Category Archives: National Civil Rights

Why was Dr. Martin Luther King in a Birmingham Jail?

Many people know Dr. Martin Luther King’s famous text “Letter from Birmingham Jail,” but many do not know why he was in jail to begin with.

After a full week of direct action including marches and sit-ins in Birmingham, Circuit Judge W. A. Jenkins issued a blanket injunction against “parading, demonstrating, boycotting, trespassing and picketing”.

The Birmingham campaign leadership decided to disobey the ruling and, on April 12, 1963, Dr. King was  arrested with Ralph Abernathy, Fred Shuttlesworth and other marchers by infamous Police Commissioner Eugene “Bull” Connor for demonstrating without a permit.

Dr. King spent 11 days in that jail. During this time, he penned the Letter from a Birmingham Jail:

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Shortly thereafter, on May 10, the Birmingham agreement is announced wherein the stores, restaurants, and schools will be desegregated, hiring of blacks implemented, and charges dropped.

Three months later, on August 8, 1963, Dr. King makes his famous I Have a Dream speech at the March on Washington with nearly 250,000 people in attendance.  Three months after that, on November 22, President John F. Kennedy is assassinated.

Rhode Island Justice pens First Circuit Opinion on Transgender Prisoner Rights

In a ruling applauded by transgender advocates, the First Circuit Court of Appeals affirmed that transgender inmates have a constitutional right to access transition-related care, including gender-confirming surgeries

Here is a link to the opinion in Kosilek v. Spencer. The opinion was written by the Rhode Island Justice on the Court, Judge O. Rogeriee Thompson.

The case involved, Michelle Kosilek, a transgender woman currently serving a life sentence for murder of Cheryl McCaul. The Advocate has reaction from the LGBT community:

“The Appeals Court affirmed that the District Court properly found that Michelle Kosilek needed this lifesaving medical care,” said Jenifer Levi, director of Gay and Lesbian Advocates and Defenders’ Transgender Rights Project, in a statement Friday. “If she needed treatment for cancer or heart disease, this case would never have wound up in court. If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender.”

“Today’s decision affirms the increasing consensus among the courts that transgender-related healthcare is just healthcare and that people behind bars, including transgender people, have a constitutional right to healthcare,” said Mara Keisling, executive director of the National Center for Transgender Equality. “Decisions about treating serious healthcare decisions like sex reassignment surgery need to be made by doctors and patients, not prison authorities.”

The Court concluded as follows:

We are assuredly mindful of the difficult tasks faced by prison officials every day. But as the Supreme Court has cautioned, while sensitivity and deference to these tasks is warranted, “[c]ourts nevertheless must not shrink from their obligation to ‘enforce the constitutional rights of all ‘persons,’ including prisoners.'” Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam)). And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox.

Here the trial judge had the opportunity to preside over two lawsuits involving the same players and similar allegations, to hear evidence in this case over the course of a twenty-eight day trial, to question witnesses, to assess credibility, to review a large volume of exhibits, and, in general, to live with this case for twelve years (twenty years if you count Kosilek I). The judge was well-placed to make the factual findings he made, and there is certainly evidentiary support for those findings. Those findings — that Kosilek has a serious medical need for the surgery, and that the DOC refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations — mean that the DOC has violated Kosilek’s Eighth Amendment rights. The court did not err in granting Kosilek the injunctive relief she sought.

Nelson Mandela’s opening statement at trial in 1964

Nelson Mandela inspired generations. But, how did he come to be imprisoned?

After eluding South African police for years, Mandela was arrested in August 1962.  His charges were inciting workers’ strikes and leaving the country without permission.

Twenty months later, Mandela opened his trial by making the following statements in his defense, excerpts courtesy of Reuters:

“In my youth in the Transkei I listened to the elders of my tribe telling stories of the old days. Amongst the tales they related to me were those of wars fought by our ancestors in defence of the fatherland. The names of Dingane and Bambata, Hintsa and Makana, Squngthi and Dalasile, Moshoeshoe and Sekhukhuni, were praised as the glory of the entire African nation. I hoped then that life might offer me the opportunity to serve my people and make my own humble contribution to their freedom struggle. This is what has motivated me in all that I have done in relation to the charges made against me in this case.”

“Having said this, I must deal immediately and at some length with the question of violence. Some of the things so far told to the Court are true and some are untrue. I do not, however, deny that I planned sabotage. I did not plan it in a spirit of recklessness, nor because I have any love of violence. I planned it as a result of a calm and sober assessment of the political situation that had arisen after many years of tyranny, exploitation, and oppression of my people by the Whites.”

