Month: April 2017

Categories
Sports

Gift Ngoepe makes baseball history

This spring, a South African is playing for the Pittsburgh Pirates, which is giving baseball fans a thrill.

On Wednesday Mpho Ngoepe, who was born and raised near Johannesburg, become became the first African-born player to appear in a major-league game. It happened at PNC Park, in the bottom of the fourth inning.

Ngoepe, whose first name means “gift” in Sotho, singled off Jon Lester in his first at-bat en route to a 6-5 victory win over the Cubs.

“To accomplish this only for me but for my country and my continent is something so special,” Ngoepe later told reporters. “There are 1.62 billion people on our continent. To be the first person out of 1.62 billion to do this is amazing.”

It was 2:49 a.m. in South Africa, where sport usually means soccer, cricket, rugby or golf. But as Gary Smith detailed in a profile of Ngoepe eight years ago for Sports Illustrated, Ngoepe grew up beside a baseball diamond.

His mother, Maureen, raised Gift and his brother, Victor, who plays for the Pirates’ Gulf Coast League team, in a seven-and-a-half-by-nine-foot room adjacent to the clubhouse of the Randburg Mets, an amateur baseball club in Johannesburg’s northwestern suburbs.

“The Mets’ shower became Gift’s scrubbing room; their baseball field, 40 yards from his bed, his front yard,” writes Smith. “The new and larger tuck shop that was added later became Gift’s kitchen, its refrigerator became his family’s.”

Ngoepe became water boy, batboy and, eventually, player for the Mets. From there he advanced to baseball’s European Academy in Italy, where the Pirates signed him.

Though Ngoepe impressed scouts with his defensive skills, he struggled at the plate until he focused on hitting right-handed after years as a switch hitter.

Ngoepe later said he almost cried as a trotted out from the dugout to take his position at second base. I told myself not to cry because I’m in the big leagues and I’m a big guy now,” Ngoepe said. “(Catcher Francisco) Cervelli hugged me and I could feel my heart beat through my chest.”

In his first big-league start, on Friday night in Miami against the Marlins, Ngoepe notched three hits in three at-bats, including a run batted in. In all, the Pirates scored 12 runs to the Marlins’ two.

Ngoepe journeyed through the minor leagues for nearly nine years before his appearance in the big leagues. His mother died four years ago. On Thursday, Deadspin asked him what he misses about South Africa.

“I just miss the people,” he said. “In South Africa, we’re more like a family. We call it a braai, but you call it a barbecue. And we just braai anytime. It’s just like, you can call a friend and be like, ‘Hey, Hannah, we’re having a braai right now, come on over.’ And you’d be coming on over at this very moment. For no current reason. We’re just having a braai.”

Categories
Law

Judge blocks Trump move to slash funds for sanctuary cities

Donald Trump’s words keep getting in the way of his efforts to tighten the nation’s borders.

A federal judge on Wednesday halted enforcement of a presidential order that would have authorized the White House to cut off funds to cities that refuse to cooperate with enforcement of federal immigration laws.

The power to spend belongs to Congress and not to the president, said District Judge William Orrick in San Francisco, who ruled that a Jan. 25 order by the administration that authorizes defunding of so-called sanctuary cities contravenes the Constitution’s separation of powers.

Though government lawyers asserted in court that the order does not give the president authority to impose new conditions on federal grants, Orrick noted statements by the president in February, when he told former Fox News host Bill O’Reilly that the threat of defunding “would be a weapon” to use against cities that decline to honor requests by the federal government to hold inmates in local jails for up to two days after their scheduled release so that immigration officials can determine if they want to take the person into custody.

Orrick also noted remarks by Attorney General Jeff Sessions, who told reporters that the death of Kate Steinle, a San Francisco woman who allegedly was killed by an undocumented immigrant, occurred because the assailant “admitted the only reason he came to San Francisco was because it was a sanctuary city.”

