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Closing Out
Well, I have left private practice and have taken a job with the US Attorney's Office. In light of my career change, this blog is shutting down. Thanks to everyone who dropped by for the latest SC legal news.
Merry Christmas.Constitutional issues with Clinton appointment???
"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."
Clinton was in the Senate when a pay increase passed for Secretary of State. Thus, under this clause, she is not eligible for the office. This situation has come up in the past and Congress has simply passed a law reducing the salary to what it was before.
The LA Times has more on this issue here.Who will Obama appoint to SCOTUS?
The LA Times has this article.
The top three are:
Judges Diane Wood, 58, of the U.S. appeals court in Chicago;
Judge Sonia Sotomayor, 54, of the U.S. appeals court in New York;
and Elena Kagan, 48, dean of Harvard Law School.Billy Wilkins' return to the courtroom as a lawyer meets with success
From the Greenville News:
William W. aBillya Wilkins successfully argued against a motion in a shareholder suit against South Financial that asked for a temporary restraining order barring retirement payments to retired CEO Mack Whittle as part of a an agreement that the suit alleges is aunconscionablea and could threaten the companyas solvency if carried out.
The agreement would pay Whittle $10 million following his retirement in October, attorneys said in court Tuesday during a hearing before Circuit Judge John Few, who denied shareholder Vernon Mercieras request for the restraining order.
Not surprisingly, Wilkins's stock as an advocate is rising.SCOTUS vacates injunction against Naval use of sonar
Last week, the United States Supreme Court issued its first opinion of the new term: Winter v. Natural Resources Defense Council. This case concerned the Navyas use of mid frequency active sonar, which transmits sound waves at various frequencies. This type of sonar is used in Naval exercises, including training and tracking of submarines. The Ninth Circuit Court of Appeals upheld a preliminary injunction imposing restrictions on the Navyas sonar training, even though the record contained no evidence that marine mammals have been harmed by the activity. In arguing against the injunction, the Navy emphasized that it had used sonar during training exercises off the coast of California for forty (40) years, without a single documented injury to a marine mammal.
The injunction issued based on the Navyas alleged violation of the National Environmental Policy Act of 1969, which requires federal agencies to the fullest extent possible to draft an environmental impact statement for every major federal action affecting the quality of the human environment. The areas of the injunction that were in contention required the sonar to be shut down when a marine mammal was spotted within 2,200 yards of a vessel, and the requirement that the sonar be powered down during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water.
In reversing and vacating the injunction, the Supreme Court noted that the District Court and Court of Appeals held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a apossibilitya of irreparable harm. The Supreme Court held that the preliminary injunction standard requires plaintiff seeking relief to demonstrate that irreparable injury is likely in the absence of an injunction. The issuing of a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the courtas characterization of injunctive relief as an extraordinary remedy that may be awarded upon a clear showing that plaintiff is entitled to such relief.
The Supreme Court went on to note that even if the plaintiffs had shown irreparable injury from the training exercises, such an injury was outweighed by the public interest and the Navyas interest in effective, realistic training of its sailors. The court cited testimony from several Naval officers who emphasized that realistic training cannot be accomplished under the two challenged for civic restrictions imposed by the District Court.Obama could transform the Fourth Circuit
A snippet from the Richmond Times:
As president, Barack Obama and a new U.S. Senate could transform the Richmond-based 4th U.S. Circuit Court of Appeals, long one of the most conservative in the country.
President Bush failed to fill four vacancies on the 15-judge court, which decides cases on issues such as abortion, the death penalty and terrorism.
The Bush administration steered terrorism cases to the court, where it largely has been successful in protecting the president's national-security powers, though not always.
Six of the court's current judges were appointed by Republican presidents and five by Democrats.Judgment not necessary to pierce corporate veil
In Drury Development v. Foundation Insurance, the South Carolina Supreme Court answered the following certified question: whether a judgment against a corporation is a prerequisite to an alter ego claim. This question has come up often in South Carolina. Frequently, plaintiffs attempt to demand many financial documents of a corporation early in discovery on the basis of an alter ego claim. Defendants often counter that this discovery is premature and improper because no judgment has been entered against the corporation and therefore the issue of veil piercing cannot come up.
