GUULR Blog

An Examination of Occupation Law in Present-Day Palestine

Posted on by guulr in Spring 2022

Keerat Singh is a junior in the School of Foreign Service studying Business and Global Affairs and serves as Senior Blog Editor for GUULR.

Occupation law, under Article 42 of the 1907 Hague Regulations, defines an occupied territory as one that is “placed under the authority of the hostile army,” where that authority “has been established and can be exercised.”[1] The regulations respecting the laws and customs of war on land, outlined in the Geneva Conventions of 1949, apply to any territory occupied during international hostilities.[2]

This body of law does not consider the legality of how a territory came to be occupied (the legality of such encroachments is regulated by the UN charter).[3] Regardless of the legality of an occupation, occupation law begins to apply as soon as a people are living under the authority of a hostile regime, as it is motivated by humanitarian principles, seeking to ensure humanitarian treatment for all those living under occupation.[4]

Occupation law, outlined in the 1907 Hague Regulations, the Fourth Geneva Convention, Additional Protocol I, and customary international humanitarian law, stresses that occupation must be restricted to a temporary situation and that the occupant should not acquire sovereignty over the territory.[5] It also states that the occupying power should provide for the public order, safety, public hygiene, food, and medical care of the population under occupation.[6] Some actions prohibited for the occupying power to take part in include collective punishment, hostage-taking, confiscation of private property, destruction or seizure of “enemy” property, and the transferring of their civilian population into the occupied territory.[7]

The enforcement of international humanitarian law on international situations constituting occupation has relied heavily upon judicial processes, which are often ineffective.[8] The conventional enforcement mechanisms for international humanitarian law include different degrees of sanctioning, from State responsibility to liability for reparations.[9] However, these mechanisms have not been activated to ensure compliance with occupation law, resulting in a weakly enforced and routinely violated section of laws. In fact, the routine disrespect for occupation law in certain regions “barely gives rise to criminal proceedings” in many cases.[10]

Perhaps the largest violator of occupation law today is the State of Israel. Israel has normalized an apartheid state that constantly engages in the persecution of Palestinians living in the Occupied Palestinian Territories (OPT).[11] The state is based on settler-colonialism, the practice of replacing an indigenous population with an invasive settler society through means of repression and genocide of the indigenous peoples.[12] The violent persecution obviously defies international humanitarian law; however, the practice itself of settler-colonialism also stands in clear violation of occupation law, as it seeks to confiscate private property from Palestinians and transfer the Israeli population into internationally recognized Palestinian territories.

The OPT comprises the West Bank, including East Jerusalem, and the Gaza Strip. Despite Israel annexing East Jerusalem in 1967, international law still considers it an occupied territory.[13] Israel retains primary control over the OPT, regulating its borders, airspace, security, the movement of all people and goods, and the legal status of every resident.[14] As Israeli settlers continue to encroach on OPT land, Israeli law confers them a superior status, as compared to Palestinians, with a much larger provision of civil rights, land access, and freedom of movement guaranteed to them.[15] Palestinians are therefore relegated to second-class citizens in the small portion of territory they have left.[16]

One of the more recent violations of occupation law that Israel has committed is the forced evictions of Palestinians from Sheikh Jarrah, a predominantly Palestinian neighborhood in East Jerusalem. Mohammed el-Kurd, a Sheikh Jarrah resident, was asked on CNN if he supported the “violent” protests in response to the forced evictions of his community members. He responded, “Do you support the violent dispossession of me and my family?”[17]

Liberation for Palestinians from this apartheid regime will not be easily achieved. However, el–Kurd believes that people are increasingly beginning to see through the myths propagated by the Israeli state and the United States. He told the CNN anchor that people are beginning to “call an occupation for what it is, and call an aggressor for what it is.”[18] The international community has the imperative and ability to put actionable sanctions behind its occupation laws and end the Israeli occupation of Palestine.

[1] Geneva Conventions of 1949 and Additional Protocols art. 42, Oct. 18, 1907.

[2] Occupation and international humanitarian law: questions and answers, INTERNATIONAL COMMITTEE OF THE RED CROSS (Apr. 8, 2004), https://www.icrc.org/en/doc/resources/documents/misc/634kfc.htm.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Tristan Ferraro, Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context, Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities, 41 1-2 ISRAEL L. REV. 331, 331-357 (2008).

[9] Gentian Zyberi, Enforcement of International Humanitarian Law, INTERNATIONAL HUMAN RIGHTS INSTITUTIONS, TRIBUNALS, AND COURTS. 1, 1-24 (2018).

[10] Tristan Ferraro, Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context, Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities, 41 1-2 ISRAEL L. REV. 331, 331-357 (2008).

[11] A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, HUMAN RIGHTS WATCH (Apr. 27, 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution.

[12] Amanda Morris, What is Settler-Colonialism?, LEARNING FOR JUSTICE (Jan. 22, 2019), https://www.learningforjustice.org/magazine/what-is-settlercolonialism.

[13] Ayesha Kuwari, Israel’s Violations of International Law in the Occupied Palestinian Territories, HUMAN RIGHTS PULSE (May 21, 2021), https://www.humanrightspulse.com/mastercontentblog/israels-violations-of-international-law-in-the-occupied-palestinian-territories.

[14] A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, HUMAN RIGHTS WATCH (Apr. 27, 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution.

[15] Id.

[16] Id.

[17] CNN Newsroom, Israeli-Palestinian Clashes Escalate Dramatically, FACEBOOK (May. 11, 2021), https://www.facebook.com/JustVision/videos/259761829215713/.

[18] Id.

The 539th Electorate? An analysis on Judicial Activism in Elections

Posted on by guulr in Blog Fall 2021

Paris Nguyen is a junior in the School of Foreign Service studying International Politics and serves as an assistant editor for GUULR.

At the end of the night on November 8th, rather than there being a projected winner of the 2020 U.S. presidential election, there was contention, uncertainty, and most importantly, numerous legal questions awaiting the courts. However, the U.S. Supreme Court did not accept any challenges to the presidential election this time around. The role of the judiciary in elections does not exist in the U.S. Constitution and has, consequently, never been clearly defined. In the past, the Court had decided on a few landmark election cases but, in the end, the question of the judiciary’s role in the election process remains unclear today. In analyzing a few vital decisions from the Supreme Court, it becomes evident that the judiciary should practice judicial activism to protect votes and minimize corruption. Beyond those issues, the Court should remain reasonably uninvolved to maintain independence from politics. 

Minority protection in elections is an area that calls for judicial activism. In Harper v. Virginia Board of Elections, the Supreme Court ruled a $1.50 poll tax unconstitutional because it violated the Equal Protection Clause.[1] While the poll tax was not explicitly racially discriminatory, it inhibited voter participation from economically disadvantaged groups that were typically minorities. The court established the precedent that the affluence of the voter or the payment of any fee as a standard for voting constitutes a violation of the Equal Protection Clause.[2] The justification for this judicial involvement is considered as minority protection and set the future precedent to protect economically disadvantaged groups. Applying this idea forward, the courts should always practice judicial activism when taking cases concerning the right to vote. 

