The Challenge
May 2003 VOL. 13, NO. 4
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
* Committee member chosen by Oprah
* Committee member appointed by Governor
Committee member chosen by Oprah
Timijanel Boyd-Odom ("Timi") recently appeared on the Oprah Show (May 12, 2003) after being selected from thousands of entries from viewers who had challenges in their homes regarding decorating a room. Timi entered her family room/den/office in the contest and told producers that although she had attempted a southwestern theme, it just didn't seem right. She was told by producers that she had to get a videotaped entry of the room to them within three days. Not a hard task for some, but Timi is a full-time attorney and full-time mother of four children! She ended-up having to drive the tape to the studio and leave it with security to make the deadline.
After dropping the tape off, she again spoke to producers after they viewed the tape and they told her she was among the five finalists whose tapes would be shown to Oprah for the final selection! Oprah chose Timi and one other lucky viewer for the "Decorating challenges" show. Once again, Timi's enthusiasm was apparent and Oprah even said that she really liked how every room of her home had its own theme. The catch--they wanted to come the next day to start shooting for the segment! Timi had to surrender her home to the show for the day and the show put her up in a hotel and commandeered the neighbor's home for use as a "Dressing room" as well!
The room was re-done and is said to be worth $20,000. Timi also got to talk with Oprah with her husband after the show and that segment also aired on Oprah's Oxygen channel on the "After the Show" program. Reruns are likely to occur, so keep an eye out for this lucky committee member with the room to die for. Congratulations!
Committee member appointed by Governor
Congratulations go out to Committee Member Zaldwaynaka "Z" Scott on her recent appointment by Governor Blagojevich to an Inspector General position. Ms. Scott's last day with the U.S. Attorney's office in Chicago, where she headed the General Crimes Division for the past six years, was May 2, 2003 and she will then report directly to the Governor on matters of unethical behavior among Governmental employees. This position was created by Governor Blagojevich in an effort to distance his administration from the prior Ryan Administration that saw so much scandal regarding the "license for bribes" investigations.
By Yvonne Kato
This past summer, the Supreme Court issued another decision in the long line of cases involving qualified immunity defenses and section 1983 suits. The case arose out of the State of Alabama, where Hope had been a prisoner and was handcuffed twice in 1995 to a hitching post as punishment for disruptive conduct at the jail. The hitch was above shoulder height and during the first instance he remained there for two hours where he was given breaks every 15 minutes. During the second instance, after he had fought with a guard, he was placed on the post for seven hours and forced to expose his chest to direct sun, while only receiving one to two water breaks and no bathroom breaks. A guard was noted to taunt him about thirst during this instance.
Hope sued, charging a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. The trial judge did not address this issue, but found that the guards were entitled to qualified immunity for their actions. The appellate court did hold that the use of the post for punitive purposes did violate the Eighth Amendment, but that the guards were still entitled to qualified immunity as the plaintiff had failed to show that there were any federal cases with materially similar facts by which the court could evaluate the defendants' conduct. The Supreme Court reversed this decision.
The Supreme Court held that qualified immunity as a defense should have been precluded at the summary judgment phase. They affirmed the appellate court's finding that the hitching post use violated the Eighth Amendment. They further opined that the officers acted with deliberate indifference to Hope's health and safety when they put him on the post the second time because he had already been handcuffed, subdued and leg shackled, leaving no real emergency to the situation.
Regarding the application of qualified immunity due to the lack of cases which spoke to this exact factual scenario, the court expressly disagreed. They indicated that the immunity afforded in a section 1983 situation would be akin to the situation in a suit where a federal official was charged with acting willfully and under the color of state law to deprive a plaintiff of his or her constitutional rights. (18 USC ' 242). A 1997 case made it clear that officials sued under 242 could be held to be on notice of their conduct violating established law, even in novel factual scenarios. That court had specifically rejected a requirement that the cases be "fundamentally similar." They indicated that the appellate court should have asked the question of whether the state of the law in 1995 gave the defendants fair warning that the treatment they gave Hope was unconstitutional.
Addressing this very question, the Supreme Court held that any reasonable officer would have known that the use of the hitching post as alleged was unconstitutional and the practice had "obvious inherent cruelty." They also pointed to precedent within Alabama's circuit which would put the officers on notice, including the Gates case of 1974, which specifically held that handcuffing prisoners to fences or cells for long periods of time was impermissible. Another case from 1987, Ort v. White, held that physical abuse directed at a prisoner after he terminated resistance would give rise to liability under the Eighth Amendment.
