Monthly Archives: March 2022

Senator Ron Wyden (D-OR) recently revealed that, over the past two years, Homeland Security Investigations (HSI) the law enforcement arm of the Department of Homeland Securitys Immigration and Customs Enforcement unit conducted an indiscriminate surveillance dragnet that swept up some six million money transfers between people in Mexico and four southwestern states. Wyden called on the DHS inspector general to investigate the surveillance. Thats a critical step the programs bulk collection of information was clearly an abuse of power, targeted at the Latino community. But the problems at HSI go much deeper. The money transfer dragnet is only the latest overreach by a department thats long overdue for systemic reform.

HSI, which has rarely been in the spotlight, takes an expansive view of its mandate to combat transnational crime. It uses this authority to start criminal investigations into ordinary financial transactions, travel, and family relationships. These can have drastic consequences, from criminal charges to deportation, for those targeted.

In the case of the money transfers, HSI demanded that companies like Western Union provide sender and recipient names, addresses, and transaction amounts on all money transfers over $500 entering or leaving Arizona, California, New Mexico, Texas, and Mexico. The legal tool used was an administrative subpoena, which is not approved by a court and is only supposed to be used to seek information needed for an active customs investigation a requirement that Wyden notes doesnt seem to have been met. The agency has not claimed (nor could it credibly argue) that all of these transactions were part of an active investigation. On the contrary, HSI appears to have sought and saved the data for its agents and other local, state, and federal officers with whom it shares information to trawl through whenever they choose and use in any way they want. This would appear to violate the Fourth Amendment to the U.S. Constitution, which prohibits the government from scooping up information about people in the absence of any suspicion of criminal activity.

This is part of HSIs pattern. The agency often uses its transnational crime mission to investigate immigrants of color who are not suspected of criminal activity. Starting in 2017, for example, HSI led an operation that targeted the parents and relatives of unaccompanied immigrant children who were entering the United States to reunite with family after fleeing unstable living conditions in their home countries. Although this operation was a blatant attempt to penalize vulnerable children and their families for seeking refuge in the United States, HSI cloaked the operation in language emphasizing transnational criminal organizations, saying it was aimed at human smuggling operations, despite the absence of any focus on smuggling organizations or networks.

Similarly, since at least 2017, HSI has inserted itself into young immigrants removal proceedings and applications for immigration relief by producing HSI memos, which are used by immigration officials to justify detaining youth without bond and denying them immigration benefits that provide legal residency, like Special Immigrant Juvenile Status and Deferred Action for Childhood Arrivals. As reflected in these memos, HSI uses vague criteria to brand young immigrants as gang members criteria such as wearing colors or clothing associated with gangs, being present in an area frequented by gangs, or being seen with known gang members.

These types of programs are not just a product of former President Donald Trumps anti-immigrant agenda. HSIs Operation Second Look program started during the administration of President Barack Obama. It investigates naturalized citizens, looking for inconsistencies in their documents or old deportation orders as grounds to strip them of citizenship. The program reportedly focuses on immigrants from special-interest nations a list that consists overwhelmingly of countries with substantial Muslim populations.

HSI has also been implicated in invasive airport searches, which activists have alleged are deployed punitively against journalists, activists, and travelers of color another practice dating back to the Obama administration. HSI uses its expansive border search authority, which is meant to prevent people and items posing an imminent danger from entering or leaving the country, to seize, break into, and copy the contents of travelers cell phones, laptops, and other electronic devices.

Finally, for years, particularly under the George W. Bush and Trump administrations, HSI conducted workplace raids and mass arrests of working immigrants. Last year, President Bidens Secretary of Homeland Security Alejandro Mayorkas ordered an end to this practice, a welcome and important change.

Despite news reporting on these troubling practices, HSI has faced limited oversight. A review of investigation reports made public by DHSs Inspector General reveals that the office has never investigated HSIs civil rights and civil liberties record. The lack of investigations isnt due to lack of expertise: the Office of Inspector General routinely conducts these types of reviews into how Enforcement and Removal Operations ICEs other half treats detainees. DHSs Office for Civil Rights and Civil Liberties also does not seem to have reviewed HSIs operations, although not every review by that office is made public.

Urgent action is needed to rein in this part of DHS that has too much power and is subject to too little oversight. Mayorkas should issue a clear directive pausing HSIs initiatives that are alleged to involve civil rights and civil liberties abuses and commission an independent review of HSIs authorities and operations. Increased oversight, stronger protections against profiling, and concrete consequences for civil rights and civil liberties violations should be the starting point, not the end, of forward-looking reforms.

