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U.S. Violating Right to Peaceful Assembly, UN Expert Says in Report

An armored vehicle pushing into protesters in Baton Rouge on July 10, 2016. Protesters are calling for justice for Alton Sterling, who was killed by Baton Rouge police on July 4, 2016.

NEW YORK — An independent U.N. expert on human rights issued a blistering statement on the status of protest and policing in the United States after touring the country and visiting cities recently embroiled in unrest in the wake of racially tinged police killings, including Baltimore; Ferguson, Missouri; New York and Baton Rouge, Louisiana.

The expert, Maina Kiai, the Special Rapporteur on the rights to freedom of peaceful assembly and of association, found in a preliminary report that the United States is falling short of its ideals and its constitutional guarantee of the right to peaceably assemble.

JJIE New York Metro Bureau logo“Today, unfortunately, America seems to be at a moment where it is struggling to live up to its ideals on a number of important issues, the most critical being racial, social and economic inequality, which are often intertwined,” Kiai said in his statement, while acknowledging the country’s long history of racial oppression.

Special rapporteur positions are honorary. Experts are appointed by the UN Human Rights Council to investigate alleged human rights violations.

Kiai released the report amid news of prosecutors in Baltimore dropping the remaining cases against the police officers initially charged in the killing of Freddie Gray, and as some residents demand policy changes for Baton Rouge police officers. Residents say they intend to continue to push for the arrest and prosecution of officers responsible for Alton Sterling's death.

Kiai echoed what many critics of law enforcement practices in the United States have said in the wake of violent police responses to peaceful protests: He warned about the harm the federal government’s 1033 program has done in encouraging a militarized approach. The program gives local police departments access to military equipment.

“It is ill-advised to use military material to manage activities so fundamental to democratic societies. Protests naturally come with some disruptions, but police should target only the individuals responsible for violence,” Kiai wrote. “This is not only a violation of the right to peaceful assembly, it [is] also dangerous for participants, the general public and police officers.”

Three armored vehicles following a line of police down a Baton Rouge street during the protest. Protesters are calling for justice for Alton Sterling, who was killed by Baton Rouge police on July 4, 2016.
Three armored vehicles following a line of police down a Baton Rouge street during the protest. Protesters are calling for justice for Alton Sterling, who was killed by Baton Rouge police on July 4, 2016.

In addition, “assemblies organized by African-Americans are managed differently, with these protests often met with disproportionate force. Indeed, white and Muslim activists that I met acknowledged that black fellow protesters face harsher police encounters in the context of assemblies: police are more likely to be militarized and aggressive; black people are detained longer after arrests; they face more and heavier charges, more intimidation and more disrespect,” the report says.

On July 10, the kind of overmilitarization Kiai cited in his report played out in Baton Rouge when police officers and state troopers responded to peaceful protesters calling for justice for Sterling with an armored vehicle, wearing riot gear. Police pointed guns at protesters, rounded up dozens of people and threw them in prison, including a JJIE reporter. Many of those arrested, including reporters and legal observers, have since said they were imprisoned on false charges. In response to a request by Baton Rouge residents and protesters, Kiai added a stop in Baton Rouge to his agenda.

“It was disconcerting to hear the many testimonies revealing that two years after the mismanagement of protests in Ferguson, and a year after the crisis in Baltimore following the [death] of Freddie Gray, similar practices were repeated in Baton Rouge in July this year to deal with protests after the police shooting of Alton Sterling,” Kiai said.]

The Baton Rouge Police Department declined to comment on the report.

A number of civil rights organizations in Baton Rouge have filed lawsuits against the Baton Rouge Police Department, East Baton Rouge Parish Sheriff’s Office, Louisiana Department of Public Safety, the Louisiana State Police and several city and state officials for wrongful arrests and crushing protesters rights during the protest.

Crystal Williams, 28, founder and lead organizer for North Baton Rouge Matters, a community group formed in the wake of Sterling’s death, said Sterling’s death and the violent treatment of protesters should come as no surprise.

