McKenzie Scott Civil Rights & Criminal Defense Lawyers

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  • “Rising Against Asian Hate” now on PBS

    “Rising Against Asian Hate” now on PBS

    Incidents of harassment, bullying, and hate crimes against the Asian American community have been on the rise since early 2020. Stop AAPI Hate documented nearly 11,500 acts of hate during the two year period from March 2020 through 2022. Sadly, California reported the largest number of AAPI hate incidents. San Diego, specifically, has seen an increase in hate incidents against the Asian American community. Theese acts of hate not only violate the victims’ civil rights, causing direct damages to those experiencing them, but also generate diffuse anxiety, stress, and depression in the greater AAPI community as well.

    On Monday, October 17, 2022, PBS premiered “Rising Against Asian Hate: One Day in March.” The film is narrated by Sandra Oh and explores “the fight against Asian American hate following the March 2021 mass shootings at three spas in Atlanta.” This new documentary shines light on the movement to combat race-based hate and protect civil rights within the AAPI community. The film is part of an important public media initiative, “Exploring Hate: Antisemitism, Racism and Extremism” by WNET in New York. Hopefully by examining what fuels hate in our society and raising awareness of on-going hate incidents, we can find ways to work together to combat-and eliminate-these corrosive and devastating incidents in our communities.

  • Civil Rights Cases for Criminal Practitioners

    Civil Rights Cases for Criminal Practitioners

    Greetings, beloved criminal practitioners and defenders of civil rights! After a break from doing these updates, attributable mostly to a crazy trial schedule and launching / rebranding our new firm McKenzie Scott PC, my colleagues and I are excited to reboot this newsletter. As always, our hope is to provide useful case updates on civil-rights cases that matter to our community and those we serve – and to suggest ways in which these civil-case citations might come in handy in defending against criminal prosecutions.

    So on to a recent case! Johnson v. City of Grants Pass provides an important reminder on the unconstitutionality of criminalizing involuntary homelessness, as the Ninth Circuit’s rejects a deliberately punitive statutory scheme from Grants Pass, Oregon.

    Criminalizing involuntary homelessness, making it “uncomfortable enough … they will want to move on down the road” held unconstitutional by 9th Circuit.

    Johnson v. City of Grants Pass,
    20-35752, 2022 WL 4492090 (9th Cir. Sept. 28, 2022)

    The foundation for this case was laid in September 2018, when the Ninth Circuit decided Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018). Martin held that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Id. at 1048.

    Apparently undeterred, Grants Pass passed city ordinances “preclud[ing] homeless persons from using a blanket, a pillow, or a cardboard box for protection from the elements while sleeping within the City’s limits.” City of Grants Pass, 2022 WL 4492090 at *3. The law imposed civil fines, bans from City property, and moreover, “if a homeless person is found on City property after receiving an exclusion order, they are subject to criminal prosecution for trespass.” Id.

    The city’s intentions in passing the ordinances were not complicated, nor secret. As one city councilman made clear in passing them: “the City’s goal should be ‘to make it uncomfortable enough for [homeless persons] in our city so they will want to move on down the road.’” Id. at *4.

    After resolving jurisdictional and class-certification issues, the Ninth Circuit held that the laws were unconstitutional. In so doing, it rejected the City’s attempted workaround to Martin, which purported to allow sleeping in public, but made bedding, blankets, and other basic necessities to do so illegal. Citing the Eighth Amendment, the Court held that the “City cannot enforce its anti-camping ordinances to the extent they prohibit the most rudimentary precautions a homeless person might take against the elements.” Grants Pass, at *16. Judge Collins dissented from the panel decision, writing that “[e]ven assuming that Martin remains good law, today’s decision – which both misreads and greatly expands Martin’s holding – is egregiously wrong.” Id. at *21.

    The dissent notwithstanding, this line of cases serves as an important protection for the involuntarily homeless. Even beyond invalidating any prosecutions based on this or similar ordinances, warrantless searches and seizures based on them could be attacked on this basis, and the Court’s analysis of constitutional cruel and unusual punishment is a rare – and welcome – bit of Eighth Amendment jurisprudence.

