Thursday, July 30, 2009

My Racial Profile

I may have been more prone to emphasize the race aspect of the July 16 arrest of Harvard Prof. Henry Louis Gates by Cambridge Sgt. James Crowley because of my own personal experience. When I was arrested on February 17, 2003 by two white San Francisco police officers who responded to a 911 call from a white Walgreens manager who thought I might possibly be using a counterfeit $100 bill to purchase items, I believe I was racially profiled. If I had been white, would I have been arrested that night?

I expressed this viewpoint after the police had handcuffed me and hauled me off to the police precinct where I remained cuffed to a rail in the holding cell before the officers verified from the US Secret Service that my bill was genuine and released me. In an article that appeared in AsianWeek, I wrote that if this had happened to San Francisco Supervisor (now Mayor) Gavin Newsom, the Walgreens manager would never have called the police and the officers would never have arrested and handcuffed Newsom or taken him to a police station to verify the authenticity of his $100 bill.

Two weeks after my article appeared, I received a phone call from Gavin Newsom who was quite upset. “Rodel, why did you use my name? Do you have an axe to grind against me?” he asked. “No, Gavin”, I replied, “I only used your name to emphasize a point. If I had used some other white elected official who wasn’t as well known as an example, it wouldn’t have been as effective.”

Newsom then told me it was “ironic” that I picked him because “what happened to you happened to me”. Shocked, I asked him what happened. Newsom then related an incident that occurred when he was still in the private sector when he brought the daily earnings of his restaurant (Balboa CafĂ©) to the bank to deposit. He said the teller began counting the money and applied a counterfeit detector pen to a $100 bill which she found suspicious. The result confirmed that it was fake – unlike in my case where the pen applied by both the Walgreens cashier and manager showed that my $100 bill was genuine.

“So what happened next?” I asked Newsom. “Well, she returned the $100 bill to me and told me to be careful next time,” he answered.

“Gavin, what happened to you didn’t happen to me. If it had been me, she would have called the cops!” I told him. That was precisely the point I was making in my article and Newsom had just confirmed it.

In my 2003 Walgreens incident, Sgt. Jeff Barry, the police officer who was the first to respond to the 911 call, immediately recognized me because our sons were classmates in a parochial school and because of an argument we had about a City College policy (I was then an elected City College Trustee) of not allowing campus police to carry their firearms on campus which, he said, posed a risk to his brother-in-law who was a campus police officer. Barry was very agitated about the issue and demanded that we change the policy.

Because I didn’t agree with his opinion, Sgt. Barry seized the Walgreens opportunity to provide me with a “teachable moment”.

Although he was the first to arrive at the scene, Sgt. Barry remained at the Walgreens entrance, careful to ensure that I didn’t see him. When Officer Michelle Liddicoet arrived and asked him what was happening, Sgt. Barry told her, pointing to me, “It’s that lawyer. He hates cops.” Liddicoet then replied, “Don’t worry, Sarge. I’ll take care of him.” So she proceeded to arrest me, place me in handcuffs and transport me in the back of a police squad car to the Taraval police station.

I did not learn of Barry’s presence at the scene or of his role in my arrest until I read his name in the police report. Barry wanted to teach me a lesson and so I decided to also teach him a lesson. I sued him and Liddicoet for wrongful arrest and for violating my civil rights.

In his July 27, 2009 New York Times op-ed piece, Randy Cohen encouraged Prof. Gates to sue Sgt. Crowley because “filing suit can be a way to pursue social justice.” As Donna Lieberman of the New York Civil Liberties Union explained, lawsuits can be “an important tool for reform when coupled with advocacy and public education efforts and when the circumstances are conducive to change.”

With that perspective, I had also sued Walgreens and it resulted in Walgreens apologizing to me, firing the manager who called 911, and hiring a long-time Filipino American employee to replace him. My lawsuit against the San Francisco Police Department resulted in a major clarification of police departmental policy - officers could no longer arrest suspects who possess suspected counterfeit currency unless there was some probable cause to believe that the suspect was aware that the currency was counterfeit.

