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New Republican Bill Makes Suing Cops For Civil Rights Violations Really Tough

WASHINGTON ― A pair of bills introduced in the House and the Senate would make assaulting law enforcement officers a federal offense and suing cops for civil rights violations more difficult. 

Under the Back the Blue Act, introduced on May 16 by Sen. John Cornyn (R-Texas) in the Senate and Rep. Ted Poe (R-Texas) in the House, suing cops in federal court for violating the constitutional rights of civilians will be limited.

The bill states that individuals who were “engaged in felonies or crimes of violence” would be blocked from receiving damages for any violations that occurred during “any action brought against a judicial officer for an act or omission taken in the judicial capacity of that officer.” 

So, even if the individual can prove their rights were violated by an officer, police departments would be able to claim an individual’s injuries were a result of that person’s conduct which, to quote the bill, “more likely than not, constituted a felony or a crime of violence.”

It would also treat assault on a police officer leading to bodily harm as a federal crime carrying a mandatory minimum of two to 10 years in prison, depending on if the harm was minor, “substantial” or “serious.” If a weapon was used during the assault, the charge would carry a 20 year mandatory minimum regardless of the harm inflicted on the officer. 

Both caveats would have brash consequences for civilians ― particularly black and Latinx people who tend to have more unnecessary contact with law enforcement. For instance, an officer could justify their use of excessive force by charging someone with felony assault ― an issue explained by HuffPost in January regarding Louisiana’s law that made attacks on police a “hate crime.”

It could also have an impact on political demonstrations. For example if a police officer attempts to restrain a protester and that person makes a movement the officer interprets as threatening, a minor trespassing or disturbing the peace charge could be upgraded to assault.

But in light of the new bill, a civilian, regardless of whether or not they were “engaged in felonies,” could be hit with a federal charge and possible federal prison time without the option to seek damages for a civil rights violation. 

The proposed law would also make it a federal offense to murder, attempt to murder or conspiring to murder a federal judge, a first responder or a state or local law enforcement official who works for any agency that receives federal funding. And almost all law enforcement agencies ― including local police departments ― receive federal funding.

Defendants, if found guilty, would face the federal death penalty and a mandatory minimum of 30 years in federal prison.

The bill also mandates that no more than $20 million be granted to local law enforcement agencies so that they can “promote trust and ensure legitimacy” with the communities they serve. 

If passed, the bill could be legally redundant. All 50 states have statutes, or “aggravating factors,” that automatically increase the penalties for violent attacks on law enforcement officers, according to the Anti-Defamation League. And Louisiana and Kentucky have made violent attacks on police a hate crime in the past year.

Cornyn and Poe both introduced the same bill last year.

Cornyn has said the bill was a way of showing “unparalleled support” to law enforcement.

“Law enforcement officers selflessly put their lives on the line everyday to protect our communities, and in return they deserve our unparalleled support for the irreplaceable role they serve,” Cornyn told The Dallas Morning News last year. “The Back the Blue Act sends a clear message that our criminal justice system simply will not tolerate those who viciously and deliberately target our law enforcement.”

Poe has made similar comments.

Cornyn and Poe’s offices did not respond to HuffPost’s request for comment.

The bills didn’t pass, but the political climate was different. Former President Barack Obama’s administration focused on sentencing reforms and prosecutors placing crimes into context when deciding on prison time. Obama was also vocal about the need to reform police departments and better their relationship with the communities they serve. 

President Donald Trump, on the other hand, has vowed to be harder on crime and end what he calls the “anti-police atmosphere” in the U.S. Trump has said protests against widely-publicized police violence has provoked the murder of police officers and that calls for reform are “anti-law enforcement.” He also believes that calls for police accountability have caused a “war on cops.” 

May 10 memo from current Attorney General Jeff Sessions reversed Obama’s policy, mandating that federal prosecutors “charge and pursue the most serious, readily provable offense” possible against defendants charged with a federal crime. The memo also requires federal prosecutors to get approval from the U.S. Attorney or an assistant Attorney General if they wish to pursue a lesser charge. 

