There's No Wrong Way To Terrorize a Black Guy in the Eighth Circuit

Last week, the Eighth Circuit released an opinion in Clark v. Clark, a case involving a law-abiding Black gun owner in Missouri. Police responded to claims of gunshots in the vicinity of a Missouri rest stop. On arrival, they encountered Gregory Clark, a Black man sitting a table outside the building. Seeing they were officers, Clark immediately handed over his driver's license, retired military ID, and concealed carry permit, and also informed them he was armed. He was questioned if he had heard any gunfire (he hadn't) and where he was going (Chicago).

Then the police ran his identification (which came back clean). Clark was apparently not wild that the police ran his ID, which he thought was potentially a case of racial profiling, and asked a question gesturing in that direction ("[would you] have done that to anyone else?"). The officer responded poorly, angrily replying "don’t play the race card with me", and returned the identification cards back to Clark.

The police then left Clark, and Clark in turn returned to his vehicle and drove away in the direction of Chicago. The police trailed him, and Clark began to fear for his life. He made a U-turn, and officers continued to follow. After more cop cars began to arrive on the scene, he pulled over to the side of the road and placed both hands outside of the window to show he wasn't holding his gun. Officers nonetheless approached the car with weapons drawn, one pointing his gun at Clark while ordering him out of the car. After a bit more confusion and discussion, it was eventually determined that Clark had committed no crime and done nothing wrong, and he was allowed to leave once more.

The Eighth Circuit, in an opinion by Judge Erickson joined by Judge Colloton, concluded that the entirety of the police conduct -- which culminated, let's recall, in the police pointing their weapon at a Black man who had done absolutely nothing wrong and had seemingly taken every conceivable step to scream out "I am not a threat" -- was wholly lawful.

And that's why I flag this case. In an alarming number of circumstances, there is nothing a Black man can realistically do to avoid having a gun pulled on him by police. He can be entirely law-abiding, forthright about his (legal) gun ownership, compliant with police demands, going out of his way to and keep his hands clear -- doesn't matter. And likewise, he cannot seek to avoid police interactions -- even knowing (apparently accurately) that they put him at risk of having a gun pulled on him for no reason whatsoever. Judge Erickson, for example, argued that both Clark's highway U-turn to avoid the police, and his affirmative decision to put his hands out the window to show that he wasn't holding his gun, were "unusual and may be indicative of guilty conduct."

Chief Judge Smith disagreed -- and it is perhaps not coincidental that Judge Smith is the only African-American Judge on the Eighth Circuit. In his view, while the initial encounter at the rest stop was lawful (and I agree -- while I understand why Clark might have felt aggrieved, he was the only person in the vicinity where gunshots had been reported and he admitted he was carrying a gun), the police response to Clark on the highway was not (Judge Smith ultimately would have found that the officer nonetheless enjoyed qualified immunity).

Put simply, Clark is allowed to not want to interact with the police. African-American men have excellent reason to try to avoid police encounters for fully innocent reasons like "wanting to avoid an elevated chance of having a gun pulled on you" -- as this case well demonstrates. But there's really nothing they can do to avoid it -- including "literally trying to avoid it".

Meanwhile, today the Eighth Circuit en banc dismissed, by 5-4 vote, Dorian Johnson's claims against Ferguson, Missouri and Officer Darren Wilson for conduct stemming from the infamous shooting of Michael Brown (Johnson was walking beside Brown during the incident). Johnson alleged that Wilson ordered the pair to "get on the fucking sidewalk", then abruptly parked his car in front of the duo, blocking their path, struck Brown with the car door, got into a scuffle with Brown, and ended up firing his weapon at the pair (missing Johnson but striking and killing Brown). Nonetheless, the Court concluded that the pair had not been seized because (a) Johnson did not need to "remain by Brown's side" while Wilson and Brown fought and (b) the position of Wilson's police car did not literally block them entirely from fleeing the area.

