Civil Rights

The long and arduous debate over strict-constructionism and original intent has always seemed to me to be displaced.  The idea that we can somehow infer the intent of the drafters of the constitution runs into problems when the question turns to which framer do we follow.  For it seems there were quite a few, and many had contradictory ideas.  Indeed, how can we follow the framers when the framers themselves were quickly polarized on the issue of the intended role of the federal government?

Likewise the issue of strict-constructionism runs into logical problems, in that any reading of the constitution necessarily involves interpretation.  There is no plain meaning and application of a document that was intentionally written to be vague and flexible.

I have defended Jerry Brown’s decision not to defend Proposition 8 despite his role as Attorney General.  Basically, the Attorney General has the duty to defend California’s laws from legal challenge unless they are specifically unconstitutional under federal law.  We can quibble whether the case of Prop. 8 is sufficient, but he did what he did.

However, there is now the increasing belief that Jerry Brown’s actions may have unintended consequences that could put the entire legal challenge to Proposition 8 at risk.

The roller coaster ride for same-sex couples and their advocates continued Monday, as the 9th U.S. Circuit Court of Appeals stayed Judge Vaughn Walker’s decision while the case is on appeal.  Lawyers for the plaintiffs in this case, two gay couples who challenged the ban, said that they would not appeal the stay.

Instead they seemed satisfied that that the court had agreed to fast-track the case by scheduling oral arguments for December 6, 2010.

Initially, proponents of same-sex marriage rejoiced on Thursday as Judge Vaughn Walker announced that he would lift his stay on August 18 and declined to issue a permanent stay from the ruling from last week that overturned Proposition 8’s ban on same-sex marriages.  However, those feelings were relatively short-lived as reality sunk in.

Judge Walker offered a cautious approach which will allow defendants and supports of the ban to appeal to the 9th Circuit to stay the ruling.  If that fails, they could go to the US Supreme Court to obtain a permanent stay of the ruling while the case is pending appeal.

Last week Chief U.S. District Judge Vaughn Walker invalidated Proposition 8, the measure that banned gays from marrying.  Today at noon he will determine whether or not to impose on a stay on his decision, or to allow his decision to go into effect. This would  once again allow same-sex couples to marry, as they had from the summer of 2008 until Proposition 8 was passed and went into effect.

The decision by Judge Walker, which has provoked very strong reaction on both sides of the political divide, struck down the proposition as a violation of federal constitutional guarantees of equal protection and due process.

In the past weeks there were two major court decisions, not handed down by the US Supreme Court, both of which struck down laws, one law enacted by the Arizona State Legislature and one by the California voters through the initiative system.  Both were met by cries of overthrowing the will of the people, judicial activism, unelected judges, and more.

The cry from the right on the issue of Proposition 8 could be heard loudly and immediately.  The words often rarely varied.  “This decision, whatever its final resolution, serves as an undeniable reminder of the power of Federal judges. A single unelected judge nullified the will of the voters of California as expressed through the electoral process,” wrote Albert Mohler.

U.S. Federal Court Judge Vaughn R. Walker, in a 136-page ruling, said “Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

In so doing, he struck down one of the most followed and controversial California ballot measures in recent years.  The ruling is significant in that it struck down the proposition as a violation of federal constitutional guarantees of equal protection and due process.

We have not discussed Arizona’s SB 1070 much on these pages. However, as the law appears to be bleeding into local issues, it is worth noting that it seems likely that US District Judge Susan Bolton’s order preventing enforcement of key provisions until the court rules on the law’s constitutionality is likely to stand.  At least that is what several legal scholars are predicting and their reasoning seems sound.

On the one hand there is a danger in making the assumption that a court will throw out a law just because it violates the constitution. As UC Davis Law Professor Kevin Johnson points out in an Op-Ed in the Washington Post, co-written by a University of Arizona Law Professor, they cite a  1975 case which allows the Border Patrols the power to stop vehicles near the U.S.-Mexico border and question the occupants about their citizenship and immigration status. The high court ruled that the “likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”

On December 9, Rich Rifkin wrote an op-ed in the Davis Enterprise that generated a good deal of controversy.  While the subject matter is not necessarily the purview of Davis it does overlap with issues that impact Davis and Yolo County.  Today we have a court ruling constraining the use of Tasers particularly against those with mental disorders.

At the outset, having gotten to know Mr. Rifkin through interchange both on the Vanguard and in the community, I do believe his intentions here are intended to help, rather than intended to be malicious as some of the letters to the Enterprise in response have implied.

The Sacramento Bee reports on a ruling out of San Diego County where the 9th US Circuit Court of Appeals has issued a comprehensive ruling that limits the use of Tasers by police against low-level offenders who seem to pose little threat and may have mental illness.

The specific case involves an emotionally disturbed individual who was shot with a Taser.  He was described as unarmed, yards away, and neither fleeing nor advancing on the officer.

