Thursday, February 23, 2012

LOLSkool Catz

Monday, February 13, 2012

Bronx Killing Shines a Light on Police Brutality

The Bronx has long been infamous for the widespread enmity between its residents and the New York Police Department (NYPD). The borough of 1,400,000 mostly Latino and African-American inhabitants has the highest rates of unemployment, poverty, crime, and arrests of any in New York City. Since February 2nd, when an officer from the Narcotics Division shot and killed eighteen-year-old Rahmarley Graham, relations between Bronx residents and their Police Department have sunk to a new low.

“NYPD : KKK! NYPD : KKK!” protesters chanted as they marched from the home of the late Graham to the 47th precinct house. NY-1 reports:
"They cornered that little man in his house, perfect place to ask questions, but instead of asking questions, they shoot him down right then and there. And they are New York's finest - what is fine about that?" said one protester.

"They just judge by our looks, or whatever and think that some of is bad kids like that, they don't really want to give us a chance, as well," said another.
The New York Times quoted Graham’s sister “This is not just about Rahmarley. This is about all young black men.”

According to reports, plainclothes officers of the Bronx Special Narcotics Unit allegedly witnessed Rahmarley Graham conducting a drug deal, and suspected Graham held a handgun on his waistband. The officers chased Graham into his home and cornered him in his bathroom. Officer Richard Haste fired one time, striking Graham in the chest. Once entering, the officers discovered that the eighteen-year-old did not have any weapons on him, only a bag of marijuana that he was trying to flush down the toilet. Graham was rushed to Montefiore Hospital, where he was pronounced dead.

The NYPD stated that Graham had a record of prior arrests. Constance Malcolm, the victim’s mother, acknowledged this as much, “[e]verybody’s kids get into trouble. He smoked a little weed, but you know, like all the little, young kids does. And that’s what he had on him when they were chasing him.”

It appears most likely that the only unlawful activities which Graham was engaging in at the time were possession and possibly distribution of a controlled substance. Though in New York, possession of less than twenty-five grams of marijuana is only a violation punishable by a $100 fine. Consequently, if the alleged “bulge” in Rahmarley Graham’s pocket consisted of less than twenty-five grams of marijuana, and it never left the confines of his pocket, the Narcotics officers may have been unjustified in even stopping and frisking Graham.

Police officers are even more limited in their ability to conduct warrantless entries of a person’s home. In New York State, officers may enter a private residence without a warrant only if there are “exigent circumstances”; i.e. an emergency necessitating immediate entry. Here, the possible exigent circumstances of this incident include (1) reasonable suspicion of firearm possession, and (2) reasonable suspicion of destruction of evidence for a crime.

Because firearms can be so dangerous, a police officer’s reasonable suspicion that a person might possess a handgun can constitute an exigent circumstance justifying entry into a person’s home without a warrant. The legality of the NYPD officers’ entry into Graham’s home would depend on whether the officers actually believed that they saw a weapon or just a bulge in a defendant’s clothing, the vantage point of the officers in making this observation, the defendant’s demeanor and behavior, and whether the defendant was continuously surveilled between the observation of the alleged bulge and his entry into his home. Though Graham did not in fact possess a weapon at the time of his shooting, the NYPD Narcotics officers’ warrantless entry into Graham’s home may have been lawful so long as their suspicion that Graham possessed a gun in his waistband was in fact reasonable.

However, the Bronx Narcotics officers may not have been justified in entering Graham’s home on the basis of a reasonable suspicion of destruction of evidence of a crime. In order to make a warrantless entry of a person’s home based on the reasonable suspicion of the imminent destruction of evidence of a crime, those officers would have needed probable cause to arrest the individual. It appears that Graham was destroying such evidence when he attempted to flush the marijuana down the toilet. But if he possessed even as much as 24.9 grams, then the police would not have had probable cause to arrest him in the first place. It may not have been an exigent circumstance sufficient to justify a warrantless entry if Graham was only flushing a citation-worthy amount of contraband.