Noting that veil-piercing is a form of equitable relief, the South Carolina Supreme Court refused to impose "rigid rules of law to seek substantial justice." The court ultimately held that "so long as the plaintiff has pled facts sufficient to survive a motion to dismiss as to the corporate liability claims and the alter ego claim, the trial court should move forward to determination of both matters."Voter registration drives
Here is an interesting take on the voter registration movement and the duties of citizenship.SC Supreme Court says that dreadlocks is insufficient reason to strike juror
In McCrea v. Gheraibeh, the South Carolina Supreme Court reversed the denial of a Batson Motion and remanded the case for a new trial. This case arose out of an automobile accident. When three of six potential black jurors were struck, a Batson Motion was made. During the hearing, the lawyer striking the jurors stated that he struck one man with dreadlocks because he was uneasy about him. In accepting counselas explanation, the trial court stated that he knew both of the attorneys, was aware of their reputations in the community, and that he did not believe that the attorney would engage in racially high motivated conducted. Therefore, the trial judge accepted the auneasinessa argument regarding the dreadlocks.
In reversing on grounds of Batson, the Supreme Court held that uneasiness over dreadlocks was not a race-neutral reason for striking someone. Regardless of their gradual infiltration into mainstream American society, the court stated that dreadlocks retained their roots as a religious and social symbol of black culture. Hence, no race-neutral reason for striking the juror was offered.Court of Appeals issues opinion on 43k settlements
The following settlement was put on record just before trial:
Your Honor, the settlement thatas been reached is that this case will be dismissed with prejudice by an order of dismissal with prejudice to be consented to by the parties and signed by your honor.
Furthermore, the defendants, each and every one of them, will consent to and sign and deliver to me a confession of judgment which will provide for the payment of $165,000 within 18 months. And there will be additional payment terms in there, $25,000 of the 165 within 30 days.
Further, in kind consideration, in addition to the 165,000 the return of 15 rugs, three of which shall be room size Herizes, the confession of judgment will have an attorneyas fee provision that in the event of default, that the cost of enforcing the judgment or collecting the judgment will be recoverable.
And, finally, the confession of judgment will have a no contest stipulation. If itas required to be domesticated in some state other than South Carolina, the defendants agree not to contest the domestication.
Some weeks after this was put on the record, the parties disputed whether interest was applicable. The court of appeals held that even though interest was not mentioned, it was applicable. The court of appeals held that interest was applicable: "However, interest is provided for by statute. Section 34-31-20(A) provides '[i]n all cases of accounts stated and in all cases wherein any sum or sums of money shall be ascertained and, being due, shall draw interest according to law, the legal interest shall be at the rate of eight and three-fourths percent per annum.'"
The case is Vista Antiques v. Noaha.Can McCain or Obama Turn the Supreme Court?
Law.com offers this analysis.SC Supreme Court affirms conviction of criminal solicitation of a minor
In State v. Gaines, the South Carolina Supreme Court upheld a conviction under our recently enacted Criminal Solicitation of a Minor statute. Gaines was an Internet predator who used AOL chat rooms to engage in conversations with young girls. Unknown to Gaines, two of the friends he met on line were police officers. A police officer in Pennsylvania reported his conduct to authorities in South Carolina, and an officer in South Carolina contacted Gaines via AOL. The officer pretended to be a 13 year old girl and Gaines suggested they meet for sex.
After conviction, Gaines appealed and argued that the evidence regarding the chats with the officer in Pennsylvania should have been inadmissible. This contention was rejected because under Rule 404(b) crimes or evidence crimes, wrongs, or acts similar to those that the defendant is on trial for, can be admitted to show motive, identity, or the existence of a common plan or scheme.