The dissenters (Judge Melloy writing for Chief Judge Smith and Judges Erickson and Kelly) simply make mince-meat of this argument. The touchstone question for a seizure is whether the officer's actions would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business". There might not be a single area of constitutional law with more ludicrous precedents than this -- the sorts of scenarios where courts say, with apparent straight faces, that people would feel free "to ignore the police presence" are beyond absurd (to take one example, cited in the dissent: in United States v. Hayden, we were told that any reasonable person would feel free to ignore the police when the officer pulled up alongside the defendant, shined a flashlight on him, and screamed “Police!”). Yet even here, the facts clearly "communicated an intent to use a roadblock to stop Johnson’s movement," and therefore a seizure.

The argument that the roadblock did not literally prevent all modes of escape from the area should be too ludicrous to reply to if the majority did not rely on it. Not only is that unrealistic in practice -- just how tight must the dragnet be, then, before it is conceded to be impossible to escape? Must the officers all lock arms in a circle? -- it has nothing to do with the legal inquiry, which is whether a reasonable person would understand the officers as trying to communicate an order to stop. Abruptly driving your police car to place it directly in front of your quarry's path does that, and it's not close. There's virtually no question that had Johnson attempted to "simply ignore" Wilson's directives the officer would not have thought "well, that's perfectly innocent conduct reflecting his right to ignore me under the Constitution" (look what happened to Clark!).

Of course, it's possible that in this case the extremely high-profile and heavily-reported nature of the controversy might have influenced the court's decision -- in particular, they might believe that the facts might not have been as Johnson alleged. But it is hornbook law that at this stage in the proceeding judges must accept Johnson's factual allegations as true -- disputes of fact are addressed at a later stage. And that matters because this case sets a precedent, which in turn applies to other cases down the line where the facts haven't been as thoroughly hashed out in the media as here. It is not just Dorian Johnson but any person who finds a police car screeching to halt inches in front of them after being screamed at by the officer who now will find that -- contrary to any actual "reasonable person's" perspective -- it would be wholly unreasonable for them to believe that the police were communicating that they needed to submit.

I'd say that the majority might have allowed itself to be swayed by the public nature of the controversy, except that gives them far too much credit. The fact is, the Eighth Circuit has near-infinite tolerance for police excesses directed against the citizens in its jurisdiction, in cases of any degree of public prominence. Clark is a low-profile case and Johnson is a very high-profile one, but they're tied together by the unifying cord of all the Eighth Circuit's jurisprudence in this area: extreme, complete, and unshakable deference to the police over and against ordinary citizens.

"Hitler Was Right" Candidate Wins Missouri GOP Primary

This past week, Steve West, who has said "Hitler was Right" and that "Jewish cabals" harvest baby parts from Planned Parenthood, won the GOP primary for a Kansas City-area Missouri State House seat.

As many people know, there has been an uptick of racist and antisemitic extremist candidates running on GOP platforms this election cycle (the ADL rounds up some of them). Some of the most prominent, like Arthur Jones in Illinois, come with their own excuses: he was the only candidate on the GOP ballot in a overwhelmingly Democratic seat. In other cases, the seat is so lopsidedly Democratic that the GOP party is basically a random assortment of fringe cranks anyway, so it's arguably unfair to extrapolate.

But this is different. For one, West won a contested primary, taking nearly 50% of the vote in a four-way field. For two, while the 15th Missouri House District has gone uncontested the past two cycles, the last time there was a general election race the (current incumbent) Democrat won by a 56/44 spread. That's a comfortable margin, and in a strong Democratic year like 2018 the seat should be safe, but it is not an overwhelming figure (by comparison, the last time Dan Lipinski -- the Democrat Arthur Jones is running against in Illinois -- faced a general election challenger, he won by a 65/35 margin). Put another way, while this is a distinctively blue-tinted district, it is not the sort of place where Republicans don't exist beyond a bizarre fringe, nor is it the sort of place where it'd be implausible for the Republican to win.

So even though this is far less prominent a race than Jones' congressional campaign, in many ways its a significantly more dangerous signal. In a race where other Republicans were running, in a district where Republicans at least are conceivably competitive, GOP primary voters chose an unabashed, loud-and-proud antisemitic bigot.