Political corruption in elections necessitates judicial activism as well. In McConnell v. Federal Election Commission, the Supreme Court upheld the ban on unrestricted soft money donations, justified by the government’s legitimate interest in preventing corruption by large financial contributions.[3] The Court’s activism in this situation was necessary as it helped to minimize the corrupting influence of big donors in politics. Another similar situation of political corruption arose regarding districting of Alabama’s senatorial districts where every district was represented by one senator regardless of its population. The legislature had been reluctant to redistrict because the current status quo gave more power to the rural areas where wealthier residents typically resided. In an eight to one decision, the court held that Alabama’s districting scheme violated the Equal Protection Clause and consequently required Alabama’s legislature to redistrict based on population.[4] In this case, the Supreme Court again stepped in to minimize the Alabama legislature’s attempt to give more voting power to the wealthy. In the two cases presented, the court justly utilized its power to minimize political corruption to promote society’s best interest. However, when it comes to other issues outside of the scope of minority protection or corruption, the court must tread carefully. 

Excessive judicial involvement in elections could make constitutional law appear as nothing more than just politics by another name. In Bush v. Gore, the U.S. Supreme Court ruled the Florida Supreme Court scheme for recounting ballots as unconstitutional because of the different standards applied from ballot to ballot and precinct to precinct.[5] There was consensus that the Florida Supreme Court issuing the recount was unconstitutional because the State Supreme court created new election law, a power only granted to the state legislature. Furthermore, the court ruled the Florida Supreme Court’s actions unconstitutional by a vote of seven to two. However, the court then went further to state that no constitutional recount could be fashioned in time.[6] This five to four ruling to stop the recount is where the case became contentious. As a direct result of the Supreme Court, the recount never happened, and George Bush was declared the winner of the election. Whether the recount would have changed the results or not, the world will now never know. In this case, an overreach of judicial activism that stopped the recount made the court the most important actor in the 2000 election, a situation that should never have occurred

The U.S. Supreme Court’s rejection of election cases pertaining to the 2020 election marks a step in the right direction of limiting judicial activism in election matters. After the 2020 presidential election, three primary cases came about that the court rejected. The first, Kelly v. Pennsylvania, which attempted to prevent Pennsylvania from certifying its election results due to its no-excuse absentee voting policy violating the US Constitution, was denied.[7] Texas v. Pennsylvania, which similarly attempted to nullify Pennsylvania’s election results, was denied for lack of standing.[8] Lastly, Trump v. Wisconsin Elections Commission was denied by the Supreme Court and declared moot for its wrongful application of the Electors Clause.[9] While all three cases varied in detail, their purpose was essentially the same: to change the results of the 2020 election. The Court made the right decision in avoiding these cases altogether because any decision from the Court would have been charged as partisan. In short, the Justices would have likely been accused of basing their decision on their political beliefs rather than actual Constitutional law, as their decision could have very well changed the outcome of the election in favor of their preferred candidate. In no situation could the Court have ruled without further complications arising as a result of its decision.

The Court’s role in elections should primarily be ensuring voter enfranchisement and preventing political corruption. With election issues unrelated to those two areas, however, the Court should remain minimally involved because it is important that the Court remain independent from politics. Rather, it is better to leave it to the legislatures to settle contentious election issues because they are elected representatives and can better carry out the will of the people. Non-elected judges should not affect the outcome of an election, especially since the president is elected by the people, not the courts.

[1] Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

[2] Id.

[3] McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

[4] Reynolds v. Sims, 377 U.S. 533 (1964).

[5] Bush v. Gore, 531 U.S. 98 (2000).

[6] Id., at pg 121.

[7] Kelly v. Pennsylvania, 240 A.3d 1255 (Pa. 2020), cert. denied, 592 U.S. _ (U.S. Feb. 22, 2021) (No. 20-810).

[8] Texas v. Pennsylvania, No. 22O155 (U.S. Dec. 11, 2020).

[9] Trump v. Wisconsin Elections Commission, 506 F. Supp. 3d 620 (7th Cir. 2020), cert. denied,592 U.S. _ (U.S. March 8, 2021) (No. 20-883).

Germany v. Phillip: The Foreign Sovereign Immunities Act (FSIA) and Art Restitution following World War II

Posted on by guulr in Blog Fall 2021

Jennifer Linares is a junior in the College studying government, history, and French and serves as a blog editor for GUULR.

Among the many atrocities that Nazis committed against victims of the Holocaust was the stripping of property from Jewish people before being sent to concentration camps. In recent decades, these acts of expropriation have become a highly contested subject in the field of international justice, as many Holocaust victims and their descendants have been filing suits in attempts to reclaim seized property, particularly works of art.

One of the most famous cases to come out of these art restitution efforts was Republic of Austria v. Altmann. In this case, the plaintiff, Maria Altmann, filed a suit against the Austrian government to reclaim five family-owned Gustav Klimt paintings that were stolen by Nazis after her family fled Austria following its annexation by Nazi Germany in 1938. As with many art restitution cases that were filed after World War II, Republic of Austria v. Altmann concerns interpretations of the Foreign Sovereign Immunities Act (FSIA), which establishes the circumstances under which a foreign sovereign nation can be sued in American federal or state courts.[1] In this case, the Supreme Court of the United States held that the FSIA applies retroactively.[2] Therefore, because the FSIA’s standards apply to situations that precede its creation, retroactive immunity did not apply to Austria and the Austrian government could be tried by an American court.[3] This allowed Altmann to move her case from its initial status as a domestic case in Austria to an international case in front of the U.S. Supreme Court, which ruled in favor of the restitution of the paintings to Altmann.

However, the ruling in Republic of Austria v. Altmann is by no means an indicator that all art restitution cases have been successful in their efforts. In fact, the court’s interpretation of the FSIA in this case is quite exceptional, as there have been many art restitution cases in which states have been granted immunity from litigation. This is particularly true of the ruling in Germany v. Phillip, in which the U.S. Supreme Court decided against the descendants of Holocaust victims seeking art restitution and did not allow them to file suit against Germany in an U.S. court.[4] The artwork in question was the Guelph Treasure, a collection of medieval ecclesiastical art that was purchased prior to World War II by Jewish art dealers. During the war, these art dealers were forced to sell the collection at a fraction of its original value to the agents of Hermann Wilhelm Göring, one of the most powerful figures in the Nazi Party.

In Germany v. Phillip, the Supreme Court ruled that exceptions of foreign immunity did not apply, arguing that because this act of expropriation was committed against German citizens and the FSIA’s exceptions “do not extend to a sovereign’s taking of the property of its own nationals,” the Guelph Treasure was not taken in violation of international law.[5] Additionally, while there are exceptions to the FSIA’s standards in cases of state-sponsored terrorism and international terrorism, there are no mentions of exceptions in cases of other heinous acts such as genocide or torture. The act’s failure to address these circumstances is especially unjust in the context of the Holocaust, as the court’s ruling in Germany v. Phillip fails to recognize how the forced sale of the collection constituted part of the Nazi’s greater plan to destroy the livelihoods of Jewish people. As a result, the court’s narrow interpretation in this case fails to consider genocide as a violation of international law and interprets the FSIA in a manner that not only prevented the plaintiffs from pursuing justice but also creates a negative precedent for future World War II art restitution cases.

[1] The Foreign Sovereign Immunities Act, Title 28, § 1605 (1976).

[2] Republic of Austria v. Altmann, 541 U.S. 677 (2004).

[3] Id.

[4] Federal Republic of Germany v. Philipp, 592 U.S. 19 (2021).

[5] Id.

DOES THE STATE SECRETS DOCTRINE REQUIRE A SECRET?

Posted on by guulr in Blog Fall 2021, Uncategorized

Lauren Scarff is a senior in the School of Foreign Service majoring in International Politics. She is currently the Editor-in-Chief for the Georgetown University Undergraduate Law Review.