Gaines also argued he was entitled to an entrapment instruction. The entrapment defense consists of two elements: (1) government inducement, and (2) lack of pre-disposition. Gaines argued that because the South Carolina police officer first contacted him with the message "Hey" constituted entrapment. The Supreme Court disagreed and said that the initial contact merely afforded Gaines the opportunity to solicit sex. He was in no way induced to commit the crime of criminal solicitation with a minor.Supreme Court hears case about Navy sonar and whales
From the LA Times:
The Supreme Court justices appeared closely split Wednesday on whether environmental laws can be used to protect whales and other marine mammals from the Navy's use of sonar off the coast of Southern California. A Bush administration lawyer argued that when national security is at stake, the president and his top military commanders are entrusted with setting the rules.
The government is urging the high court to throw out a Los Angeles judge's order that put limits on the Navy's operations. Acting on a suit brought by the Natural Resources Defense Council in Santa Monica, U.S. District Judge Florence-Marie Cooper ordered the Navy to shut down its high-intensity sonar whenever a whale or marine mammal is spotted within 1.25 miles of the ship.Big Changes at SCOTUS
Law.com has a nice article on the upcoming term and possible changes.SCOTUS declines to rehear Ban on Execution for Child Rape
The state of Louisiana and the Justice Department had asked the court to reconsider the 5 to 4 decision because the justices had not been presented with what the state and federal government considered an important fact: that Congress in 2006 made child rape a capital offense under military law. This would have perhaps undermined the "national consensus" argument in the majority opinion.
The Court, however, declined to reconsider the issue.
The Washington Post has this article.Chief Justice Roberts stays execution of Freddie Owens
Freddie Owens has gotten extra time to prepare a petition for cert to the Supreme Court. Owens was sentenced to death stemming from a 1997 robbery-murder on Laurens Road in Greenville County.
In his order, Roberts wrote that should Owens' petition for a writ of certiorari be denied by the justices, the stay would automatically terminate. That would clear the way for the state Supreme Court to set another execution date.Greenville Councilman Trout arrested by FBI
WSPA has the scoop here.
United States Attorney W. Walter Wilkins announced Harold Anthony aTonya Trout was arrested Wednesday morning by FBI agents on federal charges of unauthorized computer access.
The federal complaint and supporting affidavit, filed Wednesday, allege violations concerning the unauthorized access of computers.
Trout made an initial appearance in federal court before the U.S. Magistrate Judge William M. Catoe at the United States Federal Courthouse in Greenville.I'm on Vacation
Check back October 1 for more posts!!Social worker refuses to testify in Inman case
There has been an interesting twist in the Inman trial going on in Greenville. Marti Loring, a social worker licensed in another state, did a social history on Inman, but refused to take the stand after the prosecutor alleged she was violating state law by practicing social work in SC.
"I feel threatened as a witness in this case and in other cases in which I've testified in South Carolina," Marti Loring told the judge after a recess to allow her to consult with an attorney.
The social worker is refusing to testify now, though the judge told her she does not have a legal ground to refuse. Thirteenth Circuit Solicitor Bob Ariail had previously objected to the introduction of Loring's testimony to her evaluation of Inman's behavioral profile, saying she freqently offers opinions that aren't factually based. The judge asked Loring if she felt uncomfortable and she said she was concerned that Ariail might charge her with a crime. She said she feared her reputation as an expert might be damaged. Ariail said he would grant her immunity, as did the judge.
Sounds like to me the defense team is working to come up with an appellate issue or something to raise on PCR.S.C. Supreme Court issues opinion of duty of counsel to present mitigation evidence
In Council v. State, the South Carolina Supreme Court affirmed relief in a death penalty PCR case. Council was convicted of sexually assaulting a woman and forcing her to ingest cleaning fluids. At trial, Councilas lawyer argued that he was not the murderer, but rather an accomplice at the scene actually did the killing. In the penalty phase, trial counsel only called the defendantas mother as a mitigation witness. She testified about Council's mental health between the ages of 7 and 14 and that he had been teased while a child at school. Not surprisingly, a jury returned a verdict of guilt and recommended a sentence of death.
