On Tuesday morning, there was mostly ebullience. However, by afternoon the significance of Tuesday’s Proposition 8 decision by the 9th Circuit was being examined from every angle.

The majority opinion for the 2 to 1 ruling was, after all, written by the most liberal justice on the most liberal appellate court in the nation. Yet it was a narrow opinion, a fact that has been criticized by some as not being the history-making ruling it could have been. Still others claim that the very narrowness of the opinion will make it easier for SCOTUS to back, should they agree to take the case next fall.

THE OVERVIEW

NPR’s Talk of the Nation has a great multi-part segment on the decision that gives a good overview.

SOME SAY THE 9TH COULD HAVE MADE HISTORY, BUT DIDN’T: WAS THE 9TH WISE OR GUTLESS?

Dahlia Lithwick at Slate is somewhat critical of the 9th Circuit for not making a more historic decision, but argues that it may be a smart one.

Here’s a clip:

It should come as no surprise to anyone that the (“liberal”) 9th Circuit Court of Appeals, led by the (“very liberal”) Stephen Reinhardt, struck down the state’s ban on gay marriage as unconstitutional. Prop 8, passed by referendum in November 2008, had already been thrashed to a pulp by a (“gay”) judge in August 2010, and when the federal appeals court heard the case in December 2010, it was manifestly clear that they were struggling to find some plausible rationale for a ban on gay marriage that made sense. And given that a lot of folks always thought the fix was in at the 9th Circuit, the real shocker today isn’t that a liberal panel delivered a liberal decision. Rather, what’s so surprising is that they delivered a far more moderate decision than anyone would have predicted.

Consider what a dismal job the proponents of Prop 8 did at trial in this case, proffering mediocre witnesses who proffered mediocre evidence that gay marriage would harm children and imperil heterosexual marriage. (Who can forget Prop 8’s star witness David Blankenhorn’s admission that he knew of no study that proved children reared by gay couples fared worse than those raised by heterosexual parents.) Then, recall the almost painfully meticulous findings of fact (80! 80 findings of fact!) produced by Judge Vaughn Walker to support his conclusion that Proposition 8 violated not just the constitutional promise of equal protection, but also a fundamental right to marry the partner of one’s choosing. Against this dramatic backdrop, today’s 2-1 decision is downright modest, corralling the ruling to apply only in California, and only because of the indignity of Prop 8, which “eliminated” a right that had already been granted same-sex couples. Confronted with massive constitutional questions, the majority wrote, “We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.”

Today, the most liberal judges in the most liberal state on the most liberal appeals court had an opportunity to make history. Instead, they opted to do far less.

Read the rest though, because her analysis goes much farther.

AND FOR THOSE WANTING HANDICAPPING ABOUT HOW THIS RULING WILL FARE IN THE FUTURE WHEN IT COMES TO SCOTUS…..

60 Minutes legal analyst, Andrew Cohen, who also writes for the Atlantic, points to all the ways that Tuesday’s ruling was carefully tailored to address the legal sensibilities of Anthony Kennedy, who will almost certainly be the Supreme Court’s swing vote on the matter, should they decide to take the case.

Here’s a clip:

The only serious question, in the 552 days between the trial court’s ruling and today, was how far the 9th Circuit would travel, doctrinally, in declaring Prop 8 to be an unconstitutional violation of the due process and equal protection rights of same-sex couples. Would it follow the logic and reasoning of U.S. District Judge Vaughn Walker, the Republican appointee who presided over the trial in this case and then had to defend himself against allegations that he was biased because he is gay? Or, would the 9th Circuit strike out on its own?

In the colossal wake of Perry v. Brown, 133 pages of fur and teeth, the best answer I can offer today is that the federal appeals court’s majority sought to thread a needle between recognizing the constitutional rights of certain same-sex couples to stay married and respecting the current equal protection jurisprudence of Justice Anthony Kennedy, the Republican appointee and native Californian, whose vote everyone agrees ultimately will decide the fate of Prop 8 and therefore the fate of same-sex marriage in America.

The 9th Circuit’s ruling is much narrower than was Judge Walker’s ruling and clearly aimed at Justice Kennedy’s jurisprudence in cases involving discrimination based upon sexual orientation

Photo by Justin Sullivan/Getty Images via the Hollywood Reporter

UPDATE: Today is a very good day for human beings.

No reporting can speak quite as eloquently to the point as the opening of the ruling itself, the majority opinion, written by Circuit Judge Stephen Reinhardt.

You can find it here.

But here’s one line that sums up all:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to opposite sex couples. The Constitution simply does not allow for “laws of this sort.”

The opinion (with minority commentary) goes on for another 128 pages.

But that’s the heart of the matter. Straight up.

The court’s decision, had it’s light moments, which in a back door way also spoke deeply to the issue.

As The wrap reports via Reuters:

The appellate court judges who ruled Tuesday that California’s Proposition 8, which banned same-sex marriage, mentioned Jumbotrons, Frank Sinatra, movies and Marilyn Monroe along with Supreme Court precedents in their decision.

“Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different,” the judges wrote.

The judges wrote that in society, “We are excited to see someone ask, ‘Will you marry me?’, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see, ‘Will you enter into a registered domestic partnership with me?’.”

They even invoked Groucho Marx, William Shakespeare and Abraham Lincoln — all in one paragraph:

“Groucho Marx’s one-liner, ‘Marriage is a wonderful institution … but who wants to live in an institution?’ would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare’s ‘A young man married is a man that’s marr’d.’ Lincoln’s ‘Marriage is neither heaven nor hell, it is simply purgatory,’ and Sinatra’s ‘A man doesn’t know what happiness is until he’s married. By then it’s too late.’”

The Court mentioned Shakespeare a few times:

“We emphasize the extraordinary significance of the official designation of ‘marriage,” the decision says. “That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by ay other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”

The ruling by the 3-judge panel from the 9th Circuit Court of Appeals is due to be announced at 10 am, Tuesday.

Fingers crossed.

One day we’ll look back on this crazy period in which some among us were not allowed to marry the people they love because of the whacked notion that those unions, no matter how devoted, would do harm to the concept of marriage as a whole—and we’ll wonder what in the world we could possibly have been thinking.

Howard Mintz at the San Jose Mercury News has a good break down of the possible outcomes. Bob Egelko of the SF Chron also has a clarifying take.

SHERIFF’S DEPUTIES CAN’T BE GUARANTEED CONFIDENTIALITY IN JAILS COMMISSION TESTIMONY

The controversy over whether or not those testifying before the Citizens Commission on Jail Violence can be offered anonymity may have just been settled.

LA Times reporters Robert Faturechi and Jack Leonard spoke to the Commission’s lead attorney, Richard E. Drooyan, who explained that legally, a promise of anonymity wouldn’t hold up if deputies were asked to testify in future criminal or civil cases in court.

(By the way, Drooyan is also the president of the Los Angeles police commission.)

Here’s how the LAT story opens:

A commission investigating allegations of deputy brutality inside Los Angeles County jails cannot guarantee confidentiality for deputies who want to testify, dealing a blow to efforts to combat what has been described as a code of silence among some jail guards.

Members of the special commission created by the county Board of Supervisors had raised the possibility of allowing deputies and others to provide anonymous testimony as they attempt to determine the scope of any brutality against inmates.

But Richard E. Drooyan, the panel’s general counsel, has told commissioners that a court could compel them to provide the identities during a criminal investigation or civil litigation. Allegations of excessive force against inmates is the subject of an FBI probe as well as civil lawsuits, including one filed last week by the American Civil Liberties Union of Southern California.

In an interview with The Times on Saturday, Drooyan said he hoped former deputies and current guards would be willing to come forward despite the limits on confidentiality.

“There is at least some chance that we’ll be able to preserve confidentiality, but it’s not something we can guarantee,” he said.

Drooyan notes that the Commission will be looking at systemic issues, not criminality by individual deputies. In other words, the issue is reform, not nabbing people. So hopefully everyone with something important to say will say it anyway, even without anonymity.

A CALIFORNIA CASE OF WARRANT-FREE TRACKING HEADS FOR THE SUPREMES

Howard Mintz of the San Jose Mercury News has this well-reported story. Here’s how it opens:

A year and a half ago, a Silicon Valley community college student wound up in the cross hairs of a shadowy but common law enforcement practice now at the center of an unfolding legal drama in the U.S. Supreme Court.

On his way to school, Yasir Afifi, an Arab-American, stopped for an oil change and later discovered that the GPS tracking device he found on the underbelly of his car had been put there by the FBI without a warrant.

Now the Supreme Court is expected to decide any day whether the government has a right to use that tactic without a search warrant in a case that highlights the tensions between law enforcement needs and the privacy implications of new technologies that can track our every move.

In a Washington, D.C., case, the Supreme Court is considering whether warrantless GPS tracking violates the Fourth Amendment’s ban on unreasonable search and seizure, one of the core rules in any criminal case. The scope of the court’s ruling could have far-reaching implications when everything from smartphones to dashboard gadgets offer authorities a generous menu for tracking suspects.

The Obama administration and law enforcement groups say GPS tracking is no different from ordinary police surveillance on public streets. There is no constitutional barrier to GPS tracking in public places, they argue.

Really? Really?? Yeah, okay, we all know that privacy’s a thing of the past, but this sounds a little police state-ish.

The problem is that if the Supreme Court rules against the tracking, some righteous convictions will be tossed out. On the other hand, if one has a warrant, no problem with slapping on that tracker.

No one seems to have a clear bet as to which way SCOTUS will go.Yet, whatever their ruling, it will be significant, as this case will set the course for other technologies that have yet to appear.

UPDATE: THE SUPREMES REJECTED WARRANT-CHALLENGED TRACKING: GO, SCOTUS!

Ars Technica has a very interesting write up on the split in thinking on the court that went into the unanimous decision.