The Back the Blue Act, if passed, would take prosecutorial aggressiveness a step further.  

Currently, any attacks on law enforcement are handled by state and local jurisdictions. This would continue under the law unless the U.S. attorney doesn’t like the way a case is being handled, which could pose an issue since many jurisdictions have elected district attorneys looking to reform criminal sentencing laws and police departments. As criminal justice reporter Radley Balko explained in The Washington Post:

In a few places, such as Philadelphia, Chicago and Houston, the new DAs were elected specifically after campaigning on policing issues, or in response to a past incumbent’s inattention to police abuse. If this bill passes, a U.S. attorney more sympathetic to law enforcement could thwart those efforts by, for example, charging a high-profile victim of police abuse with the new federal crime of assaulting a police officer. It wouldn’t be difficult. We’ve seen plenty of video now where a clear victim of police brutality was initially arrested and charged with battering one of the officers who beat him. 

If the new bill were to go into effect, federal prosecutors would have full discretion to overrule a state or local court if “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence” or if “a prosecution by the United States is in the public interest and necessary to secure substantial justice.”

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Two Orange County DA Investigators Emerge As Whistleblowers Amid Jail Snitch Scandal

LOS ANGELES ― Two investigators with the beleaguered Orange County District Attorney’s Office, which faces three investigations over its prosecutors’ alleged misuse of jail informants, have accused multiple senior OCDA staff members of covering up evidence in separate cases. When the two investigators flagged evidence from their own investigations to staff, the pair claim they were met with punishment for merely doing their jobs.  

OCDA investigators Tom Conklin and Abraham Santos each filed separate claims with the county’s Board of Supervisors on Friday, arguing that they have been subjected to mistreatment by various OCDA staff and that their careers have been damaged in the process.

The investigators’ make extensive and deeply troubling allegations against members of their own investigative unit and several OCDA prosecutors ― some of whom are linked to the ongoing jail informant scandal. It’s the latest in a series of allegations of misconduct against the embattled district attorney’s office, which along with the Orange County Sheriff’s Department has been embroiled in the sprawling snitch scandal for more than three years.

At the center of the scandal is the misuse of a sophisticated informant program ― operated by sheriff’s deputies and utilized by prosecutors to secure convictions ― that has allegedly violated the civil rights of numerous defendants and led to the unraveling of more than a dozen murder cases in the county. New hearings linked to the scandal began just this week.

The complaints filed by Conklin and Santos are a prerequisite for filing a lawsuit against public entities, their lawyer, Joel Baruch said in a statement. Baruch also said that both Conklin and Santos are “whistleblowers in the strictest sense” and that they have put their law enforcement careers in jeopardy by “ensuring that the Orange County District Attorney’s Office follows the law in protecting the constitutional and statutory rights of all of us.”

Here’s the alarming claims made by the DA’s investigators:

Prosecutors allegedly covered up evidence in the Stephenson Choi Kim murder case.

In 2004, Stephenson Choi Kim, along with several other suspects, were charged in a shooting at a cafe in Cypress, California. Seven years later, Choi Kim would be found guilty of all charges, including one count of murder and multiple other counts including premeditated attempted murder and street terrorism. In 2012, Superior Court Judge John Conley sentenced Choi Kim to life without the possibility of parole, plus 255 years in prison.

But that conviction and sentencing would turn out to be built on the back of cheating. During the Choi Kim trial, Susan White, an ex-investigator with the Cypress Police Department, testified that she had interviewed multiple eyewitnesses to the shooting and that those witnesses all identified Choi Kim, and others, as being present at the cafe when the killing occurred. However, those same eyewitnesses would go on to testify in the trial that they had not in fact identified Choi Kim as the killer. 

