Category Archives: Civil Rights

Protecting the Phoenix Police While They Protect Us

It is easy to see Phoenix Police Chief Daniel Garcia has trouble with his eyesight.  The dark framed glasses line his face and aid his eyesight.

Glasses have not helped him see identify the mental health problems right in front of him during his tenure as Phoenix’s top cop.

Unlike other disabilities, mental health issues are invisible to the eye.  Anyone who looks at Chief Garcia can identify his eyesight disability because of his glasses.  Persons with mental health issues do not have that luxury.  When people look at them there is no distinguishing characteristic of their disability.  Instead people only see a seemingly normal individual.  And that normal individual may not be given any accommodations, as no one may be aware of the disability.

Only weeks ago, vocal calls in the community led to the Phoenix PD to announce the establishment of a new  mental health advisory board to help police with training methods when it comes to dealing individuals with mental health issues.  The action only came after high profile mental health calls had mixed and sometimes troubling results.  Perhaps the most troubling case was when the police on a mental health call, trying to get her to come in for treatment, killed the woman, whom they were there to help because she had a weapon and was making threats.

Now the calls are from within the Phoenix Police Department calling for Chief Garcia to resign for failing to recognize and support officers who have mental health issues.  Phoenix Police Officer Craig Tiger committed suicide recently after losing his job over a DUI arrest, reports Fox10Phoenix. Officer Tiger had been diagnosed with Post Traumatic Stress Disorder (PTSD).  He claimed an on-the-job shooting caused his PTSD, according to Fox10Phoenix.  News reports state Chief Garcia ended up firing Officer Tiger over the DUI.

Chief Garcia did not see the invisible wound his police officer had.

Others in the community just do not see it either.  The Arizona Republic’s Editorial Board argued the loss of Officer Tiger is incredibly sad, but it must not detract from the larger point that Chief Garcia is leading Phoenix PD towards integrity and respect from the community.

Perhaps, I must spell it out to the Arizona Republic’s Editorial Board. The issue is, how can we as a community expect the Phoenix Police to support persons with mental illness, if we do not support the police officers themselves who may be suffering from mental health problems.  The police have a very difficult job and encounter hazards that can take an emotional toll and in turn create mental health problems.

It is time we protect our officers, so they can protect us.

Continue reading Protecting the Phoenix Police While They Protect Us

Same Sex Adoption in Arizona After Latta v. Otter

Arizona’s adoption laws could be influenced by a recent civil rights cases decided by the federal appeals court holdings that same sex marriage prohibitions violate the Equal Protection Clause of the Fourteenth Amendment. See Latta v. Otter, No. 13-cv-00482 (9th Cir. Oct. 7, 2014); Baskin v. Bogan, No. 14-2386 (7th Cir. Sept. 04, 2014).

Legal analysts think there may be changes to the legal landscape in Arizona because same sex marriages are permissible in Arizona.

Adoption by same sex couples is just one area that may be impacted by the Majors ruling (which is based on the Latta v. Otter opinion), holds prohibitions on same sex marriages are unconstitutional.

Currently, Arizona law creates a preferences for a married man and woman for adoptions.  “If all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.”  Ariz. Rev. Stat. § 8-103(C).

Okay, let’s clarify real quick, “[a]ny adult resident of this state, whether married, unmarried or legally separated is eligible to qualify to adopt children.”  Ariz. Rev. Stat. § 8-103(A).  Although anyone can adopt a child, the “adoption agency shall place a child in an adoptive home” that is in the best interest of the child.  Ariz. Rev. Stat. § 8-103(B).  When signing Senate Bill 1188 into law in 2011, the Arizona Legislature directed state and private agencies to place children in adopted homes which are in the best interest of the child.  But one of the potential factors gives preferential treatment to a married man and woman.  The law very specifically mentions a preference  for a married man and woman and not a married couple.

The legislative history and media reports at the time confirm the same type of equal protection concerns arise under the adoption law. “Conservative groups and other supporters of the measure said children should have every opportunity to grow up in a household with a mom and dad.” The AZ Republic reported in 2011 when the law changed to add a preference for a married couple. Furthermore, media report is corroborated by the official “House Summary, As Transmitted To The Governor.”