JUVENILE LIFE FOR NON-HOMICIDE CASES—LOUISIANA STRUGGLES WITH WHAT TO DO

In a 2010 decision (Graham vs. Florida), The U.S. Supreme Court ruled that kids convicted of crimes that don’t involve murder cannot be locked up for the rest of their lives.

The states with cases affected by the ruling are now struggling with how things should play out with their non-homicide LWOP cases. Louisiana is one of those states. Here’s the opening to a story from the New Orleans Times-Picayune, that deals with one such case that has pushed the issue into the open.

Giovanni Brown was 16 when he and another teen forced their way into a home in an upscale Harvey subdivision in 1999, armed with pistols and intent on mayhem. After holding four people against their will for hours, ransacking the home and trying in vain to force the homeowner to withdraw cash from an ATM, the teenagers stole two cars loaded with the family’s property.

Brown was prosecuted as an adult and convicted of aggravated kidnapping and four counts of armed robbery. He was sentenced in 2000 to life in prison with no chance of probation, parole or suspended sentence for the kidnapping, and another 40 years for robbery. Under Louisiana law, Brown would never leave prison, a reality his public defender Marquita Naquin argued during the trial.

“What can a 16-year-old do in the first 16 years of his life that demands that we throw him away?” Naquin asked the jury just before it unanimously rejected her plea.

Her argument proved prophetic.

Louisiana’s DA’s Association is arguing that inmates like Giovanni Brown should not be eligible for parole until they are 60 years old.

And while we’re having this discussion, at the risk of doing my broken record thing again (which I’ll be doing once more in the next week or so because California’s legislative attempt to modify juvenile LWOP may be coming up for a vote soon), please do remember that the U.S. is the only country in the world—IN THE WORLD— that imprisons kids for life. So either we have a much worse class of kid in this nation, or we’ve got a policy that……let’s just say it needs some improvement.

It wasn’t your usual book party.

For one thing, Monday night’s book launching event for civil rights lawyer Connie Rice’s new memoir, Power Concedes Nothing, was held at the LAPD’s headquarters, in the over-lit Compstat room, no less—i.e. the room where the cops go to hear a rundown on the latest crime statistics and ‘crime mapping.”

Moreover, the party was hosted by LAPD Chief Charlie Beck—who seemed mildly surprised to find himself in the book party hosting business. (Can you think of another instance where LA’s Chief of Police threw a book party? I can’t either. Go, Chief Charlie! Perhaps this could be the start of a new LA event trend: Law enforcement and literature.)

And then, of course, there’s the fact that the book details, among other things, the years that Rice spent suing the Los Angeles Police Department on a regular basis—and usually winning.

Still, Connie’s suing-the-LAPD days are now mostly in the past, and the mood in the Compstat room on Monday night was so upbeat it sometimes bordered on love fest-y. (As you’ll see from the rough snippets of iPhone videos above.)

Those in attendance were a mix of law enforcement and city government types, plus a smattering of criminal justice-leaning authors and journalists—nearly all of whom passed up the red and white wine for glasses of fizzy water. (Helpful party tip: Always drink less than the cops in the room.) U.S. Attorney Andre Birotte, showed up, as did City Controller Wendy Greuel, and LAPD command staff types like Deputy Chief Pat Gannon of South Bureau, and department spokesperson, Commander Andrew Smith (who was the LAPD guy you saw most often on TV throughout the whole LAPD/Occupy thingy.)

Journalist/authors Joe Domanick, Jesse Katz, and Jon Weiner, made appearances, as did Christine Pelisek from the Daily Beast, KPCC’s Frank Stoltz, KCET’s Judy Muller, the LA Times’ Pat Morrison, Sue Horton, Susan Brenneman and Deborah Vankin.

Among the others who stood around book-buying, appetizer-munching and gossiping were Police Commission head, John Mack, LA Gang Czar Guillermo Cespedes, Gerry Chaleff, who used to administer the federal consent decree for the LAPD but now has been appointed by Chief Beck as the Special Assistant for Constitutional Policing—meaning he’s supposed to be the guy tasked with making sure that LAPD officers don’t go around violating anybody’s Constitutional rights, and community activists, like Alfred Lomas, of LA Gang Tours.

City Councilman Tom LaBonge offered the night’s weirdest compliment to Rice, when in a moment of unchecked effusiveness after presenting her with an honorific city proclamation, he leaned into a microphone and told her, “You remind me of William Mulholland!”

(In case you’ve forgotten, Mulholland was the ultra powerful 1920’s era head of the Department of Water and Power on whom the John Huston-played villain of the movie Chinatown, Noah Cross Hollis Mulwray, was supposed to have been, in part, based.*) After Police Commission head John Mack began looking meaningfully at the City Councilman, and making subtle “cut it” motions, LaBonge tried to clarify things by shouting, “Forget Chinatown! Everybody drinks water.” Or something to that effect. Then he wisely divested himself of the microphone.

Still, everyone seemed to take LaBonge’s outburst as a quirky representation of the pleasant ebullience that characterized the night.

