Can People of Color Stand Their Ground?

By Priscilla Jimenez | Apr. 26, 2012

You’ve probably heard a lot of public outrage over the Trayvon Martin case. In case you haven’t, here’s a quick synopsis of the story: George Zimmerman, 28, a neighborhood watch volunteer, fatally shot Martin on February 26, 2012. He said the killing was in self-defense, and he reported to 911 dispatchers that Martin appeared to be a “suspicious” looking guy just walking around the neighborhood. Zimmerman proceeded to follow him, got out of his vehicle and fatally shot him. At the heart of this tragedy lies Florida’s Statute Chapter 776, which deals with justifiable use of force, including the controversial stand your ground provision.

The stand your ground provision of the Florida Law allows an individual to use deadly force when they feel a reasonable threat of death or serious injury. Both critics and supporters of the law have argued over precisely what it allows, when it applies and whether it achieves its intended effect. In light of the shooting of Martin, where Zimmerman claimed he was acting in self-defense and essentially “standing his ground” against the “threat” presented by Martin’s presence, the question of who may stand their ground begs to be asked.

As a result, on April 19, 2012, it was announced that a task force made up of a “diverse and qualified group” (according to Governor Rick Scott) has been convened to review certain laws. Officially, the group is tasked with reviewing laws and policies that affect public safety, including the seemingly confusing stand your ground provision of Florida Statute Chapter 776. The task force will hold public meetings throughout the state to hear from local citizens. The first meeting took place May 1, 2012 in Tallahassee. You can also get in contact with the task force by emailing them directly at CitizenSafety@eog.myflorida.com, and according to their website, they invite public input.

One of the issues that the task force will hopefully target and as a result clarify, is whether or not this type of law is discriminatory in practice and what can be done to prevent individuals who feel threatened by minorities from harming and potentially killing them. Geraldo Rivera weighed in on the situation by stating that “parents of Black and Latino youngsters” should not allow their children outside of the home wearing “hoodies.” Hopefully the task force will come to a more practical solution. The perceived threat of minorities is a very real problem, and may result in more casualties if laws like Chapter 776 aren’t clarified or repealed.

Priscilla E. Jimenez is an Associate at the Locks Law Firm in Philadelphia and works on personal injury, pharmaceutical litigation, products liability, and medical negligence and malpractice cases. In addition to being a member of the Hispanic National Bar Association, Jimenez also serves as a director on both the Board of the Hispanic Bar Association of Pennsylvania (HBA of PA) and the HBA of PA’s Legal Education Fund Board. She can be reached at 215-893-3420 or pjimenez@lockslaw.com.

PLEASE NOTE: The views expressed are those of the people writing and not necessarily those of the HNBA.

A Safer Neighborhood for Whom?

A Safer Neighborhood for Whom? 

By Priscilla E. Jimenez

If Arizona is successful in the defense of its recently passed immigration law, the “Support Our Law Enforcement and Safe Neighborhoods Act,” better known as SB1070, then anyone who appears upon “reasonable suspicion” to be an illegal alien, may be detained by the police in the state of Arizona. Furthermore, if they have probable cause, the police may arrest an individual without a warrant whom they believe has done things that would make him or her deportable under federal law. As a young Hispanic attorney, who occasionally forgets her wallet in another purse, and as a result walks around without proper identification, a law like this gravely concerns me.

On April 23, 2010, Arizona Gov. Jan Brewer signed into law what has been called the nation’s toughest bill on illegal immigration. In July of 2010, a preliminary injunction was granted in response to the Department of Justice’s challenges of four provisions of the law. On April 11, 2011, the 9th Circuit affirmed the preliminary injunction enjoining enforcement of those four provisions from being put into practice in the state of Arizona.

On December 12, 2011, after granting the state’s petition for certiorari, the Supreme Court announced that it would hear oral arguments this term on the Obama Administration’s challenges to Arizona’s immigration law. Although a specific date for oral arguments has yet to be set, it will likely be in April of 2012. The four provisions of the law which are being challenged are:

This law, and similar laws which have been enacted in South Carolina, Alabama and Utah, is shaping up to be one of the key issues in the 2012 presidential election. President Obama has criticized these laws since their inception and continues to support the Department of Justice in its efforts to challenge the provisions of the Arizona law which are “unable to be reconciled with federal law.”