“Systematic racism is still running rampant in North Baton Rouge,” she said.

In his statement, Kiai emphasized that “Black Lives Matter” does not imply that other lives don’t matter.

“The Black Lives Matter movement is simply a reaffirmation that black lives do in fact matter, in the face of a structure that systematically devalues and destroys them,” Kiai said. “It is about a historically and continuously targeted community seeking to elevate itself to the same level that everyone else enjoys.”

Kiai is expected to issue a full report to the Human Rights Council in June 2017. Williams is hopeful but cautious.

“We don’t put high expectations in the judicial system because of the track record in America — no one is held accountable,” she said.

Among those who testified during the meeting with Kiai in Baton Rouge was Victor White, father of Victor White III. The younger White was in the back of an Iberia Parish police vehicle with his hands cuffed behind his back when he died of what was ruled a self-inflicted gunshot wound to the chest. After investigations, both federal and state officials declined to press charges.

“It’s absolutely ridiculous. The message is clear that when police put on that badge and uniform and use a department-issued gun, they will not be held responsible,” Williams said.

Protecting School Campuses and Unintended Consequences

During my testimony before the U.S. Senate Judiciary Subcommittee on The Constitution, Civil Rights, and Human Rights last month, Sen. Dick Durbin (D-Ill.), chairman and majority whip, asked me if I am in favor of police on school campuses. To the dismay of some of my friends who stand by my side in this fight to dismantle the "school-to-prison pipeline," I answered a qualified yes. Police on campus, I explained, must be specially trained in adolescent development, crisis intervention and fostering positive relationships with students.

Two days later, a deranged shooter entered the campus of Sandy Hook Elementary School in Newtown, Conn. killing 20 children and six adults.

Now, the aftermath debate includes placing police on every campus. This issue is reserved for my friends in the other branches of government, but as a judge I am concerned. If police are placed on campus without written protocols defining their role, the results will be disastrous -- just as removing existing police from campus can have unintended consequences.

These friends are adamant that the "simple" solution to dismantling the school-to-prison pipeline is the removal of police from campus. This "simple" solution assumes that police are the cancerous cause of the significant spike in the number of low-level offenses.

At first blush my friends seem to have a valid point—the greater the police presence, the greater the risk for arrest. This greater risk does not bode well for most kids because they are wired to do stupid things. Kids are under neurological construction and require the time for maturation.

This logic assumes that it's the police who have interest in arresting students for school fights, disorderly conduct, and disrupting public school. I have visited, along with my technical assistance team supported by the Annie E. Casey Foundation Juvenile Detention Alternatives Initiative (JDAI), many localities from California to Massachusetts to Florida and as far north as Montana and North Dakota, and can positively state that the vast majority of campus police are frustrated with their role. They desire a mission statement with clear objectives, the first being that they are not disciplinarians to be used and abused by school administrators.

I have many police testimonies but will share a recent visit to Broward County, Fla. that is typical of my encounters with school police across the nation. The presiding juvenile judge in Broward County, Judge Elijah Williams, read my articles on school-justice partnerships and developed a stakeholders’ group to develop an agreement to reduce low risk school arrests.

Juvenile court judges are integral players in bringing stakeholders together to develop innovative strategies that can benefit children and the community. This convening power of the judge has proven a key factor in the success of replicating protocols similar to my court, now referred to as the "Positive Student Engagement Model for School Policing."

Broward County was no exception. Judge Williams invited me and Clayton County Police Lieutenant Francisco Romero to Ft. Lauderdale in September 2012 to present the model to the stakeholders. Lt. Romero, a veteran school resource officer, helped me implement our model in 2004. His experiences bring examples of positive student engagement, how developing a relationship with students opens the door of communication and, in turn, sharing of information that prevents weapons and drugs from entering the campus -- not to mention solving crimes in the community, including murder. (What kids hear over the weekend they bring to school on Monday!) Gathering police intelligence requires a positive relationship with students.

