Monthly Archives: June 2022

An inquest began today into the 2017 Seattle Police killing of Charleena Lyles, a 30-year-old Black mother with mental illness. Two white officers gunned Lyles down in front of her children.

Her death sparked ongoing public outrage into police violence against Black people and those with mental illness. The petite mother of four was pregnant when she called police to her apartment to investigate an alleged burglary. Minutes later, she was dead.

Officers Jason Anderson and Steven McNew, who responded that day, later said Lyles ended up jabbing toward them with a pocket knife. They both shot her, hitting her seven times.

On the first day of the inquest, most of the testimony came from Seattle Police Detective Jason Dewey with the department's Force Investigation Team, which looks into officer-involved shootings.

Attorney Karen Koehler, who represents Lyles family, questioned Dewey about the officers plan for dealing with someone with mental health issues, given that before they went to the home they were aware of a police encounter with Lyles earlier that month in which she held scissors in a menacing fashion and told officers that she and her daughter were going to morph into wolves.

Dewey acknowledged that the officers made no plan other than not letting her get behind them.

After discussing the suspected burglary with Lyles at her apartment, officers reported that her demeanor changed. Officer Anderson reported that Lyles made a sudden motion and he saw the glint of a knife blade. He reported to Dewey at the time that he sucked his abdomen in as Lyles jabbed it toward his stomach. Shortly thereafter, she approached McNew with a knife, too.

Dewey described to the jury what happened next, reading from the transcript of audio recordings from the incident: Officer McNew yelled "Taser!" and Officer Anderson replied, "I don't have one."

Instead, the officers told Lyles to get back repeatedly, then shot her seven times. As she lay bleeding on the floor, her year-old baby crawled over to her and climbed atop her body, police records show.

The killing led to calls for police reform in dealing with citizens with mental illness, and for the use of conflict de-escalation tactics by specially-trained first responders.

When Koehler asked Dewey when life-saving measures were first taken, he responded that his investigation found that the next officer on the scene was the first to try to revive Lyles.

Okay, so let me make sure I'm understanding. Officer McNew and Officer Anderson did not perform any life saving measures on any level? Koehler asked.

Based on their statements and audio, no, it does not appear that way," Dewey replied.

Later in the day, jurors heard from former Seattle Fire Department medic Jason Abrahamson, who testified to arriving at a disorganized scene and assisting with lifesaving efforts, unsuccessfully.

Jurors will be asked to determine whether officers followed protocol in killing Lyles. The inquest is only the second of its kind since King County Executive Dow Constantine paused inquests to reform the process to make it more fair to families.

The new process requires officers to testify at inquests, although they can invoke their Fifth Amendment rights and not answer questions that may incriminate them.

The county's new inquest model also asks jurors to decide whether police followed the law and department protocol in their actions. Previously, juries were asked simply whether officers reasonably feared for their lives.

The state Supreme Court upheld the inquest reform in a unanimous vote last year, allowing King County to hold inquests for the first time since 2017.

Lyles' family reached a $3.5 million settlement with the city of Seattle in a wrongful-death civil suit last fall.

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Inquest begins into police shooting of Charleena Lyles - KUOW News and Information

(Photo by PAUL J. RICHARDS/AFP/Getty Images)

How many times will the Trump family plead the Fifth when they go under oath next month before New York Attorney General Letitia James?

Five hundred? One thousand? Do I hear two thousand?

Yesterday the states Court of Appeals rejected an eleventh-hour plea by the former president, Don Jr. and Ivanka Trump to avoid testifying in the AGs long-running investigation of the Trump Organization. Which means that the family has run out of road in their effort to avoid going under oath.

The ruling is hardly a surprise to anyone paying attention to the case. At a totally wacko hearing back in February, Trumps many lawyers tried to persuade Supreme Court Justice Arthur Engoron to block the AGs investigation.

Alan Futerfas argued that the existence of a criminal investigation by the District Attorney made it illegal for the AG to issue a subpoena, characterizing it as an end-run around the blanket immunity which would confer if the family were forced to testify before a grand jury.

Alina Habba argued that the investigation was tainted by bias, and the court should actually be investigating Tish James and Hillary Clinton.

And Ron Fischetti, the old bull, shouted angrily that My client cant take the Fifth Amendment. Itll be all over the papers! insisting that he didnt care whether Eric Trump took the Fifth 500 times, because My client is not Eric Trump! My client is Donald Trump!