Now that courts have ruled Arizona laws prohibiting same sex marriages are found to violate the Fourteenth Amendment of the United States Constitution this could have a positive effect on same sex couples who choose to adopt.

Hopefully, the provision giving preference to married heterosexual couples will be changed legislatively or judicially, soon.

To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as
unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values.’

 — Latta v. Otter, No. 13-cv-00482, at *28 (9th Cir. Oct. 7, 2014).

Phoenix Police Department Creates Mental Health Advisory Board

The Phoenix Police Department is making serious strides in how it handles situations where individuals have mental health issues.

“The board, made up of mental health professionals, will help police with training methods when it comes to dealing with mentally ill cases, and include regular reviews of protocol.”  According to reporting by ABC 15 News.

I am really proud of the Phoenix Police Department for making this first step and creating an advisory board. This is an example of the standard of professionalism set by the department.  Accepting that more could be done, Phoenix police are actively engaging experts in the community in how to handle complex situations that involve individuals with mental health issues.

As I have argued in the past, on this website, I believe the Americans with Disabilities Act creates an affirmative duty for police to accommodate individuals with known mental health problems (it must be known to the police too).  The task force could recommend what reasonable accommodations could be made by police officers during investigations.

Procedures and guidelines for police on mental health calls in Phoenix are less than clear from at least the public’s perspective.   ABC 15 News did report in the article linked to above that on each mental health call performed by Phoenix police, an officer and a Sargent trained in crisis intervention are on hand.  Presumably the crisis intervention training includes a mental health aspect — or at least I would hope so.

While many more mental health calls go on each day than are reported in the news, two high profile situations yielded very different results.

The use of deadly force during mental health calls by the Phoenix Police Department is still concerning to me.  It is not clear if non-lethal options are available, and if so, are taught as a first option in the crisis intervention training.  The news articles appear to only mention police use or potential use of guns. Perhaps this is just incomplete reporting by the local news media.  On the other hand, I would like the advisory board and for Phoenix police to focus on non-lethal options.  Of course there are times when lethal force is necessary to protect law enforcement and citizens, it should be a last resort in situations with known mental health issues.

I think that is a reasonable accommodation.

Equal Protection in Arizona Same Sex Marriages – A Look at the Change in Case Law

Last week a judge struck down a same-sex marriage ban in Arizona on equal protection grounds.  The ban was created by both state law and a state constitutional amendment.  United States District Judge John Sedwick on Oct. 17, 2014 declared Ariz. Const. art. 30, § 1, Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) all violated federally protected constitutional rights.  Majors v. Horne, No. 14-cv-00518 (D. Ariz. Oct. 17, 2014) (the full opinion is available at the bottom of this article).

But this was not the first time the state laws were challenged (the Arizona Constitutional Amendment was not created at the time).  In 2003, the Arizona Court of Appeals unanimously found both Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) to be reasonable laws, and upheld them in the face of constitutional challenges. Standhardt v. Superior Court of Ariz.,77 P.3d 451 (Ariz. Ct. App. 2003) (holding Arizona’s statutory prohibition of same sex unions does not violate either the Arizona or United States Constitution). These are the same state laws Judge Sedwick ruled unconstitutional last week.

So what gives?  What has changed so much in the past eleven years to warrant a complete reversal in judicial ideology?  I am very happy for this civil rights victory for same sex couples.

How two unanimous courts could come to completely opposite viewpoints on the same set of laws, really interests me from a civil rights perspective.  I want to delve into this really interesting situation and see what happened.

Couple Gets Married After Waiting 23 Years @ Same Sex Marriage Legalized in Iowa

Photo credit: Alan C., Flickr

Continue reading Equal Protection in Arizona Same Sex Marriages – A Look at the Change in Case Law

Predictive Policing in Phoenix

Algorithmic crime-fighting, based on predictive technology makes makes me nervous.  Let me just say that upfront.