During the presentation, the audience of law enforcement displayed the typical stoic demeanor -- no expression. They are difficult to read and if I were a poker player I would refrain from playing with my law enforcement friends. When we concluded, Judge Williams took the podium and asked this question: "By a show of hands, how many would agree to a protocol that prohibits you from arresting a student for any non-violent misdemeanor offense, including possession, not sale.”

They all raised their hands!

The stoic looks were replaced by animated hand gestures with frustrated facial expressions. They spewed opposition to the disciplinarian role school administrators demand. A role oftentimes expected of police by virtue of their presence on campus. A role that has led to SRO's referred to as "Sorry Road Officers" or "Kiddie Cops."

These derogatory descriptions are false for the many trained school resource officers who have chosen to work with adolescents. I refer you to Mo Cannady, director of the National Association of School Resource Officers (NASRO). School policing is a specialized field of police work, no different than SWAT, narcotics, DUI Task Force and other areas requiring specialized training.

Any system that relegates a trained and certified peace officer to the role of student disciplinarian is exercising very poor administrative judgment. The disciplinarian role does not require someone with peace officer certification carrying handcuffs and a firearm. That would make them overqualified for the job. A misuse of police officers on campus will not protect the campus from another massacre. It will likely take the officer off the campus due to the high incident of misdemeanor arrests and allow for many to die in the wake of a deranged gunman's wave of bullets.

God forbid there is another shooting and the media asks this one question: "Where was your SRO when the shooting began?" The answer: "At juvenile court booking a kid for a schoolyard fight."

It's not good enough if the SRO calls a road officer from the street to transport the student--it now cuts down the response time for a robbery, burglary, or serious assault in progress.

Major Miguel A. Martinez of the Hallandale Beach Police Department in Broward County, Fla. summed it up: “If the only tool is a cop – than every problem is a crime.”

SRO's were removed from the middle schools in my county to cut costs after the economic downturn. The arrest of middle school students drastically increased. Administrators simply called 911 and got a road officer, untrained in adolescent development.

Be careful what you ask for. You just might get it.

U.S. Senate Subcommittee Hears Testimony on School-to-Prison Pipeline

Edward Ward, Youth Leader, Blocks Together
Edward Ward, Youth Leader, Blocks Together

WASHINGTON, D.C. – Twenty-year-old Edward Ward, a sophomore on the honor roll at DePaul University, tried to describe to U.S. Sens. Dick Durbin (D-Ill.) and Al Franken (D-Minn.), the only senators left in the room by the time he spoke on Capitol Hill Wednesday, what it was like to grow up in his neighborhood on the west side of Chicago.

“When I was 18, I witnessed a complete stranger's killing mere feet from me in a neighborhood restaurant," Ward said before the Senate subcommittee. "I was stopped by the police a few years ago. I saw them train their guns on me until I could show them the item in my hand was only a cell phone.”

Things didn’t get much better at high school, Ward said. “My school environment was very tense. The halls were full of security officers whose sole purpose seemed to serve detention. I felt constantly on alert – afraid to make the smallest mistake. I felt I couldn't go to them for general security issues because first I would be interrogated.”

schoolppipe_seriesMore than 400 people crammed into hearing rooms in two separate U.S. Senate office buildings to hear lawmakers, educators, federal and court officials, and Ward testify about how punitive disciplinary measures at schools were funneling children into the criminal justice system, often for minor offenses like truancy or dress code violations, and at much higher rates if they were minorities.

This was the first-ever Congressional hearing on the subject, according to Dignity in Schools, a coalition of parents, educators and students advocating for the end of zero-tolerance policies in schools. Ward, who also works as a community organizer, is a member of the coalition.

Although many of his classmates wanted to succeed academically, they were hobbled by financial struggles at home and the responsibility of caring for siblings, Ward said. A classmate was suspended for being late to school, he said, even though she was tardy because she couldn’t leave her little brother alone at home until her parents returned from work.

