Daily Archives: June 20, 2020

The DACA decision primarily involved principles of administrative law. (I discussed those issues here and here). But the case also involved a challenge brought under the Equal Protection Component of the Fifth Amendment. (Remember, the Fifth Amendment lacks an Equal Protection Clause).

The Plaintiffs alleged that the rescission of DACA violated the Equal Protection component of the Fifth Amendment. Chief Justice Roberts described the claims:

Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump.

I discussed the issue way back when in a September 2017 WSJ op-ed (this litigation has been floating around for three-plus years):

That brings us to Mr. Schneiderman's most unsettling claim: that Mr. Trump can't revoke DACA because he is racist. "The President has demonstrated a willingness to disparage Mexicans in a misguided attempt to secure support from his constituency," the states' complaint argues, "even when such impulses are impermissible motives for directing governmental policy."

The filing cites a litany of Mr. Trump's offensive commentshis warning about Mexican "rapists"; his disparagement of Univision anchor Jorge Ramos; his reference in a presidential debate to "bad hombres"; his attacks on Judge Gonzalo Curielas well as his pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz.

Let's start with Part IV of Roberts's opinion, which was joined (behind the veil of a paper bag) by Justices Ginsburg, Breyer, and Chief Justice Kagan. Roberts rejected each of these three arguments.

None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

We saw a similar argument during the travel ban litigation: Any policy that prohibited entry of people from countries with links to terrorism would be predominantly Muslim.

Second, Roberts rejected the relevance of the history leading up to the rescission:

Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that "DACA received reaffirmation by [DHS] as recently as three months before the rescission," referring to the June 2017 DAPA rescission memo, which stated that DACA would "remain in effect." But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA's legal defects, DHS's decision to reevaluate DACA was not a "strange about-face." It was a natural response to a newly identified problem

Not quite. The newly-identified problem was that Texas threatened to sue. Sessions thought DACA was illegal for years.

Finally, Roberts rejects the relevance of the President's statements about Hispanics. Why? Because the relevant actors are the DHS Secretary and the Attorney General. More importantly, he dismissed the relevance of Trump's statements under the Arlington Heights framework.

But, even as interpreted by respondents, these statementsremote in time and made in unrelated contextsdo not qualify as "contemporary statements" probative of the decision at issue. Arlington Heights. Thus, like respondents' other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.

Alas, this analysis only had four votes. Therefore, we do not have a five-member majority that dismisses Trump's statements, "remote in time and made in unrelated contexts."

Justice Sotomayor could not don this paper bag. She wrote a partial dissent that focused on Trump's statements. It was very similar to her Trump v. Hawaii dissent.

But "nothing in our precedent supports [the] blinkered approach" of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, (2018) (SOTOMAYOR, J., dissenting). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexicoa keystone of President Trump's campaign and a policy priority of his administrationand, according to respondents, were an animating force behind the rescission of DACA. Taken together, "the words of the President" help to "create the strong perception" that the rescission decision was "contaminated by impermissible discriminatory animus." This perception provides respondents with grounds to litigate their equal protection claims further.

She also found there was possible pretext in DHS's sudden reversal:

The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a "significant mismatch between the decision made and the rationale provided." Department of Commerce v. New York (2019). Only by bypassing context does the plurality conclude otherwise.

Justice Thomas offered only a footnote about the Equal Protection Clause:

I concur in the judgment insofar as the majority rejects respondents' equal protection claim.

I don't read this statement to agree with Roberts's analysis in Part IV. He only concurs in the judgment.

Justice Kavanaugh's dissent included a similar line:

I therefore respectfully dissent from the Court's judgment on plaintiffs' APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs' equal protection claim.

As I read the case, only four Justices supported the Chief's analysis.

In total, eight Justices rejected the Plaintiffs' Equal Protection arguments. Though there was not a majority opinion for a rationale. Therefore, there is no holding with respect toArlington Heights. And no actual Equal Protection precedent was set. The John Roberts express chugs along.

Read the original:
The Equal Protection Issues in the DACA Case - Reason

The cities of Kent, Federal Way and Auburn need to drop their legal opposition to inquests of officer-involved deaths, says King County Executive Dow Constantine.

