Six Months in Chicago

18 08 2014

 

(image via NBC5-WMAQ)

For six months in Chicago, there may be a rare, once-a-decade opportunity to get some answers. If that sentence seems magniloquent, that’s because I had to start big since the subsequent sentence is, “That opportunity is the 2015 Chicago municipal elections.”

That opportunity is the 2015 Chicago municipal elections. Chicago is defined by confluence; in the first instance, literally, as sitting at the confluence of Lake Michigan, the Chicago River, and the Chicago Portage, the connection between the Great Lakes and Mississippi watersheds. Soon after, the nation’s railroad flowed together there; now, it’s the confluence of the nation’s air travel and trucking. Today, it is also a confluence of some of the country’s biggest challenges.

Income inequality, gentrification, rising housing costs, under-resourced schools and creeping privatization, under-served mental health services, police brutality, street crime, segregation, environmental justice, exploitation of undocumented workers, police militarization, un- and under-compensated care work, wage theft, unemployment, over-crowded jails, hyper-criminalization, lack of government transparency, and crumbling infrastructure. These issues intersect on the orange-lit streets of the Great American City. Chicago is a beautiful city and livable city. It is also suffering.

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A Civil Action for Deprivation of Rights

14 08 2014

§1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In Monell v. Department of Social Services of the City of New York, the Supreme Court held that local government units are to be included among those persons to whom Section 1983 applies.

In Pembaur v. City of Cincinnati, the Supreme Court found that a single decision by
a local “final policymaker” triggered Section 1983 liability under Monell, even if the decision was not intended as settled policy (i.e., it was an ad hoc response).

In Tenney v. Brandhove, the Court settled and delineated two types of
immunity under Section 1983: qualified and absolute. A defendant-official is entitled to qualified or absolute immunity turns on the act being challenged, and not the office held by the public official.

Officials performing non-ministerial functions are shielded from liability if they can prove that “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity requires first that the plaintiff show that a constitutional right would have been violated on the facts alleged; and second that the right was clearly established. (Saucier v. Katz, 533 U.S. 194, 199-200 (2001)). Qualified immunity is pled as an affirmative defense, meaning the defendant must admit the truth of the events as pled by the plaintiff.

In Fordyce v. City of Seattle and Smith v. City of Cumming, appellate courts recognized the rights of the public to record matters of public interests (in particular protests) and the activities of police. City of Cumming was brought under 42 USC § 1983.

Case law suggests a public official (including police) need not be particularly identified in a complaint for violation of civil rights under § 1983, despite the higher pleading standards following Ashcroft v. Iqbal, 556 U.S. 662 (2009). See in particular, Stevenson v. City of Seat Pleasant, 743 F. 3d 411 (4th Cir. 2014).

There is no respondeat superior liability under § 1983. Typically, individual officers are insured, and departments or cities are involved in the litigation by a proving up of failure to supervise or negligent policy-setting, etc.

Happy Hunting.





How We Made “Innocent Until Proven Guilty” into “Guilty Unless Proven Innocent”

1 08 2014

It was fairly simple to invert the Anglo-American legal doctrine of “innocent until proven guilty.” In large counties in the United States, as many as 80% of those accused of felonies are represented by publicly-funded counsel. These counsel have such voluminous caseloads that in some cases, they can’t spend more than an hour on a particular case. Because the Sixth Amendment guarantees all criminal defendants effective counsel, these defendants can challenge their conviction on the grounds that their public defender didn’t have appropriate opportunity to raise a vigorous and effective defense.

However, the Supreme Court held (in Strickland v. Washington) that in order to vindicate the Sixth Amendment right to effective counsel, a defendant must (a) first wait until they are convicted; (b) prove up that the counsel was professionally unreasonable; and (c) prove up that the ineffective counsel was “prejudicial.” In other words, they must prove (as the Court held subsequently Harrington v. Richter) that the likelihood that they would have prevailed given effective counsel was “substantial.”

In other words, the default situation, given the reality of overloaded public defenders, is ineffective counsel–because, in reality, very few private defense attorneys would spend just a couple hours on a felony rap–which can then be remedied by a showing of likely innocence.

