At what price criminalized tail lights?

At what price criminalized tail lights?

An eyewitness said “it looked like they killed a cow”.

Three deputies. Beat this man to a pulp. In front of his wife. And his two children. Inside of his own store. From where he eked out a living. Beat him. Choked him. Pepper sprayed him. Threw his head through dry wall. Through a glass shop display case. Beat him and choked him again. And pepper sprayed him. Again. On his lacerations and wounds

Dragged him outside. Handcuffed him. Forced him to his knees. And never called for an ambulance.

What was the true impetus? Was it really the potentially expired license of the employee driving a store truck in the store’s parking lot? Nah. Per the script too often played out across our nation, that minor infraction was the deputy’s cover. His pass. For unleashing his hate. His hate of brown skin. And the fact the brown skinned sister of the store owner had committed other minor infractions without severe punishment….selling bags of oranges along roadsides and from medians. To willing and citrus desirous purchasers. That deputy also ran the guy’s name… Hoping to find some warrant for some minor traffic or driving violation. To further justify his felonious purpose. He found nothing, but an expired driver’s license.  The discretion lay with the deputy….and he was full of his authority that day, so he called for a tow truck.   And more.  He called for minions.  To help fulfill his stated felonious purpose. Calling the owner a chicken shit mother fucking Mexican and announced he was going to beat his ass.  And, with the help of his boys, boy, did he.

The deputies then arrested Mr. Navarro.  Delayed taking him to the hospital and once there, denied medical access for a few hours.  They booked him and the DA filed charges.  Upon filing what is known in California as a Pitchess motion (pursuant to which the state has to turnover the involved officers’ complaint histories), the DA dropped all charges and the case was dismissed in the interest of justice.

Read my opposition to summary judgment memorandum 8-7 OPP MSJ RAFAEL FINALx  I will also upload the supplemental opposition as the district court requested one to address further the nuances of one of the claims.

It is time for every town America to take a look. A deep. Hard. Serious look. At all those ordinances. That penalize the most minor of conduct. Every state America…too…take a look at the 1001 reasons cops pull people over everyday. Tags, lights, tinted windows, loud music, seat belts, turn signals, motor vehicle inspection stickers, a burnt out little light bulb over the license plate, etc.

Selling CDs and cigarettes. Little free libraries.  What great social harm is there? At what cost to society do we want such nonsense criminalized to the point people cannot pay their rent, and, worse, die?

Are these minor human “misbehaviors” worth the violence that can ensue? We always hear about how dangerous to an officer a vehicle, and even a pedestrian, stop can be…and we have all seen how dangerous it is to the driver, the passenger, and the pedestrian.  Well, the solution isn’t a trigger happy scared cop. Maybe the solution is to decriminalize the so called infraction. No. Stop. Allowed. For such minor government grievances.

Send a letter.  Give the person a few weeks to remedy the infraction.  Send a follow up letter, if necessary.  Advise that an appropriate and not some disproportionate fine will be imposed if the matter is not addressed.  Provide information on where a person could get help, if needed.  And in all cases, use discretion. Be mindful of the constitution.  Gah, how civil. That’s what Louisiana does for the far more serious environmental infractions committed every single day in the oilfields.  They send compliance letters….sometimes.  Less often, they send a follow up letter. And more often, they just look the other way. See the link, infra, to the legislative auditor report on the growing number of financially insecure orphaned wells taxpayers now are responsible for handling.  Perhaps it’s time to look the other way from innocuous human behaviors, just as we do corporate wrongs.  To decriminalize the minor human misbehaviors, just as most corporate wrongs are treated as mere infractions, worthy of but a letter.

One journalist aptly reminded us that the decision to conduct a stop, whether of a pedestrian or a car, is wholly within the officer’s discretion. Indeed, the Supreme Court has ruled there is no constitutional duty to arrest anyone, no matter what. In an article entitled, “It’s Time to End the Routine Traffic Stop,” the writer points to proper urban design and engineering as the smarter solutions speeding and reckless driving, not increased fines and penalties. I submit, simply timing traffic lights would eliminate a significant amount of vehicle speeding and recklessness, even distraction. The writer agrees that for other innocuous behaviors, it is far more proportional simply to mail a citation, perhaps complete with a photograph taken by the patrol car’s dash cameras.