“If there was doubt about the scope of the order, the president and attorney general have erased it with their comments,” wrote Orrick, who also cited comments by White House press secretary Sean Spicer that the order aimed “to get cities into compliance” with executive action.

The injunction, which applies nationwide, follows a series of rulings by federal judges that blocked enforcement of a presidential ban on travel to the U.S. by people from six predominantly Muslim countries. Judges in those cases cited public comments by the president and his surrogates that the White House sought to ban entry of Muslims into the U.S. in violation of the Constitution.

Floyd Abrams, the First Amendment lawyer who successfully defended The New York Times against efforts by the Nixon administration to stop the paper from publishing the Pentagon Papers, recently told the Times that Trump’s tweets also may provide evidence in court for claims that a possible federal prosecution of WikiLeaks would represent an effort to use the legal system to punish journalists.

The ruling by Orrick addresses accusations by the cities and counties of Santa Clara and San Francisco, which each charged that the potential for losing federal grants as result of their policies would force them to cut critical services and entitlements.

San Francisco estimated it stands to lose about $1.2 billion, or about 12.5% of its annual budget, if the White House defunded the city and county. Santa Clara said that federal funds constitute about 35% of its annual revenues.

Because the executive order fails to clarify what conduct might cause a locality to lose funds, the directive also violates the Fifth Amendment’s Due Process clause, which requires that laws lay out the conduct they prohibit, Orrick said.

Categories
Law

‘Liquidated damages’ clause unenforceable, Appellate Division rules

A clause that addresses damages in a lease agreement between an automobile dealership and the owner of a lot on which the dealer stored cars cannot be enforced because it operates as a penalty, a New York State appeals court in Brooklyn has ruled.

The dispute began in 2008, when the parties agreed that Westbury Jeep Chrysler Dodge (Westbury) would store vehicles on a month-to-month basis on an undeveloped lot owned by the plaintiff. Three years later, they amended the agreement to move the vehicles to a different part of the lot after the owner of the property agreed to lease to a third party the portion previously occupied by Westbury.

The amended agreement, which required Westbury to vacate the original portion of the lot by April 15, 2012, obligated the dealer to pay damages in the amount of $5,000 per day for every day after that deadline that it remained in possession of the original portion. Westbury did not vacate until May 11, allegedly forcing a delay in the start of the owner’s lease with the third party.

The owner accused Westbury of breach of contract and sued to recover $130,000 in damages ($5,000 per day for 26 days). Westbury asked the court to dismiss the damages claim, noting that the delay in starting the lease cost the property owner $57,415. The difference, Westbury charged, constituted a penalty that was disproportionate to the injury suffered by the property owner and therefore unenforceable.

The Appellate Division, Second Department agreed. “Here, [Westbury] demonstrated… that the amended agreement imposed an unenforceable penalty…,” Justice Mark Dillon wrote on behalf of three of his colleagues in a decision on April 12.

The ruling turned on the treatment of so-called liquidated damages (the provision calling on Westbury to pay $5,000 for each day of delay), which represent an estimate by parties to a contract of the extent of injury that a party would suffer in the event of a breach.

Liquidated damages will be upheld when the parties to a contract would otherwise have had difficulty ascertaining damages when they formed the contract and the damages themselves represent a reasonable forecast of the cost of compensating the non-breaching party.

Courts generally will not enforce liquidated damages that impose a penalty or forfeiture. As the Court of Appeals wrote 40 years ago in a ruling that explains the limits of liquidated damages:

A liquidated damage provision has its basis in the principle of just compensation for loss. A clause which provides for an amount plainly disproportionate to real damage is not intended to provide fair compensation but to secure performance by the compulsion of the very disproportion.

In the lawsuit against Westbury, the trial judge concluded that consideration of the claims concerning liquidated damages was premature because questions of fact remained as to who breached the amended agreement.

The Appellate Division disagreed. “The issue of whether the liquidated damages clause is enforceable is readily determinable as a matter of law, without consideration of the unresolved factual issues in this case,” Dillon wrote.