On October 6th, 2021, the Supreme Court heard United States v. Zubaydah, a peculiar case that calls into question, among other pertinent national security law issues, the state secrets doctrine. Abu Zubaydah is a Palestinian man who was captured in Pakistan in 2002 under suspicion of being a top al-Qaeda leader. Although the CIA concluded in 2006 that Zubaydah is not a member of al-Qaeda, Zubaydah has remained in U.S. custody, primarily in Guantanamo Bay, since 2002.[1] This case, however, centers not on Pakistan, Cuba, or Guantanamo, but Poland. The European Court of Human Rights determined that, from December 2002 to September 2003, Zubaydah was held at a CIA black site located in Poland where he was subjected to waterboarding 83 times, locked in a small box for hundreds of hours, denied sleep, and forced to remain in stress positions. Polish officials are now investigating whether any Polish nationals were complicit in Zubaydah’s torture and, if so, to what extent. Pursuant to their investigation, Abu Zubaydah, his lawyers, and Polish prosecutors want to subpoena CIA contractors James Mitchell and John Jessen, but the federal government has blocked the subpoena by invoking the state secrets doctrine.[2][3]

The state secrets doctrine was first established in United States v. Reynolds, and it holds that government information should remain secret and not be revealed during litigation, even if the claimant has a right to that information, when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”[4] Given Zubaydah’s case hinges on information about top secret CIA black sites and torture methods, at first glance, it appears that the precedent set by Reynolds would clearly apply here. Zubaydah’s case is peculiar, though, because the information he seeks from the government is not actually secret. In 2014, the Senate Intelligence Committee released an unclassified executive summary of a report on the CIA’s use of torture. In this unclassified executive summary, Zubaydah’s name is mentioned 1,343 times, and the summary details Zubaydah’s torture.[5] The question is thus raised, does invoking the state secrets doctrine require a secret?

Part of the government’s argument hinges on the fact that the CIA has never confirmed or denied much of the information Zubaydah seeks. Therefore, the government argues that, without express government disclosure, information that appears to be public knowledge can still qualify as a state secret. In particular, the government argues that testimony from Mitchell and Jessen could jeopardize “clandestine liaison relationships,” likely referring to relationships with those foreign nationals aware of or operating within the Polish black site, which in turn could threaten other clandestine relationships and security services. The government claims that exposing these relationships could pose a threat to national security. In the government’s petition for a writ of certiorari, it chastised the Ninth Circuit opinion, which ruled in Zubaydah’s favor, for not showing proper deference to the government’s assessment of national security risks and what is or is not considered public information.[6] The government’s argument is bolstered by the fact that it seems that some of the information Zubaydah may want has not yet been made public. For instance, the exact location of the Polish black site and if any Polish nationals were operating in that black site.

However, Zubaydah’s lawyers claim that Polish prosecutors do not seek specific information on the Polish black site that has not already been made public. When asked what information the Polish prosecutors seek, Zubaydah’s lawyer replied “What he [the Polish prosecutor] does need to know is what happened inside Abu Zubaydah’s cell between December 2002 and September 2003. So I want to ask simple questions like, how was Abu Zubaydah fed? What was his medical condition? What was his cell like? And, yes, was he tortured?”[7] In essence, Zubaydah, his lawyers, and the Polish prosecutors want further detail on already public information, but supposedly do not seek classified information that has not already been made public in some manner.

The government’s insistence in this case on invoking the state secrets doctrine to protect already public information seems to signal an abuse in the government’s use of the state secrets doctrine. The Court has historically granted great deference to the government when it claims that certain information must be protected under the state secrets doctrine.[8] In fact, the mention of information potentially being a threat to national security effectively muzzles anyone seeking that information. In Zubaydah’s case, the government raises valid concerns about the potential for actual classified information to be released should the state secrets doctrine not be enforced, but if Zubaydah genuinely seeks only further details on already public information, the government’s claim to the privilege of the state secrets doctrine seems absurd. The relentless efforts from the government to protect already public information begs the question, what other information has the government suppressed in the name of state secrets and national security that perhaps should not fall under those privileges?

The Court may not issue an opinion on the government’s use of the state secrets doctrine and whether the doctrine requires an actual secret, as Justices Gorsuch, Sotomayor, and Breyer have asked if Zubaydah himself could testify and provide the information the Polish prosecutors seek.[9] This move would be unprecedented, as Guantanamo detainees’ communications are highly restricted due to security concerns. However, it could provide a compromise that does not require the Court to determine if the government can quash the subpoenas to Mitchell and Jessen in the name of the state secrets doctrine. If Zubaydah testifies to his own torture, the alleged state secrets that would be contained in Mitchell and Jessen’s testimony would not be made public, and the Polish prosecutors could obtain the information they seek. On October 15th, 2021, the government issued a letter to the Supreme Court noting that the Biden administration would allow Zubaydah to provide limited testimony to Polish prosecutors.[10] Zubaydah awaits the court’s decision to see if his testimony will, in fact, be the solution to this complex state secrets issue. 

[1] Rohini Kurup, Supreme Court to Hear State Secrets Case Involving Guantanamo Detainee, Lawfare (June 10, 2021), https://www.lawfareblog.com/supreme-court-hear-state-secrets-case-involving-guantanamo-detainee.

[2] Robert Barnes, Supreme Court considers whether information widely known can be state secret, Washington Post (Oct. 6, 2021), https://www.washingtonpost.com/politics/courts_law/supreme-court-guantanamo-zubaydah/2021/10/05/9546913e-261d-11ec-8d53-67cfb452aa60_story.html.

[3] Ian Millhiser, The Supreme Court confronts the CIA’s worst-kept secret, Vox (Oct. 6, 2021), https://www.vox.com/2021/10/6/22701048/supreme-court-torture-cia-abu-zubaydah-state-secrets-guantanamo-united-states.

[4] United States v. Reynolds, 345 U.S. 1 (1953).

[5] Millhiser, supra note 3.

[6] Kurup, supra note 1.

[7] Barnes, supra note 2.

[8] Kurup, supra note 1.

[9] Amy Howe, Argument over state secrets and CIA black sites takes unexpected turn in final few minutes, SCOTUSblog (Oct. 6, 2021), https://www.scotusblog.com/2021/10/argument-over-state-secrets-and-cia-black-sites-takes-unexpected-turn-in-final-few-minutes/.

[10] Ariane de Vogue, Biden admin tells Supreme Court that Guantanamo detainee can provide limited testimony, CNN (Oct. 17, 2021), https://www.cnn.com/2021/10/17/politics/biden-supreme-court-abu-zubaydah-guantanamo/index.html.

The Next Chapter of Vagrancy Laws in the United States

Posted on by guulr in Blog Fall 2021

Veronika Matysiak is a junior in the School of Foreign Service majoring in Culture and Politics. She is currently an Assistant Editor for the Georgetown University Undergraduate Law Review.

Vagrancy laws, which regulate public conduct and social order, have been a feature of English and American law for centuries. The body of vagrancy laws was subject to difference across states and localities, but governed offenses that would “unreasonably disturb or alarm the public,” including homelessness, loitering, begging, and other forms of disorderly conduct.[1] Modern jurisprudence, in particular Papachristou v. City of Jacksonville (1972), has found vagrancy statutes to be unconstitutional. However, despite this de jure ban, trespassing laws and anti-homeless measures have become a new method of enforcing the spirit of vagrancy laws.