Hell want to testify, he yelled from his video conference square, as if his inability to control his client were the courts problem.

In the event, Justice Engoron was unconvinced, ordering the respondents to turn over the contested documents within 14 days and sit for deposition within three weeks.

The reception at the First Department Appellate Division was no less chilly, with the court tossing the Trumps appeal within two weeks.

Youre asking us to eliminate dozens of years of precedent or act as legislators, Presiding Justice Rolando Acosta retorted when Futerfas restated his bizarre argument. Its not like you are unaware of your criminal jeopardy, in which case you can invoke your privilege against self incrimination. Thats the remedy that you have.

When the appellate court rejected their claim, the Trumps made one more Hail Mary pass to the states highest court. But they also signed a stipulation agreeing to go under oath the week of July 15 if their appeal was rejected. Which means that Don Jr. is probably standing in front of a mirror right now, doing his best Taxi Driver imitation, and shouting, You talkin to me? I refuse to answer on the grounds that it might incriminate me. So I dont know who youre talkin to.

Theres always the off chance that the Second Circuit will take up the Trumps appeal of US District Brenda Sannes refusal to seize jurisdiction from the state court and make that mean lady stop investigating Daddy. Or Manhattan might be attacked by a flock of flying pigs you never know.

Liz Dyelives in Baltimore where she writes about law and politics.

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Trump Family Runs Out Of Road In Bid To Block Testimony To NYAG - Above the Law

John Eastman, left, listens as former New York Mayor Rudy Giuliani speaks at the Jan. 6, 2021, "Save America" rally that preceded the attack on the U.S. Capitol. Jacquelyn Martin/AP hide caption

John Eastman, left, listens as former New York Mayor Rudy Giuliani speaks at the Jan. 6, 2021, "Save America" rally that preceded the attack on the U.S. Capitol.

At the center of Thursday's House hearing investigating the Jan. 6 insurrection was a lawyer central to former President Donald Trump's efforts to overturn the 2020 election: John Eastman.

After Joe Biden won the election, Trump took several routes to try to overturn the election: he tried lawsuits, which failed; he tried pressuring state officials, which also failed; and he ultimately tried to get former Vice President Mike Pence to overturn the results when the electoral votes were to be certified on Jan. 6, 2021.

That last plan was drafted in a memo by Eastman.

Thursday's hearing revealed more detail about Eastman's efforts to push bogus legal arguments even after the attack on the Capitol.

Eastman has a long background in conservative law, having clerked for Supreme Court Justice Clarence Thomas in the late 1990s and was a chairman in the Federalist Society. He worked at a law firm in California before leaving to teach at Chapman University, where he also served as dean, but left shortly after addressing the "Save America" rally before the attack on the Capitol.

Eastman began advising Trump in August 2020, he revealed in court papers, but did not start working closely with him until December 2020 after the results of the election had been decided.

Before he clerked for Thomas, Eastman clerked for Judge Michael Luttig who in Thursday's hearing shot down his former clerk's argument that Trump used to pressure Pence.

Greg Jacob, Mike Pence's former counsel and the other witness at Thursday's hearing, said there was relentless pressure on Pence to try and overturn the election on Jan. 6.

Two days prior to the insurrection, Jacob said he and Pence met with Eastman and were presented with two of his theories: Pence could reject the electors on Jan. 6 and essentially declare Trump president or he could declare a 10-day recess and send the slates back to "disputed" states even though no state was disputed.

But Jacob said Thursday that even Eastman acknowledged that this legal plan would not hold up in the Supreme Court, and that they would lose, 9-0, if Pence did what Trump wanted him to do. And he said his proposal violated the Electoral Count Act.

Eastman also said that the legal argument shouldn't have been used by Al Gore in 2000 and it shouldn't be used by Vice President Kamala Harris in 2024.

"Al Gore did not have a basis to [overturn the election results] in 2000, Kamala Harris shouldn't be able to do it in 2024, but I think you should do it today," Jacob said Eastman told him.

Trump lawyer John Eastman, left, is seen in a video during a hearing of the House select committee investigating the Jan. 6 insurrection on Thursday. Mandel Ngan/AFP via Getty Images hide caption

Trump lawyer John Eastman, left, is seen in a video during a hearing of the House select committee investigating the Jan. 6 insurrection on Thursday.