Now is the time for action and accountability, Constantine said in a Monday news release. We want the governments that have filed litigation to block inquests to step aside so we can move forward and get to the truth.

But the mayors of each city responded Monday that they plan to continue the lawsuit and want Constantine to restore an inquest process that is fair, transparent, just and legally acceptable within his authority.

The purpose of an inquest is to provide accountability and answers, Kent Mayor Dana Ralph said in a statement. If we are going to be transparent with all parties, we need fair, impartial, factual investigations to occur. This isnt something to take lightly or play games with. The county executive has pushed the envelope too far in trying to politicize a tragic situation. If a member of our community dies as a result of an interaction with law enforcement, I dont want politics I want answers. The only way to get those answers is from a fair investigation and process.

Six inquests have been on hold in King County for two years, frustrating families and making it harder for witnesses to recall details, Constantine said. The Kent, Federal Way and Auburn police departments each have a inquest case on hold. One of the two Seattle police cases on hold includes the death of a Kent man.

State law authorizes, and the King County Charter mandates, the investigation of any death involving a member of law enforcement in the course of their duties.

Inquests are fact-finding hearings conducted before a six-member jury. Inquests are designed to provide transparency into law enforcement actions so the public may have all the facts established in a court of law. Inquest jurors answer a series of questions to determine the significant factual issues involved in the case, and it is not their purpose to determine whether any person or agency is civilly or criminally liable. State law requires a jury of no more than six, and no less than four.

It is unfortunate that Executive Constantine has chosen to portray the intent of our cities in this light, Auburn Mayor Nancy Backus said. In truth, we believe that his executive overreach jeopardizes a full and transparent process for the public, cities and families involved and as such, we will fight its implementation.

Federal Way Mayor Jim Ferrell also opposes the changes.

We believe police accountability is more important now than ever, but the inquest process is an imperfect tool for this, and the new rules are unfair, Ferrell said. We believe it is unconstitutional.

The city of Renton also is part of the suit against the new inquest format.

After a spike of such deaths in 2017, residents expressed serious concerns about the inquest process in the county and the seeming lack of transparency and accountability, according to the news release.

Sonia Joseph is among the residents who complained about the process after a inquest jury in December 2017 found a Kent police officer feared for his life when he shot her son Giovonn Joseph-McDade, 20, in June 2017. Joseph-McDade died from multiple gunshot wounds after he reportedly tried to use his vehicle to run over an officer after a short pursuit on the East Hill.

In response to the complaints, Constantine put all inquests on hold in 2018, then convened a community group to examine the process and suggest reforms. Many of those reforms were included in an Executive Order that went into effect in October 2018 but has not yet been used with all inquests still on hold because of the lawsuits.

Executive Order includes the following major changes:

Old system: District Court judge presided over hearing

New system: A pool of retired judges serves Inquest Administrators to oversee the process.

Old system: King County Prosecuting Attorneys Office facilitated the proceedings, presents evidence.

New system: Prosecuting Attorneys Office will not participate in the hearing, but will continue administrative functions.

Old system: Limited only to facts and circumstances surrounding death.

New system: Expands the interpretation of facts and circumstances to include questions about department policy and training.

Old system: Jurors were often asked whether the officer feared for his or her life at the incident.

New system: Jurors may be asked whether officers actions were consistent with department training and policies. Jurors will no longer be asked whether officers feared for their lives.

Old system: County did not provide attorneys for families.

New system: Attorneys are provided by the Department of Public Defense, if wanted.

Old system: Involved officer could voluntarily testify or be subpoenaed to testify (officer maintains Fifth Amendment right against self-incrimination).

New system: Lead investigator of incident will testify, and chief law enforcement officer (or designee) will answer questions about training and policy. Involved officer can voluntarily testify, but not be subpoenaed. However, if the subpoenaed officer does not testify, may not be represented by legal counsel.

Revised June 15 order: Involved officer may voluntarily testify or be subpoenaed to testify (officer maintains Fifth Amendment right against self-incrimination), and officer may be represented by counsel throughout the proceeding regardless of whether they actually testify.