The Vanguard has been following the federal class action lawsuit in Antioch that was filed over alleged discriminatory practices involving the treatment of African American Section 8 housing recipients by the Antioch Police Department under Davis’ former Police Chief Jim Hyde.

The suit alleges that upon establishing a special unit in 2006, the Community Action Team (CAT) unit had focused their efforts on targeting Section 8 residents and specifically the majority of their actions have targeted African American families.  Those families have been subjected to the frequent searches of their homes often without their consent and a warrant.  They argue that this is a pattern of intimidation aimed less at reducing crime and more at intimidation and convincing Section 8 residents to leave.

In a scene somewhat familiar to residents of Yolo County and West Sacramento, there is a legal challenge now being mounted in Fairfield in Solano County Superior Court urging the court to limit the overly broad scope of the proposed gang injunction for the city of Fairfield.  At issue is the ability of the police to serve the injunction on an individual without presenting definitive evidence of gang membership and without court approval.

Joining in the case fighting the gang injunction is the Northern California ACLU who had also worked against the first gang injunction in West Sacramento that was eventually thrown out in West Sacramento due to its overly narrow number of alleged gang members that it served.

On Friday, the Vanguard interviewed Lt. Dan Choi and Anthony Woods about the military’s “Don’t Ask, Don’t Tell Policy.”  Lt. Choi informed us at the time that he would have a hearing on Tuesday.

“It’s basically called a discharge board or a retention board.  Whatever, you call it, I’m going to get fired.  I think people have to realize that.  They are firing people from their units in a time of war when you need people to serve in their country and these people are able, capable, willing and trained.  You’re firing them for the sole basis of who they are.  And the sole basis of their honesty.”

Lt. Dan Choi on Tuesday faces a hearing to determine whether he will be kicked out of the military due to his violation of the “Don’t Ask, Don’t Tell Policy.”  This despite the fact that he has willingly and proudly served his nation with honor.  This despite the fact that he has the rare skill of speaking fluent Arabic.  On Friday night, he was in Davis to campaign for his friend and classmate from West Point, Anthony Woods who is running for Congress in the 10th Congressional District. 

Anothny Woods earned a Bronze Star for serving our nation in Iraq during two long deployments.  He was born on Travis Air Force base in Fairfield.  Despite his honor and courage, Mr. Woods was also dismissed from the Army due to his violation of the same policy.

Last week, the Woodland Police Department completed its investigation into the April 30 shooting of Luis Gutierrez by Yolo County Sheriff’s Deputy.  The report was sent to the Yolo County District Attorney’s Office who will review the case along with help from the state Attorney General’s Office.

On Monday, community activists however continued to call for an independent investigation into incident.  Al Rojas along with another 10 to 15 residents at a press conference outside of the Yolo County District Attorney’s Office in Woodland, suggested that there was a functional difference between the review that is going on, and investigation.

On Tuesday, about a dozen organizers called a press conference to push for the independent investigation into the April 30 death of Luis Gutierrez who was shot by Sheriff’s deputies who claim that he attacked them with a knife.

Following the press conference, individuals filed in the County of Board of Supervisors to press their case before that body.  The supervisors resisted calling for an investigation at this time however, opting instead to let the current investigation run its course.  District Attorney Jeff Reisig has said that he will forward the results to the California Attorney General’s office for review.

In the days following the shooting death of Luis Gutierrez by Sheriff’s Deputies in Woodland, there was a rush of papers released by the Sheriff’s department.  One of them was the affidavit used to obtain a warrant to search Mr. Gutierrez’s property after he was dead.  The Vanguard has spoken with a number of attorneys and experts in this manner and many of them have indicated that the extent and length that the authorities have attempted to demonstrate that Mr. Gutierrez was in a gang and also with the release of the autopsy on drugs, is highly unusual.

On Wednesday during the Vanguard radio show, we spoke with Michael Risher, a staff attorney with the ACLU of Northern California.  He raised troubling questions about the warrant itself.

Having attended the rally and march in Woodland on Saturday night for the fallen Luis Gutierrez, the impression I came away with was that the people were frustrated, but it was a well-coordinated and peaceful march.  In fact, as the hour was getting dark, it became more of a silent vigil than a boisterous march.

I was therefore stunned to see the interview with Sheriff Ed Prieto which came out on Sunday on Fox 40 in Sacramento.

In an event attended by hundreds of Woodland residents and many from across the county and the region, labor leader Al Rojas and religious leaders called for an independent investigation into the April 30 shooting death of 26-year-old farm worker Luis Gutierrez.  Mr. Gutierrez was shot and killed by Yolo County Sheriff’s Deputies as he walked home from the DMV on the Gum Avenue overpass in Woodland.

The march which was led by the family of Mr. Gutierrez followed the route that he took in the last moments of his life.

More than 200 people gathered in Central Park last night to protest the California Supreme Court’s ruling on the Proposition 8 cases.

The overall tone of Tuesday’s gathering was positive and motivational, with UC Davis law professors joining clergy from local faith groups and musicians to bring a message of hope and resolve to those in attendance.