Even after Jan. 6, Eastman was still talking about the 2020 election not yet being certain.

Former White House lawyer Eric Herschmann told investigators that the day after the insurrection, Eastman raised the issue of disputed votes in Georgia, and Hershmann recalled what he told Eastman in their phone call.

"I don't want to hear any other f-ing words coming out of your mouth other than 'orderly transition.' Repeat those words to me. And eventually, he said 'orderly transition.' I said, 'Good, John,'" Herschmann said in his recorded testimony played Thursday.

Hershmann said he then told Eastman to get a "great f****** criminal defense lawyer. You're going to need it."

Thursday's hearing also revealed that after the insurrection, Eastman emailed Trump lawyer Rudy Giuliani seeking a preemptive presidential pardon for his role.

"I've decided I should be on the pardon list if that's still in the works," Eastman wrote, according to the email presented as evidence by the Jan. 6 committee.

He did not receive one.

Eastman was questioned by the House committee but plead the Fifth Amendment during his entire testimony. Rep. Pete Aguilar, D-Calif., who led questioning in Thursday's hearing, said Eastman plead the Fifth 100 times.

Eastman did not respond to NPR's request for comment.

Also central to the House committee's investigation has been an opinion issued by a federal judge, David Carter, in March.

Carter has been instrumental in the process of getting hundreds of emails from Eastman released.

In his March ruling, Carter said, "based on the evidence, the court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021."

Carter notes, though, that his findings do not have direct legal consequence. Charges against Eastman and others would have to come from the Justice Department.

"More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it," Carter wrote. "This is not a criminal prosecution; this is not even a civil liability suit."

Neal Katyal, a law professor at Georgetown University Law Center, outlined in a New York Times op-ed that Trump, Eastman and others in the former president's orbit, could face charges of obstructing an official proceeding agreeing with Carter's assessment. They could potentially also face charges of "conspiracy to defraud the United States," Katyal wrote.

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Who is John Eastman, the Trump lawyer at the center of the Jan. 6 investigation? - NPR

WASHINGTON

Here's a summary of Native American-related news around the U.S. this week:

Interior Secretary Haaland begins first Tribal Advisory Committee

Native American tribes have long complained that they are not included in federal policymaking that impacts them. U.S. Secretary of the Interior Deb Haaland announced Wednesday the launch of the first Secretarys Tribal Advisory Committee (STAC) to ensure tribal leaders have direct and consistent contact and communication with current and future Interior Department officials to facilitate robust discussions on intergovernmental responsibilities, exchange views, share information and provide advice and recommendations regarding departmental programs and funding.

Secretary Haaland Announces Members of the First-Ever Secretarys Tribal Advisory Committee

Supreme Court rules in two Native American-related cases

The U.S. Supreme Court this week issued two decisions impacting Native Americans.

In a case that highlights the complexity of criminal jurisdiction in Indian Country, the justices ruled against Navajo Nation citizen Merle Denezpi, who in 2017 was arrested for committing a violent sexual assault in the Ute Mountain Ute Agency in Colorado. He was later convicted by a Court of Indian Offenses of assault and battery and sentenced to five months in jail, time he had already served. Because his crime also violated federal law, he faced a second trial by a federal grand jury that convicted him of aggravated sexual abuse and sentenced him to 30 years in prison.

Courts of Indian Offenses were established by Congress in 1883 to serve tribes that didnt have their own courts. Denezpi argued the court, therefore, is a federal agency and that the second trial violated the Constitutions Fifth Amendment double jeopardy clause, which says no one can be prosecuted for the same crime twice. In the final Supreme Court opinion issued on Monday, Associate Justice Amy Coney Barrett called his argument nonsensical.

Merle Denezpi v. United States

The Supreme Court Wednesday handed a major victory to gaming tribes in Texas, ruling that the Texas state government cannot ban the Ysleta del Sur Pueblo tribe from operating electronic bingo games in its Speaking Rock Entertainment Center. Texas has long tried to shut down casinos run by the Ysleta del Sur Pueblo and the Alabama-Coushatta tribes. The state claims that it has authority under law to regulate tribal gaming on those reservations.

Ysleta del Sur Pueblo et al. v. Texas

Army to disinter more remains at Pennsylvania Indian school

The U.S. Army is undertaking another effort to disinter the remains of Native American students who died more than a century ago at the Carlisle Indian Industrial School in Carlisle, Pennsylvania, and return them to their relatives. The Carlisle Indian School Digital Resource Center at nearby Dickinson College says that at least 189 children were buried in the cemetery. The disinterment process, which began June 11, is the fifth at Carlisle since 2017. So far, the remains of 21 children have been repatriated.