The cheery mood may have, in some ways, had to do with the fact that, unlike many book parties, where the point is to support (or meet) the writer, on Monday night, in addition to coming to support Connie, most everyone seemed to be really anxious to read Rice’s book—if they hadn’t already.

It is, as the subtitle says, “one woman’s quest for social justice in America….”—meaning it is a personal account, told through the lens of Rice’s specific experience and perceptions. Yet, much of it is also a book about certain events in Los Angeles in the last few years that many of those in the room felt they had, in some way had a part, or at the very least lived through and cared very much about—things like the battle to transform the LAPD and the struggle to get a handle on the gang violence that was corroding the emotional health of many LA neighborhoods.

In other words, they—we—think and hope that Connie’s book will add a new valuable puzzle piece to the communal puzzle that is the unfolding history of Los Angeles—a history that all of us get to claim.

PS: I’ve not yet read Connie’s book (as I just got it Monday night) but, like the rest, I’m looking forward to doing so. I’ll report back to you here when I do.

NOTE: I’LL HAVE MUCH NEWSIER NEWS TOMORROW, AND THEN A NEW JAILS/LASD STORY LATE IN THE WEEK.

NOTE 2: I hopelessly bollixed up the Chinatown characters when I first posted this. According to the zillion essays analyzing Robert Towne’s amazing script, Huston’s character Noah Cross plus Cross’s business partner in the film, Hollis Mulwray, collectively represented William Mulholland. (And many of us have eyed the DWP with suspicion ever since.)

THE LATEST DOJ REPORT FUELS RENEWED SPECULATION THAT A FEDERAL CONSENT DECREE MIGHT BE IN THE FUTURE FOR LA COUNTY’S TROUBLED PROBATION CAMPS

This past Friday the Federal monitors representing US Department of Justice delivered their 145 page response to LA County Probation’s claims that its juvenile camps were mostly “In compliance” with the Feds’ 41 demands for reform spelled out four years ago in a 2008 Memorandum of Agreement.

Not so fast, said the monitors in the report— which WitnessLA has acquired.

When, on November 6, 2006, the US Department of Justice began investigating LA’s juvenile probation camps, investigators found the facilities rife with horrors. Probation officers batted kids around, instigated fights (some of which were caught on video and wound up on YouTube) or looked the other way when one group of kids pounded another. Staff also made kids stand or sit in body-stressing positions for long periods, kept them in solitary confinement for even longer periods as punishment, randomly denied them bathroom breaks, recreational time and/or medical treatment, failed to check on kids who were on suicide watch, pepper sprayed teenagers over trivialities, and drank alcohol on the job—among other transgressions and illegalities.

Now, said the monitors in the new report, the worst of the rampant abuse and neglect in the camps had pretty much been halted, although there was still lots of room for improvement.

And thankfully the staff, for the most part, wasn’t drinking on the job.

But, after 4 years under the watchful eye of the Department of Justice, although most kids weren’t being actively abused, they weren’t being helped either, said the monitors, particularly when it came to mental and emotional health, substance abuse—and overall rehabilitation. Probation has little or nothing in the way of positive outcomes to show for its supposed progress in these areas. And in many of the camps they have they don’t have the required rehabilitative programs in place at all.

“These camps are not meant to be punishment for the kids we send there,” said a source close to the federal monitors. “They’re supposed to rehabilitate. And that’s still not happening.”

So now the big question is: Will the Feds take over the the juvenile facilities with a Federal Consent Decree?

Observers are split on whether the Feds will step in— or will they give probation one more chance now that Probation has a brand new head guy, Chief Jerry Powers, who started last Monday.

LA County Board of Supervisors has a committee of staffers meeting today, Wednesday, to discuss the Fed monitors’ comments and instructions—and what, if anything, to do in response.

(MORE ON THE REPORT AND ITS MEANING SHORTLY)

MEANWHILE LA’S CITY COUNCIL CALLS FOR MORE CONTROL OVER THE $2000 LUNCH -EATING HOUSING AUTHORITY

After the $1.2-million golden parachute handed to HACLA’s ousted head, and jaw-dropping spending for trips, meals and “employee incentives,” the LA City Council thinks maybe there should be a bit more city oversight of the agency. (Ya think?)

The LA Times David Zahniser and Jessica Garrison have the story.

Controller Wendy Greuel also has a new report on the drunken-sailor-spending HACLA folks.

3:25: THE MAYOR AND THE CHIEF OF POLICE COME OUT AND SAY A FEW WORDS

Villaraigosa said of Chief Charlie Beck: “He’s someone who understands that Constitutional policing is the only way to go for Los Angeles.”

Charlie Beck said that 1400 officers took part, and there were around 200 arrests. (There were 292 arrests, as it turns out, a great many of whom, cops and Occupiers both say, intended to be arrested. Last night Occupiers were repeatedly asking each other, “Are you arrestable?”—meaning, are you willing to be arrested or do you need to go home to put the kids to bed or feed the dog?)

“I’ve never been prouder of Los Angeles police officers than I am tonight,” Villaraigosa said.