Nordstrom's Terrible, Horrible, No-Good, Very Racist (and Almost Entirely Legal) Racial Profiling Scandal

Three Black teenagers shopping for prom wear at a St. Louis-area Nordstrom's had the police called on them for suspected shoplifting. But that's skipping to the end of the story. Here's the beginning:

Mekhi Lee, Eric Rogers and Dirone Taylor were shopping at the Nordstrom Rack on Thursday when they noticed store employees closely eyeing them and following them through the aisles. Lee has just completed his freshman year of college and was with his
longtime friends, Taylor and Rogers, who were shopping for prom.

[Local NAACP President Adolphus] Pruitt said that one of the men wanted to try on a shirt, so he removed his hat to do so. The store employees kept following the men, Pruitt said, so they decided to leave.

Shortly after, the man who had tried on the shirt realized he left his hat in the store, so the three of them went back. That’s when they were approached by an elderly white woman who had also been shopping.

“Now they’re confronted by an elderly white woman in the store who says to them, ‘Would your parents and grandparents be proud of what you’re doing?’ ” Pruitt said. The woman also referred to them as “a bunch of bums,” according to Pruitt.

At that point, the men asked to speak to a store manager, but employees told them they couldn’t meet with one, Pruitt said. The men left the store a second time and turned back to see the manager come to sidewalk and wave.

That’s when they chose to return, Pruitt said.

“They decided, ‘We have money, we came here to shop and demonstrate to them that we aren’t thugs. We have money like anybody else,’ ” Pruitt said. 

While the men were making their purchases, the elderly woman was in line waiting to check out behind them. The manager, who is white, opened up a new register to ring the woman up, Pruitt said.

The manager then escorted the white woman to her car, Pruitt said.

While the men were paying for their items, they heard staff employees say they were calling the police. Pruitt said the men left the store and waited for the police to arrive.

Title 42, Section 1981 of U.S. Code is one of the single oldest civil rights laws in America. Enacted as part of the Civil Rights Act of 1866, it protects the equal rights of all persons to "make and enforce contracts" (including retail transactions) notwithstanding race. As the Supreme Court has made clear, this statute "protects the would-be contractor along with those who already have contracts." Indeed, in Runyon v. McCrary, the Court described a circumstance where individuals "sought to enter into contractual relationships" but were denied the ability to do on basis of race as "a classic violation of § 1981."

So you might think that, at least if it could be proven that the behavior of Nordstrom's employees -- shadowing and surveilling the customers, denying their request to speak to a store manager, then having that manager give them a mocking wave goodbye when they left in disgust, opening a new register for the benefit of a White customer behind them in line who had called them "bums" -- were race done because of race, it would violate federal law. The customers' ability to make a desired contract with Nordstrom's (here, buying prom clothes) would have been obstructed and interfered with on account in race -- in open defiance of Section 1981.

Fun fact: You'd be wrong. And again, you'd be wrong even if it was absolutely, 100% incontestably proven that Nordstrom's did this only to Black customers, due to avowedly racist beliefs acted on by store employees.

St. Louis, Missouri, you see, lies in the jurisdiction of the United States Court of Appeals for the Eighth Circuit (indeed, the Eighth Circuit is based in St. Louis). The Eighth Circuit, for its part, is the single most conservative appellate court in the country. And so Eighth Circuit observers perhaps would not be surprised to find out that in 2009 the Eighth Circuit, sitting en banc, handed down a 6-5 decision in Gregory v. Dillard's which immunized virtually all of the above behavior from legal challenge under Section 1981.*

The court concluded that neither a department store's practice of explicitly racist shadowing and surveillance, nor racist remarks or gestures directed at the customers, nor these things in conjunction, can make out a Section 1981 violation even in circumstances where it is indisputably the but-for cause for why a customer who otherwise planned to purchase a product decides not to do so. Hence, until Nordstrom's actually called the cops on the customers -- and perhaps not even then -- everything it was doing was wholly lawful under Gregory even if there was no question that it was targeting the Black customers due to their race.

