Month: October 2020

On March 13, 2020, 26-year-old Breonna Taylor, an African American EMT, was shot and killed by police carrying out a no-knock warrant on her Louisville, Kentucky apartment. The killing sparked months of nationwide outrage, Black Lives Matter protests, and calls for police reform, which resulted in the passing of Breonna’s Law, effectively banning no-knock warrants in Louisville and increasing the requirements for body camera footage for all warrants. 

However, at the heart of these protests were calls for the three officers involved in the shooting, Johnathan Mattingly, Brett Hankinson, and Myles Cosgrove, to be arrested and charged with murder. Accordingly, Kentucky Attorney General Daniel Cameron summoned a grand jury of 12 Louisville residents, to whom he would present evidence in this matter. The grand jury, then, would decide whether or not probable cause existed to charge the officers.

Finding Released

On September 23, 2020, the grand jury’s findings were released. Brett Hankinson, who had been fired from the force in June, was charged with three counts of wanton endangerment because of bullets that went into the neighboring apartments. Neither Officer Mattingly nor Officer Cosgrove were charged at all. 

Coming more than six months following Taylor’s killing, the decision recharged outrage across the country. In a press conference, AG Daniel Cameron explained that the officers were justified in using deadly force because they were fired upon first by Taylor’s boyfriend. The latter used a legally owned firearm to defend himself against what he believed to be intruders in his home after police forcefully entered in the night without announcing themselves. 

Jurors Seek Legal Counsel

Now, the situation has become mired in even more controversy. An unnamed juror has argued, via a legal motion, that AG Cameron did not, as he claims, present the totality of evidence to the grand jury. This juror alleges that the AG used the grand jury to “deflect accountability and responsibility” and that he planted “more seeds of doubt in the process.” 

Another unnamed juror has begun seeking legal counsel to come out and speak against the grand jury proceedings as well. Grand jury proceedings are generally kept secret to protect the reputation of those accused but not indicted of a crime, as well as to shield jurors from criticism or harm. Only in extreme cases do grand jury proceedings get released, like when a grand jury did not indict Darren Wilson for killing Michael Brown in 2014. On Friday, October 2, 2020, AG Cameron released about 15 hours of tapes of the grand jury proceedings.

This myriad of controversy and confusion has called into question the practice of keeping grand juries secret. Regardless of this debate, however, it is crucial that everyone understands their roles and rights on a grand jury, should they be called to serve on one. 

Grand Jury Trials in DC

In the District of Columbia, to be eligible to serve on a grand jury, you must be a United States citizen, a resident of the District of Columbia, 18 years or older, and able to read, speak, and understand the English language. Disqualifying factors include physical or mental incapability, having a felony conviction or be pending a felony or misdemeanor conviction, or selecting certain answers on jury qualification forms, as each case dictates. 

DC also codifies that jurors on a grand jury will receive fees and expenses for their time served, which shall be set by the Board of Judges of the Superior Court and will not exceed those awarded in Federal court. Similarly, DC Code stipulates that individuals receiving benefits, such as unemployment, will not have those benefits affected by jury duty. Additionally, an employer may not punish, terminate, or threaten to terminate an employee who must take time from work to serve on a jury.

            

           

 

The United States Constitution delineates certain inalienable rights given to all citizens. Many of these rights specifically protect against government intrusion. In other words, they detail what the government cannot do to its citizens. One such amendment is the Fourth Amendment, which protects against unreasonable searches and seizures by government actors, requiring there to be probable cause prior to a search and seizure. Similarly, the Fifth Amendment details the requirement of due process of law before an individual is “deprived of life, liberty, or property.” These amendments are two crucial safeguards against government intrusion and deprivation of freedom on an unconstitutional basis.

Degradation of Constitutional Protection

Unfortunately, a practice known as stop and frisk has seriously degraded the constitutional protection against unreasonable searches and seizures. The 1968 Supreme Court case, Terry v. Ohio, provides the legal basis for such a diminution. Terry, along with two other men, were stopped by a plain-clothes police officer after the officer believed he saw the men casing a store he thought they hoped to rob. After stopping them, the officer patted down, or frisked, the outside of the men’s clothes, which led to the discovery of weapons on two of them. The question posed to the court, then, was whether or not the search of the men and seizure of the weapons was unconstitutional because the officer did not have probable cause prior to frisking the outside of the clothes. In other words, the officer gained probable cause to seize the weapon only after he felt the weapon, which occurred following a search without probable cause.