2:40 am: The tree dwellers have been (sadly) plucked and the night is winding down. Well done, Occupy LA! Well done, LAPD!

(For those desirous of a more detailed account, my Twitter stream gives a fuller view of the night.)

And check out Kevin Roderick’s coverage.

By the way, one of the big stars among citizen journalists to have emerged from the Occupy movement is Spencer Mills who tweets and broadcasts under the name OakFoSho. He was great tonight!

12:59: Arrests definitely taking place. But slowly, as the tents are slowly and carefully dismantled. The cops have been very disciplined, actually, at least thus far.

12:26: UNLAWFUL ASSEMBLY DECLARED, OCCUPIERS HAVE 10 MINUTES TO COMPLY… Only problem: the 10 minute warning was given around 15 times at various intervals.

Fox 11 reporter chick to an LAPD spokesperson regarding the plethora of 10 min. warnings: “At what point does this become the boy who cried wolf?”

12:14 am – POLICE POURING OUT SOUTH DOOR OF CITY HALL

Now at 12:20 am – the police are moving into the crowd. The mood of the crowd has changed. Everyone seems to sense that the the eviction is about to commence.

12:02 am – LAPD COMMANDER ANDREW SMITH SAID THAT PRESS WILL NOT BE ALLOWED INTO PARK ONCE AN UNLAWFUL ASSEMBLY HAS BEEN DECLARED

Okay, that’s the tip off. That’s what will be the signal to move in. The LAPD will declare an unlawful assembly. And they WILL declare an unlawful assembly tonight. When? We don’t know. But tonight is the night.

11:56: LAPD HAS REPORTEDLY ISSUED A FINAL WARNING. (Or something of that nature. Trying to confirm. The TV folks certainly aren’t reporting any such thing. But they’re five steps behind through all of this. No, nothing seems to be happening. False alarm.)

11:28 pm: The OccupyLA crowd, plus onlookers and press, is estimated to be between 1500 to 2000.

10:58 pm – COMMANDER SMITH AFFIRMS THAT A PERIMETER HAS BEEN ESTABLISHED AROUND OCCUPY LA ALLOWING NO CARS IN

Commander Smith, the LAPD spokesperson, is saying that he’s “really optimistic that this will be peaceful.”

LA Times Live Feed from building to street. And here’s the CBS aerial stream.

10:41 FOLKS IN PINK SHIRTS ARE “PEACEKEEPERS” FROM OCCIDENTAL COLLEGE

10:31 pm: LAPD officers have arrived on a fleet of big buses.

10:23 pm: FINDING LAWYERS: Lawyers from National Lawyers’ Guild and legal observers are reportedly wearing lime green baseball caps.

9:30 pm – LAPD is on a tactical alert. A raid could come anytime after 10:30 pm. At least that’s the word going around. It isn’t officially confirmed that tonight is the night. But everyone seems to know. This is it. Game on.

Watch UStream for a view of the encampment.

Lady cop photo by Wendy Carrillo

Tree people photo by Gigi Graciette

This death penalty case about returned mail and multiple oversights on the part of lackadaisical court clerks and ball-dropping lawyers seemed to get a positive hearing from everyone but Scalia who reportedly was the only obvious contra.

The AP’s Mark Sherman has the story.

Here’s how it opens:

WASHINGTON (AP) — The tale of returned mail and a missed deadline might seem comical if it did not involve a man trying to stave off execution. Supreme Court justices had harsh words Tuesday for lawyers who abandon their clients and a state legal system that does not seem overly concerned.

At the end of a lively hour of arguments, it appeared the court would order a new hearing for Alabama death row inmate Cory Maples, who had lost the chance to appeal his death sentence because of a mailroom mix-up at the New York law firm Sullivan and Cromwell and the diffidence of a local court clerk.

Two Sullivan and Cromwell lawyers had been pressing Maples’ claim that his earlier legal representation was so bad that it violated the Constitution – until they both left the firm without telling him or the Alabama courts.

Deadlines usually matter a lot at the Supreme Court, where a few years back a defendant who was late to file an appeal because the judge gave his lawyer the wrong date still lost his case. Another principle the court often holds dear is that it’s tough luck for defendants whose lawyers make mistakes.

But Tuesday’s case, perhaps because it involves the death penalty, was the rare instance when the court seemed prepared to grant some leeway on both counts.

Justice Samuel Alito is a former federal prosecutor who often votes for the government in criminal cases. But he said he did not understand why Alabama fought so hard to deny Maples the right to appeal when the deadline passed “though no fault of his own, through a series of very unusual and unfortunate circumstances.”

FYI: Maples isn’t arguing innocence at this point, only basic fairness in being allowed an appeal. Nice to see the Supremes responding.

The NY Times has this editorial on the case.

FEDS: NO GUNS OR AMMO FOR MED MARIJUANA USERS…..MONTANA: OH, REALLY? SEZ YOU!

Oh, how, I love the folks in my other home state.

This is by Charles Johnson from the Missoulian. A clip to get you started.