Constantine said the creation and issuance of the 2018 Executive Order was supported by:

Andre Taylor, founder of Not This Time, a community organization focused on reducing fatal police shootings, changing the laws that govern the use of force and rebuilding trust between our communities and the police who are sworn to protect and serve us. His brother Che Taylor was fatally shot by Seattle Police in 2016

Fae Brooks, co-chair of the King County Inquest Process and Review Committee and retired chief of the criminal investigations division of the King County Sheriffs Office

James Schrimpsher, Lodge 27 President of the Washington Fraternal Order of Police

Diane Narasaki, executive director, Asian Counseling and Referral Services

Almost immediately, several cities including the city of Seattle, King County Sheriff, and individual Seattle police officers filed lawsuits challenging various aspects of the inquest process, Constantine said. Three families of the deceased also filed litigation.

The Obet, Lyle and Butts families lawsuits include several items, such as making inquests include potential criminal charges against officers, and giving attorneys the ability to subpoena officers.

The litigation by the cities of Seattle, Kent, Auburn, Federal Way and King County Sheriffs challenge almost every aspect of the inquest system, including: police policies and training should not be part of inquests, disciplinary history of officers should not be allowed, expert testimony should be limited, and inquests should not be presided over by administrators (retired judges). The King County Sheriff contends that the King County Charter exempts it from inquests.

The city of Kent is utilizing the proper legal channels in order to have an impartial court of law settle a significant dispute regarding the interpretation of law, City communications manager Bailey Stober said in a statement. It is clear to us that the county executive is politicizing and attempting to bully South County cities into dropping a suit which highlights significant legal shortcoming of his new inquest process. The process was so out of line that the city of Seattle first filed the lawsuit and was joined by the King County Sheriff, the executives own county law enforcement agency.

On June 9, the Seattle City Attorney Pete Holmes announced his intent to withdraw the city of Seattle from legal challenges to the inquest process.

Seeking to find compromise, Constantine this week issued a revised Executive Order to allow involved officers to be subpoenaed to testify, and to allow the officer to have an attorney present during the inquest.

King County will defer to the courts on whether inquests, after 50 years of case law stating otherwise, should now consider criminal culpability as part of the process.

The inquest process created by my 2018 Executive Order puts new emphasis on law enforcement training and lethal use-of-force policies so that departments can be held accountable for creating better, safer ways of policing, Constantine said.

Today (Monday) I am revising my Executive Order to remove objections that some departments and some families raised, Constantine said. My new order will allow the involved officer or officers to be subpoenaed to testify, and will allow officers to be represented by counsel throughout the proceeding regardless of whether they actually testify, he said.

The changes arent enough for Kent city leaders.

Our county executive has attempted to create a system of police accountability utilizing a statutory structure created in 1854, before police departments even existed in Washington, Stober said in a city statement. The executive has used imagination and a false sense of authority, not granted to him by state law, to try and create oversight authority over city police departments in 38 cities, none of which he has the authority of oversee. We firmly believe in police oversight and accountability, but that should be a conversation with the community here in Kent, not made unilaterally from a politician in downtown Seattle. Kent residents know what is best for Kent. King County is the only county in Washington that systematically uses the inquest process for this purpose. Inquests in other counties are extremely rare if not ever used, and for good reason they are not an effective tool for police oversight.

Stober continued.

It is absurd that the executive complains that cities are delaying the process of inquests, Stober said. Because of his rush to change the rules with minimal input, he has caused significant delays in the resolution of inquests. Because of the lack of thoughtfulness, it took his office almost two years to produce the rules once he decided to convene his community work group.

Residents speak out

Taylor, founder of Not This Time, said the cities need to change their stance.

I worked with very hard with Executive Constantine and other community partners to draft a new inquest process that was vastly superior, and focused appropriate attention on police policies and trainings in a way that was fair to everyone, Taylor said in the statement released by Constantine. The fact that certain cities were cowed by their police departments into filing lawsuits against the inquest shows just how far we have to go in creating a society that values and protects people of color. The political leaders of these cities have heard our protests. Now they need to act.