While the state of Louisiana gives oil and gas a virtual pass, Louisiana’s local political subdivisions go nuts with their perceived powers….over absolutely nothing.  For those local to Shreveport, who can forget the insanity on public display when the local metropolitan commission threatened a resident with significant fines….over a little free library? Calling it a “commercial enterprise” and contending it violated the zoning ordinance, exposing the owner to a $500/day penalty.  And then witness our leaders engage in senseless gymnastics trying to cover this huge guffaw, with yet another ordinance?

Shreveport. Struck again. This time a man in a wheelchair rolling in the street because an officer saw he had something in his lap, thus, under a perverted view of Terry v. Ohio, a black man with something in his hand, might be a thief.   The officer left him with a citation for anther crime….”walking” in the street.   “Walking”!  In other words, for, “walking” while black.  It’s a crime in Shrevesville to walk anywhere but a sidewalk.  Keep in mind, this guy was using the street because  what Shrevesville called a sidewalk was fit only for cross country bike jumpers.

The Shreveport wheelchair stop…problematic  on so many levels.  The cop stopped him because he had something in his hands.  That, I submit, is not reasonable suspicion of anything  other than he has something of HIS, not a stolen object, in his hands.  Oh but we all have read police reports…he had something in his hands in a high crime neighborhood. A neighborhood ravaged by unemployment because of city policies that favor only the rich, friends, and families.   And we’ve all stood before judges who literally don’t give a hoot about the constitution, and who gavel such stops as reasonable. Every day. At what price to humanity?   The courts. Have been complicit.  Whittling away and de-fanging the fourth amendment, daily.

It is  past time for some Fourth Amendment dental work. The Guardian published an article noting that the erosion of the Fourth Amendment has led to more and more and more stops and searches, of vehicles and pedestrians.  The article is entitled Beyond #BlackLivesMatter: police reform must be bolstered by legal action.  Reform demands we revive the Fourth Amendment. The author implores indigent defense attorneys to challenge the line of decisions that whittled away the protections of the Fourth Amendment.  But first, don’t we need to pay indigent defenders fairly and lighten their loads down to at least ABA standards?  As an indigent defender, my caseload was more than double ABA standards, notwithstanding the direct order of the Louisiana Supreme Court long ago in State v. Peart.  And still…decades later….the indigent defense system is in tatters.

The obstacle to reform…is money.  Cold hard cash.  There’s a reason for high incarceration and citation rates.  Cash.

Louisiana. I’m looking at you. Louisiana is the incarceration capital of the world. Louisiana has the highest sales taxes in the nation. Shreveport, Louisiana, has the highest property taxes in the state. Every town here rapes its citizenry and visitors. Taxing the hell out of everyone, even its poorest, with fines, penalties, court costs. Why? To line city coffers so it can contract with favored ones? What kind of government does that? A bad one. A very bad one.

In spite of a constitutional directive to the state legislature to fund indigent defense, and to ensure indigent defendants have counsel AND to ensure indigent defense counsel are compensated, reasonably, Louisiana’s indigent defense system is in free fall.  I’ve sat in court and watched, as judges rattle off the words, “if you cannot afford a lawyer, the court will appoint counsel, free of charge” and in the next breath, order an indigent defender who pleads to pay, in addition to fines and court costs, as much as $1000.00 to the indigent defense office.  An indigent defender … One who by definition cannot afford a lawyer.

I pulled some numbers from the 2015 Louisiana Supreme Court annual report.  Apropos Baton Rouge making some very ugly headlines right now, I pulled numbers for Baton Rouge, east Baton Rouge parish, and of course Shreveport and Caddo parish. These are the 2015 criminal and traffic filings for these four jurisdictions.  I included population figures for reference, relying on the United States census available at census.gov.

image

Just let those figures sink in   Over 90,000 traffic filings in Baton Rouge?  That is almost a 50% rate.  If you drive in Baton Rouge, flip a coin to determine if you’re gonna get stopped and summoned to a court date.