The death sentence was overturned because trial counsel fails to present voluminous mitigation evidence. For example, no social history was compiled. Had a social history been compiled evidence could have been presented to the jury that several of Councilas family members suffered from mental illness, that his father was an alcoholic and extremely violate, that Council lived in several homes which did not have running water and indoor plumbing, that he did very poorly in school, and that he had attempted suicide at a young age. Had trial counsel obtained a forensic psychiatrist, testimony could have been presented that respondent was an undifferentiated schizophrenic, which began in early adolescents for childhood.
In summary, the Supreme Court agreed with the PCR court that the mitigation evidence would have been powerful and that that trial counsel was ineffective for failing to present such evidence. Accordingly, the sentence of death was reversed.Inman mitigation evidence presented in Greenville trial
Here is the story from the g-news.
Today's proceedings are expected to focus on the defense testimony of mental and prison experts, carrying over Priceas testimony on Tuesday -- based on 3,000 pages of medical and prison records -- to how Inmanas childhood and genetic predisposition to mental disorders paved his violent path.When Inman was a toddler, his biological father would tie Inman and his older sister to their bunk bed and molest them, a pattern of abuse that later manifested as Inman likewise bound his victimsa hands after in most cases waking them in their beds, Price testified.
The sexual assaults, along with later sexual acts by another family member, left Inman permanently damaged mentally, Price testified. Inmanas only steady parental figure -- his grandfather, who would often try to intervene when Inmanas parents abused him -- died when Inman was a child, Price testified.At age 10, Inman was using drugs. At age 15, after dropping out of ninth grade, Inman was living on the streets, Price testified.Forgotten, man sits in jail for two years
From the St. Louis Post:
Joseph A. Shepard Sr. sat in local jails for almost two years, assuming that his lawyer was making progress on his case and that drug-related charges against him would soon be resolved in federal court.
His family says lawyer Michael P. Kelly told them Shepard had pleaded guilty and would return home soon with credit for time already served behind bars. Shepard never came home. Shepard, 53, is a man the system forgot, apparently ignored by his own attorney--and the prosecutor and judge--as days ticked by in a municipal lockup where he was confined to a cell 23 hours a day.
Shepard was surprised when a reporter broke the news at the Jennings jail Wednesday night that his case had been forgotten. It was more than a month after prosecutors took steps to move the case forward, though he still had not been told about it by his lawyer.Mississippi Supreme Court tries to suppress a dissenting opinion
Take a look at this article.
Power corrupts--especially on the Mississippi Supreme Court.ABA supports legal outsourcing
Always one to battle for Mom and Apple Pie, the ABA have given its approval to shipping American legal jobs to India.
According to the opinion, Fat Cat Firms may send legal work overseas as long as the lawyer doing the outsourcing takes steps to ensure the protection of client confidences and preservation of attorney-client privilege. The advisory also states that attorneys should check to make sure that foreign lawyers are suitably trained and competent and that bills for outsourced work be reasonable.SC Supremes issue opinion in Sloan emergency procurement case
From the Greenville News:
The South Carolina Supreme Court on Monday sided with Greenville businessman Ed "Ned" Sloan in ruling that state transportation officials were wrong to negotiate with a contractor on a project rather than put the job out to bid.
The 4-1 decision handed Sloan another legal victory in his lawsuits against the state Department of Transportation and other government agencies and made clear what is and is not an "emergency" for state agencies procuring services.
Sloan filed his suit in 2005 over a 2004 Charleston-area road-widening project that had fallen behind, according to the justices.
Faced with the dilemma of firing the contractor and putting the remainder of the project out to bid, DOT officials thought they could save time by negotiating a new contract with a subcontractor on the project under the state's emergency procurement procedures. The new contract cost just under $8 million, according to the justices.
Sloan argued in his suit that the circumstances did not allow an emergency procurement.Are the police receiving adequate training on mental illness
On February 3, 2012, a Toronto police officer shot and killed Michael Eligon, who was believed to be mentally ill. Eligon was admitted to Toronto East General Hospital on January 31, 2012 for a mental assessment and was supposed to be picked up by his foster mother on February 3, 2012. He walked out of the hospital in his hospital gown and walked around the neighbourhood looking confused and disoriented. He also had two pairs of scissors he took from a convenience store nearby. He attempted to enter into a number of homes and a few people called the police. The police arrived and an officer shot at Eligon three times when they finally found him, with one of the shots hitting and killing Eligon.