“All lawful modes of expressing opposition… had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the Government. We chose to defy the law. We first broke the law in a way which avoided any recourse to violence; when this form was legislated against, and then the Government resorted to a show of force to crush opposition to its policies, only then did we decide to answer violence with violence.”

“Four forms of violence were possible. There is sabotage, there is guerrilla warfare, there is terrorism, and there is open revolution. We chose to adopt the first method and to exhaust it before taking any other decision.”

“Attacks on the economic life-lines of the country were to be linked with sabotage on Government buildings and other symbols of apartheid. These attacks would serve as a source of inspiration to our people. In addition, they would provide an outlet for those people who were urging the adoption of violent methods and would enable us to give concrete proof to our followers that we had adopted a stronger line and were fighting back against Government violence.”

“Experience convinced us that rebellion would offer the Government limitless opportunities for the indiscriminate slaughter of our people. But it was precisely because the soil of South Africa is already drenched with the blood of innocent Africans that we felt it our duty to make preparations as a long-term undertaking to use force in order to defend ourselves against force. If war were inevitable, we wanted the fight to be conducted on terms most favorable to our people. The fight which held out prospects best for us and the least risk of life to both sides was guerrilla warfare. We decided, therefore, in our preparations for the future, to make provision for the possibility of guerrilla warfare.”

“I started to make a study of the art of war and revolution and, whilst abroad, underwent a course in military training. If there was to be guerrilla warfare, I wanted to be able to stand and fight with my people and to share the hazards of war with them… The Court will see that I attempted to examine all types of authority on the subject – from the East and from the West, going back to the classic work of Clausewitz, and covering such a variety as Mao Tse Tung and Che Guevara on the one hand, and the writings on the Anglo-Boer War on the other.”

“The ideological creed of the ANC is, and always has been, the creed of African Nationalism. It is not the concept of African Nationalism expressed in the cry, ‘Drive the White man into the sea.’ The African Nationalism for which the ANC stands is the concept of freedom and fulfilment for the African people in their own land… The ANC has never at any period of its history advocated a revolutionary change in the economic structure of the country, nor has it, to the best of my recollection, ever condemned capitalist society.

“I have always regarded myself, in the first place, as an African patriot.

“Today I am attracted by the idea of a classless society, an attraction which springs in part from Marxist reading and, in part, from my admiration of the structure and organization of early African societies in this country. The land, then the main means of production, belonged to the tribe. There were no rich or poor and there was no exploitation.

“Our fight is against real, and not imaginary, hardships or, to use the language of the State Prosecutor, ‘so-called hardships.’ Basically, we fight against two features which are the hallmarks of African life in South Africa and which are entrenched by legislation which we seek to have repealed. These features are poverty and lack of human dignity, and we do not need communists or so-called ‘agitators’ to teach us about these things.”

“South Africa is the richest country in Africa, and could be one of the richest countries in the world. But it is a land of extremes and remarkable contrasts. The whites enjoy what may well be the highest standard of living in the world, whilst Africans live in poverty and misery.”

“The complaint of Africans, however, is not only that they are poor and the whites are rich, but that the laws which are made by the whites are designed to preserve this situation.”

“Above all, we want equal political rights, because without them our disabilities will be permanent. I know this sounds revolutionary to the whites in this country, because the majority of voters will be Africans. This makes the white man fear democracy.”

“This then is what the ANC is fighting. Their struggle is a truly national one. It is a struggle of the African people, inspired by their own suffering and their own experience. It is a struggle for the right to live.”

“During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons will live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to see realised. But, my lord, if needs be it is an ideal for which I am prepared to die.”

RWU Law Event: Surveillance & Civil Liberties

The Feinstein Center for Pro Bono & Experiential Education and the Pro Bono Collaborative at Roger Williams University School of Law are sponsoring an event on Monday, October 21st at 4:45pm in Room 262 of the Law School entitled Surveillance & Civil Liberties featuring Shayana Kadidal.
Shayana Kadidal is senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a 1994 graduate of Yale Law School and a former law clerk to Judge Kermit Lipez of the United States Court of Appeals for the First Circuit. In his twelve years at the Center, he has worked on a number of significant cases arising in the wake of 9/11, including the Center’s challenges to the detention of prisoners at Guantánamo Bay (among them torture victim Mohammed al Qahtani and former CIA ghost detainee Majid Khan), which have twice reached the Supreme Court, and several cases arising out of the post-9/11 domestic immigration sweeps. He was also counsel in CCR’s legal challenges to the “material support” statute (Holder v. Humanitarian Law Project, decided by the Supreme Court in 2010), to the low rates of black firefighter hiring in New York City, and to the NSA’s warrantless surveillance program. Along with others at the Center, he currently serves as U.S. counsel to WikiLeaks publisher Julian Assange. On behalf of plaintiffs including Assange, Glenn Greenwald, and other journalists, he led litigation that ultimately resulted in public release of over 550 previously-withheld documents during the court-martial of Pvt. Bradley Manning.