A recent article exposed the excessive practices of Gretna, Louisiana. Gretna police previously made horrific headlines during Katrina, firing on folks who attempted to get out of flooded New Orleans by walking across the bridge to Gretna. Gretna police stopped them. With force. Now Gretna made headlines, again.  This time for its excessive policing and fine practices, imposed on its own residents. It is the arrest capital of America.

“An expensive, years-long entanglement with this [Gretna] system can begin with an alleged infraction as minor as turning without a blinker. Eric Cado, a 25-year-old black man, was pulled over in November 2011 in Jefferson Parish for not wearing a seatbelt. After a series of missed court dates, unpaid fines, subsequent warrants for his arrest and a day in jail, Cado owed $1,200 plus the $500 bond for his release, which he finally paid off in 2014.

***

“In 2013, Ferguson took in $2.46 million in municipal court fines and fees, or close to $117 for every resident. By comparison, Gretna, which is slightly smaller than Ferguson, took in $5.77 million in municipal court fines and fees—or about $324 per resident—in its 2013-14 fiscal year, according to Gretna’s 2014 fiscal year financial report. (Gretna’s finance director disputes this figure, arguing that it is $2.12 million, but has refused to explain her calculation. Norton Francis, a senior research associate with the Urban Institute’s State and Local Finance Initiative agreed that Fusion’s calculation and the comparison with Ferguson are accurate.)”

Meanwhile the state government imposes, what, a $25 fine on the oil and gas industry for far more serious operations or environmental ills? Worse, it doesn’t even perform its duty to inspect wells to ensure compliance, as detailed in this legislative auditor report.  Oh my.  The report notes Louisiana only bothered to collect approximately $130,000.00 in fines.  And, as further documented by the Louisiana Legislative auditor, the State then never bothers to collect half the taxes and royalties due it from the industry. The lobby group behind all this, always has an “explanation;” meanwhile, legislators who try, see their bills killed.

Why isn’t DNR and the Office of Conservation armed with military gear like street cops…and out enforcing what few regulations we have against the industry? Law enforcement does not hesitate to don that gear to execute warrants for even innocuous offenses, including missing a court date or getting behind on fines and court costs.

In a report ironically and timely entitled “Excessive Fine Enforcement,”  in 2007, the Louisiana legislative auditor looked into Louisiana’s 250 plus so called “mayors courts” … which tax the hell out of anyone passing through or living there (read about the woman who spent six years fighting a Louisiana mayor’s court traffic ticket)…. and did nothing; zero; nada; notwithstanding the auditor acknowledged the unconstitutionality of using courts and fines and court costs to fund towns. (I have discussed that in another blog post, that asks, Is Louisiana Broken?) As the auditor reported, he can’t even discern how many millions of dollars these mayors courts take in, because the data they report is inconsistent.

Somewhat contradictorily to that report, in 2014, the legislative auditor, in a quest to encourage stricter enforcement and collection of fines and court costs, by parish/district courts, gathered information on the court costs brought in by parish/district courts (not including municipal courts), again noting it cannot be sure it is accurate, (due to failures in reporting); it reported that those courts collected court costs and fines in excess of $100,000,000.00, annually. The auditor also recommended that district courts do more to collect more.

Meanwhile, the state of Louisiana collected $238 million in mineral royalty revenue.  Apropos the figures outlined above, it seems ludicrous for any state office to advocate for more fines on the backs of one of the poorest electorates in the nation.  Especially since it cannot be bothered to collect severance taxes due it from oil and gas operators.

Something is terribly wrong.  Violations by oil and gas companies, including environmental, are simply overlooked; meanwhile, parishes and towns and mayors courts are raking in serious cash off the backs of citizens.

