Monthly Archives: December 2009

Running While Black

The following comes from Rob Collins, who was a student in one of my classes last year. He's quite youthful looking. He's also a student leader, and an important participant in the life of the school. He sent it to me originally as an email, then allowed me to post it here:

For perspective on this, I have a short afro. Somebody else with a short afro, described to have been wearing different clothes than I was, allegedly committed a robbery near where I was at 9 am on Thursday morning, Dec 10, 2009. I was running to campus from a bookstore in a t-shirt and slacks with a book in my hand, and a Coral Gables Police Sergeant A. Escobar saw me and pulled his car in front of me. I stopped.

“Put your hands on the hood of the car.” Without moving, “What? Why?” Getting out of the car, “Put your god damn hands on the hood of the car.” As I did what he said, “Why? What's going on?” Approaching me, “Interlock your fingers.”

It went on; he swore at me some more, I did what he said… He handcuffed me and told me to lay across the hood of the car. Because I wouldn't put my face, forehead, nose, or cheeks on the hood of his car, he told me to 'stop resisting' and threatened me with violence.

Eventually he calmed down and the cuffs were taken off of me. I gave him my ID. He checked it out. He apologized. We all went home. However, I'm not likely to ever forget laying across the hood of a police car in handcuffs while being sworn at and threatened. I hope it never happens to you. And so…

Hello Sergeant A. Escobar of the City of Coral Gables Police Department,

I hope you're well. When it's all said and done, my problem is only with the way you conducted yourself. I completely agree that I fit a description of some one who you were looking for and I was near the location in question and I was running in street clothes. That you wanted to stop me is not my problem.

When you stopped me, however, I was given a half second to comply with your having barked orders at me before you were swearing at me. Why? Because I was not IMMEDIATELY doing what you wanted? I had no idea what was going on. I must say that I'm not used to putting my hands on the hoods of police cars(never happened before, actually), so I think that I was understandably in a little shock. But instead of simply keeping things calm, you escalated.

So then you cuffed me. Because I did not want to press my own face against the hood of your car, you threatened me, telling me about some sort of general consequence of physical harm because I wouldn't “stop resisting.” If I hadn't done anything, you said, then there'd be no problem; do you think that I'm going to put my face, my actual nose and mouth, on the hood of your car and that having to do that would amount to “no problem”?

No problem for YOU, yeah. You're not the one being accosted. You're not the one handcuffed and pressed down on the hood of a police car, across the street from his own school being treated like a criminal. You're not the one with his friends and classmates driving by wondering what he did. You're suffering no humiliation, enduring no event that will stay with you for the rest of your life. You're the officer! In our interaction today, you were the offender. You were justified in STOPPING me, but your level of hostility toward a calm, completely responsive person only because he fits a description and is running is inexcusable.

Afterward, you spoke so much about de-escalation and safety, but believe me, I was not de-escalated or comforted by your swearing at me and subsequently threatening me. You spoke of always being able to safely go home to your daughters, but if I was on edge, your hostility definitely would've pushed me towardviolence, not away from it. Your hostility in response to my calm and respectful demeanor was wholly uncalled for, and if I was a criminal who wasn't already riled up by having been caught stealing, your swearing at me and threatening me in response to my serenity would have been what pushed me to aggression.

You and your colleague, whose name I did not get, were remarkably angered just because I wanted answers. When I was upset (but still not hostile), your colleague had the brilliant thought that yelling at me to sit down would help me relax (thankfully, other officer calmly requested that I sit down while it got sorted out, to which I responded immediately and peacefully).

Hello? Does it usually work to calm people down by yelling commands at them?

You interpreted being articulate as being defiant. You interpreted wanting to know what was happening as fighting back.

There was no escalation, no potential for violence, no raised voices, until you two kept making it that way, until you were the one making the situation hostile. Escalating situations = police work? Playback the situation in your head – which of us did all the yelling?

I understand that you were taking actions that you thought resembled doing your job, but remind yourself of the circumstances: When you pulled your car in front of me, did I turn to run? No. When you barked at me to put my hands on your hood, did I make sudden movements? No. Did I approach your car door in anger? Did I approach your door at all? No and no. Did I raise my voice? No.

I remind you that a big part of your job is dealing with people. Every person is different, and subsequently, every situation is different. To not recognize that and always go with the guns blazing attitude will encourage conflict, as a rule of thumb. People who are on edge will start assuming that police presence instantly and always equals confrontation. You will not have the chance to bark any commands. Criminals won't give you the chance. If everyone expects that police will be unreasonable and belligerent, those who do not fear you will never comply. The situation will always go south because people will assume that officers are always out for blood.