While then-Deputy District Attorney Cameron Talley, who has since retired, did not call White to the stand to testify about her false testimony, the defense did. White was then forced to admit that her police reports were false and that eyewitnesses she claimed to have positively identified Choi Kim had not done so. The defense asked Judge Conley to declare a mistrial, claiming that White had committed perjury.  

Despite this obvious misconduct, Judge Conley denied the mistrial motion and ruled that White had not lied under oath, but instead had simply conducted a sloppy investigation and written inaccurate police reports.

When the trial ended, the defense wrote a letter to OCDA declaring that White had committed perjury at the trial, had written false police reports and had also forged pretrial lineup identification. That’s when OCDA asked Investigator Conklin to review the allegations.

In 2011, just three months after Choi Kim’s trial ended, Conklin completed his investigation into the matter and determined that Choi Kim’s defense attorneys were correct ― White had participated in the tainting of evidence, falsely manufactured her police reports and had committed perjury on the witness stand. But when he informed prosecutor Talley of his findings, Conklin says the prosecutor told him “it would be preferable if you said your investigation was not completed until after the date of the sentencing.”

In other words, the complaint reads, Talley “did not want to advise” Choi Kim’s defense attorneys about Conklin’s findings “since he was concerned that it might result in a new trial” for Choi Kim. Conklin says Talley would never go on to inform Choi Kim’s lawyers about his findings.  

In June 2011, Conklin says his investigation was given to another prosecutor, Deputy District Attorney Aleta Bryant, to review what, if any, criminal charges would be brought against White. Conklin says that around this same time prosecutor Talley was given a disk containing Conklin’s entire investigative materials in the White matter, including an interview he conducted with White, all audio recordings and transcripts of the eyewitness’ pretrial statements.

However, about two weeks later, Conklin was told that OCDA had never received recorded pretrial interviews with two of the witnesses that Conklin had collected himself and which were contained on the disk he turned over to Talley. The day after Conklin received this notification, Bryant indicated that White would not be prosecuted for her alleged crimes.

Then, that same day, Conklin says that Deputy District Attorney Talley yelled at him, saying he was a “de facto investigator for the defense and doing the defense’s dirty work.” He added that the prosecutor essentially asked him to lie, allegedly saying to him, “why didn’t you stop your investigation once you located the new recordings” and “why didn’t you wait until after the sentencing ― now I have to disclose suspect descriptions to the defense.”

Mysteriously, Conklin says that then-Deputy DA Dan Wagner told his boss in July 2011 that he wanted to meet with Conklin about his investigation into the White crimes. But, after emailing Wagner about his own availability, Conklin says he never heard back from the prosecutor.

And for the next four years, Conklin says he had no further conversations with any of the homicide prosecutors or OCDA management about his White investigation. He also assumed that his completed investigation materials and records were shared with Choi Kim’s defense team, which OCDA is legally required to do. 

But in 2015, Conklin saw an article in the local O.C. Weekly newspaper stating that Choi Kim had filed for an appeal for a new trial. Since the article made no mention of his investigation, Conklin says he became suspicious that OCDA had not turned over the contents of his investigation to Choi Kim’s lawyers. He also says that he thought the timing of the lack of disclosure was suspect because by 2015 the jailhouse informant scandal in the county had exploded and OCDA was facing tremendous scrutiny for their role in it. This alarmed Conklin further, he says, because Wagner was the prosecutor in the Scott Dekraai mass-murder case, which remains at the center of the scandal due to allegations that a snitch was illegally planted next to Dekraai in jail to glean incriminating evidence from him.

Conklin says he he came to the conclusion that “the highest levels of management” at OCDA had not ever shared his White investigation with the Choi Kim defense, so he contacted Choi Kim’s defense attorney Michael Chaney.

Chaney told Conklin, according to the complaint, that he was not familiar with Conklin’s name, any investigation he had conducted into White and that the OCDA office had in its possession numerous pieces of evidence from the White investigation. Conklin says he would go on to meet with Chaney and provided him with the “narrative and timeline” from his White investigation.