The U.S. Department of Justice scolded Ferguson, for these very practices, in its report issued upon its investigation into Ferguson, stating “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.” Investigation of the Ferguson Police Department (Mar 4, 2015).

In 2016, the DOJ issued a letter to every town, America, telling them, to knock these practices off. Until we take the profit out of so called criminal justice, nothing will change.  The people cannot take this, anymore.  It’s oppressive.  It’s bad for business.

In the aftermath of the killing of Alton Sterling and Philando Castile, I am not alone in raising these issues.  Salon posted a great article at this link.   A Yale law professor’s view was published by the Atlantic at this link.


Epilogue. July 2016 Mayhem.  All of this leads to the mayhem we are witness to, right now, July, 2016.  We’ve seen our civil rights whittled away by congress and SCOTUS. The fourth amendment? Hah, look what Thomas did in Utah v Strieff. And, now, but a shell voting rights act remains…the Court butchered it. Think prosecutors and courts are the answer?  Could be, but not.  Prosecutorial misconduct…is an epidemic and the courts sit on their robes, per Alex Kozinski, a respected jurist and brilliant legal mind (I discuss prosecutorial problems in another post where I ask, is Louisiana broken and in a post about prosecutorial misconduct and spoliation.

Meanwhile. We can’t regulate banks. Oil and gas industry gets a pass. Fracking is exempt from clean air and water acts, but not your sprinkler run off. But, cities and towns every town America, have criminalized innocuous behaviors, fining, penalizing, even locking folks up..for minor infractions…and what for? Profit for the city and its favored ones. Cops use all these infractions as ruses to shake people down. Police departments militarized. As politicos preach fear. 9-11, the terrorist, the Muslim, crime, the this boogeyman, the that boogeyman…as unions were busted, wages fell, and our shift away from a manufacturing economy to a service economy, where service is non existent. Folks working at low paying jobs, sometimes two sometimes more. Rents and housing prices rising. Every thing prices rising. Groceries. Milk is $5/gallon. Where I live unemployment is real and if you’re lucky to find work, it might pay at best $600 a week. And then you get a parking ticket. A busted tail light. Fines and court costs total $700. Ya can’t pay you go to jail. And there goes that great job.

Our economy? From manufacturing. To non service service. To the incarceration capital of the world. Video after video of folks shot, beat, kicked. While politicians travel, and gavel, and babble. And only ensure guns are everywhere. Open carry. The Dallas sniper walked right by crowds with his weapon(s).

In sum, this is an epidemic that was born in Los Angeles, with its paramilitary style of policing, that has swept our nation, due to two stupid wars and excess military surplus gear sold to police departments of every town, America, and paid for with economic stimulus money and the fact that this nation, the highest incarceration rate in the world, has monetized policing, imprisonment, and criminal justice, while gutting indigent defense, leaving folks helpless and hopeless.

 

Post script.   Read this study to learn just how hopeless folks left out of the economic wave and caught up over and over with stops and fines feel:

unemployment_personality_change_jap_finalaccepted

 

kaboom.

Reform of Fine and Fee Practices Demanded by DOJ

The Department of Justice issued this press release on March 14, 2016.  Its review into Ferguson likely was the catalyst.  For far too long and across too many jurisdictions, harmful and often unlawful practices are used to enforce collection of court fines and fees, and effectively create debtors’ prisons. The DOJ sent letters across the United States, to local courts.  Addressing the courts’ obligations regarding enforcement of court fines and fees.  Link is contained within the press release below to the letter.
***
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Monday, March 14, 2016

Justice Department Announces Resources to Assist State and Local Reform of Fine and Fee Practices

The Department of Justice today announced a package of resources to assist state and local efforts to reform harmful and unlawful practices in certain jurisdictions related to the assessment and enforcement of fines and fees. The resources are meant to support the ongoing work of state judges, court administrators, policymakers and advocates in ensuring equal justice for all people, regardless of financial circumstance.

