Atheist Mark Janny will now be able to sue for being sent back to prison for refusing to practice Christianity.
In America, we have freedom of religion — which means people are allowed to practice whatever religion they want, or no religion at all. It's in the Constitution. Some people, naturally, are confused about this, and instead believe they have the freedom to require others to practice their religion. This has caused a great many problems in our great nation over the years.
One such person is Colorado Department of Corrections Parole Officer John Gamez, who regularly required his parolees to live at a Christian homeless shelter he had an informal arrangement with, which forced them to practice Christianity whether they believed in it or not. On Friday, the US Appeals Court for the Tenth Circuit granted one of Gamez's parolees, Mark Janny, permission to sue him for it, finding that Americans have "the basic right to be free from state-sponsored religious coercion."
Janny was represented in court by the ACLU and Americans United For Separation of Church and State, both of which issued statements after the fact:
Alex J. Luchenitser, associate vice president and associate legal director at Americans United: "This is a victory for Mark and for religious freedom. Our country's fundamental principle of church-state separation guarantees that everyone has the right to believe, or not, as they choose. That means that our government must never force anyone to practice a faith that is not their own, and of course must never jail anyone for refusing to submit to religious proselytization."
Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief: "The government presented Mr. Janny with a blatantly unconstitutional choice: Go to church, or go to jail. As the court's decision makes clear, the First Amendment flatly prohibits such religious coercion, and state officials should know better."
Janny was let out of prison in 2015, with 24 months of parole. As a condition of his parole, Officer Gamez required him to move into the Fort Collins Rescue Mission, a Christian homeless shelter, and participate in their Steps to Success program, wherein he would be exposed "to the good news of Jesus Christ in a supportive community." Janny was told he would be required to pray, to participate in Bible studie,s and to engage in other forms of Christian worship. He was not too happy about that, as he was and is an atheist.
The appeals court's ruling explained the program:
Steps to Success "is a 3 to 10 month transitional, Christian-based program that provides men and women help to become productive, self-sufficient citizens," and that "exposes [participants] to the good news of Jesus Christ in a supportive community." It combines spirituality—including bible study and Christian worship—with life-skills workshops, "work therapy," and case management. Participants are required to attend a daily morning prayer service and a daily 5:00 p.m. service in the Mission's chapel, in addition to an outside church service each Sunday and several sessions of evening bible study per month. They are also required to observe dorm-style rules, including set mealtimes and curfew, and to refrain from drugs or alcohol. Among the express objectives of Steps to Success is for its participants to achieve "Full program compliance."
In addition to requiring Janny to do all that, the program's directors told him he wasn't allowed to tell anyone he was an atheist and repeatedly tried to convert him.
Mr. Janny was forced to attend two Christian bible studies at the Mission led by Mr. [Tom] Konstanty. On February 5 or 6, Mr. [Jim] Carmack summoned Mr. Janny to his office for religious counseling. Mr. Janny made it clear he did not want to talk about religion, yet Mr. Carmack proceeded to discuss theological theories of existence and the history of the Bible. Mr. Carmack also challenged Mr. Janny's beliefs, attempting to convert him to Christianity by means of Pascal's Wager.
Janny told Gamez he had people he could stay with, but was told he had to stay at the shelter. He then asked if he could stay, but not participate in the Bible studies and the prayer sessions or go to church, but was told repeatedly by Officer Gamez and Jim Carmack, the mission's director, that it was either do that or go back to prison. When Janny skipped out on worship services, he was kicked out of the shelter. Since not living in the shelter was a violation of his parole, Janny was sent back to prison for five months.
In 2016, Janny brought a lawsuit against Gamez, Carmack, Konstanty and Gamez's supervisor, Lorraine Diaz de Leon, representing himself in the proceedings, which is never a good idea. The federal district court dismissed his case, saying he failed to make the case that forcing him to pray or go to prison was a violation of the Establishment Clause.