If you're thinking that, in terms of your safety, criminals already don't give you a chance, then I guess by stopping and talking to you I made it pretty clear that I at least wasn't a threat, right off the bat. There was no flight risk; I stopped for you immediately. Even if there was, given the police officers who appeared on the scene within minutes, it's clear that I would've been easily apprehended, running along the largely clear Ponce de Leon Boulevard. But we needn't even worry about that because I stopped for you. My prize for stopping for you and talking clearly to you? Verbal abuse and threats.

We're not in a police state; people deserve YOUR RESPECT (that'd still be true even if we were in a police state, you would just have even more authority). I wish to make more clear that, had the circumstances been different, I might have justifiably appeared to be a threat to you, in that moment. But I completely disagree that any of my actions today warranted your over-the-top behavior toward me. If I'm calm, be calm back. If I'm crazy enough to use a weapon against you, swearing and threatening me when I'm calmly talking to you isn't going to make me feel less aggressive.

I also remind you that if you threaten me, acting as an officer, you do so as a representative of the POLICE. Another officer who appeared on the scene wondered if I was just mad because you swore at me. I was angered by your entire attitude and behavior, but even if it was just the swearing that made me mad, well, is it okay for cops to swear at people who haven't done anything? Save that language and disrespect for the people who treat you with disrespect.

Please don't do more than you really need to when you encounter somebody.

If you think being calm and wondering what is going on are good reasons to be sworn at, threatened, handcuffed, and held down on the hood of a car, I'm guessing that those things haven't happened to you yet.

I think it's important to note how different the case described is above from the one described in UM Cops Pull Guns on Student on His First Day where the student was white but the clothes matched and the student himself said “the resemblance was uncannily close”.

Here the clothes didn't match, but even so the circumstances of running with a book and the location were enough for the police to do a stop. The issue is how the stop is conducted. We know policing is dangerous. There are a lot of guns out there. But there are also a lot of innocent citizens. And they deserve to be treated with some respect.

If the facts are accurately presented above, and knowing Mr. Collins as I do I am inclined to believe him, then I think at the very least some remedial police training may be in order here. And maybe some anger management counseling too? Or a recuperative spell at desk somewhere…

Posted in Law: Criminal Law, U.Miami | 16 Comments

Obama Gets the Health Care Bill He Wanted

Don't like the way the health care bill is shaping up? Glenn G. says Blame Obama.

Sounds about right to me.

Note that this is in one sense worse than the expansion of the war in Afghanistan. Obama promised us more war in the campaign. This health care bill — and the administration's Rahmian maneuvers about it — breaks several promises.

(The war and the health care bill both involve life and death decisions; arguably the war is worse as so many of those being killed have not even a theoretical say in the matter.)

Posted in Health Care | 4 Comments

We Are Going to be E-Verified

E-Verify-sm.jpgYesterday we all got the following university-wide message from the Chair of the Faculty Senate (who happens to be a law school colleague):


I’m writing to alert you to the importance of participating in the upcoming “E-Verify” compliance program. Fortunately, for the vast majority of us, it will be merely a nuisance. For a few, it is likely to be much worse.

In order to comply with the requirements of Federal law and Homeland Security regulations, every employee (unless hired before November 6, 1986) must complete the process, which will begin in January.

1. The University will send you information on how to log in to an electronic version of Form I-9. It should only take a few minutes to complete the form.

2. Thereafter, you will need to contact the HR representative assigned to your school or department, and present appropriate documentation. [HR will send out an e-mail shortly that lists the documentation you will need.]

3. The information submitted is then transmitted to the government for verification. If the information submitted matches federal records, the process is over.

4. If the information submitted does not match federal records – and according to press accounts, there are many flaws in the government’s data base – you have to start the process of resolving any mismatched information within eight “federal working days.” The administration will provide you information at the time with respect to the agency or agencies that must be contacted.

By law, the University must terminate employees who fail to participate, or who fail to resolve an inconsistency, even if the inconsistency is the government’s fault. Being tenured is irrelevant; federal law prevails over your contract rights. [No re-tenuring process is necessary for those who have to be terminated for this reason but subsequently resolve the problem. However, you could be out some salary.]

What you can do to minimize problems:

  • If you are a US citizen, find your US passport, which is by far the easiest way to prove you have the right to work, and bring it up to date if necessary. If you don’t have a passport, obtain your birth certificate or Social Security card, and make sure your driver’s license or other government-issued photo ID is valid.
  • If you aren’t a U.S. citizen, make sure your relevant “green card” or visa paperwork is up to date and in your possession.
  • Let your Department Chair or your Dean know if you are going to have an extended absence during January, e.g. away doing research, visiting at another university, on sabbatical, etc.

We would worry about anyone who did not find this process at least a little bit irritating. The government’s rules, which may be OK for a typical workplace, are wholly out of tune with the way a university operates. Fortunately, from our conversations with the University administration, it is clear they are working hard to make the best of a bad situation.