            American vagrancy laws have roots in English work laws, namely the 1351 Statute of Labourers, which restricted the movement of serfs in search of better pay by requiring “able-bodied persons” to maintain consistent wage labor.[2] This common law tradition was continued in the American colonies and post-revolution order. Article IV of the Articles of Confederation specifically excepted “paupers” and “vagabonds” from receiving the full “privileges and immunities of free citizens.”[3] Though this idea was not included in the equivalent article of the Constitution, the notion persisted, especially during the Jim Crow era, as increasingly restrictive vagrancy laws were adopted across the South to limit social mobility for African Americans.[4] The contemporary history of vagrancy laws reached a peak during the Civil Rights and Counterculture movements of the 1960s, when they were used to justify arrests of nearly anyone deemed “subversive” by the police, even being described as “an escape hatch from the Fourth Amendment’s protections against arrest without probable cause.”[5] In 1962, Rev. Fred Shuttlesworth, co-founder of the Southern Christian Leadership Conference, was arrested for loitering on a street corner, solidifying perceptions that vagrancy laws could be applied by police with impunity to make arbitrary arrests.[6]

            Vagrancy laws were not always controversial. The Supreme Court previously upheld vagrancy laws in New York v. Miln (1837), explaining “We think it as competent and as necessary for a state to provide precautionary measures against this moral pestilence of paupers, vagabonds, and possible convicts; as it is to guard against the physical pestilence […].”[7] However, the Court reversed this position in Edwards v. California (1941), rejecting the previous notion that unemployment and poverty would create a threat to society and arguing that “poverty and immorality are not synonymous.”[8] The narrow standing of the Edwards decision allowed local enforcement of vagrancy laws to continue until the decision in Papachristou v. City of Jacksonville (1972). Finally, vagrancy laws were found to be unconstitutional for their failure to provide adequate notice of what constitutes criminal behavior and the lack of minimum guidelines to govern law enforcement.[9]

            Today, the idea of enforcing public social conduct has returned to regulate the actions of homeless people. The availability of official figures on homelessness in the United States is limited, though estimates average around 550,000 homeless individuals per year.[10] The highest homeless populations are concentrated in urban areas, often living in public areas and receiving limited resources from city management. The high visibility of homelessness in cities has led to many laws criminalizing certain behaviors often exhibited by homeless people, including panhandling, sleeping in public areas, and remaining in public places for too long.[11] This increased scrutiny on high-risk populations has significantly increased the incidence of confrontations between homeless people and police. In San Francisco, a 2013 survey found that 10-24% of people in jail had been homeless at the time of their arrest, even though only about 1% of San Francisco’s population is homeless.[12] This disparity is also pronounced when comparing homeless people living in shelters versus those living on the street. A study conducted between 2015 and 2017 reported that unsheltered homeless people experience ten times the number of police incidents as sheltered homeless people.[13] This issue is also important to consider through a racial lens, as nearly 40% of the homeless population in the United States is African American.[14]

            A relatively recent focus has been placed on the use of trespassing charges as a novel method of arresting homeless people without infringing upon First Amendment freedoms. In 2019, Eugene, Oregon, a city with one of the highest homelessness rates in the country, issued more trespassing charges than speeding tickets.[15] Strikingly, 75% of trespassing defendants were homeless.[16] This statistic is compounded by findings that African Americans are arrested on trespassing and vagrancy charges twice as often as white Americans.[17]

            Some hope remains for reversing this alarming trend. Courts have acknowledged the unique challenges facing homeless people before the law and carved out exceptions. In 2016, the Massachusetts Supreme Court ruled that necessity could be used as a legal defense for addressing criminal trespassing charges.[18] In 2019, the Ninth U.S. Circuit Court of Appeals ruled that camping and sleeping bans could not be upheld in Boise, Idaho if there were no alternative options for shelter.[19] These lower-level verdicts correspond with national trends seeking to avoid criminalizing homelessness. In 2015, the Department of Justice argued that “criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.”[20] Indeed, the criminalization of homelessness and associated activities is the next legal challenge in the arena of civil rights. As long as localities criminalize homelessness, this will continue to be the modern iteration of vagrancy laws, disproportionately targeting low-income communities and people of color in urban areas.

[1] Garner v. Louisiana, 368 U.S. 157 (1961).

[2] Vagrancy and Disorderly Conduct, American Law and Legal Information, https://law.jrank.org/pages/2240/Vagrancy-Disorderly-Conduct-History.html (last visited Oct 17, 2021).

[3] U.S. Art. of Confed. art. IV.

[4] Vagrancy and Disorderly Conduct, American Law and Legal Information, https://law.jrank.org/pages/2240/Vagrancy-Disorderly-Conduct-History.html (last visited Oct 17, 2021).

[5] Risa Goluboff, The Police Power That Shaped the 1960s: Vagrancy Law Time (2016), https://time.com/4199924/vagrancy-law-history/ (last visited Oct 17, 2021).

[6] Ibid.

[7] New York v. Miln, 36 U.S. 102 (1837).

[8] Edwards v. California, 314 U.S. 160 (1941)

[9] Vagrancy Laws, Encyclopedia of the American Constitution (2021), https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/vagrancy-laws (last visited Oct 17, 2021).

[10] The State of Homelessness in America, National Alliance to End Homelessness (2019), https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness-report-legacy/ (last visited Oct 17, 2021).

[11] Ryan Little, Cities Try to Arrest Their Way out of Homeless Problems ABC News (2020), https://abcnews.go.com/US/wireStory/cities-arrest-homeless-problems-71511969 (last visited Oct 17, 2021).

[12] Vera Report Links Homelessness to the Criminal Justice System, Vera Institute of Justice (2020), https://www.vera.org/newsroom/vera-report-links-homelessness-to-the-criminal-justice-system (last visited Oct 17, 2021).

[13] Five Charts That Explain the Homelessness Jail Cycle, Urban Institute (2020), https://www.urban.org/features/five-charts-explain-homelessness-jail-cycle-and-how-break-it (last visited Oct 17, 2021).

[14] Ryan Little, Cities Try to Arrest Their Way out of Homeless Problems ABC News (2020), https://abcnews.go.com/US/wireStory/cities-arrest-homeless-problems-71511969 (last visited Oct 17, 2021).

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] State Supreme Court Affirms Law Does Not Permit Criminalization of Homelessness, American Civil Liberties Union (2016), https://www.aclu.org/press-releases/state-supreme-court-affirms-law-does-not-permit-criminalization-homelessness (last visited Oct 17, 2021).

[19] Andrew Weber, Supreme Court passes on Boise Camping Ban Case, opening up Austin’s rules to lawsuits KUT Radio (2019), https://www.kut.org/crime-justice/2019-12-16/supreme-court-passes-on-boise-camping-ban-case-opening-up-austins-rules-to-lawsuits (last visited Oct 17, 2021).

[20] In The Shadow of Bell V. Boise, Street Spirit (Jan. 14, 2016), https://thestreetspirit.org/2016/01/14/in-the-shadow-of-bell-v-boise/.

Jury Selection and Derek Chauvin’s Trial

Posted on by guulr in Blog Spring 2021, GUULR Blog

BY: Emily Kim

Emily is a senior at Georgetown University studying Government and American Musical Culture. She is currently an assistant editor for the Georgetown University Undergraduate Law Review.

Jury selection plays a crucial role in criminal trials, and it is difficult to avoid the issue of personal biases even with the legal infrastructure established to circumvent this issue. March 9th marked the first day of jury selection in the trial of Derek Chauvin, the Minneapolis police officer involved in the murder of George Floyd last year on May 25th, 2020. He faced charges of manslaughter, second-degree murder, and third-degree murder—the last of which was reinstated by Judge Peter A. Cahill on March 11th.[1] On April 20th, Chauvin was found guilty of murder and manslaughter after the jury deliberated for over ten hours.[2] The jury selection process was not easy, however, with this being a high-profile case that could set a precedent for future similar cases.