“The consequences of the criminalization of poverty are not only harmful – they are far-reaching,” said Attorney General Loretta E. Lynch. “They not only affect an individual’s ability to support their family, but also contribute to an erosion of our faith in government. One of my top priorities as Attorney General is to help repair community trust where it has frayed, and a key part of that effort includes ensuring that our legal system serves every American faithfully and fairly, regardless of their economic status.”

The package, which was sent to state chief justices and state court administrators throughout the country, includes the following elements:

  • Dear Colleague Letter from the Civil Rights Division and the Office for Access to Justice to provide greater clarity to state and local courts regarding their legal obligations with respect to the enforcement of court fines and fees.  The letter addresses some of the most common practices that run afoul of the U.S. Constitution and/or other federal laws, such as incarcerating individuals for nonpayment without determining their ability to pay.  The letter also discusses the importance of due process protections such as notice and, in appropriate cases, the right to counsel; the need to avoid unconstitutional bail practices; and due process concerns raised by certain private probation arrangements.
  • $2.5 million in competitive grants through the Bureau of Justice Assistance (BJA) to state, local or tribal jurisdictions that, together with community partners, want to test strategies to restructure the assessment and enforcement of fines and fees.  The grant program, titled The Price of Justice: Rethinking the Consequences of Justice Fines and Fees, will provide four grants of $500,000 to agencies and their collaborative partners to develop strategies that promote appropriate justice system responses, including reducing unnecessary confinement, for individuals who are unable to pay fines and fees.  BJA will award an additional grant of $500,000 to a technical assistance provider.  For agencies interested in applying for this funding opportunity, BJA will host an informational webinar on March 28, 2016, at 11:30 a.m. EDT to describe the background, key concepts and requirements of the solicitation.  To register, please follow this link[external link].
  • Support for the National Task Force on Fines, Fees and Bail Practices, which is led by the Conference of Chief Justices and the Conference of State Court Administrators.  The task force is being funded by BJA and is also supported by the State Justice Institute.  It is comprised of leaders from the judiciary, state and local government, the advocacy community and the academy.  The task force will draft model statutes, court rules and procedures, and will develop an online clearinghouse of best practices.  Department officials will also serve as ex officio members of the task force.
  • Resource Guide[external link] that assembles issue studies and other publications related to the assessment and enforcement of court fines and fees.  The resource guide, compiled by the Office of Justice Programs Diagnostic Center, helps leaders make informed policy decisions and pursue sound strategies at the state, local and tribal levels.

Today’s announcement follows a seminal two-day convening[external link] held by the Justice Department and the White House in Washington, D.C., on Dec. 2 and 3, 2015.  Judges, court administrators, researchers, advocates, prosecutors, defense attorneys and impacted individuals came together to discuss challenges surrounding fines and fees.  The convening made plain the existence of unlawful and harmful practices in some jurisdictions and highlighted a number of promising reform efforts already underway.  At the meeting, participants and department officials also discussed ways in which the Justice Department could assist courts in their efforts to make needed changes.  Participants specifically asked the department to provide legal guidance to state and local actors; to highlight and help develop model practices; and to provide resources for local reform efforts.

The Justice Department is committed to reforming justice-system practices that perpetuate poverty and result in unnecessary deprivations of liberty.  The department discussed many of these practices in its March 2015 report on the investigation of the Ferguson, Missouri, police department and municipal court.  As discussed at the December 2015 convening, however, these practices can be found throughout the nation.  And their effects are particularly severe for the most vulnerable members of our communities, often with a disproportionate impact on racial minorities.  The resources released today are aimed at reforming these practices and mitigating their harmful effects.

Fines and Fees Cover Letter

****

Meanwhile, the state of Louisiana, and its myriad local political subdivisions, continues to be, I believe, the sole state to fund its indigent defense system via fines and costs imposed via the criminal courts.  Let us hope that these times are a changing.  PARITY is EQUALITY and all are equal under the law.  The State MUST balance the scales of justice and honor CRIMINAL JUSTICE by providing parity between state prosecution and state indigent defense.  Anything less is discriminatory and unjust.

 

Kathryn S. Bloomfield

HOME