Katrina Johnson, the cousin of Charleena Lyles who was fatally shot by Seattle Police in June 2017, spoke at the Kent protest march on June 11 and delivered a message to Kent Police Chief Rafael Padilla shortly after he spoke about how he will listen to the protesters and the need for the department to do better.

If Kent Police Department wants to stand in solidarity with families and black lives, I need you guys to drop the lawsuit that you have forbidding the inquest from going forward, Johnson said. If you guys want to stand in solidarity with black lives, I need you guys to apologize to Sonia Joseph for killing Giovann Joseph-McDade, for killing Eugene Nelson and many others lives that you guys have taken.

Six King County victims with inquest hearings on hold

Damarius Butts

Seattle Police Department

Date of Incident: April 20, 2017

Butts, of Kent, died from multiple gunshot wounds after a reported shootout with Seattle Police on April 20 when he fled after allegedly robbing a 7-Eleven store, 627 First Ave., in downtown Seattle.

Isaiah Obet

Auburn Police Department

Date of Incident: June 10, 2017

Police say the officer shot Obet after the 25-year-old man entered a home armed with a knife and later tried to carjack an occupied vehicle.

Charleena Lyles

Seattle Police Department

Date of Incident: June 18, 2017

Lyles, 30, was shot seven times in her Seattle apartment by two Seattle Police officers. Officers fired after they said Lyles threatened them with a knife.

Eugene Nelson

Kent Police Department

Date of Incident: Aug. 9, 2017

Nelson, 20, died from multiple gunshot wounds after he allegedly tried to flee in a vehicle while dragging an officer in the 23600 block of 104th Avenue Southeast.

Robert Lightfeather

Federal Way Police Department

Date of Incident: Oct. 30, 2017

Lightfeather, 33, died of multiple gun shot wounds from a shooting at South 316th Street and Pacific Highway South outside the Elephant Car Wash. Federal Way police responded to a 911 caller who reported seeing a man pointing a gun at two men.

Curtis Elroy Tade

Kirkland Police Department

Date of Incident: Dec. 19, 2017

Federal Way Mirror reporter Olivia Sullivan contributed to this article.

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More:
County executive wants cities to drop opposition to revised officer-involved shooting... - Kent Reporter

As we celebrate Pride Month, its worth taking some time to think about some of the prominent members of the LGBTQ+ community who have not only made great strides in technology, but also advocated for recognition and equality. From the mid-20th century to today, LGBTQ+ technologists continue to push the industry forward in new and exciting ways. The following is just a small sampling of these technologists:

An English mathematician helped pioneer computer science and artificial intelligence (A.I.)., Turing is perhaps most famous for his work at Bletchley Park, the center of the U.K.s code-breaking efforts during World War II, where he figured out the statistical techniques that allowed the Allies to break Nazi cryptography.

For his wartime efforts, Turing was appointed an officer of the Order of the British Empire. Following the War, he designed an Automatic Computing Engine, basically a computer with electronic memory (a fully functioning example of the ACE wasnt actually something built in his lifetime, however). He also theorized quite a bit about artificial intelligence (one of his core concepts,the Turing test, is still regarded as a benchmark for testing a machines intelligent behavior).

Turing was prosecuted by the British government for his sexual relationship with another man, Arnold Murray. Found guilty, he was chemically castrated and stripped of his security clearance, which prevented him from working for Britains signals-intelligence efforts. A little over two years later, in 1954, he was found dead of cyanide poisoning, and whether it was suicide or an accident has preoccupied historians for decades.

In 1999,Timelisted Turing among the100 Most Important People of the 20thCentury. Five years later, the British government officially pardoned his conviction.

A technology manager for IBM as well as an LGBTQ+ activist, Edith Edie Windsor was lead plaintiff inUnited States v. Windsor(550 U.S. 744), a landmark U.S. Supreme Court case that found that a crucial portion of the Defense of Marriage Act (DOMA) violated the due process clause of the Fifth Amendment. The ruling helped legalize same-sex marriage (along with a later case,Obergefell v. Hodges).