Army Conducts 5th Disinterment of Native Americans at Carlisle Barracks

$7 million grant to help tribes document heritage languages

The Indian Affairs Office of Indian Economic Development on Wednesday awarded $7 million in grants to 45 Tribes and tribal organizations to aid in documenting and revitalizing heritage languages that are in danger of disappearing.

Native language preservation has for many years been cited by Indigenous leaders as important to their self-preservation, self-determination and sovereignty. Native preservation and language revitalization is a critical priority because languages go to the heart of a Tribes unique cultural identities, traditions, spiritual beliefs and self-governance, Bryan Newland, assistant secretary for Indian Affairs, said.

Indian Affairs Makes Significant Investment to Protect and Preserve Native Languages

Native American life expectancy falls during COVID-19 pandemic, researchers find

Researchers at the University of Colorado Boulder say that the life expectancy of Native Americans dropped nearly five years during the COVID-19 pandemic three times the 1.36 drop among white Americans. Life expectancy for Native women dropped from 75 in 2019 to 70.4 in 2021, and from 68.6 to just under 64 for men. Researchers blame pre-pandemic social inequities, systemic racism and health disparities of Native Americans.

US Life Expectancy Still Falling, Native Americans Hardest Hit

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Native News Roundup, June 12-18, 2022 - Voice of America - VOA News

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[co-author: Catherine Norwood]

The Sixth Circuit Court of Appeals (Court) addressed in an April 11th opinion an issue arising out of the proposed removal of a dam. See Barber v. Charter Township of Springfield, Mich., 31 F.4th 382 (2022).

The question involved whether an opponent of the dam removal had standing to bring a taking action.

Blanche Barber (Plaintiff) owns property near a dam and pond (Dam) that was built in 1836. Charles Township of Springfield, Michigan, and Oakland County, along with their Parks and Recreation Departments, (collectively Defendants) are jointly responsible for maintaining the Dam.

The Defendants conducted a feasibility study which provided various options for upgrading, repairing or removing the Dam. Members of the Springfield Board subsequently recommended removing the Dam. The Defendants budgeted for the dam removal and stated on its website that the project:

. . . has moved to the next phase which includes preliminary engineering and conceptual parks design.

A newspaper article referencing the future removal was also published.

Plaintiff filed suit against Defendants to halt the demolition. She argued that the Dams removal would:

After the case was moved to federal court the Plaintiff argued that Defendants decision to remove the Dam was a Fifth Amendment taking. The federal district court held the claims were not yet ripe. Therefore, Plaintiff did not have standing to bring her claims and dismissed Plaintiffs claims.

The Court on appeal disagreed. It found that Plaintiffs claims were both ripe and that Plaintiff had standing . The Court did not address the merits of Plaintiffs claims. However, it noted that the Fifth Amendment states :

Nor shall private property be taken for public use, without just compensation.

A taking can include a physical taking such as a government condemning land through the power of eminent domain, physically occupying it, or taking title to the land. Also included is regulatory takings. Further, a regulations terms and provisions can amount in appropriate circumstances to a physical taking. Plaintiff argued Cedar Point Nursery v. Hassid, holds that Defendants planned actions would be an unconstitutional regulatory form of taking. See 141 S.Ct. 2063, 210 L.Ed.2d 369 (2021).

The Court held that Plaintiffs claims are ripe because Defendants publicly stated they would remove the Dam. Defendants were deemed to have made a definite decision that could possibly cause Plaintiffs property interests serious harm. Because there is an actual conflict between Defendants and Plaintiffs interests, the claims were considered ripe and a court should not delay hearing them.

The Court also found that Plaintiff had standing. It found that Plaintiff plausibly:

. . . faces a risk of concrete and particularized injuries.

If Defendants decide to remove the Dam, Plaintiffs property faces the real threat of flooding and other damage . These injuries are personal to Plaintiffs pondside property.

Therefore, the Court found that Plaintiffs claims were ripe and she had standing to bring them.

A copy of the Opinion can be downloaded here.

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Dam Removal: Federal Appellate Court Addresses Whether Opponent Had Standing to Bring Taking Claim - JD Supra