Category: Constitutional Issues

Protests have spread across the country in response to ongoing police brutality against the Black community, led by the Black Lives Black Lives Matter, DCMatter movement. 

George Floyd, 46, was killed on May 26, just last week, in Minneapolis, Minnesota, at the hands of officer Derek Chauvin. The video footage of Mr. Floyd’s death displayed Chauvin kneeling on the neck of Mr. Floyd for almost 9 minutes, while Floyd pleaded that he could not breathe. Charges have been filed against Chauvin, including third-degree murder and second-degree manslaughter.

However, the death of George Floyd is not the singular reason for these protests, but the spark that ignited the flame of the movement. 

On February 23, earlier this year, Ahmaud Arbery, 25, was fatally shot by two men in Brunswick, Georgia, on his afternoon jog. They claimed to have believed he was a suspect for a series of local break-ins, which lacked any sufficient probable cause. Later, a video of the incident surfaced online and drew public outrage. 

Breonna Taylor, 26, was killed by Louisville PD on March 13. Officers entered her home past midnight with a “no-knock” warrant where she was met with at least 8 gunshot wounds. The FBI is currently investigating the incident, and officers have not been charged as of yet. 

Tony McDade, a black transgender man, was shot and killed on May 27, 2020, by officers in Tallahassee, Florida. 

The list is long and continues to grow. 

Peaceful Protest DCSome are protesting not only because of the deaths of Black Americans at the hands of law enforcement but because of the socioeconomic inequality and disparities cultivated by the American government and the criminal justice system. A system capable of change but continuing to protect the oppressors over the oppressed. 

The protests began about a week ago, immediately after the death of George Floyd. The majority of protests have turned violent due to the fact that they were met with tear gas, rubber bullets, batons, concussion grenades, and helicopters by police and law enforcement agencies. 

President Trump has made it clear that he intends to respond to protests with a heavy military presence despite the First Amendment rights. Peaceful protesters in Lafayette Square Park, Washington, DC, were attacked by law enforcement to clear the area, so President Trump could take a picture holding a bible in front of St. John’s Episcopal Church. St. John’s had caught fire the previous nights amidst protests. The Bishop for the Church, the Right Rev. Mariann Mudde, condemned Trump for using the Church and teargassing peaceful protesters for a photo op. 

With an increase in militarized policing, there have been many arrests made of those protesting. If arrested, here are important guidelines to abide by:

● Call a lawyer ASAP. 

● Invoke your right to remain silent. 

● Make sure friends take down the names and contact information of potential witnesses around you. 

● Write a number and name down on hand in case you are arrested, they will take your phone away.

Those who support the cause but are unable to protest have turned to signing petitionscalling government officials

and donating if they are able to.

Contact Bruckheim & Patel if someone is arrested in the process of a peaceful protest exercising their first amendment rights. Stay safe, DC, and protects your rights! 

As of Monday, April 13, the District of Columbia Department of Corrections (“DOC”) Coronavirus, Department of Corrections, Washington confirmed that more than 40 inmates have tested positive for COVID-19, and the D.C. jail had its first death from the virus. Diseases like the Coronavirus spread like wildfire in an environment like the jail where there are close living quarters, and visitors and staff enter the facilities every day.

When proper sanitary precautions are not taken, and there is insufficient testing, the real number of inmates that could be infected is unknown and likely much higher than the number of known cases. As a result, the American Civil Liberties Union of the District of Columbia (ACLU-DC) and the Public Defender Service (PDS) for the District of Columbia have sued the DOC for its severe negligence in implementing public health measures to limit the spread of COVID-19 inside the D.C. jail.

 

The Lawsuit Allegations Against DOC Leadership

The ACLU-DC and PDS class-action lawsuit alleges that the D.C. government has not taken proper action in fighting the Coronavirus pandemic within the jail facilities. It claims that the government has been purposefully indifferent towards prisoners’ health and, therefore, the public’s health as visitors and staff enter and exit the jail every day without proper screening, equipment, or social distancing.Coronavirus department of corrections, Washington D.C.

Furthermore, the DOC has failed to implement and follow the safety measures outlined in the Centers for Disease Control and Prevention’s (CDC) guidelines for correctional facilities. Some of these measures include keeping inmates and employees six feet apart in cells and communal areas, ensuring a sufficient stock of hygiene supplies, implementing disinfecting practices, and more.