The process is called voir dire, meaning “to speak the truth,” and it tests potential jurors’ prejudices and neutrality.[3] This is crucial to fulfilling the rights granted by the Sixth Amendment, which promises a “speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”[4] However, the reality of this abstract promise has been repeatedly challenged throughout the history of criminal trials, particularly and especially in the context of race.[5] It is an undeniable fact that Derek Chauvin’s trial involves the issue of racism, as the death of George Floyd sparked a nationwide Black Lives Matter movement for racial justice and against police brutality last summer. With this in mind, it is necessary to scrutinize racial practices in voir dire.

Peremptory challenges—which are limited and allow potential jurors to be excluded by the prosecution or the defense without the need for reason or explanation—have been contested for being racially discriminatory despite existing to eliminate bias.[6] In 1985, the Burger Court ruled in Batson v. Kentucky that “purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.”[7] Thus, a “neutral explanation” must be provided when a peremptory strike is challenged.[8] In a 1995 per curiam opinion in Purkett v. Elem, however, the Rehnquist Court held that the decision to strike a Black man on a peremptory challenge because “he had long, unkempt hair, a mustache, and a beard” is in fact “race neutral,” or a reason independent of the man’s race.[9] This arguably makes it easy to circumvent the requirements established in Batson and think of any “race-neutral” excuse to exclude a potential juror. Aside from peremptory challenges, prospective jurors can be excused for cause, and these challenges are limitless and can arise when they are deemed unqualified or unfit to be impartial.[10]

Because of the high-profile nature of this case, the jury selection process is particularly methodical, and parties involved were careful not to be racially discriminatory. Further, it is nearly impossible to find people who have neither heard about the case nor watched the gruesome video; therefore, the questioning was centered more toward determining whether potential jurors would set aside their biases.[11]

Of the individuals who have been selected, the majority are white, and many of them have either expressed uncertainty of Chauvin’s culpability or have shared that they would be open-minded, depending on the facts presented in the case despite holding certain opinions.[12] Concerns have arisen over the jury selection process; journalist Elie Mystal, who is a Black woman, believes that having a majority-white jury—which seems inevitable at this point—would result in a “perfunctory” trial that will end with a plea deal.[13]

Chauvin’s defense was permitted eighteen peremptory challenges, while the prosecution had ten.[14] The defense used fourteen of these strikes, including on a Hispanic woman who struggled with her English and on a Hispanic man who had martial arts training; while the prosecutors invoked a Batson challenge on the basis of race, Judge Cahill agreed with the defense’s “race-neutral” excuses.[15] On the other hand, the prosecution used the strike on a white man who said “people should not second guess police officers’ decisions” as well as on a white woman who expressed that she highly trusts the police.[16]

The vehicles through which either side can dismiss a prospective juror can pose issues of racial bias, but they are also somewhat effective in preserving the neutrality of the jury. Further, it is unclear how much the racial makeup of the eventual jury will impact the case’s outcome. That being said, the defense’s strategy will likely be to redirect some of the blame to the other inexperienced former officers involved, as well as to attribute the cause of death to Floyd’s drug use and underlying health condition.[17] Depending on the strength of the facts and arguments to be presented, having a majority-white jury made up of people selected largely because they do not express strong opinions on the racial aspect of this case could have made it difficult for Floyd to get the justice he deserves.

As the nation saw, however, Chauvin was rightfully convicted of murder and manslaughter. In his case, the transparency in jury selection and the trial in general ensured more fairness, tact, and impartiality, setting an important procedural precedent for future criminal cases.

[1] Nicholas Bogel-Burroughs, What to Know About the Trial of Derek Chauvin The New York Times (2021), https://www.nytimes.com/live/2021/derek-chauvin-trial-explained?name=styln-floyd-trial®ion=TOP_BANNER&block=storyline_menu_recirc&action=click&pgtype=Article&impression_id=&variant=show.

[2] Eric Levenson & Aaron Cooper, What we know about the jurors selected so far in Derek Chauvin’s trial CNN (2021), https://www.cnn.com/2021/03/10/us/derek-chauvin-trial-jurors/index.html.

[3] Voir dire, Legal Information Institute, https://www.law.cornell.edu/wex/voir_dire.

[4] U.S. Const. amend. XI.

[5] Shamena Anwar, Patrick Bayer, & Randi Hjalmarsson, The Impact of Jury Race in Criminal Trials, 17 The Quarterly Journal of Economics 1017 (2012), https://doi.org/10.1093/qje/qjs014.

[6] Id. at 1018.

[7] Batson v. Kentucky, 476 U.S. 79, 86 (1986).

[8] Id. at 98.

[9] Purkett v. Elem, 514 U.S. 765, 769 (1995).

[10] Challenge for Cause, Legal Information Institute, https://www.law.cornell.edu/wex/challenge_for_cause.

[11] Amy Forliti, Jury selection paused for ex-cop charged in Floyd’s death AP NEWS (2021), https://apnews.com/article/derek-chauvin-trial-jury-e4acea4516571b9c2af8cce685e221f2.

[12] Trial of Derek Chauvin, charged in George Floyd’s death, begins with jury selection, CBS News, https://www.cbsnews.com/news/derek-chauvin-trial-jury-selection-george-floyd-death-case/ (last visited Mar 11, 2021).

[13] Elie Mystal, The Acquittal of Derek Chauvin Has Already Begun The Nation (2021), https://www.thenation.com/article/society/chauvin-jury-selection/.

[14] Levenson & Cooper, supra note 2.

[15] Id.

[16] Id.

[17] Bogel-Burroughs, supra note 1.

A Review of “To Protect and Serve”

Posted on by guulr in Blog Spring 2021, GUULR Blog

BY: Alex Ragland

Alex is currently a line editor for the Georgetown University Undergraduate Law Review.

The phrase “To Protect and to Serve” originated as the motto for the Los Angeles Police Department before being adopted by departments throughout the country. The popular phrase has turned out to be quite misleading. Through a series of former decisions, the courts have affirmed that the police have no legal obligation to prevent harm except under specific circumstances.

In Warren v. District of Columbia (1981), the District of Columbia Court of Appeals decided that the police were not obligated to protect three women during a home invasion. They plainly stated that “a government and its agents are under no general duty to provide public services, such as police protection, to any particular citizen.”[1] They reasoned that “absent a special relationship between the police and an individual, no specific legal duty exists.”[2] Warren v. District of Columbia stated that the police have a duty to perform if there is a special relationship with the individual, such as the individual being in custody.[3] Absent a special relationship, the police also have a duty once they have “embarked upon services under circumstances where it was reasonably foreseeable that a citizen might rely on their performance.”[4] The court defined one such circumstance as the police telling an individual that “help is on the way.”[5] Warren v. District of Columbia decided that police departments are only responsible for the protection of certain members of a community under specific circumstances.

Since the pivotal decision in Warren, courts have continuously upheld that the police do not have a duty to protect. In the case DeShaney v. Winnebago County Department of Social Services (1989), the Winnebago County Social Services Department was accused of failing to protect a young boy from his abusive father.[6] The Supreme Court decided that government agencies are not required to “protect the life, liberty, and property of its citizens against invasion by private actors” under the Due Process Clause.[7] They further stated that the Due Process Clause “cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.”[8] Therefore, according to the court, because the boy was in the custody of his father—a private actor—the state actor had no obligation to protect him.[9] Thus, it has been definitively stated that government agencies do not have a duty to protect outside the bounds and requirements of State custody.[10] Unless someone is within the limits of police custody, there is no legal duty for officers to prevent harm.