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Mayorkas Must Rein in Homeland Security Investigations - Just Security

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Republicans successfully transformed the confirmation hearing of the first black woman nominated to the Supreme Court into an abusive circus based on a malicious lie, all to get on Fox News and light up the QAnon corners of the internet. By taking a handful of cases out of context, Republican senators accused Judge Ketanji Brown Jackson of being soft on child porn defendants. Sen. Josh Hawley (R-Missouri) claimed in a tweet last week, as heset up his partys strategy to enmesh her in a meritless scandal, that Jackson has a pattern of letting child porn offenders off the hook a record that endangers our children.

The Republicans concern over a non-existent problem stood in stark contrast to another not-so-distant Supreme Court confirmation hearing in which child endangerment was a legitimate issue. In 2006, it was Democrats who were concerned, alarmed by the record of nominee Samuel Alito, a hyper-conservative circuit court judge with a record of deferring to law enforcement, even, as in one case, when a police officer strip searched a child in the course of a drug raid. Democrats raised the issue during the hearingwhile Republicans remained almost entirely silent.

The case went back to 1998, when police officers in Pennsylvania executed a drug raid in which the suspects wife and 10-year-old daughter were strip searched. The family sued, alleging an illegal search under the Fourth Amendment. The majority of the circuit courts panelagreed, reasoning that the warrant did not list the wife and daughter. But Alito dissented, arguing that because a magistrate judge had attached an affidavit to the warrant that said the search should also include all occupants of the residence, that the police had the authority for the additional searches and, at bottom, could reasonably assume that they did. Despite concern among Democrats overAlitos dissent, many legal experts gavehim the benefit of the doubt in the lead up to his confirmation hearing, generally voicing the argument that this was a highly technical case, not one in which Alito seemed to favor strip searching children.

But when Democrats questioned Alito about the case during his confirmation hearing, his comments were more concerning than his ruling. Repeatedly, Alito conveyed that searches of minors should be allowedpresumably, as in the case in question, including strip searches. I was concerned about the fact that a minor had been searched. And I mentioned that in my opinion and that is something that is very unfortunate, Alito told Sen. Richard Durbin (D-Ill). But the issue in the case was not whether there is some sort of rule that minors cant be searched. That is not part of Fourth Amendment law, as I understand it, and there would be a very bad consequence if that were the rule because where would drug dealers hide their drugs? Minors would then becomethey would become the repository of the drugs and the firearms.

The more times I read this quote, the more disturbing Alitos positionbecame.He seems to argue that children should be searched to deter suspects from hiding evidence on them. For raids to work, they are supposed to surprise the suspect. Does he believe drug dealers would store their guns and contraband on their children as a matter of routine, whenever they are home? Whenever they go to bed? Would anyone treat children as trusted custodians of valuable and dangerous objects such as drugs and guns? Does he think all drug dealers are so despicable as to endanger their children in this way? I suppose its possible that some might, if police banged on the door, pass a gun or bag of contraband to a teenager to hide under their shirt.

While the idea that children should be searchedor even strip searchedto deter suspects from stuffing evidence down their kids pants is deeply troubling, no Republican at the hearing worried about the possible consequences of Alitos reasoning. If cops could strip search children, without a warrant, and face no repercussions, it seems reasonable to predict that more children could be subject to more unlawful and traumatic searches. Republicans could have posed the same line of questioning to Alito as they have to Jackson: would his decisionhis leniency toward the copshave endangered children?

Back then, only one Republican serving on the Senates judiciary committee raised the case, Jeff Sessions (R-Ala.), who came to Alitos defense and downplayed the trauma of the strip search. None of his party colleagues seemed to have any hesitation about Alitos decision approving the search, or his comments doubling down at his hearing. This includes three Republicans who still serve on the panel today and had no hesitationabout using their position to push the claim that Jacksons record on child pornography endangers kids: Lindsey Graham, John Cornyn, and Chuck Grassley.

Witnesses for the Democrats, on the other hand, were disturbed by Alitos ruling. Senators, any police officer, any judge should know that strip-searching a 10-year-old girl who is suspected of nothing violated the Constitution, legal scholar Erwin Chemerinsky told the panel.

Alito, of course, was confirmed. He is now a Supreme Court justice. Jackson will likely join himbut only after a far more degrading and offensive process that, unlike in his hearings, has centered a controversy without any basis in fact.

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That Time When a SCOTUS Nominee Actually Had a Record That Endangered Children Mother Jones - Mother Jones

Federal jurors on Thursday found that two Bexar County sheriffs deputies violated the constitutional rights of a domestic violence suspect they shot and killed in a controversial 2015 case and awarded his family $10.35 million.