To analyze the Establishment Clause claim, the district court applied the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971). It found that Mr. Janny had not shown his placement in the Program lacked a secular purpose or that its principal effect was to advance religion, and that Mr. Janny had also failed to bring forth a genuine issue as to any government entanglement with religion. It accordingly held Mr. Janny had failed to adduce evidence sufficient to show Officer Gamez violated the Establishment Clause. The district court then decided Mr. Janny's Free Exercise Clause claim on the second prong of qualified immunity, finding Officer Gamez had not violated clearly established law.
The Lemon test, however — as the 10th Circuit Court of Appeals noted in its order — is not applicable in every situation in which the Establishment Clause is violated, particularly in cases involving religious coercion. Thus, the appeals court reversed the lower court's decision and gave Janny permission to sue Gamez and Carmack. (They held that there wasn't sufficient proof that Konstanty was acting on behalf of the state.)
While this doesn't necessarily mean Janny will win his lawsuit, it's a step in the right direction. Of course, the notion that any court wouldn't consider forcing a parolee to practice Christianity or go back to prison to be the world's most obvious violation of the Establishment Clause is really not great.
Probation and parole are supposed to provide alternatives to incarceration, but the reality is quite different. In 2019, 45 percent of prison admissions were people who violated parole or probation conditions. The vast majority of these were not new criminal charges, but rather technical offenses like screwing up paperwork, missing appointments or drug tests, or cleaning one's bathroom while wearing a SCRAM bracelet. Or, as it turns out, not converting to Christianity.
While the answer isn't horrific Truth In Sentencing laws -- so popular with the "tough on crime" crowd! -- having people live in constant fear of being sent back to prison for something stupid isn't the best plan either. It's also very expensive, as imprisoning people for technical supervision violations costs us $2.8 billion a year.
Surely, there must be a better way.
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This lawsuit was brought to you, no really, by the letter E.
Five cops have filed a lawsuit saying they're being harassed ... by a Black Lives Matter mural that no longer exists.
Last week, Eric Figueroa, Michael Foley, Chris Moore, Robert Parham, and Jule Tannock — who deserve to be named and shamed, and we're happy to help! — sued the city of Palo Alto and the Palo Alto Police Department in Santa Clara County Superior Court for discriminating against them by having a Black Lives Matter mural.
It almost goes without saying that this lawsuit is a disgusting, fucked up, racist piece of garbage. But sometimes you have to just choose to find things like this hilarious instead of horrifying. Especially after living through the last five years.
So, basically, I'm pretty sure I have a new favorite lawsuit. Let's read this thing!
Before we get into this, we should probably point out that the very offensive mural in question NO LONGER EXISTS. It was intended to be temporary and decommissioned last November "due to the anticipated shift in weather and concerns over public safety and traffic impacts." But the mural is still hurting the officers' fee-fees because, I guess, it wasn't explicitly removed because they said so.
According to the Palo Alto Five, their "careers have been materially and adversely affected, and irreparably harmed and damaged by the conduct" of the city and the Palo Alto PD, who "created and allowed to exist a harassing, discriminatory, and retaliatory work environment[.]"
And how, exactly, did the city of Palo Alto do that?
Beginning in or around June 2020, Defendants City and PAPD encouraged, endorsed, and otherwise permitted local efforts to engage in and showcase public art installations, including murals, throughout the City. Specifically, City officials permitted and encouraged artists to create sixteen individual murals on City property that, side-by-side, spelled out "Black Lives Matter[.]"
HOW DARE THEY.
And they were hurt, so hurt, by the very mean mural!
"Plaintiffs were required to and did employ, and will in the future employ, physicians and health care providers to examine, treat, and care for Plaintiffs, and did, and will in the future, incur medical and incidental expenses."
But don't worry, we have an answer! It was apparently the letter "E" that injured Officers. Figueroa, Foley, Moore, Parham, and Tannock so grievously.
The Mural featured several images inside each letter of the phrase, including the portrait of and a quote by Joanne Chesimard Within the letter "E" of the word "Matter."
The iconography at issue in the letter "E" of the mural is an image of Joanne Chesimard, better known as Assata Shakur, who was convicted in 1977 for the murder of New Jersey State Trooper Wermer Foerster, a White police officer. In 1979, While serving a life sentence for the murder, Shakur escaped from prison and ended up in Cuba Where she now has refuge and Where the Cuban government refuses to extradite her to the United States. As a result of her conviction and subsequent prison escape, Shakur was placed on the FBI's Top Ten List 0f Most Wanted Domestic Terrorists.