  • Pretext Stops, Whren, and The Onion before the Supreme Court

    Pretext Stops, Whren, and The Onion before the Supreme Court

    (Constitutional Cases for Justice Warriors: October 12, 2022 Edition)
    Other than a hard-fought loss from McKenzie Scott PC’s criminal / white-collar practice, it was a slow week for relevant Ninth Circuit civil cases.

    So we turn our attention to unexpectedly powerful language—and ideas—from the Fifth Circuit. In Crane v. City of Arlington, the Fifth Circuit examined a completely pretextual traffic stop this week that, tragically, ended with an officer shooting the driver in front of his pregnant partner and two-year-old daughter.

    Then, on a lighter note, we share some delightful (real) Supreme Court litigation from online satire publication The Onion.

    “Traffic stops and the use of deadly force are too often one and the same”

    Fifth Circuit Suggests Antidote to Whren

    Crane v. City of Arlington
    2022 WL 5073278 (5th Cir. Oct. 4, 2022)

    Much of Crane v. City of Arlington 2022 WL 5073278 (5th Cir. Oct. 4, 2022), is dedicated to resolving he-said, they-said disputes between the shooter (Officer Roper) and two adult passengers who were in the car when Roper shot 22-year-old Tavis Crane. But the shooting was unreasonable by anyone’s account. Another officer tried three times to stop the unnecessary escalation, telling Officer Roper repeatedly to “get out” of Tavis’s car. Id. at *3.

    But what makes Crane a worthy read for criminal practitioners is its express challenge to Whren and suggestion that the traffic stop should never have occurred at all. It carries the useful reminder that there may be other ways to push back against pretextual stops, even when a direct Fourth Amendment motion would be an uphill battle.

    Whren, of course, held that the Fourth Amendment is not concerned with officers’ subjective intentions when they execute traffic stops. It gave police carte blanche to investigate hunches so long as they first obtain (manufacture?) probable cause for a traffic violation. With probable cause established, only searches and seizures done in an “extraordinary manner” implicate the Fourth Amendment. 517 U.S. at 818 (1996).

    In the decades since, “pretextual stops have become a cornerstone of law enforcement practice.” Crane, 2022 WL 507327 *1. The Crane court calls that longstanding development into question and suggests a way forward. The Fifth Circuit notes that, “these stops create grounds for violent—and often deadly—encounters that disproportionately harm people of color.” Id.

    And “[w]hen Whren was decided, the Court did not have what we have now—twenty-five years of data on the effects of pretextual stops. Indeed, the Whren Court differentiated pretextual stops from ‘extreme practices’ like the use of deadly force. Today, traffic stops and the use of deadly force are too often one and the same—with Black and Latino drivers overrepresented among those killed—and have been sanctioned by numerous counties and major police departments.” Id. (emphasis provided).

    Accordingly, Crane permits a local government’s liability under Monell when a policy of pretextual stops foreseeably and disproportionately results in death among people of color.

    Recall that Whren left open situations when the pretextual seizure was performed in an “extraordinary manner,” notwithstanding probable cause. Also recall, Whren is a Fourth Amendment case, which leaves open “selective enforcement” challenges (under the Equal Protection Clause) to pretextual stops. Whren, 517 U.S. at 813. Cf. United States v. Sellers. 906 F.3d 848 (9th Cir. 2018) (holding that discovery on claims of selective enforcement in a stash house reverse-sting operations context are governed by a less rigorous standard than that applied to claims of selective prosecution.)

    So, building on the gaps that Whren left, Crane’s post-Whren historical analysis, and the selective-enforcement discovery that Sellers allows, perhaps there is a way forward here to battle pretextual stops, even in criminal cases.

    The Onion Brings Tears to Police Department’s Eyes

    There were some lighter developments in civil rights this week as the Supreme Court received briefing in Novak v. Parma. Mr. Novak was charged with (and acquitted of) a crime for mocking his local police force on a satirical Facebook account he made in their name. “[H]e published half -a-dozen posts ‘advertising’ the Department’s efforts, including free abortions in a police van.” Novak v. City of Parma, 932 F.3d 421, 426 (6th Cir. 2019). Now in the Supreme Court, The Onion submitted a hilarious amicus in support of Novak’s civil rights lawsuit noting “The Onion intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power . . . And it would vastly prefer that sunlight not to be measured out to its writers in 15-minute increments in an exercise yard.” Check out their brief here.