Relatives of Gilbert Flores, who had his hands up and held a knife when he was shot, wept upon hearing the verdict and hugged to console each other. They left the courtroom without comment after being advised by their lawyers not to talk. The trial attorneys also declined comment.

Deputy Greg Vasquez and since-retired Deputy Robert Sanchez turned to their lawyers in bewilderment upon hearing the verdict. They also didnt comment.

A video frame grab shows Gilbert Flores with his hands in the air and two Bexar County deputies, guns drawn, attempting to arrest Flores. Less than a second later, Flores would be shot and killed by the deputies. The video was shot by a neighbor and was released by the sheriff's department on Friday, 12/11/15.

A video frame grab shows Gilbert Flores milliseconds after being shot by deptuies while his hands were up but holding a knife. As he fell, the knife can be seen in his left hand as it touches the ground and Flores collapses. The video was shot by a neighbor and was released by the sheriff's department on Friday, 12/11/15.

Contributed

During the trial, the Flores familys lawyers argued that the deputies wrongly used deadly force and executed Flores in an incident that was captured on witness videos. They urged jurors to find that the deputies violated Flores Fourth Amendment right to be free from the use of excessive force.

The lawyers, with the Thomas J. Henry law firm, asked the jury to award six of Flores relatives at least $1.5 million apiece in compensatory damages, plus unspecified punitive damages.

One of the lawyers, Robert Wilson, told jurors to send a message with their verdict that similar conduct by police will not be tolerated.

If you talk with a meek voice, its not going to get the attention it merits, Wilson said. That voice has to be strong, it has to be powerful and it has to (say), No! No! No! Thats why a large amount is going to send that message.

After deliberating for more than four hours, the eight-member jury returned a verdict that found both Vasquez and Sanchez liable for violating Flores civil rights. Jurors also found a long-standing legal doctrine known as qualified immunity should not shield the deputies.

The jury awarded $1.425 million in compensatory damages against each deputy. Jurors also awarded $5 million in punitive damages against Vasquez and $2.5 million in punitive damages against Sanchez.

The family had also sued Bexar County, but a judge dismissed it from the lawsuit in 2017, leaving only the deputies as defendants. While the deputies may be on the hook, county officials have previously said the countys insurer might have to pay if the deputies lost because the deputies were on duty at the time of the incident.

According to testimony, Flores mother, Carmen Flores, called 911 on Aug. 28, 2015, to report her son had assaulted his wife, Maritza Amador, and their infant daughter at Carmen Flores home. Gilbert Flores could be heard on the call saying he was going to commit suicide by cop. Flores and Amador were living at his parents home in far north Bexar County at the time.

Vasquez responded first, with Sanchez arriving shortly thereafter. An encounter ensued during which Flores used a knife to try to stab the deputies, used a chair to block an attempt by one deputy to Taser him, tried to use the Taser against the deputies and attempted to get into a patrol SUV that had the keys in it and a rifle.

Over police radio, supervisors had given the deputies orders to use whatever means necessary to end the matter after learning of some of the things that Flores had done to endanger the deputies or to potentially endanger his own family in the house.

While those incidents were not disputed, the main disagreement was over whether Flores posed an imminent threat in the the final moments, when the two deputies decided to shoot him.

Wilson argued that testimony established that the deputies were no longer in imminent danger when Flores was standing still and raised his hands to surrender.

You just dont shoot somebody when they are standing still and surrendering, Wilson said.

Wilson and co-counsel Richard Hunnicutt accused the deputies of lying during subsequent investigations, such as Vasquez claiming Flores was advancing and 6 to 8 feet from the deputies when they fired. The family lawyers said the video contradicted the deputies and investigations determined Flores was more than 20 feet from either deputy.

But the deputies lawyers, Charles Frigerio and Hector Xavier Saenz, argued that neither deputy wanted to shoot Flores but did so because Flores continued to be a threat during the chaotic encounter and Flores refused repeated commands to drop his knife. The attorneys argued that the deputies had to make a quick decision during a tense situation and may have gotten some details innocently wrong.