Categories
Law

Trinity Lutheran disregards the Establishment Clause

In the early 1770s, Thomas Jefferson set out to undo the web of laws that established the Church of England as the religion of Virginia. To aid his work, Jefferson made a list of acts of either the Virginia Assembly or the English parliament (as far back as the 1540s). In all, Jefferson found 17 Virginia statutes (beginning in 1661) and 23 English statutes concerning religion.

As Professor Michael McConnell of Stanford, who has reviewed the work of Jefferson and the establishment of religion at the nation’s founding tells it, financial support from taxes did not, by itself, enshrine establishment. “Even after dissenters were given the right of free exercise of religion and the Church of England lost its tax-exempt status, the Virginia Assembly continued to speak of it as the ‘church by law established.’”

Religious rights, and states’ efforts to withhold their sanction from religion, are scheduled to come before the Supreme Court this Wednesday, when the justices will hear arguments from Trinity Lutheran Church in Columbia, Missouri. The church, which operates a preschool and day care center, contends the state’s excluding the church on religious grounds from a program that provides funds for resurfacing playgrounds violates the Constitution’s Free Exercise and Equal Protection clauses.

The appeal by Trinity Lutheran presents an early test for a Republican majority of the court that now includes Neil Gorsuch, who could cast the deciding vote. That is the same Neil Gorsuch who ruled in favor of Hobby Lobby Stores, which persuaded the court to strike down a provision of the Affordable Care Act that required employers to cover the cost of contraception for their employees.

“It is simply impossible to establish Trinity Lutheran’s religious identity, when, as Missouri has done here, the state excludes it from participation in the life of the community solely based on its religious status,” Trinity Lutheran writes in its brief, citing a concurrence by Justice Kennedy in the Hobby Lobby decision.

The playground dispute began in 2012, when the church applied for funds from Missouri’s Scrap Tire Surface Material Grant Program, which the state uses to reduce the number of tires in landfills and improve children’s safety.

The church charges that the state’s Department of Natural Resources (DNR) notified the church that it would be ineligible to receive funds from the program. In support of its determination, the state cited the Missouri Constitution, which prohibits the use of public funds “in aid of any church, sect, or denomination of religion…”

Trinity Lutheran sued Missouri in the U.S. District Court in Kansas City. The trial court dismissed the accusations, noting that payment of funds by the state “to a sectarian institution” would contravene the Establishment clause. By a vote of 2 to 1, the Eighth Circuit Court of Appeals agreed.

Trinity Lutheran asks the Supreme Court to apply strict scrutiny to the state’s action, which means the state must be able to cite a compelling governmental purpose for denying the church’s application for playground funds based solely on its status as a religious institution.

“The religious difference between Trinity Lutheran’s daycare and secular daycare operators is the only basis for the exclusion here, although they both seek scrap tire funds to fulfill the state’s recycling goals and to provide children a safer area to play,” the church writes. “Because the DNR employs a suspect classification, it must satisfy strict scrutiny.”

But precedent, counters Missouri, leads to a conclusion that the state’s decision is entitled to deference where, as here, the state has not interfered with the free exercise of its faith by Trinity Lutheran. “This court has long held that the government does not infringe the exercise of a constitutional right by declining to subsidize it,” the state argues.

Trinity Lutheran asserts that the Eighth Circuit relied in error on a ruling by the Supreme Court in Locke v. Davey, a 2004 case in which the court upheld a decision by Washington State to exclude from eligibility for state scholarship aid students who pursue degrees in devotional theology. The state cited its constitution, which prohibits use of public funds to aid religious instruction.

In reaching its decision in Locke, the court noted the tension between the Free Exercise and Establishment clauses. “In other words,” Justice Rehnquist wrote for the majority, “there are some state actions permitted by the Establishment clause but not required by the Free Exercise clause.”