There were lots of instances where his classmates were suspended or expelled for minor offenses that should have merited “a stern warning or a reminder,” Ward said. When they were suspended, they often disappeared for days -- weeks if they were kicked out of school, he said.

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Learn more about school discipline reform trends at the Juvenile Justice Resource Hub HERE.

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“We have a discipline crisis in this country that must be ended,” said Judith Browne Dianis, co-director of the civil rights group The Advancement Projectand another witness at the hearing.

Judith Browne Dianis, Co-Director, Advancement Project
Judith Browne Dianis, Co-Director, Advancement Project

“Police are arresting youth for things like talking back. That’s now ‘disorderly conduct.’ Writing on desks is now vandalism.”

At the same time, racial disproportionality in school discipline can be such that, within the same school district, a five-year-old African-American girl who set off a fire alarm was suspended for five days, while a white ninth-grader who committed the same offense was suspended for just one day, testified Deborah Delisle, the assistant secretary for elementary and secondary education at the U.S. Department of Education.

Held by the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights, the hearing drew so much public interest that it was shifted to a 260-seat room, the largest available, in the Hart Senate building.

Other witnesses at the hearing included U.S. Reps. Bobby Scott (D-Va.) and Danny Davis (D-Ill.); Melodee Hanes, the acting administrator of the federal Office of Juvenile Justice and Delinquency Prevention; Mike DeWine, the attorney general for Ohio; and Judge Steven Teske, chief judge at the Clayton County juvenile court in Georgia. (Judge Teske is a frequent op-ed contributor to the JJIE.)

By the time the hearing was to start, the first room was full. A mass of young people, many wearing Dignity in Schools t-shirts, was still lined up in the hallway outside, waiting to get in. Capitol Hill staffers soon escorted them three floors up in an adjacent building to a 150-seat “overflow room” equipped with a live video feed.

But that room soon ran out of seats too.

OJJDP’s Hanes told the senators that millions of children were suspended or expelled every year for minor infractions like truancy, classroom disruption or dress code violations. Fifteen percent were suspended 11 or more times, she said, and those were the kids who were more likely minorities and who were likely to end up in the juvenile justice system.

“We have learned that the minute a child sets foot in the juvenile justice system, their chances of becoming an adult offender go up 50 percent,” Hanes said. “As soon as they enter the juvenile justice system, their chances of completing their education, of getting a job, their chances of life, diminish significantly.”

The costs to taxpayers are significant as well, Hanes pointed out: It cost $10,000 a year to educate a child, and $87,000 a year to lock a child up.

“Research has clearly indicated that children exposed to violence in the home or in school or in the community, those children suffer trauma. The evidence is conclusive that those children don’t do as well,” Hanes said.

Ward said his classmates' experience bore that out. “A lot of youth from where I come from, they face huge struggles, huge difficulties,” Ward said. “We have to take into account the situations students face outside school to understand their actions when they’re in school.”

Any discussions of solutions had to include young people themselves, several witnesses said. “We can’t arrest our way out of this issue,” Dianis of the Advancement Project said. “Young people have to be part of this conversation.”

Witnesses on the third panel listen as Ohio Attorney General Mike DeWine testifies.
Witnesses on the third panel listen as Ohio Attorney General Mike DeWine testifies.

Solutions included developing greater consensus among experts about best practices, greater collaboration on research and data between federal agencies and better guidance for school districts and states on practices that maintain students’ rights. Other solutions proposed were greater public education on the necessity for appropriate responses to delinquent behavior, more training for police officers in crisis intervention and greater awareness on the part of the public and law enforcement on how to handle those from diverse social, medical and economic backgrounds.

“We’re basically using our criminal justice system as a substitute for a public health system and an education system,” Franken said during the hearing. “This is a bipartisan issue. There is no question about that.”

Senate hearing photos courtesy of U.S. Senator Dick Durbin. Photo by Kaukab Jhumra Smith.