This was a complete shock to the neighbourhood and brought an array of questions regarding the police and the adequacy of the training they receive on dealing with people who have a mental illness. Neighbours raised their concerns since these incidents keep occurring, as exemplified by the cases of Charlie McGillivary and Sylvia Klibingaitis that happened last year.
Charles McGillivary was unable to speak due to a childhood accident and communicated through sign language with his mother and used a handful of words only she could understand. He collapsed and died while being arrested by police. They mistakenly took him for another suspect and due to his large frame and the fact that he couldnat speak, they took him down while arresting him. McGillivary fell into medical distress and was later pronounced dead at the hospital. He was walking with his mother when this occurred and the police wouldnat listen to her pleas that he was mentally ill and couldnat speak.
Sylvia Klibingaitis struggled with schizophrenia, bipolar disorder and psychotic delusions. She had apeak anxietya during the weeks prior to her death, and she made a 9-1-1 call for help during a mental crisis. She told the operator that she had a knife and that she was going to commit a crime. According to the S Investigations Unit (SIU), Klibingaitis burst out the front door with a large knife in her right hand when a police officer approached her home. The officer backed away from the house toward the curb. As she followed him toward the curb with knife in hand, he pulled his gun from its holster and repeatedly yelled, aPut the knife down!a She refused and moved closer. The officer fired three times. One bullet hit the garage door and another struck her in the chest, killing her.
The SIU was contacted in both cases, and in both cases the police officers were cleared of any wrongdoing.
It seems that front-line police officers are coming into more contact with people who have mental health issues, but they receive very little mental health support and training. On the Canadian Mental Health Association website, it states that a study by the London Police Department showed that between 1998 and 2001, the number of hours uniformed police spent dealing with people with serious mental illness doubled from 5,000 to 10,000. The same study showed that calls involving people with mental illness took up to $3.7 million of the $43-million London Police Department budget in 2001. The study also showed that the increase in calls was for minor nuisance crimes or no crime at all, and that violent crime among people with serious mental illness was actually decreasing.
In a resolution passed in June 2003, the Ontario Association of Chiefs of Police recognized that "the inadequate funding of community mental health services has resulted in vulnerable individuals being at risk of increased contact with the police and increased involvement in the criminal justice system."
Deputy Chief Michael Federico said all Toronto officers are given mental-health training each year when they have two days of use-of-force training. It includes instruction on how to calm situations down verbally and realistic role-play scenarios that mimic responding to someone with a mental illness. Additional training varies by specific job and the year, he said. Police in Halifax and York Region have adopted an intensive 40-hour training program, developed in Memphis, Tennessee. The program takes officers to a mental-health ward and gives them extra verbal techniques.
Mr. Pritchard, a retired co-director of Christian Peacemaker Teams is calling for existing crisis teams, which pair a mental-health professional with an officer, to be available throughout the city, 24 hours a day. As of now, they are available in 10 of 17 policing divisions for 10 hours a day. In Hamilton and other jurisdictions, such teams are available at all hours.
This leaves us asking a lot of questions regarding how equipped the police are in handling situations that involve the mentally ill. An important aspect to think about is the way in which those with mental health issues are viewed by others and if they may automatically be viewed as violent by the police. It begs the question of whether this is an issue of inadequate support and training, or a bias on the part of the police when it comes to handling interactions with those who are mentally ill. Many people believe that the police are treating people with mental illness like criminals and that something needs to be done in order to prevent further needless deaths of mentally ill people at the hands of the police.