In December 2015, a Bexar County grand jury declined to indict the deputies on criminal charges.

guillermo.contreras@express-news.net | Twitter: @gmaninfedland

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Jury awards more than $10 million to family of man shot by deputies while he had hands up - San Antonio Express-News

A 2016 dispute between neighbors that began when a 7-year-old boy was accused of littering escalated into a violent confrontation with Fort Worth police officer William Martin, who arrested the boy's mother, Jacqueline Craig, and three of his sisters. Craig says Martin, in addition to forcing her to the ground with a taser to her back, kicked her 15-year-old daughter ("J.H."), hit her 14-year-old daughter ("K.H.") in the throat, and, after handcuffing her 19-year-old daughter, Brea Hymond, "hyper-extended her handcuffed arms by flexing them above her head in order to cause pain." Martin's body camera video suggests all this happened because he was irked when Craig angrily berated him for condoning an assault on her son and criticizing her parenting.

Because the legal justification for Martin's use of force was unclear, a federal judge ruled that Craig could proceed with her lawsuit against him. But last month, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit concluded that Martin had done nothing illegal. That assessment seems highly dubious even based on the undisputed facts of the case.

Martin was responding to two 911 calls. One call was from Craig's neighbor, Itamar Vardi, who according to the 5th Circuit reported that "several people were on his property arguing, had refused to leave, and were intentionally throwing trash in his yard." The other call was from Craig, who reported that Vardi had admitted to grabbing her son by the neck, supposedly because he refused to pick up his litter.

From the outset, Martin did not take Craig's complaint seriously. "Why don't you teach your son not to litter?" he asked her. According to Craig, who is asking the 5th Circuit to rehear her case, her son had "accidentally dropp[ed] raisins on the sidewalk in front of Vardi's home." But even if the boy had deliberately littered, Craig told Martin, that did not give Vardi the right to lay hands on him. "Why not?" Martin asked. "Because it don't!" Craig replied. "What do you mean?"

Angered by Martin's blas attitude and his presumptuous criticism, Craig raised her voice, castigating him for his response. "Why are you yelling at me?" Martin said. "If you keep yelling at me, you're going to piss me off, and I'm going to take you to jail."

Things quickly got worse from there. But by Craig's account, neither she nor her daughters did anything to justify Martin's violent response. Martin's body camera video suggests he lost his temper because he did not like Craig's attitude.

U.S. District Judge John McBryde concluded that the record, which includes Hymond's cellphone video as well as the body camera footage, "is too uncertain to discount the plaintiff's version of what transpired." McBryde rejected Martin's motion for qualified immunity, which shields police officers from liability when their alleged misconduct did not violate "clearly established" law. While "it may well be that a jury would determine that Martin did not use excessive force," he said, "the court is unable to determine as a matter of law that Martin is entitled to qualified immunity."

When Martin appealed, however, the 5th Circuit accepted his version of events, which it was not supposed to do at this stage unless the existing evidence "blatantly contradicted" Craig's claims. McBryde thought it did not. But the appeals court, for reasons that are not entirely clear, disagreed. In a decision written by Chief Judge Priscilla Owen, the 5th Circuit concluded that Martin's manhandling of Craig et al. "was not objectively unreasonable." In any case, the court added, his conduct did not violate "clearly established" law.

In their petition for an en banc rehearing, Craig and Hymond argue that the 5th Circuit panel improperly discounted their claims and improperly substituted its assessment of the evidence for McBryde's. They also argue that the panel erred by determining that Martin's use of force did not violate "clearly established" constitutional rights, since case law makes it clear that the Fourth Amendment prohibits using force against a nonresistant arrestee.

The Institute for Justice (I.J.), in a brief supporting Craig's petition, zeroes in on Martin's decision to use a "pain control maneuver" on Hymond after he handcuffed her because she "did not immediately answer" when he asked for her name and age:

After Martin secured Hymond's mother and little sister in the back of his police vehicle, after the situation was de-escalating, after any conceivable threat to anyone's safety was fully extinguished, Martin unnecessarily re-escalated the encounter by confronting Hymondwho had been recording the incident from a distance and yelling at the officer that she was doing sograbbing her, shoving her against his patrol car, ripping the phone out of her hand, and placing her under arrest for "interfering." But Martin's display of authority did not end there.

While Martin stood by his patrol vehicle, effortlessly holding Hymond by his side with a single hand, Hymond repeated that she saw Martin "kick her," referring to J.H. In response, Martin started questioning Hymond: "How old are you? What is your name?" Hymond did not immediately answer his questions. So, with Hymond's hands restrained behind her back, Martin jerked her arms up into the air, applying a pain control maneuver taught in police training, and repeated the question, enunciating in a slow, purposeful staccato: "What. Is. Your. Name?"

The 5th Circuit dismissed that use of force as "relatively minimal," adding that Martin jerked Hymond's arms "only after Hymond refused to provide Martin with her name." But deliberately inflicting pain on a nonresistant arrestee to obtain information is "obviously unconstitutional," I.J. says, and the appeals court's alarming acceptance of that practice needs to be corrected.