Putting forth a tough stance on immigration control has become a key issue during the GOP primary. One way candidates are demonstrating this is through their support for state laws regulating immigration which shows how they would crack down on unauthorized immigration if elected president. One example of such a supporter is Republican Gov. Mitt Romney who, as of January 11, 2012, has been endorsed by Kris Kobah, Kansas’ Secretary of State and the chief architect of the Arizona and Alabama immigration laws. On his website, Romney announces that he is “so proud to earn Kris’s support,” and continues on to say that “Kris has been a true leader on securing our borders and stopping the flow of illegal immigration into this country…I look forward to working with him to take forceful steps to curtail illegal immigration and to support states like South Carolina and Arizona that are stepping forward to address this problem.” Romney has also said that if elected president, he would veto the DREAM Act, legislation that would allow for undocumented immigrants who were brought to this country as minors to get unconditional legal status upon meeting certain criteria.

Arizona v. United States is shaping up to be a landmark decision and its impact on the Hispanic community will be monumental. If provisions, such as the ones being challenged in the Arizona immigration law, are permitted to be enforced by states, the subsequent impact on anyone who looks like “an alien” is immense. The police, upon “reasonable suspicion” — already arguably a low standard — would be able to detain a person for failure to carry legal documentation demonstrating his or her legal right to be in this country. The successful implementation of a law like this could greatly affect you, your family, your clients and anyone who “appears” to be an alien. The year 2012 promises to be epic one regarding immigration control. Staying abreast of current events, the status of this case and the stance of candidates on immigration issues is imperative.

 

Priscilla E. Jimenez is an Associate at the Locks Law Firm in Philadelphia and works on personal injury, pharmaceutical litigation, products liability, and medical negligence and malpractice cases. In addition to being a member of the Hispanic National Bar Association, Jimenez also serves as a director on both the Board of the Hispanic Bar Association of Pennsylvania (HBA of PA) and the HBA of PA’s Legal Education Fund Board. She can be reached at 215-893-3420 or pjimenez@lockslaw.com.

[1] Lyle Denniston, Another landmark ruling in the offing, SCOTUSBLOG (Dec. 12, 2011, 11:09 AM), http://www.scotusblog.com/2011/12/another-landmark-ruling-in-the-offing/

The ABA Ratings and Minority Nominees: Shedding Light on Disparate Impact

November 28, 2011

By Robert Raben, president and founder of The Raben Group and Chair of the HNBA Standing Committee on Judicial Endorsements

The secrecy around the American Bar Association’s judicial vetting process is a fact, probably in their view necessary in order to arrive at firm judgments about professionals. For many, acutely among those of us who identify and promote talented minority candidates for the bench, that secrecy breeds suspicion, particularly when the outcomes seem to have a disparate impact on minorities.

But we don’t know the contours of that impact until we address the threshold problem: the lack of transparency.

The New York Times’ Charles Savage is the latest intrepid investigator to try to get behind the veil of the ABA to determine whether that organization’s judicial vetting process is a good one, especially with respect to minority nominees. And, apparently, it’s not pretty.

To be slightly unfair to the ABA, as a matter of politics — that is, actual senators voting yea or nea on actual questions — the ABA is in my view of regrettably modest influence on policy across the board, particularly in light of the fact that it represents the most powerful people in the nation –attorneys. ABA positions, so carefully constructed, are treated almost completely pretextually by federal elected officials.

If the Member agreed with the position, it will be sure to be raised in debate. If the Member disagrees with the position, it is of zero moment.  This is not an indictment of the ABA’s substantive positions — which, except for the Individual Rights Subcommittee, I’ve long stopped following.  Rather, it’s because the ABA refuses to put either of the things that matter to electeds — votes [constituents] or money [fundraising] — behind its policies. Hortatory works for prayer; not in politics.

Gloria Navarro of Nevada was rated poorly by the ABA, but with the muscle of Majority Leader Harry Reid of Nevada, was confirmed 98-0. Res ipsa loquitur.