You can RSVP by emailing FeinsteinCenter at RWU dot edu.

Courts, States remain Divided over Cell Phone Searches

The New York Times today reviewed the state of the law regarding the legality of law enforcement searches of cell phones without warrants today.

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

(…)“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.  A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.

Recently, in Rhode Island, in the case of State v. Patino, C.A. No. 10-1155, Rhode Island Superior Court Judge Judith C. Savage ruled that Michael Patino, a man accused of the 2009 killing of his girlfriend’s 6-year-old son, (1) had a reasonable expectation of privacy in his text messages and (2) that evidence from his cell phone was collected illegally, before police obtained search warrants.

The Court also ruled that because of the illegal search, almost all the evidence obtained by police – including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police – was tainted and could not be used at trial.

“Cell phones have replaced telephones. People send and receive billions of text messages to and from their cell phones daily. Text messaging, especially among young adults, has become an oft-employed substitute for face-to-face conversations, cell phone conversations, or email. Accordingly, this court finds that it is objectively reasonable for people to expect the contents of their electronic text messages to remain private.

Read the full opinion here.

Justice Department to Monitor U.S. polls

Protecting the integrity of our democracy, via the Washington Post:

The Justice Department announced Friday that its Civil Rights Division plans to send nearly 800 staff and observers to 51 jurisdictions in 23 states for Tuesday’s election. This has been standard practice since passage of the Voting Rights Act of 1965, which bars discrimination in elections.

Some of the localities to be observed are in states covered under Section 5 of the law, which requires jurisdictions with a history of discriminatory voting practices to receive prior approval or “preclearance” before making changes in elections laws. They are Texas, South Carolina, Arizona, Georgia, Louisiana, Mississippi, Alabama, Virginia and Alaska, along with parts of Florida, Georgia, California, New York, North Carolina, South Dakota, Michigan and New Hampshire.

The department’s list of places to be observed Tuesday also includes four Ohio counties: Cuyahoga (Cleveland) Hamilton (Cincinnati) Franklin (Columbus) and Lorain.

Jay-Z, 99 Problems, the 4th Amendment and your Locked Trunk

Professor Caleb Mason of Southwestern Law School, in a Saint Louis University Law Journal article, “JAY-Z’S 99 PROBLEMS, VERSE 2: A CLOSE READING WITH FOURTH AMENDMENT GUIDANCE FOR COPS AND PERPS,” analyzes the legal issues in Jay-Z’s hip-hop hit, 99 Problems.

99 Problems is a song by Jay-Z. It’s a good song. It was a big hit in 2004. I’m writing about it now because it’s time we added it to the canon of criminal procedure pedagogy. In one compact, teachable verse (Verse 2), the song forces us to think about traffic stops, vehicle searches, drug smuggling, probable cause, and racial profiling, and it beautifully tees up my favorite pedagogical heuristic: life lessons for cops and robbers. And as it turns out, I’m not late to the game after all: Jay-Z recently published a well-received volume of criticism and commentary that includes his own marginal notes on Verse 2 of 99 Problems.

When I teach the Fourth Amendment, I ask my students what the doctrines tell us about, on the one hand, how to catch bad guys and not risk suppression, and on the other, how to avoid capture or at least beat the rap if not the ride. I’m always happy to tell my own stories, but the song struck me as the perfect teaching tool. All the students know it, and importantly for pedagogical purposes, it gets some things right—and some things very wrong.

It turns out that, while some other law professors have noticed 99 Problems, no one has yet provided a detailed, accurate analysis of the Fourth Amendment issues Verse 2 raises. In this Essay, I remedy that deficiency in the literature. This is, after all, one of the most popular songs of the last decade, and we should seize the opportunity to use it in our teaching. My audience, accordingly, is primarily teachers and students of criminal procedure, but I hope that my comments may be of some interest to cops and perps as well.

Read the full article here.