It is important to prevent the criminalization of the mentally ill, which seems to be a big issue. A report by the Canadian Mental Health Association, BC Division, estimates that the percentage of mentally disordered offenders currently in jails and prisons range from 15 to 40%. This is a serious problem that needs to be genuinely addressed by the police. What solutions do you suggest for improving the ways in which police handle situations concerning people with a mental illness? Is more training required or should police receive more educational awareness regarding mental health matters, or both? As interactions between the police and the mentally ill increases, we will see if our concerns are going to be adequately addressed or not.
Posted by Ada Vrana (Windsor Law I)
Windsor Police Officers found not guilty of discreditable conduct in investigation of Dr. Abouhassan case
Two Windsor police officers Paul Bridgeman and Patrick Keane have been found not guilty of charges of discreditable conduct in connection to a complaint made by Windsor resident Dr. Tyceer Abouhassan. Charged under the Police Act, the two Staff Sergeants were accused of trying to broker a deal with Dr. Abouhassan to drop charges laid against the doctor in exchange for him to drop charges laid against a Windsor detective resulting from an altercation.
Though charges were eventually dropped against Dr. Abouhassan, Det. David Van Buskirk is set to go on trial this June following an outside agency charging him with excessive use of force, discreditable conduct, unlawful arrest and deceit for making a false record.
Adjudicator Morris Elbers, a retired OPP superintendent, oversaw the Police Act hearing and concluded the prosecutionas case against the two Staff Sergeants failed to meet athe standard of clear and convincing evidence to make a finding of guilta.
The adjudicatoras 12-page decision stated that the investigation launched by the Office of the Independent Police Review Director relied largely on the testimony of Abouhassanas lawyer, and on the notes of those involved. Elbers commented that the lack of any notation by officer Keane on a meeting with Abouhassanas lawyer was adistressinga, and described officer Bridgemanas notes as being adismala. Elbers further commented that Abhouhassanas lawyer admitted to omissions made, and that the lawyer aconcluded that all the meetings with the officers were ethicala.
In response to the case, the adjudicator stated that Windsor Police should put in place policies to guarantee this does not happen again, and suggested requiring police of superintendent rank or higher be present during meetings between police and defence lawyers. He stressed the importance of properly recording such meetings, a procedure necessary ato preserve the integrity of the investigation and the transparency of the organization.a
Elbers further suggested Windsor Police take aa hands-off approach when a member of their service is charged criminallya, and stated the department ashould be enacting policy to prevent this situation from arising again.a
Acting Windsor police Chief Al Frederick stated that the department atakes all allegations of police misconduct very seriouslya, however he expressed that he was pleased with the adjudicatoras decision.
The allegations against the two Staff Sergeants stems from an altercation between Dr. Abouhassan and Det. Van Buskirk outside the Jackson Park Medical Centre on April 22, 2010. Abouhassan has filed a $14.2-million claim against the Windsor Police, claiming he was beaten and seriously injured by Van Buskirk as a result of mistaken identity and was then wrongfully charged by Windsor Police in an alleged attempt to protect their own officers.
Posted by Ben Dillon (Windsor Law I)
New Rules for Web Surveillance under Bill C-51
The Conservative government has introduced a law that will increase police power in monitoring Internet-surfing of Canadians. Bill C-51, titled aan Act to enact the Investigating and Preventing Electronic Communications Act and to amend the Criminal Code and others Actsa, would require Internet Service providers (ISPs) to install and use equipment allowing the police easier access in monitoring and viewing stored Internet-surfing history of their clients. Under Bill C-51 the police would have the power to have ISPs collect and preserve Internet surfing data for anyone suspected to be engaged in criminal activity without requiring a warrant.
Bill C-51 will also allow police to more easily activate cellphone tracking mechanisms to track the whereabouts of suspected criminals. While cellphone tracking of suspected terrorists can currently be performed for up to 60 days, the new law would allow police to track suspected terrorists for up to one year.
Public Safety Spokesperson Julie Carmichael claims that the new measures are aimed to bring our laws into the 21st century, and will provide police with the tools needed to do their job. She wrote: aRather than making things easier for child pornographers and organized criminals, we call on all Canadians to support these balanced measuresa. She stated Bill C-51 follows policies adopted by Sweden, the United States, Australia and Germany, and claimed the Bill astrikes an appropriate balance between the investigative powers used to protect public safety and the necessity to safeguard the privacy of Canadiansa.