The Phoenix Police Department probably predicted I would write that…

It appears that Phoenix Police Department uses predictive analytics, as at least a tool to aid them in policing the sixth most populous city in the United States.  My Open Records request with the Phoenix Police Department is pending, without a timetable for completion.  While we wait, I think it is appropriate to look at what we do know about predictive policing.

Predictive Policing

There is not a whole lot of academic information on predictive policing, in part because predictive analytics is such a young field in and of itself.

Probably the best definition I could find of this mysterious topic came from the RAND Corporation, a non-profit global policy think tank.

Predictive policing is the application of analytical techniques—particularly quantitative techniques—to identify likely targets for police intervention and prevent crime or solve past crimes by making statistical predictions.

Predictive Policing, RAND Corporation, at *5.

Through an analysis of existing academic papers, vendor literature, and police use of predictive analytics the RAND Corporation came up with four types of predictive policing.

  • Predicting crimes – forecasts places and times with an increased risk of crime
  • Predicting offenders – potential for an individual to re-offend in the future
  • Predicting perpetrators identities – profiling likely offenders
  • Predicting victims of crimes – identify groups or, in some cases, individuals who are likely to become victims of crime.

— Predictive Policing, at *6.

Continue reading Predictive Policing in Phoenix

Article: Collateral Consequences of Criminal Convictions – Employment in Arizona

One of the consequences of a criminal conviction is difficulty in gaining employment the debt to society has been repaid. It is a referred to as a collateral consequence because it is not a part of the intended punishment – is a secondary effect.

A civil rights movement, known as ‘ban the box’ aims at persuading employers to remove from their hiring applications the check box that asks if applicants have a criminal record.  This article deals with the state of Arizona asking applicants if they have a prior criminal record.

Arizona law states a person shall not be removed from employment consideration by the state, unless the “offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.”  Ariz. Rev. Stat. §904(E).  Deciding what offense bears a reasonable relationship to the employment is not always clear, and leaves substantial discretion to the hiring agency.

The author of the article makes the point that since so many professions require state certification, licensing, or a permit to operate, this statute touches many industries in Arizona.

Collateral consequences are hidden sanctions through federal, state and local statutes, regulations and policies that affect the rights and responsibilities of rehabilitated persons after the penalty of a criminal conviction has been completed. Collateral consequences place a continuing burden on individuals seeking a fresh start in life thereby making relief from the consequences more elusive.

Penny Wilrich, Collateral Consequences of Criminal Convictions – Employment in Arizona, SSRN Elibrary.

 

Phoenix Apartment Complex Found Guilty of Uninhabitable Conditions

A Phoenix apartmment complex is found of uninhabitable by a city court judge.

After a non-jury trial, Judge Lori Metcalf, of the Phoenix Municipal Court found Woodbridge Apartments guilty of 385 out of 406 criminal counts.  That is a 94.8% guilty rate.  Sentencing is scheduled for September 19, 2014. Woodbridge Apartments are located at 6635 North 19th Avenue, Phoenix, Arizona.

Deputy Director of the Phoenix Department of Neighborhoods Tim Boling told ABC 15 News, “this case is probably the most extreme resistance that he has encountered in the city’s efforts to bring a property into compliance.”

This case surpasses the normal landlord-tenant issues moving into issues of basic civil rights.  No one should have to live in squalor.  It took a couple of years, but props to the City of Phoenix prosecutors for pursuing this case.

I haven’t found the legal documents anywhere else on the internet.  I thought I would share them since this is appears to be an extraordinary case for the City of Phoenix.  See the criminal findings by Judge Metcalf below.  Also, the entire civil complaints against Woodbridge Apartments from 2012 are also provided below.

Woodbridge Apartments - Phoenix, Arizona
Woodbridge Apartments – Phoenix, Arizona – Photo taken by AzCommonLaw

Continue reading Phoenix Apartment Complex Found Guilty of Uninhabitable Conditions

Article – Public Accommodations Under the Civil Rights Act of 1964

Title II of the Civil Rights Act is turning 50 this year.  Yep, that makes it officially middle-aged.  It is not a young law anymore, nor is an old law.  Middle-aged seems apropos for this law. 