Visiting attorneys from PDS report a lack of visitor and staff screening procedures, therefore failing to prevent the virus from entering the DOC facilities in the first place. Inmates and corrections officers of the DOC facilities report a lack of sanitation supplies such as soap and hand sanitizer, as well as a lack of equipment such as gloves and masks. They also report a failure to disinfect common areas in the jail, an inability to test corrections officers, and inadequate testing of inmates.

While the DOC does not follow guidelines, it puts the prisoners’ health at risk, as well as the corrections officers’ health. On March 28, the DOC Labor Committee of the Fraternal Order of Police (FOP) issued a press release criticizing the DOC’s failure to protect the officers’ health. The FOP claims that the District of Columbia does not have the resources to combat COVID-19 and that the jail’s health and safety are not prioritized.

As the Department of Correction fails to take action regarding proper social distancing and disinfecting practices, while not providing sufficient testing and adequate cleaning and hygiene supplies, the pandemic is spreading quicker and quicker within the facilities.

 

Immediate Release of Prisoners as a Means of Relief

On Tuesday, April 7, a federal judge said she would order an emergency inspection of the safety and sanitation procedures within the D.C. jail while she weighs whether to release more prisoners.

One major step several states have taken to slow the spread of the Coronavirus is downsizing their jail population. Because the rate of infection is accelerated in a jail facility, states such as California, New York, Michigan, Ohio, and more have granted some type of early or temporary release for prisoners.

D.C. has released 300 prisoners; however, the ACLU and PDS argue that keeping the jail at minimum capacity is the only way to fight the spread of the pandemic within the facilities. This will allow for suitable social distancing measures to take effect and would significantly decrease the number of visitors coming and going from the jail.

 

Other Repercussions— A Defendant’s Right to Counsel & Right to a Speedy Trial 

Because the DOC does not screen visitors and staff entering the jail facilities, attorneys are choosing not to visit their clients during this time as the jail is a hotspot for spreading diseases. Computers and other devices are also not allowed inside the prison, making virtual meetings between attorneys and clients not an option in DC at this time. The jail has not set up an attorney-client secured conference system that is common in the federal facilities. A defendant’s right to counsel is inhibited by the facility’s lack of screening and precautionary measures.

Furthermore, the D.C. courts are currently closed until mid-May and there is a possibility of extension. This delay is causing a backlog of cases, and with the court system already being slow, it could be months before there is a regular schedule of cases, and a defendant’s case is heard. Thus, because the pandemic shows no signs of slowing down in the United States, and the rate of infection is increasing rapidly within the prison system, a defendant’s right to a speedy trial is obstructed.

Evidently, the jail is the lowest priority when it comes to protecting the District of Columbia’s health and safety. As the pandemic rapidly spreads within the prison, it increases the public’s risk due to the visitors, employees, and corrections officers who enter and exit the facilities every day unscreened and unprotected.

 

Attorney General Sally Yates was unceremoniously fired by the Trump administration after she ordered Department of Justice lawyers not to defend the executive order that banned citizens from seven Muslim-majority countries and refugees from around the world from entering the United States. Along with banning citizens from the seven countries, the executive order also specifically established preferential treatment for citizens of those affected nations who identify with the “minority religions.” The order stranded travelers around the world and incited thousands to take to the streets in protest around the country.

Why did AG Sally Yates Refuse to Defend the Order?

Attorney General Sally Yates worked in the Department of Justice for twenty-seven years for both Republican and Democratic administrations, and had a reputation of being “above politics.” She was actually asked to stay on during the transition by Trump’s administration.

Following the release of the executive order on January 27, Yates refused to defend the order because her analysis concluded that the executive order was unconstitutional:
“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible but is informed by our best view of what the law is after consideration of all the facts…At the present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.”
This refusal was in line with her unwavering affirmation during her Senate Confirmation hearing in 2015 when (ironically) Trump’s AG designee Jeff Sessions asked her if she would stand up to the President if she believed that his actions were unlawful.

Many agree with Yates’ legal analysis of the executive order, and legal challenges have been filed in numerous states including Virginia, New York, Massachusetts, Washington, and California.

What Does The First Amendment Protect?