Further, the Mural included a portion of the logo attributed to the New Black Panthers, which is identified by the Southern Poverty Law Center ("SPLC") as a hate group. Specifically, the SPLC defines the New Blank Panthers as a "Virulently racist and antisemitic organization Whose leaders have encouraged Violence against the Whites, Jews, and law enforcement officers."
And these cops had to BE IN THE SAME TOWN as this piece of art they didn't like! The indignity!
The very offensive letter E in question also included a quote from Assata Shakur, but, for some reason, the officers decided not to mention the very terrible quote in their complaint: "We must love each other and support each other." (We should probably also mention that Assata Shakur was convicted after an unfair trial following years of being held in the worst conditions possible, was shot by police after she had surrendered with her hands in the air, and because of that was probably physically unable to shoot a gun at Foerster.)
But back to these poor, poor cops, who were required to ... exist at the same time as this mural that offended their very delicate sensibilities. And the mural also had THE AUDACITY to be located not far from the police department!
"Law enforcement officers, including Plaintiffs, were forced to physically pass and confront the Mural and its offensive, discriminatory, and harassing iconography every time they entered the Palo Alto Police Department."
Our friends over at Techdirt looked it up, and the mural wasn't actually visible from the police station, nor did the cops have to pass it unless they decided to take a specific route to the office. So that's even better.
Is it wrong that I kind of can't wait to see them respond to the inevitable motion to dismiss and try to explain how, exactly, BLM street art discriminates against and harasses them on the basis of race?
Failure to abate the harassing and discriminatory conduct in and of itself is a form of retaliation for raising such issues (i.e., Plaintiffs raised issues that Violate the FEHA and, instead of acting, Defendants ratified the conduct and insisted that it remain and persist).
They also say they were retaliated against by the city "refusing to eliminate the harassing and discriminatory conduct, and failing or refusing to investigate Plaintiffs' complaints."
Nope. Not a thing.
Could the city have forced the artist to change the very offensive E? Probably. Any court that got into the issue would have to figure out whether it was government speech (in which case the government gets to decide the content) or a forum for others (in which case they might have to provide forums for other artists). Here, the city commissioned the mural to promote the message that Black lives matter, so it's probably government speech. Earlier this month, some white supremacists lost their bid to remove DC's BLM street mural and paint something psychotic of their own because the mural was "government speech."
But, either way, the five cops were very sad and no one even took the mean mural down for them!
Such retaliation, discrimination, and harassment are known by all Defendants and throughout the chain of command and the Department, and has been carried out and/or ratified by Defendants, or Defendants have otherwise failed to take steps to prevent or undo the retaliation, or both. This is a continuing and ongoing violation and therefore subject to the continuing violation doctrine.
I'm confused. Did no one tell them that the mural has been gone for eight months?
But, obviously, these very triggered officers are entitled to ALL THE DAMAGES.
Plaintiffs have suffered both general and special damages in the past and present and will continue to suffer such damages in the future for an unknown period of time. Plaintiffs have also suffered and continue to suffer losses in earnings and other employment benefits, as well as past and future non-economic injury. This has caused damage to their professional reputation, their ability to promote, their ability to be selected for other units, and their ability t0 work. Moreover, it has adversely affected their personal health and well-being, including medical expenses, that are anticipated into the future and may force an early retirement. Plaintiffs have also suffered extensive general damages in the form 0f anxiety, anguish, and mental suffering. Plaintiffs' damages are continuing and in an amount not yet determined, but in excess 0f $25,000.
The complaint was also filed against 100 unnamed John Doe defendants, who, we guess, didn't take the mural down?
Representing Eric Figueroa, Michael Foley, Chris Moore, Robert Parham, and Jule Tannock are Matthew McNicholas, Douglas Winter, and Emily Pincin of the firm McNicholas & McNicholas. McNicholas & McNicholas usually handles personal injury cases, but has apparently also decided to expand into bullshit racist litigation. I think someone might need to tell them that "cop" is not a protected class.