Attorney General Steve Bullock voiced his objection Monday to the U.S. Justice Department over its recent memo banning the sale of guns or ammunition to licensed medical marijuana users and urged the agency not to prosecute anyone for now.

Bullock wrote U.S. Attorney General Eric Holder about the Sept. 21 memo from the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives to licensed gun dealers. The memo said it is illegal for medical marijuana cardholders to buy guns and ammunition, and illegal for dealers to sell these products to them.

The letter from Bullock followed criticism of the policy last week from all three members of Montana’s congressional delegation, Sens. Jon Tester and Max Baucus, and Rep. Denny Rehberg. A firearms advocacy group and a medical marijuana group had earlier blasted the memo.

Bullock told Holder said he’s willing to work with the U.S. Justice Department staff “on exploring a reasonable solution to the problems created by the Bureau of Alcohol, Tobacco, Firearms and Explosives letter.”

The goal, he said, is to find an approach that works for the Montana and the other 15 states and the District of Columbia that have legalized medical marijuana.

“This would be much better than the type of unilateral proclamation represented by the ATF letter, which was issued without any advance notice or discussion with the elected officials who represent more than one-fourth of this nation’s population and one-third of its states,” Bullock wrote.

“In the meantime, I respectfully request that the Department of Justice not pursue any criminal prosecutions against law-abiding citizens in Montana who exercise their constitutional rights to possess guns and enjoy hunting, or the licensees who are implicitly threatened by ATF’s letter.”

Bullock said Montana had about 200,000 hunters last year, and the state Department of Fish, Wildlife and Parks sold more than 580,000 hunting licenses. As Montanans purchase guns and ammunition from sporting good stores, some of them may also have medical marijuana cards, he said.

Go Big Sky!

(For the record, I’m a wine drinker, not a toker—med or otherwise. And I don’t like guns. However, that isn’t the point. But thank you for inquiring.)

THE LETTER

On Thursday afternoon, the ACLU released a letter signed by 26 criminal justice, civil rights and religious leaders that calls for a broader Federal investigation of the alleged abuse of inmates and misconduct by sheriff’s deputies inside the LA County Jails.

The letter is addressed to US Attorney General Eric Holder, US Attorney Andre Birotte, FBI Director Robert Mueller, Thomas Perez, head of the DOJ’s Civil Rights Division, and Steven M. Martinez, the Assistant Director in Charge of LA’s FBI Office.

In other words, nobody with any power in the matter got left out.

The message conveyed is sober-minded and respectful but leaves no room for doubt about the seriousness of the request:

We, the undersigned, respectfully request that the federal government pursue a thorough criminal and pattern or practice civil rights investigation into the allegations filed by the ACLU yesterday in the U.S. District Court for the Central District of California in Rutherford v. Baca, with documentation of a persistent pattern of deputy-on-inmate assaults, deputy-instigated inmate-on-inmate assaults, and use of excessive force in the Los Angeles County jails.

We understand that the FBI is currently investigating the beating of James Parker in Twin Towers Correctional Facility on January 24, 2011 based in part on the eye-witness statement of a civilian, ACLU jails monitor Esther Lim, and that the investigation has widened to include other such incidents in the Los Angeles County Jails. We are pleased that federal law enforcement officials have undertaken this investigation.

We note that Sheriff Baca, through a spokesman, responded to the report of this investigation in Sunday’s Los Angeles Times, by categorically denying the need for a federal investigation and insisting that the Sheriff’s Department has already investigated inmate accounts of deputy beatings and found most of them to be unfounded. Based on evidence presented by the ACLU, however, including sworn statements not only from some seventy inmates and former inmates but also from prison chaplains and civilian eyewitnesses to deputy-on-inmate assaults, we are concerned that despite the Sheriff’s protestations there appears to be a pattern of violations by deputies against inmates in the Los Angeles County jails that should be independently investigated.

We therefore respectfully urge you to proceed with a broad inquiry.

Former California Attorney General John Van de Kamp tops the list of those who signed. He is followed by 2 former US Attorneys, 3 former assistant US Attorneys, Los Angeles County Public Defender, Ron Brown, the former head of the Civil Rights Division of the Department of Justice, plus 2 high profile law school deans, some well-known civil rights lawyers and religious leaders.

THE SHERIFF

It is interesting to note that, several of those who signed on to the plea for the Feds to step in consider themselves to be personal friends with Sheriff Baca, people like Connie Rice and Father Greg Boyle— among others.

Indeed Lee Baca is a very likeable man who has for many years expressed a deep commitment to criminal justice reform. For those who know him, this progressive and humanistic vision of LA’s popular Sheriff has always been hard to square with the hard fact that the jail system he oversees is a shameful quagmire of ongoing civil rights violations.

THE PAST

After the release of our recent jails story by Matt Fleisher, and in the run-up to the this week’s release of the harsh ACLU report on abuse at the jails, a lot of us who write (or litigate) about this topic wondered if any of the new round of stories and witness accounts would make any difference.