The law is still being argued and debated about its application.  For example, I have argued recently, police departments have an affirmative duty under Title II of the Civil rights Act and the Americans with Disabilities Act to make reasonable accommodations during investigations for those who they know ahead of time suffer from serious mental illnesses.

As with any anniversary, it is a good time to be retrospective.  While I don’t agree with all the conclusions this article makes, I think it is a good timely critical analysis of a perhaps under-recognized piece of legislation in present day society. 

 On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to sup-press the free entry of firms that would otherwise target minority customers in competitive markets.

The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.

The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.

Richard A. Epstein, Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right, 66 Stan. L. Rev. 1241.

Phoenix Police Kill During Mental-Health Call

Last week the Phoenix Police Department shot and killed a woman while trying to serve a mental health order.  Caseworkers “were trying to get her to come in for treatment. It got to the point that she wouldn’t do that. … She had a weapon and was making threats.”  Reported the AZ Republic.

Last spring I gave a talk to several Arizona charities and non-profits about what the Americans with Disabilities Act requires as “reasonable accommodations” when law enforcement agencies enter into situations with people who they knew have a mental illness.  The ADA was passed by Congress only in 1990 and only a handful of cases involving the ADA and the police have made it to federal court of appeals, let alone cases specifically dealing with mental illness.  This is an emerging area of the law and there is not much written about it.

The Police’s Duty to Accommodate Under the Americans With Disabilities Act.

Police Have Affirmative Duty to Accommodate Disabilities.

This incident with the Phoenix Police Department fits that situation precisely.  The Phoenix Police Department is a law enforcement agency and is governed by Title II of the Americans with Disabilities Act, dealing with public entities.  Title 42 U.S.C. § 12131, et. seq.  A person with a serious mental illness with a serious mental illness qualifies for the protections of the Americans with Disabilities Act.  Title 42 U.S.C. § 12132 (1).  Lastly, since the police are aware of the disability, they should make reasonable accommodations.

“Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.”  Tennessee v. Lane, 541 U.S. 509, 533 (2004) (internal quotation marks omitted).

Even the United States Supreme Court acknowledged individuals with mental illness are persons with disabilities who have suffered unconstitutional behavior in the past, and need the prophylactic protections of the ADA.

[T]he mentally retarded have been subject to a ‘lengthy and tragic history,’ of segregation and discrimination that can only be called grotesque.

— City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985) (Marshall, J., concurring in part and dissenting in part) (quoting University of California Regents v. Bakke, 438 U.S. 265, 303 (1978)).

Continue reading Phoenix Police Kill During Mental-Health Call

Civil Rights Case – Colwell v. Bannister 9th Cir. 2014

The Ninth Circuit Court of appeals recently looked at whether it is a violation of the Eighth Amendment when a Nevada state prisoner who was denied cataract surgery because of a Nevada Department of Corrections policy under which cataract surgery is refused if an inmate can manage to function in prison with one eye.

Facts

Mr. Colwell is an inmate at the Nevada Department of Corrections serving a life sentenced without possibility of parole. Colwell v. Bannister, No. 12-15844, at *4 (9th Cir. Aug. 14, 2014). After incarceration Mr. Colwell developed cataracts in both eyes and underwent cataract-removal surgery on his left eye in 2001.  Id. “By October 2001, a cataract had developed in Colwell’s right eye that rendered him totally blind in that eye by 2002.” Id. That cataract has never been treated and is the issue here.

The Nevada Department of Corrections (NDOC) Medical Director, Dr. Bruce Bannister, stated a cataract does no damage to the eye and can be removed at any time. Id.

The NDOC has a written policy on cataract removals.

It is the policy of the Department that inmates
with cataracts will be evaluated on a case by
case basis, taking into consideration their
ability to function within their current living
environment.

Id. at *5.

Continue reading Civil Rights Case – Colwell v. Bannister 9th Cir. 2014