We’ll try to deal with any concerns you may have. But the real experts are Bill Tallman, (305) 284-3386, [email redacted] for Coral Gables/Marine Campuses or Elizabeth Coker, (305) 243-6551 [email redacted] for Miller School of Medicine. They have told us they would be happy to answer any questions or help deal with any problems you may have.

Best regards for the Holiday season,

Rick Williamson
Chair, Faculty Senate

For most employers the e-verify program is both optional and limited to new hires— but employers who are federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, are required to participate and to check all but their post-Nov, 1986 hires. (A date that I imagine has something to do with the effective date of the Immigration Reform and Control Act of 1986 (IRCA).) Our med school is getting some ARRA money; the University has got substantial federal funds covered by the FAR as well. So we are all swept in to the giant employee database. Except that we didn't have to be.

The University's position is somewhat more self-serving than it seems. The University did have a choice. It could either subject us all to E-Verify, or it could have availed itself of the exception available to universities, and only subject to E-Verify those members of the faculty and staff who work on covered contracts and grants.

That's right: the University is NOT required by law to make us all go through this procedure, see 48 CFR § 22.1802 (b)(2)(i), 73 Fed. Reg. 67704 (Nov. 14, 2008) (“the contractor may choose to verify only new hires assigned to the contract if the contractor is— (i) An institution of higher education (as defined at 20 U.S.C. 1001(a));”), although it is true that once the University elects to do the whole staff we as employees have no choice in the matter.

The problem from the University's point of view is that there are a lot of people working on covered projects (especially in the Med School), the University's obligations are ongoing, and the cast of characters involved in covered projects is constantly shifting. Administratively, it is simpler and cheaper for the University to do everyone now, and as they are hired in the future, then it would be to track people every time in order to confirm their eligibility every time they get involved in a government-sponsored research project.

So, once the University has elected not to avail itself of the exception for institutions of higher education, we are caught by the rule about stopping our paychecks unless you comply:

If the information submitted does not match federal records – and according to press accounts, there are many flaws in the government’s data base – you have to start the process of resolving any mismatched information within eight “federal working days.” …

By law, the University must terminate employees who fail to participate, or who fail to resolve an inconsistency, even if the inconsistency is the government’s fault. Being tenured is irrelevant; federal law prevails over your contract rights. [No re-tenuring process is necessary for those who have to be terminated for this reason but subsequently resolve the problem. However, you could be out some salary.]

This is unsavory in principle, and probably in practice too. And the practice matters. Just how cross we should be about the University's decision to put institutional convenience (and budget) ahead of its empoloyees' convenience (and in some cases budget) depends in large part on how well or badly the E-verify system works, and on how many people end up being unjustly put on involuntary leave without pay while their paperwork is sorted out. My guess is that snafus are almost inevitable, especially in the early days of the system. It will be up to the University to take care of any people caught in a bureaucratic trap at least partly of the University's making.

At least you only have to start the appeals process in eight days — I doubt it would be possible to end it that quickly in many cases.

[Is the emplyoment right the sort of right that a person wrongly denied a salary as a result of this government action under E-Verify could claim was a 5th Amendment “taking”? If the employee provided the right evidence but it was ignored, would that not be a Due Process violation? I think it would. The more difficult questions is whether it would it be an actionable violation under the current highly narrowed Bivens jurispredence of the Supreme Court. Maybe not — and if so, this serves as a further demonstratation of just how flawed that jurisprudence has become.]

Posted in ID Cards and Identification, U.Miami | 9 Comments

Today’s Greatest Headline?

Farmer claims GPS led him to breed clams in the wrong place, as reported in The Risks Digest (a fun publication).

Posted in Completely Different | Leave a comment

Senator Lieberman Is Against ANY Health Care Reform that Actually Reforms

The Plum Line has the video, Watch Lieberman Endorse Medicare Buy-In Three Months Ago. Now he says that the inclusion of the very proposal he formerly claimed to support is why Lieberman opposes the health care bill.

It seems increasingly the case that the core of Lieberman's ever-shifting objections to health care reform is summed up in this classic song:

It would be nice if our Senate could transcend the Marx Brothers. I am not feeling hopeful about that right now.

Posted in Health Care | 3 Comments

The Medium is the Message

According to 8,702 news articles from literally around the world, Accenture is dropping Tiger Woods, but Swiss watchmaker Tag Heuer stands by Tiger Woods, ‘the best in his domain’.

While it’s not difficult to understand why Accenture might want to drop an alleged serial philanderer with a taste for floozies, I wonder if doing so won’t undermine the exact message they were trying to send with their Tiger Woods campaign:


Someone flunked a test?

(No points for speculating why a maker of luxury watches might not mind being associated with a notoriously successful philanderer.)

Posted in Kultcha | 3 Comments