My case against Barry and Liddicoet has gone up the Ninth Circuit to the US Supreme Court and back down to the Ninth Circuit and up again to the US Supreme Court. It has resulted in two published Ninth Circuit Court opinions on the issue of whether police officers have qualified immunity to be “immune” from civil lawsuits for their abuse of police powers (“Rodis v. City and County of San Francisco ”).

The Supreme Court decision on my case will affect the lawsuit of the 72-year old grandmother in Texas who was tasered by a highway patrol officer for refusing to sign a speeding ticket and thousands of other cases filed by individuals who have sued police officers for the abuse of their police powers.

After more than six years of litigation and expending tens of thousands of dollars in legal fees to press a lawsuit against two officers represented by a City Attorney’s office that has spent and can spend hundreds of thousands of dollars of taxpayers’ money to defend the suit, I often wonder who was really taught a lesson.

Thursday, July 23, 2009

Professor Gates and Me

Although I met distinguished African American historian and Harvard professor Henry Louis Gates about 10 years ago when he was our commencement speaker at City College, I am certain he does not remember me. But he may soon learn about me and my lawsuit against San Francisco police officers when he consults Harvard Law School Prof. Charles Ogletree about suing the Cambridge officer who arrested him at his home on July 16.

Gates is a summa cum laude graduate of Yale, a MacArthur genius grant awardee, a PBS documentarian, the holder of 50 honorary degrees, and one of Time Magazine’s “25 Most Influential Americans” in 1997. But all his honors didn’t mean a thing last week when he was arrested at his Cambridge home by a white police officer who was responding to a possible break-in at his home. The officer had demanded to see identification from Gates who produced his driver’s license and his Harvard ID. The officer seemed to doubt that a black man like Gates could live in that upscale neighborhood.

When Gates demanded to know the officer’s name and badge number, the officer asked him to step out on to the porch. After Gates complied, the officer thanked him and then placed him under arrest for disorderly conduct. The officer later wrote in his police report that Gates had become “belligerent” and had called him a racist. The officer, later identified as Sgt. James Crowley, placed Gates in handcuffs and brought him in a squad car to the police station where his fingerprints and mug shots were taken and where he was locked up for four hours until he was released.

Gates disputed the allegations of Crowley’s police report which stated that he was engaged in “a loud and tumultuous behavior”. "That's a joke," Gates said. "It escalated as follows: I kept saying to him, 'What is your name, and what is your badge number?' and he ref use d to respond. I asked him three times, and he refused to respond. And th en I said, 'You're not responding because I'm a black man, and you're a white officer.'"

Five days after the arrest, the county District Attorney announced that he was dropping all the charges against Gates stating that it was “a just resolution to an unfortunate set of circumstances.’’

When asked about the Gates arrest at his July 22 White House news conference, Pres. Barack Obama said “ I don't know, not having been there and not seeing all the facts, what role race played…But I think it's fair to say, No. 1, any of us would be pretty angry; No. 2, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home; and, No. 3 ... that there's a long history in this country of African-Americans and Latinos being stopped by law enforcement disp roportion ately.”

Gates will consult his attorney about possibly filing suit against Crowley and the Cambridge Police Department and Prof. Ogletree will likely discourage him from filing the suit after informing him that the police officer may prevail on a claim of “qualified immunity” because of a March 9, 2009 Ninth Circuit decision in the case of “Rodis vs. City and County of San Francisco et al” that is currently on appeal to the U.S. Supreme Court.

The Decision's recitation of the facts of that case begins as follows: “On February 17, 2003, Rodel E. Rodis, an attorney and a locally elected public official, entered a drugstore near his office to purchase a few items. He tendered a 1985 series $100 bill, which lacked the security thread, watermarks, microprinting, and other anti-counterfeiting features of current $100 bills…” The cashier used a counterfeit detector pen on the bill which showed it was au thentic but nonetheless called her manager, Dennis Snopikov, for assistance. The manager used the pen again and it yielded the same result but he still called 911 to report a possible use of a counterfeit bill.

The first police officer to respond was Sgt. Jeff Barry who knew me from a verbal argument we had a few years before concerning a City College policy not allowing campus police officers to carry firearms on campus. He charged that our policy (I was an elected College Board Trustee at the time) endangered the life of his brother-in-law who was a campus police officer.