The majority also considered the challenge to Washington State’s decision in the context of the history of established churches in colonial America. Rehnquist wrote:

Most states that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate… that these provisions would not have applied so long as the state equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk. [citations omitted]

Missouri says the decision in Locke “applies squarely” to the appeal by Trinity Lutheran. But the church distinguishes the religious training rejected for state funds in Locke from the playground flooring that Trinity Lutheran hopes to install. Trinity Lutheran argues:

In Locke, this court was concerned by what the scholarship funds were going to be used for—the devotional training of clergy—not the identity of those who were using the money. But Trinity Lutheran’s religious identity was the sole basis for the DNR’s exclusion here. Locke simply has no application in that context.

The court agreed on January, 15 2016 to hear Trinity Lutheran’s appeal. Justice Scalia died about a month later. The justices seem to have waited to schedule the case for argument until the court again had nine justices.

That’s where Neil Gorsuch comes in. “I don’t think anybody on the secular side of the fence thinks the state of Missouri is going to get a fair shake from Mr. Hobby Lobby,” writes Elie Mystal at Above the Law, referring to the newest justice. (If that’s correct, so much for Republicans who claim to cherish states’ rights.)

Justice Gorsuch describes himself as an originalist, meaning, he says, he strives to apply the law as he finds it. For the appeal by Trinity Lutheran, he might look, as the American Civil Liberties Union suggests in a brief filed in support of Missouri, to ideas espoused by both Jefferson and James Madison, who wrote the First Amendment.

In 1785, Madison published, anonymously (he acknowledged authorship 41 years later), an essay titled “Memorial and Remonstrance against Religious Assessments.” The tract argued against a bill in the Virginia Assembly to collect a tax to fund preachers.

“Who does not see,” Madison asked, “that the same authority… which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

Categories
Law

The pursuit of justice in the death of Eric Garner is proceeding fitfully

At least two New York City police officers who have ties to the arrest of Eric Garner testified before a federal grand jury in Brooklyn on March 22, suggesting that the Justice Department is continuing to examine whether to charge Officer Daniel Pantaleo with violating Garner’s civil rights during the latter’s arrest on July 17, 2014 for allegedly selling loose cigarettes.

Garner, a 43-year-old father of six, died as the result of a chokehold applied by Pantaleo, the city’s medical examiner determined. DOJ began its investigation after a grand jury on Staten Island declined to indict the officer, touching off protests nationwide.

In December, Attorney General Loretta Lynch moved the probe to Washington from Brooklyn following a disagreement among prosecutors whether they could prove in court the use of force by Pantaleo was unreasonable based on the circumstances.

The status of the inquiry later fell into question when Jeff Sessions succeeded Lynch. Sessions has criticized actions by the Obama administration to end police abuses in minority communities as hostile to law enforcement. On Monday, DOJ asked a federal judge in Baltimore to delay approval of reforms of policing Lynch had negotiated in that city.

According to the Daily News, Sgt. Dhanan Saminath, who arrived at the scene of Garner’s arrest after Pantaleo called for backup, told grand jurors he summoned emergency medical service because Garner was having difficulty breathing. Deputy Inspector Joseph Veneziano, commanding officer of the 120th precinct at the time, reportedly also testified.

Separately, a state appeals court in Manhattan ruled on March 30 that the city cannot release records concerning complaints filed against Pantaleo with the Civilian Complaint Review Board over the decade that preceded Garner’s death, citing risks to the safety of the officer and his family. Justice John Sweeny Jr., writing on behalf of four of his colleagues, said:

“Here, in light of the widespread notoriety of Mr. Garner’s death and Officer Pantaleo’s role therein, and the fact that hostility and threats against Officer Pantaleo have been significant enough to cause NYPD’s Threat Assessment Unit to order around-the-clock protection for him and his family, and notwithstanding the uncertainty of further harassment, we find that the gravity of the threats to Officer Pantaleo’s safety nonetheless demonstrate that disclosure carries a ‘substantial and realistic potential’ for harm, particularly in the form of ‘harassment and reprisals,’ and that nondisclosure of the requested records under [the statute] is warranted.” [citations omitted]

Last summer, the NYPD stopped sharing information about personnel actions involving officers, citing the state’s civil rights law, which permits release of such records by a judge.