More recent court cases have upheld the precedents set in Warren and DeShaney, including the infamous Castle Rock v. Gonzales (2005). In 2005, the Supreme Court heard the case of Castle Rock v. Gonzales. Jessica Gonzales sued the police department after her husband, whom she has a restraining order against, violated the court order. He later abducted and killed her three children.[11] The police officers did not attempt to enforce the restraining order, even after Gonzalez called multiple times asking for help. The Supreme Court upheld the precedent set in DeShaney and affirmed that State actors, in this case police departments, have no legal duty to protect.[12]

The idea that the police do not have an obligation to ‘protect and serve’ has been upheld in court cases over the past few years. After the 2018 Parkland shooting, a group of students sued the local police department for not protecting them. The District Court dismissed the suit, stating that “for such a duty to exist,” the student “would have to be considered to be in custody” and since “schoolchildren are not in a custodial relationship with the state,” there is no mandate to protect them, further affirming the DeShaney decision.[13] It may seem shocking that, despite their motto, police departments are not obligated to protect and serve. Further, courts have repeatedly affirmed the idea that, barring specific circumstances, there is no constitutional obligation for the police to protect and serve.

[1] Warren v. District of Columbia, 444 A.2d 1 DC: Court of Appeals 1981.

[2] Ibid.

[3] Ibid.

[4] Ibid.t

[5] Ibid.

[6] DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Castle Rock v. Gonzales, 545 US 748 (2005).

[12] Ibid.

[13] L.S. v. Peterson, Case No. 18-cv-61577-BLOOM/Valle, 12 (S.D. Fla. Dec. 12, 2018).

TOWARD QUALIFIED IMMUNITY REFORM

Posted on by guulr in Blog Spring 2021, GUULR Blog

BY: Yeiji Seo

Yeiji is a sophomore in the College at Georgetown University studying economics. She is currently a line editor for the Georgetown University Undergraduate Law Review.

Calls to eliminate “qualified immunity” for law enforcement officers have intensified with the House of Representatives passing the George Floyd Justice in Policing Act of 2021 on March 3.[1] The House similarly passed an earlier version of the bill in June 2020, but the act failed to pass the Republican-controlled Senate at the time.[2] Democratic lawmakers expect the legislation will reduce police violence against people of color by increasing measures to hold police accountable.[3] Rep. Ilhan Omar, D-Minn., described the continued trauma experienced in the Minneapolis area following George Floyd’s death in May 2020: “Time and time again we have witnessed the people who are sworn to protect our communities abuse their power.”[4]

Notably, the Act includes a provision to amend Section 1979 of the Revised Statutes of the U.S. and essentially prevent local and federal law enforcement officers from receiving qualified immunity.[5] As applied today, qualified immunity protects government officials from trials involving allegations that an official violated a plaintiff’s rights; the protection, however, does not apply to violations of “‘clearly established’ statutory or constitutional rights.”[6] Section 102 of the bill, which concerns only law enforcement officers, proposes adding that “it shall not be a defense…in any action brought under [Section 1979]…that ‘(1) the defendant was acting in good faith…or (2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established.’”[7] Critics of the bill have questioned its potential effectiveness, highlighting the limited control the federal government has over state and local policing. Local developments addressing qualified immunity, however, have already begun to occur independently of federal legislation. On March 29, the New York City Council voted to end the practice of qualified immunity for New York Police Department (NYPD) officers, who compose the largest police force in the country.[8] Yet challenges against the role of qualified immunity in constitutional litigation are by no means a recent trend—they reflect a long-standing debate surrounding whether the applications of qualified immunity have fulfilled their intended role.

The Supreme Court first articulated the doctrine of qualified immunity in the 1967 case of Pierson v. Ray as a response to 42 U.S.C. § 1983, a statute that imposes civil liability on “every person” who violates another’s federal rights.[9] In this case, involving a Section 1983 suit against police officers, the Court argued that qualified immunity was necessary to shield law enforcement officials from financial burdens when acting in “good faith.”[10] Chief Justice Earl Warren delivered the majority opinion, stating that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”[11] Thus, qualified immunity emerged as protection to encourage police officers to perform their duties and exercise their discretion without fearing financial consequences.[12]

Fifteen years later, this original intent underlying the qualified immunity doctrine evolved in Harlow v. Fitzgerald.[13] In particular, the Court established provisions for evaluating qualified immunity, clarifying that law enforcement officials would be liable for civil damages only if a violated constitutional right was “clearly established” at the time of the violation.[14] The Court justified this threshold immunity question by maintaining that an official could not be expected to refrain from conduct because of its unlawfulness if the action had not been identified as unlawful or understood as unlawful by the official.[15] Along with the potential financial burdens mentioned in Pierson, the majority opinion in Harlow emphasized the additional costs that arise for society as a whole from frequent claims against both the innocent and guilty in the absence of such qualified immunizations.

 Justice Lewis Powell highlighted “the diversion of official energy from pressing public issues… deterrence of able citizens from acceptance of public office… and [dampening of ardor] of public officials in the unflinching discharge of their duties” as social costs qualified immunity could combat.[16] Under the test established by Harlow, however, a law enforcement officer could avoid not only financial liabilities but also participation in discovery and trial even after violating an individual’s federal rights—with the rationale that the acknowledged, violated right was not clearly established.[17]

The subsequent interpretations of what constituted clearly established law and the resulting applications of qualified immunity proved to perhaps detract from the original purpose that led to its creation. Dissenting from a denial of certiorari in 2020 for the case Baxter v. Bracey, Justice Clarence Thomas reaffirmed his doubts about qualified immunity jurisprudence, asserting that “[l]eading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test.”[18] He thus found no basis for the applied inquiry into clearly established law, citing that “the Court adopted the test not because of ‘general principles of tort immunities and defenses,’ but because of a ‘balancing of competing values’ about litigation costs and efficiency [in Harlow]…”[19] In 2014, Alexander Baxter, a homeless man, burglarized a house and fled to hide after perceiving a helicopter looking for him.[20] Once a canine unit arrived and discovered Baxter, he surrendered. Although his arms were raised to indicate surrender, Officer Spencer Harris released his dog—resulting in Baxter suffering a bite to his arm.[21] Baxter sued Officers Harris and Brad Bracey claiming excessive use of force, but the appellate court granted the officers qualified immunity on the basis that “Baxter [did] not point us to any case law suggesting that raising his hands, on its own, is enough to put Harris on notice that a canine apprehension was unlawful in these circumstances.”[22] They concluded that Harris did not violate clearly established law, and he was entitled to immunity.

The House vote for the George Floyd Justice in Policing Act passed with a 220-212 vote, mostly along party lines.[23] Although the Senate is no longer Republican-controlled, at least 10 Republican members must vote in favor of the bill with the Senate Democrats for it to pass. While this “landmark police reform bill,” as described and supported by President Biden, may fail to survive Senate consideration, these proceedings encourage the rethinking of a doctrine that has allowed and will continue to allow instances of police misconduct to go unpunished.[24]

[1] George Floyd Justice in Policing Act of 2021, H.R. 1280, 117th Cong. (2021).

[2] George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. (2020).

[3] Chloee Weiner, House Approves Police Reform Named After George Floyd, NPR (March 3, 2021), https://www.npr.org/2021/03/03/973111306/house-approves-police-reform-bill-named-after-george-floyd.