Many advocates of Internet-privacy - including the privacy Commissioner of Canada, have expressed fear over the Billas impact on civil liberties, and have warned the government not to adopt the bill on the grounds that it would lead to serious infringements of civil liberties. Opponents of the Bill have claimed that the new laws would allow police to obtain personal information on suspects at any time without first obtaining a warrant, while the current law allows police to bypass warrants only in emergency situations.
In response to the proposed Bill, the Canadian Association of Chiefs of Police (CACP) claimed the law will be difficult to justify, stating they acould not find a sufficient quantity of credible examplesa for an older version of the legislation.
In defence of Bill C-51, Public Safety Minister Vic Toews stated that opponents of the Bill were aputting the rights of the child pornographers and organized crime ahead of the rights of law-abiding citizensa. In response to Toewsa, federal Privacy Commissioner said in a recent letter to Toews that she sees no valid arguments to justify legislating these new surveillance powers over the Internet. In 2009, then Public Safety Minister Pete Van Loan cited kidnapping where police had to wait 36 hours to obtain a warrant as evidence of the need for Bill C-51. However in rebuttal, digital policy expert Michael Geist revealed that the incident did not involve any requests to ISPs by police for customer data.
Posted by Ben Dillon (Windsor Law I)
Can Racial Profiling be Eradicated in Montreal?
A couple months ago, a Quebec Superior Court ordered a new trial for Joel Debellefeuille, who refused to show identification when stopped by Montreal police. The police report pointed out areasonsa for the stop including the fact that the car belonged to a man by the name of Debellefeuille but the person they had stopped was a black man who did not acorrespond at first sight to the ownera. The report also stated that Debellefeuille sounded like a Quebecois family name and not a name of another origin. Finally, the intercepting officer specifically wrote that the primary reason he stopped Debellefeuille was because of his race.
Cases like this one - coupled with the fact that in the first half of 2011 they received 10 complaints against the Montreal police force for racial profiling a caused the Quebec Human Rights Commission to create a report with 93 recommendations to address racial profiling and discrimination in Quebec.
As a result, Mayor GA(c)rald Tremblay and Montreal police chief Marc Parent have outlined a azero tolerancea policy surrounding racial profiling with the goal of having a better understanding of vulnerable groups in society. The proposal calls for equal access to jobs, housing and social programs as well as monetary aid from the Province to help fight poverty and the resulting issues that arise from it. The Mayor also stresses the responsibility that the public has in making Montreal a more tolerant community. At a press conference on the new initiative, Mayor Tremblay spoke of Montreal as an example of multiculturalism and stressed that, aProfiling in any shape or form is unacceptablea.
However, there is valid concern that the plan, press conferences and statements, however well intentioned, will end up simply being symbolic and ignoring both the root causes of profiling while also failing to provide consequences for when it occurs. For instance, Fo Niemi, director of the Centre for Research Action on Race Relations commented on the policy stating that, aThe real skepticism lies in the position of the Police Brotherhood Union on racial and social profiling, and how it will work with the police management team to equip all officers with better management skills to police a diverse city. To date, the position is not clearly articulated where the plan of action is concerned.a
Niemi says that two recommendations specifically would have an immediate impact. First, that Montreal police revise the tactics being used by their anti-gang unit, which, he says, has been known to target young black men as being suspected of being gang members. The second is that Montreal police alter their policies regarding incivilities, which can include any public conduct deemed to be uncivil such as talking loudly, jaywalking or spitting in the street. The willingness of police to stop and fine people for these actions give them the leeway to go after a broad range of people as they choose.
The effectiveness of the azero tolerancea policy will depend on willingness at all levels of policing to keep an open mind and implement true changes that are meant to reach the root cause, not to quell negative press. What seems to be lacking are any concrete plans on how these police officers will be trained to think different about minority populations. Do these elected officials truly believe that years of inherent biases can be eradicated simply by stating that they are inappropriate? What would the most important changes be in trying to rid policing of racial bias and profiling? Similarly, what would the appropriate penalties even be for officers that participate in profiling, whether intentional or not?