Now, with the appearance of this letter, I think maybe…..maybe we have reached a tipping point. The moment feels weirdly like period after the Rampart scandal broke about the LAPD. For a long time after the scandal, disbelief still governed public perception. It couldn’t be that bad, people said; even editors I worked with, said it; people experienced enough to know better said it.

But it was that bad. Most LAPD officers were excellent people. Yet there was a toxic culture inside the department that was doing terrible damage to the fabric of our communities and to the people within them—and to all the good cops who were doing their damnedest every day to protect and serve..

And so it is with the Los Angeles County Jails.

So maybe that’s the good news. In the case of the LAPD, eventually enough people acknowledged that the LAPDs problems were greater than the existence of a few bad apples that it led to a widespread push for reform.

THE FUTURE

As a consequence, the Los Angeles Police Department is now fundamentally different than it was in the bad old, pre-Rampart days.

So perhaps there is reason to hope the same will ultimately prove to be true for LA County’s jails system.

Of course, several elements went into the LAPD’s transformation. Good leadership at the top was essential. Bill Bratton and Charlie Beck, and their command staffs made a world of difference.

But equally important was the existence of a very sharp-toothed Federal Consent Decree.

Which brings us back to the letter at hand.

What those who signed it have requested is crucial.

Let us hope that those with the power to trigger a comprehensive investigation understand that.

****

What happens inside jails and prisons does not stay inside jails and prisons. It comes home with prisoners after they are released and with corrections officers at the end of each day’s shift. When people live and work in facilities that are unsafe, unhealthy, unproductive, or inhumane, they carry the effects home with them. We must create safe and productive conditions of confinement not only because it is the right thing to do, but because it influences the safety, health, and prosperity of us all.

—2006 report by the Commission on Safety and Abuse in America’s Prisons, Vera Institute of Justice

AND IN RELATED NEWS….WHICH WAY LA? DOES THE JAILS

Warren Olney’s Which Way LA had a segment on the jails on Tuesday and another segment with Sheriff Baca on Thursday.

Plus there was a segment on realignment—the transfer of a large segment of parolees from state custody to the various California counties—which begins this weekend.

AND WHILE WE’RE ON THE TOPIC OF REALIGNMENT…

NPR Carrie Kahn did an excellent show on LA County’s role in realignment with some mention of the jails issue.

AND ONE MORE WRINKLE IN THE JAILS STORY

An inmate allegedly beat up by deputies in front of ACLU jails monitor Esther Lim and another witness was tried for assaulting those same deputies although Lim says he did not. Not even close. The trial ended in a hung jury that was reportedly leaning toward acquittal.

The LA Times Robert Faturechi has the story.

Photo by Damian Dovarganes/AP

In a filing late Monday, Attorney General Eric Holder argued that national security would be damaged if the feds were forced to reveal who was the focus of mosque-spying operation in 2006, and how it was done, the Sac Bee reports.

(Politico also has a good report here.)

A look at the lawsuit that has caused all this State Secrets invoking, makes one wonder a bit.

Peter Bibring of the So Cal ACLU, for one, is not convinced.

The Sac Bee reports:

ACLU attorney Peter Bibring said it was extremely unusual for the government to invoke the state secrets privilege, especially in a domestic case being investigated by a domestic law enforcement agency. The secrecy rules are usually only requested in extraordinary matters overseas, such as the targeted killing by drones or extraordinary rendition.

“The government’s position here is the FBI’s conduct should be beyond the review of the courts, which would render the protections of the constitution meaningless,” Bibring said. “Following the government’s argument, any domestic law enforcement operation deemed to effect national security would be beyond review.”

Bibring said the ACLU would oppose the government’s motion.

The So Cal ACLU filed the suit in February and this Washington Post article has most of the details. Here’s a clip:

An FBI informant who infiltrated a California mosque violated the constitutional rights of hundreds of Muslims by targeting them for surveillance because of their religion, the ACLU and a Muslim group said in a lawsuit Tuesday.

The lawsuit, filed against the FBI and seven of its agents and supervisors, focuses on the actions several years ago of Craig Monteilh, a paid FBI informant. Monteilh has said he was instructed to spy on worshipers at an Irvine mosque in a quest for potential terrorists, allegations that prompted fierce criticism of the FBI from some Muslims in Southern California and nationwide.

The lawsuit alleges that Monteilh was ordered by his FBI handlers to conduct “indiscriminate surveillance” of Muslims, violating their First Amendment right to freedom of religion. Filed on behalf of three Muslim plaintiffs, the 64-page document seeks class action status, unspecified damages and a court order instructing the FBI to destroy or return the information Monteilh collected.

“The FBI should be spending its time and resources investigating actual threats, not spying on every American who happens to worship at a mosque,” said Peter Bibring, a staff attorney for the ACLU of Southern California, which filed the complaint along with the Los Angeles office of the Council on American-Islamic Relations.