In an 8-1 decision, the court found that the search conducted by the officer was constitutional under the Fourth Amendment, allowing the seized weapon to be introduced as evidence against Terry. The court felt that the officer had “reasonable suspicion” to believe the men were armed, and, in the interest of his safety, was permitted to frisk the outside of the men’s clothing. The effect of this decision, then, was the creation of a lower standard of suspicion to warrant a stop and frisk. The phrase “reasonable suspicion” does not appear anywhere in the Constitution, and yet, the Supreme Court has effectively lowered the bar of probable cause for a search, to an arbitrarily defined “reasonable suspicion” being required to search someone.

Legal Precedence for an Unconstitutional Ruling

Since this decision, police have taken advantage of the lower standard of proof to routinely and systematically harass communities of color. Police departments frequently impose barriers to data collection in order to conceal the predatory nature of this practice. The data that is available, however, is deeply concerning. Take New York City, for example. In 1999, Blacks and Latinos accounted for 50% of New York’s population, yet made up 84% of all stop and frisks. As the 21st century began, this trend hardly changed. While making up a similar proportion of the city’s population, Black and Latino people made up more than 80% of the 4.4 million stops between 2004 and 2012. In those same years, nearly 90% of those stopped were innocent. When these numbers are considered, it is impossible to view stop and frisk as anything other than a racially motivated terrorizing of minority communities.

In fact, in 2013, a federal judge agreed and ruled New York City’s stop and frisk policy unconstitutional. Judge Shira Scheindlin ruled that the NYPD’s use of this tactic violates the Fourth Amendment’s protection from unreasonable searches and seizures. Judge Scheindlin pointed to the overt racial discrimination taking place under the guise of stopping and frisking. This case clearly shows that the use of stop and frisk can, and should, be challenged in court as a way to prevent racial profiling and disproportionately aggressive monitoring of minorities.

The Time To Act Is Now

Now, our firm believes, is the time to critically examine stop and frisk within the District of Columbia. Through an extrapolation of data released by MPD, the publication of which was systematically slowed and concealed, it has been discovered that there are 19,000 stop and frisks per year in DC. Importantly, 93% of those stop and frisks were carried out on African Americans, who make up nearly half of the District’s population. Additionally, between 2013 and 2017, African Americans were arrested at ten times the rate of white people.

One unit in the MPD in particular is responsible for a vast majority of these stop and frisks: The Gun Recovery Unit (GRU). The GRU employs about 20 to 30 officers at any time, and its deployment is disproportionately carried out in predominately black wards. The Unit does not, as the city has claimed, patrol the whole city, but is instead hyper-focused on communities of color. Every aspect of the GRU is, by design, intended to intimidate civilians into consenting to a search for which the officers do not have probable cause. The uniform of the GRU, consisting of tactical gear, is meant to instill more fear than the standard uniform for an MPD officer. Even the flag of the GRU conveys the intentional intimidation of the District’s citizens. The flag centers a skull and cross bones, with a bullet hole in the forehead, as well as the slogan “vest up one in the chamber,” which clearly indicates an aggressive, ready-for-action attitude.

The tactics of the GRU reflect the aggressiveness of their appearance and banner. Utilizing “jump outs,” the GRU will drive around in unmarked cars with multiple officers, and then literally jump out of the car and surround groups of, typically, young African American males, who they then try to intimidate into consenting to a search. The GRU does not even concern itself with obtaining reasonable suspicion, let alone probable cause, prior to a search, and its officers frequently fabricate facts surrounding searches.

Our litigation firm Bruckheim & Patel, in conjunction with The Partnership for Civil Justice Fund, is in the midst of a class action lawsuit against MPD for its illegal use of stop and frisk, particularly from the GRU. MPD has engaged in rampant racial profiling and heinous violations of the constitutional rights of DC’s residents, and we hope to once and for all end the predatory nature of the GRU and stop and frisk.

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