Of course, the reason why Bronx residents are demonstrating against police brutality is the NYPD’s killing of Rahmarley Graham. According to the NYPD Patrol Guide,

Police officers shall not use deadly physical force against another person unless they have probable cause to believe they must protect themselves or another person present from imminent death or serious physical injury. . . .

Police officers shall not discharge their firearms to subdue a fleeing felon who presents no threat of imminent death or serious physical injury to themselves or another person present
It is unequivocally illegal for the police to shoot a person merely based on the suspicion that that person might possess a gun. In order for a police officer to use lethal force in an instance such as this, that officer must be reasonably certain that a specific individual both has a deadly weapon and that that individual is either presently using or about to use that deadly weapon. During his fatal shooting, Graham did not even have a weapon in his possession, and nothing appears to suggest that he posed an imminent threat of death or injury to anyone. Even if Graham had a gun, a teenager cowering in their bathroom does not fit the profile of a person about to shoot someone.

One might like to think that the killing of Rahmarley Graham might even elicit some sort of policy change to prevent such a tragedy from occurring again. Mayor Bloomberg is expected to pay his personal condolences to the Graham family, perhaps make a point of attending more Bronx community meetings. But the death of Graham is not just a case of “a few bad apples” in the NYPD. With the mistaken slayings of Amadou Diallo and Sean Bell, the sadistic assaults on Abner Louima and Jatiek Reed all in such recent memory, it appears that the NYPD has a widespread brutality problem.

The people of New York City, especially the Bronx, are clamoring for substantive justice and comprehensive change. The NYPD must do more to curb the use of excessive force among its members. Granted, the Narcotics officer’s use of lethal force in the Graham case appears to have been in violation of New York state law and NYPD’s stated policy. The fact that NYPD officers have been violating the rules on the use of force so regularly evinces that the Department needs to thoroughly improve its recruitment, training, and oversight of its personnel. Police officers who use excessive force have no place amongst the ranks of New York’s Finest. Moreover, to demonstrate that no man is above the law, the Bronx District Attorney must adequately prosecute the Narcotics officer who illegally shot and killed Rahmarley Graham.

(Originally published by the WCL Criminal Law Brief Blog)

Wednesday, February 1, 2012

Does John Hinckley Still Pose a Threat to Society?

(Originally published by the WCL Criminal Law Brief Blog)

In January 2012, Judge Paul Friedman presided over hearings to determine whether to grant John Hinckley extended furloughs from St. Elizabeth’s psychiatric hospital, where he has been committed for the past thirty years. Hinckley’s lawyers petitioned Judge Friedman to grant two seventeen-day furloughs, and then six furloughs of twenty-four days to his mother’s home in Williamsburg, Virginia, with convalescence leave upon the completion thereof. Federal prosecutors challenged the petition, arguing that Hinckley remains a threat to society and that his furlough privileges should not be expanded.

On March 30, 1981, John Hinckley shot President Ronald Reagan and three others at the Washington Hilton in a failed assassination attempt. The United States indicted Hinckley on 13 counts, including attempted assassination of the President of the United States, attempted murder, multiple counts of assault, and various weapons charges. In 1982, John Hinckley was found not guilty by reason of insanity, and involuntarily committed to St. Elizabeth’s psychiatric hospital.

Hinckley has suffered from severe schizophrenia and depression, and has long been obsessed with the delusion that he entertained an unrequited romantic communication with the actress Jodie Foster. Hinckley wrote a letter to her a few hours before leaving for the Hilton Hotel, “[b]y sacrificing my freedom and possibly my life, I hope to change your mind about me . . . Jodie, I’m asking you to please look into your heart and at least give me the chance, with this historical deed, to gain your respect and love.”

Upon admittance to St. Elizabeth’s, John Hinckley underwent psychiatric evaluation and was classified as a danger to himself, Jodie Foster, and any third party whom he believed to stand in the way between himself and his ultimate aims. While confined as a patient, Hinckley has remained tormented by schizophrenia and severe bouts of depression. He attempted to commit suicide at least three times. A 1987 search of Hinckley’s room found writings that revealed that he remained obsessed with Jodie Foster, exchanged correspondence with the serial killer Ted Bundy, and attempted to reach out to the murderous cult leader Charles Manson.