The ruling by the Appellate Division overturned a decision by a trial judge who had ordered the release of a summary of the proceedings and came a week after the news site ThinkProgress published at least some of that information, which the site said it had received from an anonymous source who worked for the CCRB.

The information shows Pantaleo, who remains on desk duty, to be the subject of 14 allegations that he had abused his authority, four of which the CCRB substantiated. According to ThinkProgress, about 2% of the NYPD’s roughly 34,500 officers have two or more complaints with substantiated allegations.

Categories
Law

Man who faked a gun by holding a finger under his hoodie guilty of first-degree robbery, New York’s highest court rules

A person who fakes  a gun by concealing a hand beneath their hoodie can be convicted of robbery in the first degree, New York’s highest court has ruled.

On Nov. 1, 2011, Charles Smith, a homeless 41-year-old, entered a check cashing store in Queens. The teller, who sat behind bulletproof glass, testified that Smith held something under his sweatshirt at the waistband, asked for money and threatened to shoot her.

Police, summoned by a silent alarm pressed by the teller, apprehended Smith several minutes later as he walked down the street about eight blocks away. Smith had no gun on him. Nothing in the record suggested that Smith possessed any item whatsoever.

At trial, Smith was convicted of robbery in the first degree, which New York defines as forcible stealing accompanied by the defendant’s using or displaying what is, or appears to be, a firearm. The appellate court affirmed the conviction, finding that the prosecution established that Smith displayed what appeared to be a firearm while attempting to commit the robbery.

The Court of Appeals agreed. “A victim may reasonably believe that a gun is being used, on the basis of conduct that makes it appear that the defendant is holding a gun, regardless of whether the defendant makes a movement while addressing the victim or keeps his hand concealed throughout the encounter in a manner and location suggesting the presence of a gun,” Judge Eugene Fahey wrote on behalf of five of his colleagues in a ruling decided on March 28.

Oddly, Smith did not avail himself of a defense provided by the law, which allows a defendant to ask the jury to consider reducing the charge to second-degree robbery if the firearm (or what appeared to be one) was, in fact, not a loaded weapon.

The court added that “the precise nature of the object that a defendant displays is not dispositive when analyzing whether a defendant displayed what appeared to be a firearm,” and that the court has affirmed convictions where a defendant used a toothbrush or a towel wrapped around his arm to simulate a gun.

“The state must prove that (1) the defendant ‘consciously display[ed] something that could reasonably be perceived as a firearm,’ and (2) it ‘appear[ed] to the victim by sight, touch or sound that [the victim was] threatened by a firearm,” Fahey noted. “We concluded that ‘when both of these elements are satisfied… the true nature of the object displayed is, as concerns criminality, irrelevant.’” [citations omitted]

Misconstruing the statute

That test, however, misconstrues the law, said Judge Rowan Wilson, who noted that “without the guidance of the legislative history, the [statute] could be interpreted, and has now been by this court, to allow unarmed persons with a hand in a pocket to be charged with the same crime as a robber who fired shots.”

The legislature, when it revised the robbery statute in 1969, intended “that the display of something that was or looked very much like a real firearm was essential to conviction” for either first- or second-degree robbery, Rowan wrote, explaining:

“The statutory language makes sense only in the context of the legislative history: that the problem addressed by the statute was the evidentiary difficulty of proving that an actual gun was loaded and operable – not anything having to do with enhanced fear of the victim.”

Despite that aim, the Court of Appeals has departed from the legislative intent, he noted. “A homeless man walks into a check-cashing store,” Rowan wrote. “This sounds like the start of a bad joke, but instead is filled with pathos.”