[4] Id.

[5] H.R. 1280, 117th Cong. (2021).

[6] Legal Information Institute, Qualified immunity, Cornell Law School, https://www.law.cornell.edu/wex/qualified_immunity.

[7] H.R. 1280, 117th Cong. (2021).

[8] Luke Barr, New York City moves to end qualified immunity, making it the 1st city in US to do so, ABC News (March 29, 2021), https://abcnews.go.com/Politics/york-city-moves-end-qualified-immunity-making-1st/story?id=76752098.

[9] 42 U.S.C. § 1983.

[10] Pierson v. Ray, 367 U.S. 547, 555 (1967).

[11] Id. at 550.

[12] Id. at 554.

[13] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[14] Id. at 818.

[15] Id. at 819.

[16] Id. at 814.

[17] Id. at 816.

[18] Baxter v. Bracey, 590 U.S. 1, 4 (2020).

[19] Id.

[20] Baxter v. Bracey, 751 Fed. App’x 869, 869-873 (6th Cir. 2018) (App. 1a).

[21] Id.

[22] Id.

[23] Weiner, supra note 3.

[24] Id.

A Brief Legal History of Gang Violence in New York City

Posted on by guulr in Blog Spring 2021, GUULR Blog

BY: Jennifer Linares

Jennifer is a sophomore in College at Georgetown University studying history, government, and French. She is currently a blog editor for the Georgetown University Undergraduate Law Review.

New York City has been an enclave for Puerto Rican immigrants since the 19th century and saw the greatest influx during the “Great Migration” of 1946-1964, in which the already-established Puerto Rican communities of East Harlem, the South Bronx, and the Lower East Side saw an increase in population and expanded their borders.[1] With these changes in the city’s demographics came a change in the perceptions of delinquency. While the juvenile delinquency in New York City included gangs of various racial and ethnic backgrounds, there was a much larger sense of sympathy for White gangs than there was for Black or Latino gangs.  

In the summer of 1954, the District Attorney for Kings County, New York charged four white male teenagers, who later became known as the Brooklyn Thrill Killers, for crimes committed in the Williamsburg neighborhood of Brooklyn, including the murder of a Black homeless man named Willard Menter and an assault on two girls. However, the “bookish” nature of the teens garnered public sympathy throughout the trial and caused many spectators to question the structural causes for youth juvenile delinquency.[2]

The charges of the Brooklyn Thrill Killers case were eventually dismissed, but the same could not be said for the Michael Farmer case in 1957. In this case, Black and Puerto Rican members of two gangs – the Egyptian Kings and the Dragons – murdered fifteen-year-old Michael Farmer, who was believed to be a member of a rival gang. During the trial, Dr. Maurice Greenhill, a psychiatrist and director of the New York City Community Mental Health Board directed an investigation of people’s reactions to Farmer’s murder, the findings of which revealed that many residents believed that the murder was not due to structural factors but to racial tensions and to the presence of newcomers in the city.[3] This increased speculation towards ethnic migration and neighborhood borders also occurred in other urban cities in the 1950s and 1960s such as Chicago, where Puerto Rican gangs such as the Young Lords became increasingly controversial due to their calls for Puerto Rican empowerment and self-determination and began to be targeted by the FBI.

In a hearing on juvenile delinquency after the Brooklyn Thrill Killers case, psychiatrist Frederic Wertham found that all the crimes committed by the teenagers were inspired by those in crime comics and claimed the psychological harm of mass media was the prevalent cause of these acts of violence, not the city’s failures.[4] However, the discrepancies between this case and the Farmer case indicate that negative perceptions of racial and ethnic minorities and immigrants in New York City in the 1950s did also influence public reactions to instances of gang violence. On the one hand, the public upheld that the Brooklyn Thrill Killers were good people that were wronged by society and remained sympathetic towards them. On the other hand, the murder of Michael Farmer seemed to validate the public’s concern about immigrant communities and reinforce negative stereotypes about them.

The biases present in these two cases, as well as the general perceptions of gang violence in New York City, also highlight the limitations of New Deal liberalism. The mayor of New York City at the time, Robert F. Wagner Jr., was a New Deal Democrat that gained support from liberals, labor unions, and moderate Democrats during his mayoral campaign. His father, New York Senator Robert F. Wagner Sr., also sponsored some of the most important New Deal legislation during his time as senator, including the Social Security Act of 1935, and the Housing Act of 1937. However, Mayor Wagner largely failed to improve race relations in New York City, suggesting some of the failures of New Deal liberalism in the area. After the Farmer murder, Wagner promised to crack down on crime by strengthening law enforcement and counseling programs, but failed to address other underlying issues that may have contributed to the murder, such as discrimination against Black and Latino communities and underestimation of what needed to be done to address race relations. The Wagner administration also silenced many reactions from Black and Latino families, many of whom feared that the case would worsen pre-existing stereotypes and generalizations. In doing so, New York City’s leadership created a narrative that downplayed the effects of race relations on youth gang violence and “clung onto a vision of their city as a place that was not divided into hostile camps – even as it became just that.”[5]

[1] Clara E. Rodriguez, Puerto Ricans: Immigrants and Migrants, a Historical Perspective (Project Portfolio, 1990), 2-3.

[2] Anders Walker, When Gangs Were White: Race, Rights, and Youth Crime in New York City, 1954-1964, 55 St. Louis U. L.J. 1371, 1371-1372 (2011).

[3] Robert W. Snyder, A Useless and Terrible Death: The Michael Farmer Case, “Hidden Violence,” and New York City in the Fifties, 36 JUH 236, 236-237 (2010).

[4] Walker, supra note 2, at 1372.

[5] Snyder, supra note 4, at 243.

The Constitutionality of Trump’s Impeachment

Posted on by guulr in Blog Spring 2021, GUULR Blog

BY: Jack Little

Jack Little is a junior in the School of Foreign Service studying international politics, philosophy, and Spanish. He is currently a line editor for the Georgetown University Undergraduate Law Review.

On February 13, former President Trump made history by becoming the first president to be acquitted during their Senate impeachment trial after already having left office.[1] Notably, even the Republicans who voted to acquit seemingly accused him of having committed impeachable offenses. Minority Leader McConnell said, “There is no question – none – that President Trump is practically and morally responsible for provoking” the riots at the Capitol.[2] However, McConnell argued, the Senate cannot impeach a president who has already left office, and therefore “President Trump is constitutionally not eligible for conviction.”[3] These strained arguments, aimed at simultaneously appeasing Trump supporters while steering the Republican party away from Trump, do not hold up to muster.[4] Not only is there precedent for late impeachment, there are also practical considerations that clearly demonstrate the constitutionality of impeaching and convicting presidents after they have left office.

The trial of Secretary of War William Belknap in 1876 established the precedent for late impeachment. Belknap, who had been accused of corruptly receiving bribes, resigned before he could be impeached, but the House decided to impeach him nonetheless.[5] During his Senate trial, Belknap’s counsel argued, as did Trump’s, that because he was now a private citizen, he was no longer subject to impeachment; it was unconstitutional for the Senate to proceed. The Senate debated this argument and found that he was “amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.”[6] Although he was ultimately acquitted, as only a majority and not two thirds of Senators voted to convict, this case established a precedent for acknowledging the constitutionality of late impeachment.

