Monday, June 12, 2006

Civil Rights Issues Dominate This Weekend's News

I noticed a number of articles in Friday and Saturday's paper that focused our attention on the concepts I work on in the other half of my practice, Civil Rights litigation.

Though I trained as a criminal lawyer, I saw a real link between criminal cases and civil liberties issues. I always felt that those civil cases should also be a part of the criminal lawyers case load. Hence I started to add them to our work about 16 years ago. Now Civil rights cases make up about 30 percent of the total work we do in our office and about 60 percent of our civil caseload. (The other 40 percent is made up of Family and Matrimonial cases that are founded in Domestic violence, Civil Rico claims, Construction claims and Qui tam (aka whistleblower) cases.)

This weekend's new saw a number of Civil Rights stories.

For example there is a new attempt to legitimize racial profiling. State Senator Serf Maltese and Assemblyman Dov Hikind both are supporting a bill (S. 8057/A.11536), that would allow police to stop and question, as well as search, people based on their religious and ethnic backround.

According to Newsday (link here) "The proposed legislation would authorize law enforcement officials to "consider race and ethnicity as one of many factors that could be used in identifying persons who can be initially stopped, questioned, frisked and/or searched."

I guess I should be shocked that Hikind would support this type of measure. He of all people (being an Orthodox Jew and representing the Boro Park area of Brooklyn which counts many Hasidic and Orthodox Jews from Eastern Europe among his constituents) should fear any legislation that makes it legal for the government to hassle citizens based on their ethnic or religious heritage. Is Kristallnacht forgotten so soon?

I can understand how the legislation makes sense to people at first blush. After all most terrorists today seem to be Muslim and we are actively engaged in a war in two predominately Muslim countries. Most Muslims however are not terrorists. Allowing the police to just go up to someone and stop, frisk, or search them (much less arrest them) gives those citizens far fewer rights than the rest of us have, without them having done anything besides being birthed.

Racial profiling also doesn't work and it tends to make police departments lazy. The last thing we need now in these hours of vigilance is for the police to become lazy. Racial profiling tends to keep police from looking at people who do not fit the profile. That can be dangerous. While it is unlikely that a Ninety year old Presbyterian woman will be a shoe bomber, there is some efficacy to making everyone a little nervous about the chance that they may be investigated randomly.

Would Hikind and Maltese support a bill that allowed greater intrusions into the life of Blacks or Hispanics? If our nation is willing to start to segregate people for their ethnic and religious upbringing, isn't that giving the enemy what they want? In a sense guys like Senator Maltese and Assemblyman Hikind are really traitors to the American way of life.

This is unsound legislation that is probably causing Benjamin Franklin to turn in his grave. He said it best. I keep repeating it. " A nation that sacrifices freedom for security, gets not the latter and deserves not the former."

Now for a politician who seems to understand Ole Ben just fine, we have New York City Mayor Michael Bloomberg giving the commencement speech at the University of Chicago. Now I am a bit of a fan of the mayor's even though I would disagree with him on a number of things his police department has been up to, However in this article the Mayor does us proud. Without singling out any specific person, Bloomberg sticks it to the far right neo-con wing of the Republican party. Here is the money quote:

""We all have to get together in this country and stop this right now and stand up to those who would demagogue." "There is nothing _ absolutely nothing _ wrong with criticizing our government, on any topic, and challenging it to live up to the democratic ideals. It is not unpatriotic. In fact, what could be more patriotic?"

Right On Mr. Mayor!!!

On the other hand, what good is protesting or criticizing the government if no one can hear you? In this article, a Queens man, Geoffrey Blank, is facing a felony for using a megaphone (a ten watter) to lead anti-war peace rallies in Mayor Bloomberg's own NYC (Union Square to be exact.) He is alleged to be starting a riot and using his amp without a proper permit. He claims he has asked over and over for the permit and is continually turned down. Police say it is because he doesn't follow procedures. You see, to use a megaphone in a park, you first have to get permission of the Parks Department THEN you ask the police. He has been arrested several times. His first case is coming to trial next week.

It's a big city with a lot of people in it. There do have to be rules so that when Mr. Blank is protesting the war, I can still listen to Coltrane on my ipod or walk my dog or play with my kids. I think however there is a way to coordinate political rallies without having to go through at least two different agencies to get the proper permit. This isn't the same as putting on a concert in a park or even organizing a run. In political speech, time is of the essence and there should be a streamlined way of getting the paperwork accomplished. Moreover, I am not sure how much noise a 10 watt megaphone makes, but I would have to be pretty sure it was really annoying before I would use a rule like that to put First Amendment rights asunder.

Now while I have been rattling on about these happenings I should also mention that there was another case where First Amendment issues and criminal law were implicated. That was in the conviction of Nick Minucci a kid in Howard Beach that beat up a black guy who was looking for a car to steal in that neighborhood.
Not only was Minucci convicted, he was found guilty of a racially motivated attack which carries with it enhanced penalties.

According to the press Minucci said "I'll teach you Ni--ers to rob white people" or words to that effect. I have a problem with race crimes based on words alone. I assume Minucci was guilty of assault because if he acted in self defense or defense of property, he would not be convicted. The question I have is would Minucci have acted differently had the potential crook been white or hispanic? Would he have just walked away? If there is not proof beyond a reasonable doubt that he would have acted differently, then isn't it true that we are enhancing his punishment because he holds opinions we as a citizenry frown on.

It is not unconstitutional to be racist or to say racist things. It is politically incorrect however. It seems to me that if the only reason this becomes a race crime is because of the N word said in the heat of an argument or fight, then that would be an example of the legislature making a law that restricts speech. It seems that enhancing penalties only because of something a person says, is in fact, unconstitutional. I really think these race motivated crime statutes need to be rethought by the legislature, and this one needs to get tossed out by our courts.

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