McKenzie Scott Civil Rights & Criminal Defense Lawyers

Category: Criminal Defense

  • 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.