When Barry stepped into the store and saw that I was the suspect, he chose not to speak with either Snopikov or myself. Instead, he waited for Officer Michelle Liddicoet and another officer to arrive. When Liddicoet arrived and asked him what was going on, Barry pointed to me and told her: “It’s that lawyer. He hates cops.”

Liddicoet then assured Barry, “Don’t worry Sarge, we’ll take care of him.” She then proceeded to arrest me without checking to see if the bill was counterfeit. I was placed in handcuffs behind my back and paraded through the store before other customers and brought by a squad car to the police precinct where I was handcuffed to a bar in a holding cell. After the police officers checked with an official of the US Secret Service who verified that my $100 bill was genuine, I was released.

After I sued police officers Barry and Liddicoet for violating my civil rights, they filed a motion for summary judgment claiming that they were enti tled to qu alified immunity because they believed the bill was counterfeit. The federal judge denied their motion which the officers appealed directly to the Ninth Circuit before the trial was set to begin.

On August 28, 2007, the Ninth Circuit ruled in my favor holding that “arresting Rodis without any evidence he intended to use the bill to defraud the store or that he knew (or believed) the bill was fake was a violation of his Fourth Amendment rights. Further, it was clearly established at the time of the arrest that Defendants’ conduct was unlawful. Thus, both arguments Defendants put forth are without merit” and they were not entitled to qualified immunity.

The officers then filed a writ of certiorari to the US Supreme Court which granted the writ on January 29, 2009, vacating the Ninth Circuit decision, and remanding the case for further considera tion in light of its recent decision in Pearson v. Callahan.

After my case was remanded back to the Ninth Circuit, the judges reversed their earlier decision on March 9, 2009 holding that "Although the arrest was unfortunate, we cannot say that the officers' belief that (the bill) was fake was plainly incompetent... The arrest, therefore, was not clearly established as unlawful."

Instead of viewing the case objectively as they did earlier - whether under the “totality of circumstances” the arrest was reasonable, the judges now applied the subjective test of whether the officers’ belief that the bill was fake was “plainly incompetent.”

Under this new standard, the issue that Prof. Gates would f ace if Sgt. Crowley claimed qualified immunity is whether Sgt. Crowley’s arrest of him for disorderly conduct was “plainly incompetent”. If it was incompetent but not "plainly" so, then Crowley wins.

This new test accords virtual absolute immunity from liability to abusive police officers who use their badges to settle personal scores or show uppity minorities exactly who’s the boss locally, even if the president of the US is Barack Obama.

Wednesday, July 15, 2009

Sotomayor and the Race Question

The US Senate confirmation hearings being held this week on the nomination of Federal Appellate Judge Sonia Sotomayor to the US Supreme Court has focused the nation’s attention on the issue of race on a multitude of levels. On one level is Sotomayor’s historic position as the first Latina to be nominated to the US Supreme Court. On another level is her decision as an appellate judge to throw out a New Haven firefighter’s promotional test because minorities failed to qualify.

After viewing the first two days of the hearings, columnist Ruben Navarette Jr. wrote of his “weird dream that seven conservative white males were desperate for reassurances that a Latina vying for a seat on the Supreme Court would not use the law to mistreat people who look like them.” He expressed amazement that the seven white Republicans on the Senate Judiciary Panel have expressed fears that Sotomayor “might use her power as a justice to disenfranchise white males.”

Right-wing Republicans like Rush Limbaugh and Newt Gingrich were quick to label Sotomayor a “racist” because of a speech she gave in 2001 in a Berkeley legal conference on race and gender where she said:.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life. ... Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into20areas with which I am unfamiliar. I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

In that speech, Sotomayor explained that the experiences or backgrounds of white males also affect how they adjudicate, specifically with regard to "sex and race discrimination" cases. She also explained that, like any judge, she has to work to overcome her own personal assumptions and biases to render a fair decision.

What may reassure these insecure senate Republicans is her acknowledgment in that same speech that “we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable” citing the nine white men in the US Supreme Court who threw out racial segregation in the landmark 1954 Brown v. Board of Education.

They also forget that at his Senate confirmation hearing in 2006, Supreme Court Justice Samuel Alito declared that his experience as the son of Italian immigrants and his knowledge of discrimination provided him with “empathy” that offers insight into such cases.