  • Private prisons lack oversight, prioritize profits over people, and endanger the lives of detainees

    Private prisons lack oversight, prioritize profits over people, and endanger the lives of detainees

    The challenges and, all too frequent, horrors of life in private prisons in the United States are well documented:

    Thus, in 2019, Californians celebrated the passage of AB 32: a bold effort to eliminate the “serious, documented harms to the safety and welfare of those detained” in private prisons within our state. But the Ninth Circuit Court of Appeals sitting en banc recently invalidated AB 32 finding that it violates the Supremacy Clause. Ultimately siding with private prisons, the Court held that AB 32 gives California unconstitutional control over where and how U.S. Immigration and Customs Enforcement operates detention facilities within the state.

    Unfortunately, those detained in private prisons continue to have to fight for the medical care to which they are entitled as well as the humane and dignified treatment which they deserve. The former assistant federal public defenders at McKenzie Scott PC are particularly attuned to the many injustices facing those incarcerated in private prisons in California and beyond. We have fought informally to advance the rights of those incarcerated in the for-profit prison machine. And we have litigated in state and federal court time and again against abuses by these corporations.

    If you have a loved one who has died or been seriously injured while in the custody of a private prison, we are here to talk with you. We all need to work together to keep private prisons accountable. Contact us today to see if we can fight for justice on your behalf.

  • Civil Rights Victory for Japanese-American Community: San Diego Rescinds Decades-Old Racist Resolution

    Civil Rights Victory for Japanese-American Community: San Diego Rescinds Decades-Old Racist Resolution

    The City of San Diego passed Resolution No. 76068 during WWII, which “urged” the FBI to remove persons of Japanese ancestry “from San Diego and vicinity” because Japanese people were “cause for great concern” in the community. On September 19, 2022, the City Council rescinded that Resolution. The Council acknowledged that the City of San Diego failed “to support and defend the civil rights and civil liberties” of Japanese Americans during this period and apologized for this failure.

    Civil Rights Victory for Japanese-American Community

    The San Diego resolution was modeled on the California State Assembly’s House Resolution No. 77 which passed in 2020 and also apologized “to all Americans of Japanese ancestry for its past actions in support of the unjust exclusion, removal, and incarceration of Japanese Americans during World War II . . . .”

    It’s never too late to acknowledge past wrongs. It’s never too late to recommit ourselves to the cause of defending civil rights and civil liberties. To learn more about the history of Japanese American incarceration during WWII, check out the work of this important nonprofit organization, Densho, striving to preserve the stories of those who were “unjustly incarcerated” during the war.

    At McKenzie Scott PC, we are proud to use our legal skills to fight on behalf of those wrongly targeted by state and federal governments on account of their race, ethnicity, national origin, or other protected statuses. The California State Legislature has declared that the “rich diversity of the people of California requires a justice system that is equally accessible and free of bias . . . .” Bus. & Prof. Code 6001.3(b)(1). In the civil-rights and criminal-defense cases we accept, and the people we choose to fight for, we are committed to increasing equal access to justice and pursuing a more just and fair community where we can all live and thrive.

  • What are Common Examples of Civil Rights Violations?

    What are Common Examples of Civil Rights Violations?

    McKenzie Scott believes that all human beings have value and dignity, and the fundamental right to be treated fairly. Federal and California law protects many specific civil rights. As a result, civil rights cases can include some or all of the following:

    • Freedom from excessive force by police or other law enforcement
    • Freedom from unreasonable searches or seizures by police or other law enforcement
    • Freedom from false arrest by police or other law enforcement
    • Freedom from wrongful prosecution and conviction
    • Freedom from discrimination on a prohibited basis (race, sex, national origin, etc.)
    • Freedom of speech
    • Freedom of the press
    • Freedom of religionv
    • Freedom of assembly
    • Freedom to protest
    • and seizure
    • The right to petition the government
    • The right to procedural due process
    • The right to an attorney
    • The right to equal protection

    Under the United States Constitution, your civil rights include all of the above. However, most states (as well as the federal government) have specific civil rights statutes in place to protect people when their rights are violated as well. Unfortunately, innocent people still suffer civil rights violations every day, often at the hands of the most powerful corporations and government entities in our society. When these violations occur, a civil rights lawsuit may be the only effective means of obtaining justice – including financial compensation and the opportunity to prevent similar harms from befalling others.