This case can be located at <www.findlaw.com> by clicking on "Supreme Court Cases" and looking under the alphabetical listing for "2002 decisions" for Hope v. Pelzer. The majority opinion was written by Justice Stevens, joined by Justices O'Connor, Kennedy, Souter, Ginsburg and Breyer. Justice Thomas filed a dissenting opinion which was joined by Justices Rehnquist, and Scalia. (6-3 decision).
By Jorge Montes
Recently I was jogging with my nephew Manny in Chicago's Lakeview neighborhood when I spotted a "teachable moment" for my nephew, a student at DePaul. We came to an abrupt halt upon watching two plainclothes policemen stop a Hispanic couple for not moving fast enough when the traffic light turned green. The driver, incidentally, fit the stereotype of an immigrant Mexican: A brown-skinned man in a large, older model car with chrome rims.
I wanted my nephew to observe, firsthand, how some law enforcement officers can be overzealous--or even abusive with immigrants--so we stood and watched as the officers drew their guns and pointed them directly and only inches from the couple's faces. They were then literally dragged out of their car, handcuffed, and thrown on the ground. After searching the vehicle and a brisk frisk and dressing down, the officers left, but not before leaving the car on and locking the couple out of the car.
Keeping a respectful distance so as not to be accused of obstructing justice, I felt free to approach the couple, who did not speak English (and thus had little notion of what had just transpired). Their crime, it turns out, was driving without a license and failure to provide proof insurance.
Not a week goes by that I don't receive a few calls from people such as this couple who have been cited to appear in court for the same violations. One of the attorneys from my firm will appear with the client before the court with little or no defense, and watch as the judge slaps the client on the wrist, imposes a minor fine, and observes as the clients often drives off in his car.
This scene is played out thousands of times every year in Illinois and around the country. The only difference is that in a few other states legislators have solved this problem in a very sensible and logical fashion: Allow undocumented aliens to apply for a driver's license and consequently be eligible for drivers insurance, as well. The few enlightened states, which include Utah, North Carolina, and Tennessee (hardly bastions of liberalism) have correctly concluded that the issue is not whether undocumented immigrants would be legitimized by being allowed to apply for a driver's license, as shortsighted people contend, but that it is, more importantly, a matter of public safety.
Because untold thousands of undocumented aliens are not allowed to apply for a driver's license, our streets and highways are filled with people who, first, have not been given proper training regarding the rules of the road, and second, are not covered by insurance to protect others--and themselves--in case of an accident. What many (perhaps because of xenophobic reasons or because of plain ignorance) do not realize is that while this situation continues, every person's life is placed in grave danger everyday. If for whatever reason an insurance company refuses or cannot cover an individual after an accident with an uninsured, undocumented alien, that individual may suffer serious economic hardship. And he has no recourse against anyone other than an individual who most likely is indigent.
If legislation passes in Illinois to allow driving privileges to the undocumented, this would not be the only instance in which these individuals are allowed to fulfill their obligations to the state and country. Opponents of this legislation need only look to he Internal Revenue Service, which has for years allowed undocumented aliens to file their tax returns by issuing them temporary identification numbers. It makes perfect sense: If these individuals--approximately seven million around the country--live here, they may as well pay their taxes.
While the argument that authorizing driver's licenses legitimizes undocumented workers at first blush appears to be sound, one should consider that this has already been accomplished by the use of consular identification cards that are now accepted by all banks for the purpose of permitting undocumented aliens to open accounts. Moreover, after 9/11 it has become imperative that our state and country have a system of identifying everyone who lives in this country.
Ironically, after 9/11 it also became very difficult to even attempt to pass this kind of legislation. This type of bill was drafted but was prudently shelved by Rep. William Delgado of Chicago shortly after the tragedy in New York, given the strong anti-immigrant wave that hit our country. Only recently has he revived it and at the time of this writing it is once again enjoying serious consideration in Springfield.
Yet Rep. Delgado is not alone in this effort. He is joined by a chorus of chiefs of police from around the state and even judges. In fact, the chief of the traffic division in Cook County has gone on record endorsing this legislation. It is common sense. It is a matter of public safety.
The time has come for Illinois to be counted among the enlightened. Undocumented aliens should be required to learn the rules of the road, then allowed to apply for a driver's license and obtain insurance. This will make the roads safer for all of us and may even bring our insurance premiums down. Perhaps then we will also see an end to the abuse Manny and I witnessed that late night we were jogging, and those kinds of teachable moments won't be necessary anymore.
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Jorge Montes is the principal of Montes & Associates in Chicago. He is also a member of the Prisoner Review Board. He is currently the secretary of the Standing Committee on Minorities and Women Participation.
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