After Sotomayor completes her testimony, Senate Republicans will trot out the white firemen of New Haven, Connecticut as their prime witnesses against Sotomayor because of her appellate ruling (along with two white colleagues) in the case of Ricci v. DeStefano to uphold the City of New Haven’s decision to discard a promotional mostly multiple choice test for firemen that resulted in 17 whites and only 1 minority (a Hispanic) being promoted to fire captain and fire lieutenant in a city that is 60% minority. The New Haven Fire Department currently has 21 fire captains only one of which is a minority.

The issue in Ricci involves the proper interpretat ion of Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin and specifically prohibits the use of discriminatory employment tests and selection procedures. Only one of the Department’s 21 fire captains is African-American.

San Francisco had a similar problem in 1971 when a Title VII lawsuit was filed in federal court by Robert Gnaizda challenging the written test for firefighters that was administered in 1970 where none of the 250 applicants who passed the test was African-American. At that time, the San Francisco Fire Department had only three African-Americans out of 1700 firefighters.

In his July 10, 2009 article reflecting on that case, Gnaizda recalled cross-examining the UC Berkeley professor author of the “no blacks passed” written tests where “he acknowledged that the 10 most crucial qualifications to be a successful firefighter were not part of the test.”

“The expert then reluctantly admitted that his "flawless" test might prevent the strongest and most agile applicants from becoming firefighters even though he believed that physical strength might be the most significant qualification for a firefighter” Gnaizda wrote.

The district court judge hearing the case, William Sweigert, then “threw out the test and ordered a quota”. This resulted in the top 60 African-Americans who took the written test being accepted as firefighters.

“Two years later,” Gnaizda wrote, “the white firefighter hierarchy evaluated all of the new firefighters. Their findings were, in effect, that the written test was meaningless and possibly counterproductive. Those who scored below the 70 percent passing grade (all black) did as well as those who scored between 70 and 90 percent (all white), and slightly better than those who scored the highest,=2 0over 90 percent.”

As a result of the lawsuit filed by Gnaizda, there are now 75 highly-qualified full-time Filipino Americans in the San Francisco Fire Department.

The San Francisco case showed that written tests alone cannot be trusted. The New York Times reported that Sonia Sotomayor did so poorly on her SATs that she was wholly unqualified for admission to Princeton but was able to enter Princeton as an “affirmative action baby” just like Supreme Court Justice Clarence Thomas did. As the inquiring senators know, four years later, Sotomayor graduated from Princeton summa cum laude (highest honors) and became a well-respected federal appeals court judge.

Perhaps the Republicans who supported Sen. John McCain for president may recall that he finished in the bottom 1 percentile (5th from last out of 750) in his Annapolis Naval Academy graduation class. They must have believed that he was qualified to be pres ident despite his poor showing in written tests.

Wednesday, July 8, 2009

No Filipinos Allowed?

It was as representative a cross-section of the Filipino community as I had ever seen at a protest rally. There were WW II veterans (some in wheelchairs), young school kids, college students, professionals, clerical employees, Republicans, Democrats, even press representatives from both ABS-CBN’s The Filipino Channel (TFC) and GMA’s Pinoy TV. Among the powerhouse attendees were Greg Macabenta of the National Federation of Filipino American Associations (NaFFAA), Dennis Normandy of the Filipino American Political Action Committee (FAPAC), Marily Mondejar of the Filipino Women’s Network (FWN), Boots Chavez of the Philippine American Press Club (PAPC), and Baylan Megino of the Filipino American National Historical Society (FANHS).

They were all there gathered in front of San Francisco’s City Hall on June 30, 2009, in magnificent solidarity with each other, to protest the exclusion of Filipino non-profits from the $9-M NOFA city fund for disadvantaged families and to specifically urge the City’s Board of Supervisors to include the West Bay Pilipino Multi-Service Center (West Bay) in their July 1 Board meeting to reconsider the funding for non-profits.

Five Filipino South of Market (SOMA) community non-profits led by West Bay had collaborated to submit a $317,000 proposal for funding under this $9-M Notice of Funding Availability (NOFA) fund from the City’s Department of Children, Youth and their Families (DCYF) budget for non-profit partners. When NOFA directors announced their recommendation of 23 non-profit community agencies, Rudy Asercion, Executive Director of West Bay, was shocked to learn that not one Filipino community agency was included in the NOFA list. Did “NOFA” mean “NO Filipinos Allowed”?