The Gregory decision held that, as a matter of law, no amount of racial harassment or disdain directed at shoppers acts to "block" or "thwart" the creation of a contract -- only an explicit refusal to make a sale will do the trick. So if you're a Black shopper in Missouri and being nakedly racially profiled causes you to leave the store in disgust -- hey, that's on you. As far as the Eighth Circuit is concerned, you should have grown a thicker skin.

And yes, in case you're curious: part of the Eighth Circuit's rationale for why Section 1981 had to be constricted so as not to include racist shadowing, surveillance, and harassment is that these practices might be necessary to stop "shoplifting". Of course.

* The lead dissent in Gregory was authored by Judge Diana E. Murphy, whom I clerked for several years later. It was joined by Judges Bye, Melloy, Smith, and (in relevant part) Benton. Judges Murphy and Bye were Clinton appointees, while Judges Melloy, Smith, and Benton were all George W. Bush appointees. All six judges in the majority were Republican appointees. Judge Smith was also the only African-American judge serving on the Eighth Circuit at that time, and I believe only the second ever to sit on that court.

Maplewood, MO Bond Trap Case Moves Forward

One of the more arcane, but important, issues to gain renewed spotlight in the wake of Ferguson is how the deeply fragmented municipal structure of the greater St. Louis area encourages abusive policing practices. Basically, the area around St. Louis is divided into countless tiny independent municipalities, each which often has their own police force, governmental units, judicial system, and so on.

It's not really economical for each of these small towns to run their own mini-government, and so many of them have resorted to policing-for-profit. They squeeze out revenue from vulnerable community members (often people of color) by exceedingly aggressive traffic law enforcement, predatory bond practices, overpolicing of minor regulatory violations, and other like practices (The DOJ report on Ferguson highlighted these practices as part of its findings that the Ferguson PD routinely violated the law and operated with an eye towards revenue generation rather than serving its own community).

Right now, for example, there is a lawsuit against the city of Maplewood, Missouri (population: 8,046) alleging that it has a deliberate policy of trapping poor motorists facing traffic finds with bond payments that they can't afford to pay. The plaintiffs

assert the City automatically issues an arrest warrant whenever someone ticketed for violating its traffic and vehicle laws fails to pay a fine or appear in court. Once arrested, the motorist is allegedly presented with a Hobson's choice: Either pay a bond the amount of which was set in advance without any determination of his ability to pay it, or sit in jail possibly for days. The plaintiffs further contend that once a warrant has been issued, a motorist cannot avoid it by voluntarily returning to the municipal court or paying the outstanding fine, but must either submit to a custodial arrest or retain a lawyer to argue a motion before the municipal judge to vacate the warrant. If the court does not grant the motion, the motorist, whose presence in court the judge allegedly demands, will be arrested and jailed. Jail, the plaintiffs assert, is the means by which the City attempts to coerce the motorist into paying the bond to secure his release. The complaint indicates that the City's policy or custom involves additional steps that can ensnare motorists in repeated cycles of arrest, jailing, and pressure to pay a bond irrespective of their ability to do so. 

Today, the United States Court of Appeals for the Eighth Circuit allowed that claim to proceed, rejecting city arguments that it is immune from suit. This is a preliminary ruling completely detached from the substantive merits of the case (for technical reasons not worth going into, it's easier to sue cities compared to states for alleged constitutional violations); no doubt as the case proceeds there will be textured arguments about the specific nature of Maplewood's bond practices and any viable defenses that they can put forward.

Nonetheless, it is absolutely a good thing that this sort of behavior is being spotlighted and will now have to stand up to federal judicial scrutiny. This is a case worth keeping an eye on.

Return of the Muscle

In 2015, during anti-racism protests at the University of Missouri, a journalism professor named Melissa Click gained notoriety by calling for "muscle" to expel student journalists attempting to cover the proceedings. Click was widely censured and eventually fired.