After years of intensive therapy, the psychologists and psychiatrists of St. Elizabeth’s have maintained that Hinckley’s mental illness has been in remission. In 1999, a federal court allowed Hinckley to enjoy supervised furloughs to the house of his aging mother in Williamsburg, Virginia. According to the court order he is required to carry a GPS-equipped cell phone at all times. He has been allowed to visit restaurants, bookstores, and shopping malls without incident.

In 2009, U.S. District Court Judge Paul Friedman considered a petition from Hinckley’s lawyers to extend his furlough privileges to periods of ten days at a time. Judge Friedman wrote in his ruling, “[t]he ultimate question is whether a preponderance of the evidence supports the proposition that Mr. Hinckley will not, in the reasonable future, be a danger to himself or others.” A forensic psychologist testified that “Hinckley has recovered to the point that he poses no imminent risk of danger to himself or others.” Judge Friedman agreed, and extended Hinckley’s furlough privileges to periods of ten days.

Whether Judge Friedman grants the defense counsel’s petition for extended furlough and convalescence leave will turn on whether the court determines that Hinckley, after 30 years of psychiatric treatment and counseling at St. Elizabeth’s, has been sufficiently rehabilitated.

Schizophrenia is a chronic condition which may remit and exacerbate periodically. Persons who suffer from schizophrenia can often mitigate their symptoms with therapy and anti-psychotic medications. However, if a patient suffering from schizophrenia were to be discharged from an institution, neglect to go to follow-up outpatient visits, and refuse to take his medication as prescribed, one could within days to weeks and most probably within a month remit into flagrant psychosis. In many cases, those who present with symptoms of paranoia often fear taking their prescribed medication, believing that it is poison. Many patients stop taking their medications because of the undesirable side-effects.

For more than 12 years, Hinckley’s psychologists and psychiatrists have maintained that his mental illness has remitted to the point that he is no longer an imminent danger to himself or the rest of society. However, there remains the thorny fact that John Hinckley shot the President – the most popular President of the modern era and a Republican icon.

The United States maintains that there should be no changes to the conditions of Hinckley’s involuntary confinement. Assistant U.S. Attorney Sarah Chasson argued before the court at the 2011 hearings that Hinckley has acted deceptively and dishonestly with the St. Elizabeth’s staff during his conditional releases. According to Chasson, Hinckley told the staff that he was going to see a movie, but Secret Service agents observed Hinckley walk to the ticket counter but slip into the nearby Barnes & Nobles. According to the government’s account, Hinckley dwelled in the history aisles and stood fixated on books about Reagan and presidential assassinations.

The prosecutors also noted in their court filing, “Hinckley continues to be deceptive regarding his relationships with and interest in women. In June 2009, Hinckley searched the Internet for photographs of his female dentist. When he was caught, Hinckley claimed, falsely, that the dentist had invited him to view her personal photographs.”

Clearly, John Hinckley remains a troubled man, and one could construe Hinckley’s reported behavior to establish that his pathology remains unvanquished. Cyber-stalking one’s dentist might be deemed by the court of society to be categorically inappropriate. In the context of a man who has resorted to outrageous feats of violence to win the admiration of women, is it evidence of an unreformed aspiring assassin with the intent to kill again?

A parole officer should be concerned that a potential parolee said that he was going to the movies but went to the Barnes & Nobles instead. Telling a parole officer one thing but doing another, no matter how trivial, is a violation of the terms of a furlough. But is it not eminently reasonable for Hinckley to be interested in biographies of the man he tried to kill and scholarly accounts of his walk-on role in American history?

“The risk of danger is decidedly low,” maintains Barry Levine, counsel for Mr. Hinckley, “We must look at the legal standing between mental illness and danger.” Levine told Judge Friedman that “The evidence shows this man is not dangerous.”

However, U.S. Attorney Joseph diGenova, who prosecuted the case in 1982, opines, “I think John Hinckley will be a threat the rest of his life. He is a time bomb.”