Rudy and leaders of the other Filipino non-profits issued a call for support from the Filipino community and the community responded with strategy meetings, online petitions, emails and phone calls directed to the Supervisors and to the Mayor.

In response to the public barrage of emails and phone calls, David Carrington Miree, Deputy Director of the Mayor's Office of Neighborhood Services (MONS), disputed the allegation that the Filipino community was not covered by the $9-M NOFA fund. Miree pointed to two agencies - of the 23 recommended for funding- which had included West Bay as a subcontractor. One of them, South of Market Child Care, Inc. (SMCC), had earmarked $60,000 of its funds to West Bay. After it received the funding recommendation, however, the SMCC director informed Rudy that because SMCC did not get the full funding it wanted, he would not disburse any funds to West Bay. The other agency, Asian Pacific Islander Family Resource Network, (APIFRN), designated $30,000 to serve Filipino families through West Bay, its subcontractor. But this small fund was further reduced to $17,000.

The Mayor’s deputy wanted the Filipino community to be satisfied with receiving just $17,000 out of $9-M? Don’t we pay taxes too?

That’s why the Filipino community solidarity rally was called for the day before the crucial Board vote. It was an unprecedented display of unity by all the various segments of the Filipino community. But would this be enough to convince South of Market District Supervisor Chris Daly to fund West Bay after he single-handedly caused West Bay to lose $487,000 in approved city funds in 2005?

Remember the old tale about the crabs who were working furiously to get out of the basket they were dumped into? Aren’t you worried, Supervisor Daly, that those crabs may get out of the basket? “Nah,” Boss Daly would likely snarl, “those are Filipino crabs! As soon as one of them is about to get out, the others will pull him down. It’s their nature.”

Sure enough, while the solidarity rally was about to take place outside City Hall, Roy Recio, a clerk in the SF Sheriff’s Department who reportedly got his job through Daly, was busy hacking away in his computer (at 2:47 p.m. while still at work) asking all the members of the Board of Supervisors, as “a San Francisco resident”, to ignore West Bay by claiming that “they do not represent the entire Filipino commu nity” and that “West bay has been ineffective in handling the growing and ever-changing needs of the community.” Especially after his patron Daly cut off its funds and caused the lay-off of 30 West Bay Filipino employees in 2005.

In his email to the Supervisors, Recio charged that “It is strikingly offensive and totally misleading for Mr. Rodis and Mr. Asercion to falsely claim that no Filipino service agency is being recognized for doing solid work in the community when there are many agencies meeting standard grant criteria, routinely meeting outcome goals and providing impactful and dignified services to the community at large.”

If Recio had bothered to read anything I wrote or what Rudy said, he would realize that all we charged was no Filipino non-profit was included among the 23 agencies approved for NOFA grant funds. Of course there are numerous Filipino agencies doing solid work in the community, but are any of them getting funded by NOFA?

Baylan Megino immediately responded to Recio’s email attack by telling th e recipients of Recio’s email that “this isn't about West Bay. It is about our community's ability to help its own with the resources we rightfully should have directly available to us.”

Recio responded to Baylan’s email by spending the first paragraph of his pithy reply bragging about his many personal accomplishments. “So, this is what I was doing in the last twelve years in the Filipino community mostly as a volunteer,” Recio wrote. “Where were you? I don't intend to sound craps, but until you approach me as an equal than (sic) we probably don't have much to talk about.”

Whether Recio’s email had anything to do with it is uncertain but the Supervisors did not reallocate NOFA funds to West Bay at their July 1 Board meeting. Perhaps Recio can add this “accomplishment” to his growing list.

NaFFAA national chair Greg Macabenta sent out a notice to all NaFFAA members and chapters throughout the US: "I urge all Filipino Americans to raise their voices so that those who cannot see us CAN HEAR, and let us be present at every important forum so those who do n ot hear us CAN SEE. And I urge every qualified Filipino American to VOTE so that those who can neither see US nor hear us can FEEL OUR POWER."