I'm not convinced on the "firing" part (there are substantial due process questions that have yet to be answered persuasively), but the censure portion was entirely appropriate. A free press is essential to an open society. Seeking to block, obstruct, or threaten journalists for doing their jobs is absolutely incompatible with a commitment to free speech. What Click did was utterly contemptible.

Yesterday, a Missouri journalism student who was covering the Jason Stockley verdict protests published his account of what happened to journalists at the scene. He is not doe-eyed about the protesters -- while most were non-violent, a few were not and particularly as the main protest died down some were engaging in destruction of property (and were, unsurprisingly, not thrilled to be filmed in the act of destruction of property). But the journalist was also quite clear and emphatic in his ultimate verdict:

At this event, the police officers were far more threatening to journalists than were the protesters.

The SWAT truck stopped, and heavily armored officers carrying assault rifles poured out, screaming at us. Thinking that they would likely ignore the journalists and go after the demonstrators, we stopped and put our hands and cameras in the air. Most of the demonstrators were wearing black, their faces covered with bandanas, and some had weapons. The journalists, on the other hand, were dressed the way we often are — in button-down shirts, with press credentials and cameras plain to see. The difference was obvious. 

And yet most of the demonstrators escaped while nearly all of the SWAT officers grabbed the journalists by our necks and forced us against a brick wall. An officer pulled my respirator off my face and threw it into the street and then pulled my helmet back so tightly that the fastened strap began to cut off my air supply. Our hands were immediately zip-tied tightly behind our backs, and I was unable to breathe or remove my helmet. I tried in vain to choke out the words — “I can’t breathe.” A photographer next to me noticed and loudly said to an officer behind us, “You need to take off his helmet, he’s choking.” The officer looked at him, then at me, and said “I can’t hear you” and walked away. 

I was eventually able to use the wall next to me to nudge my helmet back onto my head. Now able to speak, I turned to the officer in charge and asked, “Am I under arrest?” His reply was: “Shut up, mother------.” 

The SWAT officers then yanked us onto our feet and walked us toward a police van. As we were being shoved into the van, the officer in charge stopped us. “All of you dumbasses are going to jail tonight. Stupid mother-------.” Then he turned to one of the other officers and said: “Throw these stupid b------ on the van.”

Everyone who censured Melissa Click should be equally loud in denouncing the actions of these St. Louis Police officers (arguably, they should be more emphatic -- there is special danger in such assaults on the free press occurring under color of law -- but I'll settle for "equally"). They won't, of course. As always, free speech has many fair-weather friends, and in a world where a guy can body slam a journalist and then cruise into the House of Representatives it's hard to speak of the health of our commitment to an open press.

But principles are principles, even in their breach. Sometimes, the "muscle" is a wild-eyed academic thinking she's "protecting" student activists. Sometimes, it's police officers claiming to be "protecting" the streets. Both are contemptible. But there's no doubt that only one will become a national story.

Akin's Return

Like Kevin Drum, when Todd Akin's "legitimate rape" brouhaha broke, I was of the opinion that it would eventually blow over and Akin would continue to be favored to win his Senate race in red-leaning Missouri. Simply put, between the folks who secretly (or not-so-secretly) agreed with Akin, and the folks who are just really good at rationalizing, Akin would undoubtedly suffer a short-term dip and eventually recover as Republicans rallied back to his side.

I was pleasantly surprised to see that, at first blush, the GOP seemed to be coming down much harder on Akin than I had anticipated. Maybe my cynicism was unwarranted?

Unfortunately, Akin appears to be making a comeback, and along precisely the lines Drum and I predicted. He'd ride the storm, Republicans would eventually start returning to him, and the state's red lean would assert itself. And now,, less than a month later, Missouri is back in toss-up territory.

Of course, there is still time to prove me wrong. So get on that, Missouri! Show me that I'm far, far too cynical for my own good.

White Guy in a Little Coat....

Sarah Steelman, former Missouri state treasurer, gears up to take on Rep. Roy Blunt in the GOP Senate primary to replace the retiring Kit Bond.