Having been caught violating a defendant’s rights by not turning over evidence, Conklin alleges that the OCDA, through Wagner, at some point in 2016, concocted a scheme to cover up their misdeeds and attempted to shift blame onto Choi Kim’s defense team.

Wagner informed the defense in 2016 letter that there was a set of materials that had never been picked up by them. But then, according to the complaint, Wagner allegedly included within those materials Conklin’s internal investigation, which had never before been turned over. Conklin believes that this was intended to give the defense the impression that it was their negligence that caused them to never have the investigation materials.

Investigators claim they were pulled from a second case due to their whistleblowing.

Like Conklin, investigator Santos claims he too has been subject to unfair discipline and harassment while working at OCDA, also due to whistleblowing on an investigation he was assigned by the agency into a car accident that former Fullerton City Manager Joe Felz was involved in.

In the early hours of election night November 2016, Felz crashed his vehicle into a tree in a residential neighborhood. When Fullerton police arrived on the scene, Felz, according to Santos’ complaint, was slurring his words and told the officer, “I’m a City Manager,” and “call Danny Hughes” ― who, at the time of the crash, was the Chief of Police for the Fullerton Police Department. Santos says that the patrol officer called the chief who dispatched one of his sergeants, Jeff Corbett, to go to the scene of the accident and drive Felz home. Felz was not arrested that night and it wouldn’t be until March 2017 that he’d be charged with a DUI for the crash.

Santos alleges that it was no accident that Corbett was called to help with preferential treatment of Felz. “Sometime before [the Felz crash] Sergeant Corbett, who supervised the narcotics unit at FPD, was found by a Fullerton PD officer having sexual relations in his police vehicle while on duty behind a local business,” according to the complaint. Corbett was not arrested for the act, Santos says, and that instead Corbett told his fellow narcotics division officers that they should say he was involved in work-related surveillance. Santos then claims Chief Hughes did Corbett a favor and covered up that misconduct so, come the night of Felz accident, Corbett was willing to do his chief a favor back.

Upon investigating the incident, Santos says he discovered evidence that led him to conclude that Chief Hughes had criminally obstructed justice. So in January of this year, the investigator informed Assistant District Attorney Ebrahim Baytieh that he was concerned about the case because of the DUI and what appeared to be a cover-up.

But according to Santos’ complaint, Baytieh ― a county prosecutor who has been at the forefront of his office’s response to the ongoing jail informant scandal and who has been accused of misconduct himself over informant use ― told Santos that “I am friends with Chief Hughes and we are only going to be investigating the DUI and not anything else.”

The investigator then says that Baytieh threatened to take him off the investigation. And the following month, Santos claims his supervisor took the Felz investigation away from him completely.

Both investigators claim that they have now been subject to internal discipline, and even have had management falsely document wrongdoing in their personnel records, directly due to their whistleblowing. They claim that the punishment is ongoing and that as recently as February the pair were formally taken off of another investigation they had partnered on.

Additionally, Santos claims he’s also been the target of false rumors in the office that he was having an affair with one of his investigation assistants. Santos says his sexual harassment complaint linked to that incident was never appropriately addressed nor investigated by OCDA. 

“The OCDA learned of the two complaints from the media this morning,” Michelle Van Der Linden, OCDA spokeswoman, told HuffPost. “Both claims are personnel matters involving litigation and as such, we are unable to discuss or provide additional information at this time.”

Fullerton Police Chief David Hinig told HuffPost that “this matter pertains to the actions of members of the Orange County District Attorney’s Office. Any reference to employees of Fullerton, former or current, constitute personnel matters and we cannot comment further.”

This story has been updated with comments from Fullerton Chief of Police David Hinig.

— This feed and its contents are the property of The Huffington Post, and use is subject to our terms. It may be used for personal consumption, but may not be distributed on a website.