The First Amendment requires that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In the United States Supreme Court case of Lynch v. Donnelly, Justice O’Connor explained “that the government must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message ‘that religion or a particular religious belief is favored or preferred.’” The Court stated in Larsen v. Valente that the “history and logic of the Establishment Clause [mean] that no State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” In sum, the First Amendment requires the government to exercise authority in a religiously neutral way.

Therefore, a key purpose of the First Amendment freedom of religion is to prevent the government from making those who are not part of a favored religion feel unwelcome. It is almost undeniable that the executive order and the rhetoric surround it has done just that.

How Does The First Amendment Protection Apply To The Executive Order?

While the ban is facially neutral in that it doesn’t mention “Muslim” or “Islam” specifically, there are a number of specific pieces of evidence that prove that the order is unconstitutional because the intent of the order was to specifically ban Muslims, in violation of the First Amendment.

First, and most obvious, the ban only targets majority-Muslim states but specifically provides for preferential treatment for those who practice “minority religions.” This was confirmed by Trump in an interview with the Christian Broadcasting Network on the day the order was issued, when he specially stated that they will be giving Christians preferential treatment under the order. This by itself is a constitutional violation, as it is firmly established that it is unconstitutional to discriminate among religious groups and assign preference to one religion over another.

Second, Rudy Giuliani actually told Fox News the day after the executive order was signed that Trump had previously told him that he wanted to implement a “Muslim ban” and requested that he find a way to “do it legally.”

Third, on the Trump campaign had issued a press release in December 2015 that stated that: “Donald Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” This rhetoric and promise of a “Muslim Ban” a year ago speaks directly to his intent in passing this order within his first week in office.

Fourth, Trump has made numerous statements regarding the need for Muslims to be required to legally register, NBC News in November 2015, specifically has commented on the problem that he sees of “Muslims coming into the country” (March 2016), and admitted that he was revamping the proposal designed to target Muslims (NBC in July 2016).

This evidence of Trump’s invidious intent supports the finding that the executive order violated the protections guaranteed by the First Amendment. He has stated numerous times on the record that he is planning to ban Muslims, and he explicitly stated that the order would be giving preference to a specific religion.

This executive order is an affront to the United States Constitution and the values for which we hold dear, and is an attack specifically on those who the United States has always protected, as inscribed on the Statute of Liberty: “your tired, your poor, your huddled masses yearning to breathe free.”

On January 21, 2017, DC’s national mall reverberated with chants of “this is what democracy looks like!” as over half a million women, men, and children took to the streets to participate in the Women’s March in the District of Columbia. The protesters marched down the national mall to the White House to send a message of solidarity during Donald Trump’s first day in the presidential office. This DC march was the largest to occur on the national mall since the 1960’s and 1970’s anti-Vietnam War protests.

DC Was Not Alone

DC was far from the only city to participate in the Women’s March. Over two million people marched across 673 cities around the world. The protesters expressed concern regarding a number of issues that included: racial justice, reproductive rights, LGBTQIA rights, workers’ rights, civil rights, disability rights, immigration rights, environmental justice, and an end to violence. The Women’s March was a shining example of the proper exercise of our First Amendment rights of peaceful assembly and freedom of speech. There were no reported arrests made in Washington, DC, Chicago, Los Angeles, New York City, or Seattle during the Women’s March.

Perhaps a reason for the lack of arrests is that women are no strangers to having to pick up signs and take to the streets to have their voices heard. Women have been marching for their rights for over a century. On January 19, 1913, thousands of brave women marched for women’s suffrage outside of the White House the day before President Woodrow Wilson’s inauguration. While it took seven years, their voices were finally heard with the ratification of the Nineteenth Amendment granting women the right to vote in 1920.

Rallied in the Face of Adversity

However, the right to vote was not the end of the battle. In 1972, women took to the streets again to march for the Equal Rights Amendment after Congress passed it as they awaited thirty-eight states to ratify. On Mother’s Day in 1980, a then record-breaking 90,000 women marched in Chicago to pressure Illinois to ratify the Equal Rights Amendment. The ratification ultimately fell short by three states, but women continued to be resilient.