    The sections below review some of the most common examples of civil rights violations, discuss how civil rights are defined under California law, and provide information on how to file a claim with the experienced team of trial lawyers and justice warriors at McKenzie Scott.

    Common Examples of Civil Rights Violations

    Some examples of civil rights violations that may warrant a lawsuit include:

    • Unreasonable searches and seizures
    • Illegal traffic stops based on race, ethnicity, religion, sex, gender, etc.
    • Wrongful termination or being passed over for a promotion on a prohibited basis
    • Physical abuse or excessive force by a public official (police officer, corrections officer, etc.)
    • Violation of Miranda Rights and your right to an attorney

    Anti-discrimination laws are in place to help protect people in various areas, such as:

    • Education
    • Housing
    • Employment
    • Public accommodations

    ‘Public accommodations‘ often refers to facilities or locations commonly accessed by the public. These may include hotels, restaurants, stores, transportation services, etc.

    Sexual assault, abuse, harassment, or general misconduct in education or workplace environments can also be examples of civil rights violations. In instances of education or workplace-based sexual assault or misconduct, both the individual perpetrator committing the violation as well as the overall entity or institution allowing such activity to take place can be held accountable through a civil rights lawsuit.

    An example of a civil rights violation outside of those key areas includes abuse or mistreatment by the police or another type of government official.

    Civil rights are guaranteed by our laws, and are supposed to be enforced by the various government entities sworn to uphold them. But at McKenzie Scott, we enforce the laws set forth in the Constitution (as well as other state and federal laws), protecting the people from the government as well.

    What is Not a Civil Rights Violation or Grounds for a Lawsuit

    In fact, some rights, such as freedom of speech or freedom of protest, are only enforceable against the government. Hence, if another individual attempts to violate your right to free speech or freedom to assemble, it would not be a First Amendment case. In order for your Constitutional civil rights to have been violated, state action causing harm needs to be involved.

    How are Civil Rights Defined Under California Law?

    However, many state and federal laws prohibit discriminatory conduct by private and government actors alike. If a private entity commits a hate crime or act of hate speech against you, it may be held accountable through private attorney general statutes and other causes of action. At McKenzie Scott, we help individuals bring civil rights lawsuits against government or corporate entities for all of the various violations described above.

    How are Civil Rights Defined Under California Law?

    In addition to the United States and California Constitutions, California statutes are an important source of civil rights under the law.

    The Ralph Civil Rights Act:

    The Ralph Civil Rights Act, for example, was enacted as part of the Civil Code of California to address the problem of racial, ethnic, religious, and minority violence by providing civil and administrative remedies for those who are victims of violence directed against any particular class of persons.
    Under the Ralph Civil Rights Act, all Californians have the right to freedom from violence or threats of violence based on any of the following:

    • Actual or perceived sex/gender (including pregnancy, childbirth, and related medical conditions)
    • Gender identity and gender expression
    • Race
    • Color
    • Religion
    • Ancestry
    • National origin
    • Disability
    • Medical condition
    • Genetic information
    • Marital status
    • Sexual orientation
    • Citizenship
    • Political affiliation
    • Position in a labor dispute
    • Primary language
    • Immigration status

    Furthermore, the Ralph Civil Rights Act allows claims for up to $25,000 in penalties when a hate crime (or threatened hate crime) occurs.

    The Unruh Civil Rights Act:

    The Unruh Civil Rights Act (also known as the Unruh Act) has been a part of California law since the 1950s. Under the Unruh Act, any business in California is prohibited from discriminating against a consumer. “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

    All California businesses are bound to the Unruh Civil Rights Act, including hotels, theatres, restaurants, hospitals, housing accommodations, retail outlets, etc.

    The Bane Civil Rights Act:

    Additionally, The Bane Civil Rights Act prohibits inference with civil rights (both constitutional and statutory) by threat, intimidation, or coercion of any kind.