Here's hoping for sanctions!
The beautiful photo of the mural at the top of the page was used with permission from photographer Benny Villareal. You can find more of his work on his website!
Here's the complaint. It's amazing. (Though be warned that, in addition to everything else that's wrong with it, the complaint is also a prime example of how lawyers make things incomprehensible by trying to sound smarter than they actually are.)
[ Techdirt ]
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Really, really good things!
Even with President Joe Biden and not that evil orange lump in the White House, a lot of things still suck — particularly when we're talking about the legal world.
But guess what!
Some actual, good things happened in the law this week!
So, as a special Friday afternoon treat for you, I am going to take off my misanthropy hat and try my hand at giving you some happy news. At least this once.
Illinois banned cops from lying to children to throw them in jail!
Yesterday, Illinois became the first state to ban cops from lying to kids while they're interrogating them. (Yes. The first state ever.)
It's a sad truth that, not only can police lie, they lie to people they're questioning all the damn time. Most people either don't know how common it is for police to lie or don't really think about it. But it is a huge problem and isn't part of the disclosures required when people are read their Miranda rights.
Of course, lying to and otherwise deceiving people is a major cause of false confessions, especially when we're talking about children and people with intellectual disabilities. Don't believe me? Just watch the police take Brendan Dassey's "confession" in Making a Murderer for one example. No matter how young and confused a child is, no matter whether they really even understand what is going on, police will lie and push and do whatever they can to get a confession. You can also watch a video of a sobbing child, who just found his murdered sister's body, nodding along as police told him that if he just said he did it, he could go home to his mom.
This is a great first step. We need to see more bills like this across the country — for children, people with disabilities, and, frankly everyone. If we didn't know better from watching the American criminal law system operate, it would be hard to believe that so many cops and prosecutors are strongly in favor of tactics that have been proven to put innocent people in prison.
More of this, please. Like Terrill Swift said at the signing, "One day in prison wrongfully is too long."
Someone actually got a good jury verdict for police violence!
A jury awarded Jose Gomez $1.75 million in his civil rights suit against two Houston cops who beat the shit out of him in 2017. This is a huge deal, not because police brutally injured a Hispanic man, but because the case actually went to trial — and a man who was wronged by police got some justice for it.
There is body camera video of Jacob Simmerman and Christopher Heaven throwing Gomez face-first onto the pavement while he screams in pain, tearing ligaments in his shoulder and injuring his back. He was hurt so badly that the cops had to bring him to the hospital after they arrested him, where his injuries were documented. And still, the city of Houston tried to argue in court that Gomez had hurt himself playing with his daughters.
Oh, and the very dangerous offense that led to the arrest in the first place? A cop honked at him when he didn't start driving as soon as a stoplight turned green, so he pulled into the lane on the right to let him by. The same cop then pulled him over for "making an illegal turn." They also charged him with "resisting arrest," but — presumably after someone watched the body cam video — that charge was dropped.
Luckily, the jury saw through the Houston PD's bullshit and found Simmerman and Heaven liable for more than $1 million in damages.
The city of Houston argued that the officers should get qualified immunity, which protects cops from any liability for most of their actions in most cases. But US District Judge George Hanks, an Obama appointee, ruled that Heaven and Simmerman were not entitled to civil immunity because, "Given the relatively minor traffic violation of which Gomez was suspected and the amount of force that Heaven and Simmerman used to effect the arrest, a reasonable jury could find that no reasonably prudent officer under the same or similar circumstances could have believed that the conduct in question was justified."
Houston City Attorney Arturo Michel whined to the press about the verdict, saying,
"The Houston Police Department Internal Affairs Division fully investigated this incident and found both officers to have acted within policy at the time and acted as reasonable prudent officers. The testimony and evidence established that. Unfortunately, the jury disagreed. We respect the process, but the City disagrees with the verdict."
The California legislature passed a guaranteed income plan for kids aging out of foster care!
On Thursday, the California Senate and state Assembly unanimously passed a bill that would create the first guaranteed income plan in the US. It would give monthly payments of up to $1,000 for kids who are aging out of the foster care system.
