abuses committed by U.S. Government officials during the 'war on terror.' The hearing provided the Commission with information regarding the types of accountability measures that the Obama administration must take in order to comply with its international human rights obligations, under the American Declaration of the Rights and Duties of Man and international law, to investigate, prosecute, and punish international crimes.

Racial Profiling: How to Survive an Arrest When you Haven't Done Anything Wrong

2009-08-23T13:51:00.000-07:00

Our colleague James V Cook* has given permission to reprint his article, "How To Survive an Arrest When You Haven't Done Anything Wrong".

Racial profiling is real. If you're African-American and you're male, the chances are better than even that you will be stopped by law enforcement officers when you haven't done anything wrong. If you're African-American and female, they're only a little better.

In my practice as a civil rights lawyer, some of the most troubling cases have involved the Professor Louis Gates phenomenon: African-Americans, even accomplished professionals, who are arrested or detained based on wrong assumptions that involve police attitudes on race. Sometimes the abusive officers are also Black. However, in many communities, Black law enforcement officers have formed professional groups to protect the civil rights of minorities.

People who are career criminals know how to get arrested without getting hurt. They know how to talk, how to move, using non-threatening, deferential words and body language, how to hold in anger. They may joke with officers and interact in a friendly way, although they know that the officers' intention is to see them spend years in prison.

It is the young, unsophisticated kids and older adults with little experience with law enforcement who often get hurt. Kids may run from police because they are afraid to face parents, relatives, and church members if they are caught doing something wrong. Older adults may show outrage and, when they are innocent, assume that the Constitution protects them in an arrest situation more than it actually does.

The following are my suggested rules for arrestees to get through the experience safely, and then, afterwards, proceed to take effective action to assert their rights.

1. When stopped by police, immediately assume a non-threatening stance. Keep your hands visible as much and as quickly as possible. If you are in your car and your safety belt is fastened and police are asking you to show your hands and step out of the car, say loudly, "My safety belt is fastened. I have to unfasten it." Say what you are doing, and why, while you are doing it. Be aware that there may be video and audio recordings of the incident.

2. Speak clearly at all times. If asked to get out of your car, try to stay in front of the patrol car where a camera is likely to be aimed (but do not disobey officer commands). Be careful not to make statements that antagonize the officer. Keep your voice as calm as possible. Try not to gesture with your hands. Do not try to physically resist being handcuffed. Be aware that if the courts find that the officer had the right to detain you, they will be extremely deferential to the police in decisions to use force prior to your being handcuffed. Be aware that in Florida you have no legal right to resist an arrest, even an illegal arrest, with force.

3. Do not threaten a lawsuit. That is an invitation for law enforcement officers to pile on the charges and make sure they stick. Officers know that the best defense is a strong offense. Wait until the situation is defused, cleared up, or you are arrested and either jailed or freed. Try to contact a civil attorney without broadcasting your actions to law enforcement officers.

4. Try to gather names of witnesses and physical evidence as soon as possible. Keep in mind that people who witness wrongful police behavior may be outraged at first but with time outrage may fade. Have someone get witness statements while witnesses' memories are fresh and their willingness to help is at its height. Be sure no one is told what to say; only that they should include specific details like the date, the time, the place, of the wrongful acts, words that were spoken, descriptions, I.D. numbers, or names of the officers, and the names of other persons who were present. They should tell the story of what they saw in chronological order. Witnesses should an address and phone number. Have lots of pictures taken if needed to document any physical injury or damage. The imprints of too-tight handcuffs will fade in time.

5. If criminal charges are filed against you, try to get those taken care of first. If you enter a no contest plea in order to get the case over with or to "stop having to come to court," that plea may affect your rights to challenge the law enforcement actions in a civil lawsuit. However remember that police have no right to use unreasonable force even if they can prove the charges against you. If you are charged with Resisting An Officer With Violence or Battery on a Law Enforcement Officer, you will probably (but not always) need to win your case to sue. Those charges are often added by officers to immunize them from their wrongful acts.

6. Generally, courts will not let you proceed with a civil lawsuit while a criminal case is going on. If you file it, the civil court will most likely put your civil case on hold until your criminal case is finished. Because some evidence "goes away" like the recordings of the police radio transmissions, it will be best to make sure your criminal lawyer gets hold of those kinds of evidence. If you were arrested in a place where private businesses may have security cameras, like the parking lot of a retail store, make sure that you or your criminal attorney get a copy of the video recordings very quickly before they are recorded over. Remember, your criminal attorney has subpoena power.

7. If you bring a civil lawsuit for wrongful police conduct, you have the burden of proof. You cannot win a civil lawsuit by simply making allegations and making the police prove the allegations are wrong. A civil lawsuit usually means years of work and frequently tens of thousands of dollars in expenses. If your damages are not great, sometimes the best response to police misconduct is to become active in the community helping to ensure that what happened to you doesn't happen to others. Community organizations like the NAACP and the ACLU exist to protect rights. The NAACP now has a Rapid Report System (RSS) on police misconduct. For more information, go to http://www.naacp.org/.

8. As soon as any criminal charges are resolved, file a citizen complaint against the officers who violated your rights. This can be a way that well-intended police administrators can see which officers are acting improperly. Remember that officers who make lots of arrests tend to be rewarded by the police hierarchy. Showing that many of the arrests involved misconduct may be a way to make sure that abusive police officers do not move ahead in the system. When you file a complaint, make sure you and your witnesses follow through with appointments with internal affairs investigators so the complaint isn’t dropped for lack of cooperation.

9. Remember that part of the problem is always political. It is easy for legislators to win votes by taking a tough stand on crime and voicing support of police. Often, those law-abiding citizens who become victims of police misconduct have also been supporters of tough crime legislation. But politicians who are "tough on crime" should also be tough in support of the civil rights of the accused, and be willing to say so in the same breath. It is only the constitutional rights of the accused that the wrongly accused have to rely on.

Most police officers became police officers for the right reasons and try to do the right thing. Some are bullies. In my work, the bad ones have made me really appreciate the good ones. The problem is more that good officers are often hesitant to restrain or to testify against bad officers when they see misconduct. An officer who stands by and permits your rights to be violated when he or she could intervene is also violating your constitutional rights.

A lawyer who used to defend police officers as a major part of his practice once told a group of Tallahassee civil rights lawyers at a seminar on police misconduct, "Almost every improvement in police professionalism has come about as a result of lawsuits by lawyers like you." Good police administrators who want to rein in the abusive practices of renegade officers also need the help of citizens willing to document and fight police misconduct.

*James V. Cook is a Tallahassee civil rights attorney and a winner of the 2003 national NAACP "Foot Soldiers’ Award.”

Khat: 2nd Circuit Reverses Convictions of Defendant in Conspiracy Case

2009-08-23T12:02:00.000-07:00

A must read for anyone handling a case involving khat is USA v Muhammed, 2nd Circuit, August 21, 2009.

Immigration Consequences: 11th Circuit & 212c Relief

2009-08-23T05:19:00.000-07:00

Case of note: 11th circuit addresses categorical approach and 212c relief. De La Rosa.