    Bane Act claims are now commonly part of most excessive-force, illegal-arrest, and wrongful-death lawsuits against law-enforcement agencies that McKenzie Scott files today. But Bane Act claims can be brought against private and public entities alike, and can also be based upon discrimination based upon:

    • Race
    • Color
    • Religion
    • Ancestry
    • National origin
    • Political affiliation
    • Sex
    • Sexual orientation
    • Age
    • Disability
    • Position in a labor dispute

    The court may grant an injunction prohibiting further intimidating or coercive behavior. Any violation of this order is a misdemeanor and may result in fines or imprisonment. However, if your civil rights are violated by a government or private entity (e.g. a corporation), you may be eligible to file a private civil lawsuit as well. If a judgment is awarded in your favor in a private lawsuit, you may receive “reasonable attorney’s fees” as well.

    What is the Statute of Limitations for a California Civil Rights Claim?

    For a civil rights violation, the California statute of limitations (deadline) for filing a tort claim is often only six months from the date of the incident. This means that if your civil rights have been violated by a state or local government entity like the police department, you typically have only six months from the date of the violation occurring to file a claim and preserve the right to file a civil lawsuit for damages. Accordingly, the McKenzie Scott team of civil rights lawyers encourages all victims to contact us as soon as possible following a violation to ensure your opportunity at justice is preserved and your claim is not barred by the statute of limitations.

    For federal civil rights claims, the statute of limitations may be longer – sometimes up to two years from the date of an incident. But the Federal Tort Claims Act also has tort-claim requirements that can affect statutes of limitations. The interplay between tort claims, statutes of limitations, and individual versus government defendants is complex and fact-specific. They also depend on the circumstances of your individual civil rights violation and particular causes of action. Due to the varying nature of federal civil rights claim filing deadlines, the team of attorneys at McKenzie Scott strongly encourages you to reach out for a free consultation as soon as possible.

    What Types of Financial Damages May be Recoverable in a Civil Rights Lawsuit?

    Civil rights lawsuits are filed in an effort to recover financial compensation for the victim, but also to cause societal change. Depending on the nature of your case, various economic, non-economic, and punitive damages may be pursued.

    Some common examples of damages that may be recoverable in a civil rights lawsuit include:

    Civil Rights Economic Damages:

    • Medical expenses (past and future)
    • Hospital/emergency department treatment
    • Lost Wages
    • Lost Earning Capacity

    Civil Rights Non-Economic Damages:

    • Pain and suffering
    • Emotional trauma
    • Psychological harm
    • Reduced quality of life

    Punitive damages may also be sought in civil rights lawsuits, typically when it is clear that a defendant is guilty of oppression, fraud, or malice. Under California law, such damages are not capped, though constitutional limits apply as a matter of case law. McKenzie Scott pursues punitive damages in all applicable civil rights violation cases.

    What is Civil Rights Injunctive Relief?

    When a civil rights violation occurs, injunctive relief represents a legal remedy in addition to or in place of monetary damages. Rather than offering financial compensation, injunctive relief is a court order forcing a defendant (like a police department) to stop a specific act or behavior (usually a type of misconduct which led to the civil rights violation in the first place).

    Federal, state, and local law enforcement officers are prohibited from engaging in any pattern or practice that may deprive a person of his or her civil rights, which are protected under the Constitution and laws of the United States. Types of misconduct that are covered under the Police Misconduct Provision set forth by the Department of Justice include (among other acts):

    • Excessive force
    • Discriminatory harassment
    • False arrests
    • Coercive sexual conduct
    • Unlawful stops, searches, or arrests

    When such misconduct occurs, injunctive relief can provide not only orders to end the misconduct, but also changes in an agency’s policies and procedures – specifically those which allowed the bad behavior to occur. Examples of injunctive relief following a pattern of civil rights violations may include:

    • Additional training for law enforcement
    • Prohibiting certain law enforcement tactics (e.g. ‘no knock’ warrants)
    • Prohibiting law enforcement from using certain types of weapons
    • Consent decrees

    In a police misconduct lawsuit, injunctive relief may be pursued against the local government police agency (rather than an individual officer who committed the act).

    Contact the Best Civil Rights Lawyers Today for a Free Consultation

    The team of experienced, dedicated, and proven civil rights and criminal defense attorneys at McKenzie Scott has been fighting for decades to protect the little guy from violations committed by governments and corporations. If your civil rights have been violated, you may be entitled to financial compensation via a lawsuit with McKenzie Scott.

    Contact us today at 619-794-0451 for a free, confidential, and no obligation consultation with a California civil rights lawyer.