Categories
Law

Jeff Sessions is not listening to Baltimore

Last August, the Justice Department announced the results of a 14-month investigation into the Baltimore Police Department. The review was triggered by weeks of protests in the city following the death of Freddie Gray, a 25-year-old black man who died of a spinal cord injury while in the custody of police.

In a 163-page report, DOJ found that for years, police in Baltimore engaged in a pattern of “aggressive use of stops, frisks, and misdemeanor arrests” in poor, urban neighborhoods with mostly African-American residents.

Police routinely stopped and detained people on the streets without reasonable suspicion that they were involved in criminal activity.  They detained and questioned people who sat, stood or walked “in public areas, even where officers have no basis to suspect them of wrongdoing.” According to the report:

“During a ride-along with Justice Department officials, a BPD sergeant instructed a patrol officer to stop a group of young African-American males on a street corner, question them, and order them to disperse. When the patrol officer protested that he had no valid reason to stop the group, the sergeant replied ‘Then make something up.’ This incident is far from anomalous.”

In January, the city and DOJ filed with a federal judge in Baltimore a series of reforms that call for officers to try to resolve incidents without force when possible and to use force that is in proportion to the threat.  “I would not say the consent decree is not needed,” said Catherine Pugh, Baltimore’s mayor, a month earlier.

Jeff Sessions, who in February became attorney general, apparently disagrees. On Monday, DOJ asked the court to delay implementation of the consent decree for three months to allow the department and the city to revisit the terms of the agreement.

In court papers, DOJ cited “alarming spikes in violent crime” in Baltimore and cities across the country, as well as an order issued Feb. 9 by the White House that directs the government “to prioritize crime reduction.”

The filing comes as part of a review by DOJ of a series of a series of agreements negotiated by the Obama administration that, as the Times notes, “aim to improve relations between the police and the communities they serve.” It also reflects a view by Sessions that such agreements undermine police and contribute to an increase in crime. As Sessions said in a speech in February:

“Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors.  Our officers, deputies and troopers believe the political leadership of this country abandoned them.  Their morale has suffered.  And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before.”

Officials in Baltimore “strongly oppose” DOJ’s request for delay, Mayor Pugh said on Monday, noting that “reforming our police department is long overdue.” The next day, Pugh added that the city is “ready to move ahead” to finalize the consent decree.

Pugh noted that while the city is already equipping police with body cameras and working to improve relations with the community, “we also know that inside of the consent decree… are some things that need to be done,” adding the DOJ’s report “indicates that there is a great need.”

Kevin Davis, Baltimore’s police commissioner, told reporters he is “disappointed” with DOJ’s request for delay. “What a consent decree does is bind the police commissioner… it binds the mayor… to getting those reforms enacted under a timeline that’s not necessarily our own,” he said.

Why must the city be bound? In its report, DOJ cited an incident from 2010, when two police officers approached a group of people who stood on a sidewalk in a residential neighborhood and ordered them to disperse. Brian, a juvenile, and his sister, walked onto the steps of their home, remaining outside.

When one of the officers warned the siblings about loitering, the sister informed them, yelling and cursing, that she and her brother lived in the house. The officers neither disputed her claim nor sought to verify it.

But the officers did continue to warn the sister to leave (to go where?) and to stop causing a disturbance. Eventually, they arrested her for so-called non-compliance. When one of the officers walked up the stoop to arrest her, Brian tried to block the officer, who began a struggle with him.

According to witnesses whose accounts the police summarized in their reports, the officer punched Brian in the face. The officer also used pepper spray against both siblings and arrested them for loitering, resisting arrest and assaulting a police officer.

“All of the officer’s uses of force against the siblings, who were standing on or in front of their own property, were unreasonable,” DOJ wrote. Brian and his sister “were placed into the criminal justice system for standing on their own steps.”

Categories
Asides

It’s true

“Everyone you meet is fighting a battle that you know nothing about. Be kind, always.”

Written on a piece of notebook paper taped to the wall behind the counter of the snack bar at a truck stop in Sealy, Texas, as told by Jonathan Richman