While the 5th Circuit described Hymond as "resisting," its basis for that characterization is thin. "Hymond was shouting at Martin throughout the entire confrontation," Judge Owen wrote. "She did not comply with any of Martin's commands or instructions.Hymond continued to verbally deride Martin while Martin was lifting her arms and immediately after he put her arms down. Given Hymond's continued resistance, Martin's use of force against Hymond was not objectively unreasonable."

Hymond's "shouting" was understandable given what was happening to her family, and criticizing a police officer, even loudly, is not a crime. Her alleged failure to comply with Martin's commands is likewise understandable given that he seemed to be arresting her because he was irked by her filming and her criticism. But notably missing from the 5th Circuit's summary is any allegation that Hymond assaulted or physically resisted Martin. And by the court's own account, the justification for the pain control maneuver was that Hymond refused to give Martin her name.

"Every reasonable officer would have known that inflicting pain to compel someoneto answer questions offends the Constitution," says the I.J. brief, which was joined by the American Civil Liberties Union. "If this decision stands, the law in this circuit is that an officer can purposefully inflict pain on a restrained, non-resisting person to compel her to speak, as long as, in the court's subjective opinion, the force was 'relatively minimal.'"

In reaching that conclusion, the 5th Circuit contrasted Martin's treatment of Hymond with cases in which police officers had inflicted more serious injuries. "The plaintiffs point to a case from this court in which the officer slammed a nonresistant suspect's face into a nearby vehicle, breaking two of her teeth," Owen wrote. "They point to a decision from another circuit in which multiple officers punched, kneed, and kicked a suspectwhile he was handcuffed on the groundseverely enough to fracture the suspect's neck." Martin's use of force against Hymond, the panel said, was "far less severe."

But the Supreme Court has warned that alleging a violation of "clearly established" law does not require locating a precedent with identical facts. The issue, it explained in the 2002 case Hope v. Pelzer, is not whether the "very action in question has previously been held unlawful" but whether officials had "fair warning that their alleged [misconduct] was unconstitutional." In Hope, the Court deemed it "obvious" that handcuffing a shirtless prisoner to a hitching post for seven hours in the hot sun violated the Eighth Amendment's ban on "cruel and unusual" punishment.

In two recent decisions that overruled the 5th Circuit, the Court reiterated that a constitutional violation can be obvious even when there is no precedent involving closely similar conduct. In the 2020 case Taylor v. Riojas, I.J. notes, "the Court reaffirmed that precedent was not necessary to fairly notify officials that forcing a prisoner to sleep in a cell teeming with excrement is unconstitutional; it was obvious that the 'conditions of confinement offended the Constitution.'" In the 2021 case McCoy v. Alamu, "the Court reversed this Court's grant of qualified immunity to an official who pepper-sprayed a prisoner in the face 'for no reason at all.'"

These rulings, I.J. says, establish that "obviousness can provide fair warning of unconstitutionality," which means Hymond need not locate "a factually identical case on pointone where an officer used a pain control maneuver on a restrained, non-resisting suspect to force her to answer his questions." Even without such a precedent, "every officer was on notice that he could not strike a non-resisting suspect, and it is well-established in this circuit that 'qualified immunity will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel.'"

While the issue for the 5th Circuit was whether Martin used excessive force while arresting Craig and her daughters, the arrests themselves seem utterly gratuitous. The circumstances suggest that Martin decided to punish Craig et al. because they were loudly questioning his demeanor, competence, and behavior.

Craig's initial offense supposedly was interfering with Martin's duties, but her interference consisted of yelling at him after he suggested that assaulting her son was a justified response to littering and faulted her for not raising him properly. The two other charges against her, resisting arrest and failing to identify herself, were contingent on Martin's hotheaded decision to arrest her in the first place.

Hymond likewise was charged with interference, which again was limited to yelling at Martin. As with Craig, Martin tacked on resisting arrest and failure to identify.

J.H., the 15-year-old, was handcuffed and forced into Martin's police car, but she was not charged with anything. K.H., the 14-year-old, was taken to a juvenile detention facility, where she was released without charges.

All the charges against Craig and Hymond were dropped. Whatever you make of the excessive force claims, it seems clear that the whole incident could have been avoided if Martin had not been so keen to assert his authority and protect his bruised ego.

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The 5th Circuit Approves a Cop's Violent Response to a Dispute Over a 7-Year-Old's Littering - Reason