Re: judges, those of us who jockey for minority judges in particular, progressive judges generally, the ABA’s process matters because their “dinging” of our candidates is relied upon by the conservative right as a pretextual excuse for inaction or opposition. Their evaluation has two related but distinct tracks: 1) a “partial” not qualified rating, in which some group of ABA vetters rate the candidate poorly; and 2) a pure not qualified rating, which by ABA practice merits the ABA seeking to testify against the nominee in the Senate Judiciary Committee.

Both tracks are problematic. The latter for obvious reasons, but at least in that forum their endorsement can be challenged. The former is de facto devastating, as it operates with very rare exception as a stealth veto. That is, in the land of nitty gritty, the White House counsel or Department of Justice adds the threatened unstellar endorsement to the list of variables over which they will have to fight for a particular minority nominee, and are not indefensibly motivated to move on to the next candidate — too frequently the white managing partner at the white shoe law firm.

Complaints about poor pay aside, it is almost never the case that there aren’t many qualified nominees for a particular opening on the federal bench; it is the rare White House counsel that will spend days or weeks fighting with the ABA or any other entity to prove merit or excellence over a single nominee; the pressure to fill the constant openings is too great, the politics against nominees generally too strong.

For some of us who work on judges’ nominations and confirmations day in and out, these efforts by Savage and others to dig out what’s going on in the ABA are at least welcome, at most desperately needed. Generally speaking the process lacks transparency; it’s an open question [although not to me] whether it would be a better process if it were less inscrutable.  Specifically speaking, figuring out why minorities more than whites seem to crash on the establishment shoals seems to be of crucial importance.

This problem isn’t limited to the ABA, of course. It’s likely the same in most of the senators’ judicial selection committees, the Senate Judiciary Committee, and other august but usually wholly unrepresentative bodies of decision-makers who make or break particular nominees.

I have been on the Hispanic National Bar Association’s judicial nominating committee for some years now [although I do not in this piece speak for them]. I have not seen a single Latina nominee who wasn’t either hit or slammed by some establishment group — a bar association, a leader of a not for profit, a bar leader, a judicial committee — as being “intemperate”; lacking “seasoning”; “inexperienced”, “not that bright”, etc etc.

This is neither partisan nor ideological in my view; it’s an American problem. These inchoate criticisms come from all quarters — the conservative right when the nominee is putatively progressive, but equally damning from the liberal left when the nominee isn’t progressive enough.  And in the closed tunnel of a secret process, whispers become tornadoes faster than the candidate can know either how to respond or seek shelter.

Re-read the letter that Lawrence Tribe nastily wrote about Sonia Sotomayor; “she’s [inter alia] a bully”. Stir water, mix. This happens candidate in and candidate out, across the nation. The exception that is Justice Sotomayor occurred because President Obama went with her despite his former teacher’s nastygram.

There’s a possibility that the entire cohort of Latina lawyers who want to be federal or state judges just don’t deserve it yet, but I’m not buying it.

I think there’s something else going on, and I think that unearthing what may be going on within the ABA’s cloistered process may help us get to the bottom of this.

I spend a great deal of time working on the newest possible cohort — openly gay nominees — which President Obama — and thus far two Senators, Schumer and Boxer — have the courage to identify and send up to the Senate. The sample size is still too small to know what disparate impact gays will have in the process, but I can see the whiffs already.  How do you talk about a nominee’s “spouse” or “partner”?  What’s the screening process and background check for the “partner”?  Was knocking on doors against Proposition 8 tantamount to “gay activism”?  Was the lesbian’s ad [yawn] on match.com too intemperate?  

We who do this work are not or should not be afraid of data and open-ness. The closet tends to produce stuffy and stifled outcomes. I lived in one for years, I know.

Thank you, Charlie Savage for prying open the doors to the ABA chamber and deriving some numbers. Rather than scramble to defend or explain, let’s figure out a way to have more open and hard and meaningful conversation about what is going on. For every tsk tsk we’ll hear about a minority candidate that just wasn’t “seasoned” or of the proper “judicial temperament”, we might learn that the people doing the vetting, or the criteria relied upon, may be rooted in presumptions and parameters that aren’t as useful as they could be in determining whether or not a candidate will make a great or good judge.