And then for a personal story about being a target of the spying, see KPCC’s Frank Stoltz report. Here’s an excerpt:

Civil rights groups on Wednesday said they’ve sued the FBI for allegedly violating the First Amendment by spying on Orange County Muslims inside mosques. KPCC’s Frank Stoltze says the case focuses on the activities of a paid informant for the federal law enforcement agency.

One plaintiff in the lawsuit is 26-year-old Ali Malek. He recalled his initial encounter with Craig Monteilh.

“I first met Monteilh when he testified to his faith in front of roughly 1,000 people at the mosque in Irvine,” said Malek. “It was a ceremony in which you become a Muslim.”

Malek said his imam asked him to teach the convert about his new religion. He said Monteilh had other interests.

“Constantly he would ask me about jihad and what I thought about it,” said Malek. “My reaction initially was, he is a new Muslim, he just became Muslim, perhaps has some misconstrued ideas and perceptions of the religion and I was more than happy to clarify those misconceptions.”

When Monteilh continued his questions about jihad and began showing up at the gym where he worked out, Malek became suspicious.

“I thought he was weird and so I just wanted to keep my distance,” Malek said. “And I wanted to give it some time to see how the situation developed. And then when the case came out, all the pieces of the puzzle came together.”

Monteilh, it turned out, was working for the FBI…

Eric Holder is firm in contending that there is legit reason for all this secrecy stuff, but it is hard not to be reminded of the book by my friend and colleague Barry Seigel, Claim of Privilege, that documents the rise of the State Secrets Act and shows how cavalierly the government invoked it—way back then—not for matters of national security, but because of an uncontrollable desire to cover its own butt.

Here is what we know of the story:

A sophomore on the Santa Monica High School wrestling team says that, on May 4, he walked into the school’s wrestling room and saw the team’s brown practice dummy with a noose around its neck. As this same student, who happens to be black, headed for the locker room, he was approached by two of his team members who, he says, enfolded him in a “bear hug.” Then, using a cable and a lock, they chained the black wrestler to a locker. According to his mother, Victoria Gray, her son said that the teammates-turned-tormenters, at that point, shouted “Slave for sale.”

Such actions are alarming enough on their face, but what is most perplexing is the actions of the adults in the hours and days and weeks that followed the noose and the chaining and the racial slurs.

The Santa Monica Daily Press reports a part of the sequence of events:

A few things are known for certain.

After the incident, which occurred on May 4, counseling sessions were held on site for other members of the wrestling team that wanted to talk about the experience.

At those sessions, students were told to go home and tell their parents what happened.

Victoria Gray, the mother of the boy who was chained, was never informed, neither by her son nor by school officials.

She found out over three weeks later when a woman she had never met called her to tell her one version of events.

The two boys who allegedly did the chaining have been disciplined by the school with a three-day suspension. They will also have to help teach a freshman seminar on hazing.

The matter first came before the Board of Education at its meeting June 16, when Gray used public comment time to express her dissatisfaction with how the incident had been handled.

The Santa Monica Evening Outlook reports that Gray said her son, ” told her he didn’t want to make a big deal about the whole thing because he didn’t want to jeopardize the wrestling program.”

Gray said that her son told her that Leslie Wells, the principal of H House at Samohi, told him that the incident could get the whole wrestling program canceled.

Great.

It has also been reported that administrators insisted that students who snapped cell phone photos of any aspect of the noose and chaining incident, must turn in their phones, at which time the administrators deleted the photos.

The California penal code on the matter reads that: “Any person who hangs a noose, knowing it to be a symbol representing a threat to life, on the property of a primary school, junior high school, high school, college campus, public park, or place of employment….. shall be punished by imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000).

Community organizer Najee Ali of Project Islamic Hope held a press conference in front of the high school on Wednesday afternoon to call for an investigation into the incident as a hate crime,. When I spoke to Ali on the phone afterward, he too said he was particularly angered and dismayed by the behavior of school administrators.

“I’m more shocked by the adults behavior than by the students,” Ali said then noted that the student’s mother has said that she was not informed of the incident, “Which meant the student didn’t get the support he needed.”

Ali is also troubled by the cell-phone-picture-deleting part of the story.

“If that happened, legally, they destroyed evidence. It sounds like they were more interested in protecting the school than in protecting the student who was bullied, or in using this incident as a real teachable moment.” Ali sighed. “And all that needs to be investigated. It also needs to be brought out into the open and talked about.”

There will be a chance to begin that conversation Thursday night, June 30, when there is a school board meeting scheduled at which school board member, Oscar de la Torre, said the noose and chaining incident will be discussed, and there will be a time for public comment.

PS: As bad as this incident is, the lock-’em-up zero tolerance reaction to the acts of teenagers helps no one. Emotionally violent actions such as these require meaningful consequences, which means more than a few days suspension, but they do not call for legal vengeance.

A few serious consequences for the adults, however, are clearly in order. They are the ones who should have been instantly protective toward Victoria Gray’s son then precipitated some kind of school-wide assembly or action to address the the myriad implications of the incident—and the deep damage actions like it can wreak.

Instead, it seems, the adults mostly ran to hit the “delete” button.