In the interview, Steelman took some sharp jabs at Blunt, describing the seven-term congressman Blunt as being part of the “old-boys' network” who has spent too much time in Washington.

“Roy Blunt is another white guy in a suit, and I think the public wants change,” Steelman said. “There’s a good old boys’ network out there that’s hard to penetrate… and it’s not always in the best interest of the party or for conservative principles.”

File that one under "if a Democrat said it, it'd be tarred racist". Anyway, Steelman narrowly lost a brutal primary last cycle to Rep. Kenny Hulshof, who went on to be defeated in the general gubernatorial election. Looks like she's got plenty of fire for another bid for higher office.

Civil Rights Roundup: 07/17/08

Your daily dose of civil rights and related news. I'm going to New York this afternoon and won't be back until late tomorrow, so the roundup will be off until Monday

What is the world coming to when hippies attack the homeless?

An Arizona sheriff is being accused of racial profiling in his aggressive efforts to roundup undocumented immigrants.

The University of Texas is working to make sure websites which document human rights atrocities don't disappear.

Prison guard fired for wearing a beard in accordance with his religious obligations.

Missouri ordered to bolster efforts at registering low-income residents to vote.

ACLU will defend Amish in suit over how to label their horse-drawn buggies.

Census won't count gay marriages.

Latino squad earns respect at Watts basketball tournament.

A 3rd Circuit panel held that removing disruptive Christian protesters from a gay pride event was constitutionally permissible. In an opinion joined by the third justice on the panel, Judge Dolores K. Sloviter justified the removal because the protesters went beyond distributing literature and waving signs, and actively attempted to drown out the proceedings. A concurring opinion also would have upheld the removal, but on the grounds that the protesters used "fighting words" when they referred to a transgender woman as a "she-male" and told her she would be going to hell.

The NAACP was cordial but not exactly warm when John McCain came visiting.

One oft-repeated (by me as much as anyone) refrain about racism is that overt racist sentiment is not really expressed or actively believed much in modern America. Some 2004 survey data seems to indicate we're too optimistic about that.

Fall Out Boy

Neil links to a chart showing head-to-head Missouri polling numbers for a few Presidential candidates: Clinton, Edwards, and Obama for the D's, and Giuliani, Thompson, and Romney for the Elephant. Klein picks up on how Edwards beats all three by wider margins than either of the other two candidates.

But what intrigues me is how far behind Romney is compared to Thompson. Against Clinton and Obama, he's a eight points further behind compared to Thompson, against Edwards that jumps to 14.

I had always assumed that Romney's weakness compared to Giuliani (and perhaps McCain) in early head-to-head match-ups was name recognition: he was essentially "generic Republican," and generic Republicans are not doing so hot right now. But I can't think that Thompson has that much greater name ID (even with Law & Order), and yet he's got far better match-up numbers than Romney does. This would imply that there are some voters who do know Romney and are simply less likely to vote for him than they are other Republican candidates (rather than a simple name ID problem). This, to put it mildly, is not good news for either the Romney campaign or the Republican Party for whom he still strikes me as the most likely nominee.

Classless

Missouri Democratic Senator Claire McCaskill was invited to speak at her daughter's graduation ceremony at St. Joseph's Academy. Then the Archbishop objected, due to her views on abortion and stem cell research. So she was disinvited.

[Archbishop] Burke is not new to controversy or to politicizing his religious views. He was behind the effort to deny John Kerry and other progressive Catholic politicians eucharist. Last week he tried to derail a benefit concert by Sheryl Crow for a local Catholic hospital because of her support for stem cell research. Apparently he put politics over critical funding for the hospital. He resigned his position on the board of directors for the hospital when they refused to cancel the concert.

Lovely. As the above-linked post states, the odds McCaskill was going to turn this into a pro-abortion rally ranges from slim to none. There is no doubt that a sitting US Senator would make for an excellent role model for the graduates of this academy. Unfortunately, the Archbishop decided to make a political point on the backs of teenagers.

Classy.