Precedent is an incredibly important tool for determining whether a branch of government’s actions are constitutional. Indeed, the Supreme Court has ruled that “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”[7] Thus, Congress, whose actions are rarely the subject of judicial review, must turn to precedent when deciding whether late impeachment is constitutional, and the only precedent for late impeachment prior to Trump’s second impeachment is that of the Belknap case.[8]

The House impeachment managers succinctly laid out the practical reason for why late impeachment must be constitutional in their “January exception” argument. According to Representative David Cicilline, if late impeachment were unconstitutional, it would allow that “our most powerful officials can commit the most terrible abuses and then resign, leave office, and suddenly claim that they are just a private citizen who can’t be held accountable at all.”[9] In other words, any impeachable offense committed by a president could go unpunished if they occurred near the end of their term or if they resigned soon after. Trump’s lawyer Bruce Castor responded that there could be no January exception because if a president did in fact commit impeachable offenses, they could simply be charged criminally after leaving office; they would not actually go unpunished.[10] Castor’s argument implies that impeachment is a criminal process, one in which all charges must be spelled out in the criminal code, but this is not the case. According to a House guide on impeachment, “Less than one-third of all the articles the House has adopted have explicitly charged the violation of a criminal statute.”[11] Since most impeachments have not referred to specific criminal offenses, there might not be any remedy to a president’s impeachable conduct other than their late impeachment if they resign or their term expires before the Senate can try them.

Castor’s argument also implies that the sole purpose of impeachment is removal from office, which ignores a significant component of impeachment: the ability to disqualify a president from future public office if they are convicted. If impeachment were solely a process of removal, why would the framers include in the Constitution the Removal and Disqualification clause?[12] This clause demonstrates an additional purpose to impeachment other than the mere removal from office. In many cases, those who are convicted in the Senate or leave office before being convicted cannot realistically win a future election and are unlikely to be appointed to a public office anyways.[13] The law does not guarantee their disqualification from future office, however, so it is important that Congress retains its constitutional ability to disqualify former presidents from office who have been convicted by the Senate, even when they leave office before their trials.

For their part, Trump’s attorneys made other arguments in his defense. First, they attacked the impeachment procedure for denying Trump due process. Attorney David Schoen criticized the House’s “snap impeachment” as too hastily conducted.[14] He also criticized “the denial of any opportunity ever to test the integrity of the evidence offered against Donald J. Trump in a proceeding seeking to bar him.”[15] Here, he criticizes the Senate impeachment trial for not allowing further scrutiny of the evidence presented against Trump, even though the leaders of both parties agreed to the trial’s rules at its outset.[16] This faulty process, he says, shows that the underlying reason for Trump’s impeachment is actually “political gain.”[17]

Second, Trump’s defense team argued his speech on January 6 was “constitutionally protected political speech.”[18] Because political speech “is the kind of activity to which the First Amendment offers its strongest protection,” Trump must be acquitted, argued Attorney Michael van der Veen.[19] Otherwise, Castor warned, “This Chamber and the Chamber across the way will change [majorities] one day, and partisan impeachments will become commonplace.”[20]

However, these two arguments should be set aside as secondary to the constitutionality argument because so many Republican Senators justified their votes to acquit with the latter argument. For example, along with Senator McConnell, the entire Senate GOP leadership team—Whip John Thune, Republican Conference Chairman John Barasso, Republican Policy Committee Chairman Roy Blunt, Vice Chair of the Republican Conference Joni Ernst, and Republican Senatorial Committee Chairman Rick Scott—relied on the constitutionality argument to justify voting not guilty.[21] The Senate Republican conference’s reliance on the constitutionality argument is not surprising, since it allowed them to avoid offending Trump’s political base and also not endorse his actions, but it clearly shows which argument they view as more important.[22]

            Given the Belknap precedent and these practical considerations, the Constitution clearly permits the impeachment of a president after he or she has left office. Rather than out of any serious concern for the Constitution, most Republican Senators unfortunately chose to hide behind it for the purposes of political expediency.

[1] Nicholas Fandos, Trump Acquitted of Inciting Insurrection, Even as Bipartisan Majority Votes ‘Guilty’, N.Y. Times (Feb. 13, 2021), https://www.nytimes.com/2021/02/13/us/politics/trump-impeachment.html.

[2] 167 Cong. Rec. S28,735 (daily ed. Feb. 13, 2021)(statement of Sen. McConnell)

[3] Id.

[4] Carl Hulse & Nicholas Fandos, McConnell, Denouncing Trump After Voting to Acquit, Says His Hands Were Tied, N.Y. Times (Feb.13, 2021), https://www.nytimes.com/2021/02/13/us/mcconnell-trump-impeachment-acquittal.html?action=click&block=associated_collection_recirc&impression_id=c25f8861-6f11-11eb-82e7-c5beddebc667&index=1&pgtype=Article&region=footer.

[5] Congressional Research Service, The Impeachment and Trial of a Former President 4 (2021).

[6] Id.

[7] U.S. v. Nixon, 418 U.S. 683, 703 (1974).

[8] Congressional Research Service, supra note 5.

[9] 167 Cong. Rec. S24,595 (daily ed. Feb. 9, 2021)(statement of Rep. Cicilline)

[10] 167 Cong. Rec. S24,601 (daily ed. Feb. 9, 2021)(statement of Counsel Castor)

[11] House Parliamentarian, Y 1.2:P 88/2, House Practice: A Guide to the Rules, Precedents and Procedures of the House 612 (2017).

[12] U.S. Const. art. I, § 3, cl. 7.

[13] Brian C. Kalt, The Constitutional Case for the Impeachability for Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Texas Review of Law & Politics 13, 126 (2001).

[14] 167 Cong. Rec. S27,669 (daily ed. Feb. 12, 2021)(statement of Counsel Schoen)

[15] Id.

[16] Brakkton Booker, Trump’s Legal Defense Team Concludes Case In Fraction Of Allotted Time, NPR (Feb. 12, 2021), https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/12/967460409/trumps-legal-defense-team-concludes-case-in-fraction-of-allotted-time.

[17] 167 Cong. Rec. S27,670 (daily ed. Feb. 12, 2021)(statement of Counsel Schoen)

[18] 167 Cong. Rec. S27,677 (daily ed. Feb. 12, 2021)(statement of Counsel van der Veen)

[19] Id.

[20] 167 Cong. Rec. S24,599 (daily ed. Feb. 19, 2021)(statement of Counsel Castor)

[21] Press Release, Senator John Thune, Thune Statement on Conclusion of Senate Impeachment Trial (Feb. 13, 2021), https://www.thune.senate.gov/public/index.cfm/press-releases?ID=879F5D24-FCCD-49F0-8E57-E7604722BC09; Press Release, Senator John Barrasso, Barrasso Statement on Impeachment Vote (Feb. 13, 2021), https://www.barrasso.senate.gov/public/index.cfm/news-releases?ID=136D20B1-C7B5-407A-B895-DCEADC562844; Press Release, Senator Roy Blunt, Blunt Statement On Vote To Acquit Former President Trump (Feb. 13, 2021), https://www.blunt.senate.gov/news/press-releases/blunt-statement-on-vote-to-acquit-former-president-trump; Press Release, Senator Joni Ernst, Ernst Statement on Conclusion of Impeachment Trial (Feb. 13, 2021), https://www.ernst.senate.gov/public/index.cfm/press-releases?ID=6640487D-7B01-4FE6-A413-5F1773F87B5B; Press Release, Senator Rick Scott, Sen. Rick Scott: It’s Time to Get Back to Work (Feb. 13, 2021), https://www.rickscott.senate.gov/sen-rick-scott-its-time-get-back-work.

[22] Hulse & Fandos, supra note 4.