Posted by Melissa Crowley (Windsor Law II)
Police Dogs and Excessive Force
Christopher Evans is now suing the Vancouver Police Department (VPD) as a result of injuries he sustained from what he alleges to be aexcessive use of a police doga. In June of 2011, Mr. Evans had smashed a window on a bus and subsequently fled the scene on his skateboard. He was then pursued by a police force and a police-dog. Mr. Evans was acaughta by the dog that bit him so severely that the artery in his leg was nearly hit and Mr. Evans needed almost 100 staples to be closed.
Background a Police Dogs
The Vancouver Police Departmentas Dog Squad has been in operation since 1959 and it is the oldest municipal dog squad in Canada. Dogs and dog-handlers go through extensive training that starts when the dog is young in order to train the dog well, and to formulate a abonda and comfort-level between the dog and dog-handler. There are two circumstances in which a police-dog will be used on a suspect: (1) When the dog-handling police officers believe that a criminal offence has been committed and (2) When the dog-handling police officers feel that the use of force ais needed to apprehend the suspecta.
Observations
The main issue involving police dogs is whether using them constitutes excessive force, and if so, when can using a dog be justified? Police dogs are well-trained and can readily be thought of as any other weapon used by a police officer. As stated in the article, Professor Stan Coren of the University of British Columbia explained that aa dog can kill a person in less than 30 secondsa. This was quite possible in the case involving Mr. Evans where: had the dog bit through to the artery in his leg, Mr. Evans could have bled out in moments.
Police dogs are employed in situations where a suspect needs to be apprehended. In the case of Mr. Evans, it seems fair that a police dog was used as Mr. Evans had the advantage of his skateboard while fleeing. However, what is of particular concern is what the dog was trained to do after it had apprehended the suspect. Are dogs being trained to employ excessive force on suspects that the dog determines to be a threat? Or, was it merely because Mr. Evans continued to resist that the dog persisted in attacking him? What is noted in the article is that dogs are trained to stop attacking if the suspect goes aslacka. However, is it really that easy to go aslacka when being pursued by a potentially deadly animal?
Of particular concern is the safety of the public at large and the ability to control a police dog, particularly a police dog that goes aroguea. Granted, police dogs in force are selectively chosen and trained well. However, anything is possible when there is no control over the dog that may areada a situation incorrectly and attack anyway. If a deadly attack were to occur, can it simply be concluded that the dog went rogue? Or, was more need to be done when training and controlling the dog? Some may see how it is possible that a dog can be used as a ascapegoata for police officers who, rather than using force themselves, rely on the dog to do it for them. An attack by a dog would face less public outcry than an attack by a police officer. Further, very few, if any articles have emerged where a police dog has killed a suspect. Likewise, little negative feedback has surfaced regarding the use of police dogs, even in situations where they attack suspects severely.
On the flip side, the use of police dogs has become a helpful tool to the police. Dogs are used in an array of activities including: finding missing persons; detecting explosives; searching for narcotics, drugs and alcohol; crowd control and several others. Dogs have significantly keener sensory abilities than humans and can conduct searches and chases much faster than humans. In many regards, a dog is an extremely intelligent and useful weapon when trained properly and employed correctly by police.
Like any weapon or force employed by police, however, there will always be some controversy. As a result of this case, an inquiry into the Dog Squad has begun by Pivot Legal Society lawyer Douglas King. Mr. King claims that the dogs should only be used when all other arrest tactics have been exhausted. This is understandable given the sheer strength and potential viciousness of the dog. However, in the case of Mr. Evans, it was not necessarily a question of why a dog was used, but rather, how the dog was trained, particularly after it caught a suspect. In the meantime, it will be interesting to see what transpires from this lawsuit and whether training and tactics will be proactively altered in order to better ensure the safety of the public from police dogs.
Posted by Audrey Wong (Windsor Law I)
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