Just how overloaded are public defenders? The American Bar Association, as of 2011, recommended that public defenders handle no more than 150 felony cases per year. As of 2010, Cook County public defenders were handling an average of 235 felony cases.

Even assuming the state is only charging slam-dunk cases (a reasonable assumption, given prosecutors are often overworked as well), this basically guarantees that hundreds, if not thousands, of criminal defendants are not getting effective counsel every year.

The courts, in not recognizing the reality of underfunded public defense programs, are guilty of a cynical formalism that brushes aside the Sixth Amendment’s letter and spirit: that when faced with the machinery of the state, every citizen is presumed innocent. It is facially reasonable to require a defendant to prove on appeal or via collateral attack that effective counsel would almost certainly have made a difference (i.e., to prove a substantial likelihood that they would have prevailed). In reality, though, it means that indigent defendants, significantly likely to receive ineffective counsel, enjoy only an adulterated presumption of innocence.





The Conversation the Members of Jade Had With Each Other When They Got an American Apparel Catalog

31 07 2014

INT. Two Bedroom Condo. Murano Glass, framed record covers, wall-art made with wrought iron and depicting a musical staff and notes. JADE 1 enters, carrying her MAIL, including a CATALOG. It is an AMERICAN APPAREL CATALOG. She also carries some GROCERIES, in a paper bag, and her SUNGLASSES are stuck loosely into her hair. Stumbling, she drops everything down on the dining room table, a simple glass-top table supported by cheap metal-tubing legs. JADE 1, exasperated, plops onto a chair, lets out a tired sigh. The AMERICAN APPAREL CATALOG catches her eye. Thoughtlessly, she flips through it. Her eyes widen. At that moment, her BLACKBERRY rings. She picks it up and looks at the caller id; it’s JADE 2 and 3 in a conference call.

JADE 1

We’re back!

~fin~

Jade





Go West, Young Man: Reflections on Oakland By a Transplanted Chicagoan

24 07 2014

It’s a big, left-leaning city with a diverse population and an emerging gentry class, so it’s the same as Chicago more or less. The people are basically the same, because cosmopolitanism and humans being the same. It’s not as segregated, because Chicago is the most segregated. The people don’t seem to be as funny, because I’m new here and haven’t met a lot of people. It’s dirtier because Chicago has alleys. You have to drive couches and stuff to the dump. There are several areas of life that are made alternatively more and less complicated because it is a city in a different state, and thus a different legal regime pertains and patterns people’s behaviors.

This is dumb people shouldn’t write things like this.

oakland





How To Get Rich in America

7 07 2014

1. Be born rich





Vergara v. California and the Infinite Equal Protection Loop

17 06 2014

A common mantra of the education reform movement in response to evidence that “teacher quality” is a comparatively trivial cause of education disparities is, “So? If we can do something, anything, to improve outcomes, shouldn’t we?” This is more PR than argument; no, you shouldn’t just do anything. And in any case, you need to demonstrate pretty tight causation to radically upend a carefully built system. Yet, just as policy affection for technocracy seeped into takings jurisprudence in Kelo, policy affection for “labor flexibility” when it comes to workers seems to have seeped into Vergara. The resulting opinion featured a questionable weighing of some evidence over other evidence (in a bench trial, where there was no jury) but, more so, legal reasoning that strained to find a violation of equal protection rights by conflating perfect equality of outcome with basic equality of opportunity–a distinction that makes all the difference in equal protection claims.

 

Slate’s up–still reporting on education in their business section for some reason–with a story about how the judge in Vergara v. California relied on a basically made up statistic–that 1-3% of California teachers are “grossly ineffective”–to strike down tenure as violating the equal protection rights of children of color, who are disproportionately likely (based on trial testimony) to be assigned to a “grossly ineffective” teacher protected by tenure. The Court had to ignore copious evidence in order to rely on this fact–including the very limited role any individual teacher plays in determining standardized testing outcomes used to make this “grossly ineffective” distinction. But, as the legal expert cited in the Slate story points out, the bigger problem is the shaky legal reasoning. And indeed, it is a befuddling opinion not because the Court repeatedly chose to weigh the plaintiffs’ fuzzy data and testimony significantly more heavily than that of the State, but because the equal protection scheme required for it to make sense would result in infinite equal protection violations. 

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