In the mid-1970s, a movement swept through college campuses in reaction to violent crimes against women which has since become known as “Take Back the Night.” One of the first “Take Back the Night” protests was held in October 1975 in Philadelphia after a microbiologist was stabbed to death while walking home alone. The Take Back the Night Foundation continues to hold marches and events to the present day. The movement gives victims of violent crimes an opportunity to be heard then allows their peers to stand with them in support.

In 2004, over seven hundred thousand women participated in the “March for Women’s Lives” on DC’s national mall. The protest was in reaction to anti-abortion policies from President George W. Bush’s administration and an effort to prevent his re-election. Although President Bush was reelected, these courageous women set the tone for empowering movements to come.

Banding Together When it Matters

Women and their allies standing together in times of discomfort and fear truly embodies the importance of equality for all women. The greatest hope is that someday women will no longer have to pick up signs in order to remind people that women’s rights truly are human rights.

The Guardian has reported that at least six journalists were arrested in the District of Columbia while covering the protests following Donald Trump’s inauguration on January 20, 2017. The journalists arrested include a journalist from Vocativ, a journalist from RT America, a documentary producer, a freelance reporter, a live-streamer, and a photojournalist. Some of the journalists were arrested despite the fact they told the police that they were covering the protests and showed the police their media credentials.

The journalists were arrested along with two hundred others in the hours surrounding Trump’s swearing-in ceremony on the National Mall. USNews reports that the police were beating protesters, reporters, and legal observers with batons and smothering them with pepper spray. Some legal observers, who were clearly identifiable by green hats, were also arrested in the mass arrest.

The D.C. police reported that six officers received minor injuries, and that the crowd was observed breaking windows, lighting fires, burning a limousine, and vandalizing police vehicles. However, the majority of those arrested had nothing to do with the vandalism or injuries that occurred during the protest.

Felony Riot Act

All those arrested have been charged with the felony Riot Act (D.C. Code § 22-1322), which is the highest level offense under the District of Columbia’s public disturbances law. If convicted, they can face ten years imprisonment and/or a fine of up to twenty-five thousand dollars.

In order for an individual to be convicted under the felony Riot Act, the government has to prove beyond a reasonable doubt that:

  1. There was a public disturbance that involved an angry or aroused crowd;
  2. The conduct of the crowd created an actual, serious, and imminent or immediate danger of either: injury to persons or damage to property;
  3. The conduct creating this danger caused public fear or alarm;
  4. The conduct creating this danger either: (a) was accompanied by the use of force or violence against persons of property; or (b) had the clear and apparent danger to cause the use of force or violence to persons or property to erupt;
  5. A group of five or more people, including the individual, participated in the public disturbance voluntarily and on purpose and not by mistake or accident; and
  6. In the course and as a result of a riot either: (a) a person suffered serious bodily harm; (b) or there was property damage in excess of $5,000.

See 1-VI Criminal Jury Instructions for DC Instruction 6.610 (2016). Case law defines a “public disturbance” as “tumultuous and violent conduct” that creates a “grave danger of damage or injury.” U.S. v. Matthews, 419 F.2d 1177 (D.C. Cir. 1969). The law requires that the “public disturbance” be something more than mere noisemaking or minor breaches of the peace. The individual is considered to be participating in the “group” if the disturbance was occurring in his or her general vicinity.

There is not enough information yet to determine if there is sufficient evidence for the government to prove beyond a reasonable doubt that those arrested were guilty of the elements required by the felony Riot Act.

An Affront to Democracy

While it is shocking that over two hundred people were charged with the felony Riot Act as a result of the January 20 protest, it is devastating that any in those numbers were journalists.

The National Lawyers’ Guild’s D.C. branch issued a statement accusing the Metropolitan Police Department of having “indiscriminately targeted people for arrest en masse based on location alone.” The Guild further addressed the violation of the journalist’s constitutional rights, stating: “These illegal acts are clearly designed to chill the speech of protesters engaging in First Amendment Activity.” Politico reports that a class action law suit is already being filed against the D.C. police for the violation of the protesters’ and observers’ constitutional rights.

Freedom of the press and freedom of assembly are values that are fundamental to America’s democracy. While the police have the right to arrest those who commit acts of vandalism, the arrest of the bystanders — and particularly members of the press — is a violation of these individuals’ most valued constitutional rights. Both the police officer’s actions of arresting the individuals and the prosecutor’s actions of charging them with such a serious offense is an affront to our democracy and our freedom.

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