Young adults aging out of the foster care system are among the most vulnerable people in our society. When young people in foster care in California turn 21, they lose access to most of the benefits they had been relying on. Homelessness is common.
A pilot program in Stockton launched in 2017 has proven to be a huge success. Not only did the money help people pay for things like rent, food, and childcare, but it also improved recipients' mental health and helped them find jobs.
Unlike the vast majority of American government assistance programs, there are no rules requiring the recipients to use the money only on specific things. And since people, and not the government, are the best arbiters of what they need, that's exactly the way it should be.
Some good things happened in the legal world this week!
Let's keep 'em comin'!
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GOP Senators Support Infrastructure Bill They Negotiated, Wait No They Don't, Just Kidding They Do, Wait ...
It's your Sunday show rundown!
A few days ago, President Joe Biden announced that a bipartisan deal had been reached for infrastructure. But the GOP was hoping this meant Democrats would stop pursuing any other separate infrastructure bill. And even though the White House clarified this, Republicans raced to see who could Lucy-with-the-football the deal first, because of all the betrayal. (Politico Playbook reports this morning that the GOP "rebellion" has mostly settled down, at least for now.)
Of course none of this tyranny of the minority would be possible if
self-appointed king Senator Joe Manchin would use the leverage he has on Republicans, rather than his own party, as Jonathan Karl on ABC's "This Week" pointed out:
Manchin doesn't really have a good explanation for why he doesn't use his leverage to extract concessions from Repu… https://t.co/u4pLLOGtZr— Aaron Rupar (@Aaron Rupar) 1624803698.0
If you watch that clip, you can tell by Manchin's stammering and dodging that the thought of using his leverage to get things from Republicans rather than take away things from Democrats never entered his mind.
Manchin complained about all the attention he seems to personally seek out, saying he "doesn't wish this on anybody." Cry us a river. But because Manchin apparently can't wield power responsibly, the GOP is taking advantage. Take Louisiana GOP Senator Bill Cassidy on NBC's "Meet The Press":
WATCH: @SenBillCassidy says “there is bipartisan opposition to the non-hard infrastructure portion of the bill.”… https://t.co/te2DRxITL8— Meet the Press (@Meet the Press) 1624807506.0
Republicans shouldn't be shocked that Democrats didn't just stop all progress because of a tentative deal. It was never a secret what Democrats wanted to do. Whether Dems do another bill through reconciliation isn't up to Cassidy or any other Republican. If he thinks the bipartisan deal is good he should vote for it, and stop trying to set up excuses for why their future betrayal is justified. But of course, Republicans can't be trusted. Until Biden signs it, they are liable to tank the bipartisan compromise they negotiated, just for political points.
GOP Senator John Barrasso made this clear to Maria Bartiromo on Fox News's "Sunday Morning Futures":
BARRASSO: [T]here are a lot of Republicans, every Republican, who say that there's no way they are gonna support this first bipartisan bill if it is in any way linked and connected to this much bigger basically freight train heading towards socialism.
BARTIROMO: So [Senator] Lindsey Graham says he's out. He's no longer voting YES. Are you no longer voting YES?
Do we have a deal? Or do we not have a deal?
BARRASSO: I talked to a number of members of the bipartisan group. They are all reluctant now to move forward. They're gonna need more assurances from the president that there is no link, no connection to between the bipartisan bill and this bill that the Democrats want to do.
It's not shocking Lindsey Graham is out. I would expect nothing less from that parasitic assclown. But Barrasso, being the third ranking member in the Senate GOP, is as obstructionist as Mitch McConnell. This idea that they needed any excuse to block progress is laughable.
We guess we'll just see what happens. As we said, Politico Playbook reports that the Republican "rebellion" has died for now and they are satisfied with Biden's clarification that he definitely supports the bipartisan bill that just got negotiated:
On Sunday three of the five Republicans who negotiated it — MITT ROMNEY (Utah), BILL CASSIDY (La.) and ROB PORTMAN (Ohio) — made it clear that the president's walkback was good enough for them. So does that mean it will pass? Too early to tell.
You know, until or unless something upsets them again. What an enjoyable ride they're taking us on!
Have a week!
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