At IBM, Windsor worked on projects related to operating systems and natural-language processing. After leaving IBM in 1975, she started a consulting firm. In 2016, Lesbians Who Tech, an organization for lesbian and queer women in tech,set up the Edie Windsor Coding Scholarship, with 40 people selected for its inaugural year of giving.

As a computer scientist at IBM in the 1960s, Lynn Conway helped make pioneering advances in computer architecture. One of her projects, ACS (Advanced Computing Systems), essentially became the foundation of the modern high-performance microprocessor. However, IBM fired her when it discovered that she was undergoing gender transition.

Undeterred, Conway moved on to Xerox PARC, where she worked on still more innovative projects, including the ability to put multiple circuit designs on one chip. She was also key in advancing chip design and fabrication. After her stint at Xerox, she moved to DARPA, and from there to the University of Michigan, where she became a professor of electrical engineering and computer science.

At the turn of the century, Conway began to work more in transgender activism. In addition coming out to friends and colleagues, she also used her webpage to describeher personal history(followed up, much later, by a memoir published in 2012). In 2014, she also successfully pushed for the prominent Institute of Electrical and Electronics (IEEE) Board of Directors toinclude trans-specific protections in its Code of Ethics.

Jon maddog Hall has been the Board Chair of the Linux Professional Institute (the certification body for free and open-source software professionals) since 2015. In addition, hes executive director of the industry group Linux International, as well as an author with Linux Pro Magazine.

In a 2012 column in Linux Magazine, Hall came out as gay, citing Alan Turing as a hero and an inspiration.In fact, computer science was a haven for homosexuals, trans-sexuals and a lot of other sexuals, mostly because the history of the science called for fairly intelligent, modern-thinking people, he wrote. Many computer companies were the first to enact diversity programs, and the USENIX organization had a special interest group that was made up of LGBT people. He also became an advocate of marriage equality.

In 2012, Leanne Pittsford founded Lesbians Who Tech, which claims its the largest LGBTQ community of technologists in the world (with 40+ city chapters and 60,000 members). Lesbians Who Tech hosts an annual San Francisco Summit attended by as many as 5,000 women and non-binary people, and it provides mentoring and leadership programs as well as the aforementioned Edie Windsor Coding Scholarship Fund.

Pittsford is also the founder of include.io, which connects underrepresented technologists with companies and technical mentors. In 2016, she also organizedthe third annual LGBTQ Tech and Innovation Summit at the White House.

The third Chief Technology Officer of the United States (U.S. CTO) under President Barack Obama, Megan Smith also served as a vice president at Google. As U.S. CTO, she spearheaded a number of initiatives, including the recruitment of tech talent for national service. She also recognized the need to build up the governments capabilities in data science, open data, and digital policy.

Smith is currently the CEO and co-founder of shift7, which works collaboratively on systemic social, environmental and economic problems. She is also a life member of the board of MIT, as well as a member of the Council on Foreign Relations and the National Academy of Engineering.

Widely considered the first chief executive officer of a Fortune 500 company to come out as gay, Apple CEO Tim Cooktold CNNback in 2014 that he went public in order to show gay children that they could be gay and still go on and do some big jobs in life.

Cook, who once said that being gay is Gods greatest gift to me, joined Apple as a senior vice president in 1998, during some of its leanest years. He quickly solidified his reputation as a peerless operations executive, refining the companys supply and manufacturing chains. As Apple rose to new corporate heights on the strength of its iPod, iPhone, and iPad sales, this supply-chain refinement ensured that millions of devices reached users hands.Cook was promoted to chief operating officer, and stepped in to temporarily head the company when CEO Steve Jobs fell sick with cancer.

Following the death of Jobs in 2011, Cook took the CEO reins and restructured the executive team, with a renewed focus on creating a culture of teamwork and collaboration. He oversaw the launch of the Apple Watch and the AirPods, moving Apple in the long-predicted direction of wearables, and began to shift the companys focus from hardware to cloud-based services such as music and gaming.

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See the rest here:
7 Prominent LGBTQ+ Technologists, Past and Present - Dice Insights