Top ten justice stories of 2015, number seven.

"Don't rape,"  by Flickr user  Richard Potts  (CC BY 2.0  license ). 

"Don't rape," by Flickr user Richard Potts (CC BY 2.0 license). 

Changing the conversation about sexual violence

While this year featured Chancellor Angela Merkel as Time magazine's Person of the Year, and former Secretary of State Hillary Clinton is the front runner for the Democratic presidential nomination, perhaps the most feminist justice story of the year was the spotlight on sexual violence against women. No story demonstrates changing attitudes toward sexual assault like the overnight credibility of (in some cases) decades-old rape allegations against comedian Bill Cosby. 

Cosby and the court of public opinion

Last October, a video of comedian Hannibal Buress discussing rape allegations against Bill Cosby went viral, and by the end of this year, nearly sixty women have accused Cosby of sexual assault. Barbara Bowman wrote an op-ed in the Washington Post expressing her anger that her and other women's accusations were not believed until a man with a microphone repeated them. New York magazine published a powerful cover story in July featuring thirty-five of Cosby's accusers, noting that their accounts of sexual assaults starting in the 1960s and continuing through the 1990s "function almost as a longitudinal study—both for how an individual woman, on her own, deals with such trauma over the decades and for how the culture at large has grappled with rape over the same period." 

Bill Cosby has denied the allegations, and has been sued for defamation by some of the accusers after alleging that money motivated their accusations; he has countersued some of the accusers for defaming him. This summer, however, a 2006 deposition was released, revealing that Cosby previously admitted using quaaludes "as part of his effort to have sex with women." Following Hannibal Buress's lead, comedians from Tina Fey and Amy Poehler to Larry Wilmore tore into Cosby. Many universities and colleges that had granted honorary degrees to Cosby over the years either rescinded those degrees or are considering doing so. And while explaining that he could not revoke Cosby's Presidential Medal of Freedom, President Obama commented:

If you give a woman -- or a man, for that matter -- without his or her knowledge a drug and then have sex with that person without consent, that's rape.

This month also saw the conviction—by an all-white jury—of Oklahoma ex-police officer Daniel Holtzclaw, who was charged with raping thirteen black women. Many of the women testified that they felt afraid to come forward because of Holtzclaw's status as a police officer, and also because he threatened to arrest them. The Holtzclaw victims and the Cosby accusers expressed similar hopes: that their stories would inspire others who have survived violence at the hands of powerful people to come forward.

Campus rape and the changing definition of consent

The discussion of sexual violence on college campuses also continued this year. Columbia student Emma Sulkowicz, who claims that she survived a campus sexual assault, carried a mattress around the campus during her senior year as a performance art protest. The student she accused was cleared in a school disciplinary hearing, and has sued the school for harassment. After passing an "affirmative consent" law last year, requiring college sexual assault investigators to ask if both parties gave affirmative consent to sex, California enacted a law requiring sexual consent education in the state's high schools starting next year.

This year, we saw changing attitudes about the definition of rape, as well as increased accountability for and conversation about sexual assault. But as Harvard law professor Jeannie Suk recently wrote

Sexual assault is a serious and insidious problem that occurs with intolerable frequency on college campuses and elsewhere. Fighting it entails, among other things, dismantling the historical bias against victims, particularly black victims—and not simply replacing it with the tenet that an accuser must always and unthinkingly be fully believed. 

Violence against women is an international problem, and progress is still desperately needed. In March, the United Nations released its findings that 35 percent of women worldwide experience violence in their lifetimes. Mexico is experiencing what some are calling an "epidemic" of femicide—the murder of women, often by their romantic partners. We hope that the United Nations, the United States, and the global community will make even more progress on issues of gender violence in 2016.  

Top ten justice stories of 2015, number nine...

Our #9 justice story of 2015 flared up into one of the biggest stories of the week yesterday, when Republican presidential candidate Donald Trump suggested that the United States should exclude all Muslims from entering the country

9. Slamming the door on refugees Muslims.

One of the biggest justice stories of 2014 was the Central American child refugee crisis that brought 68,000 children to the southern border, especially during the spring and summer months. By the end of last year, the Obama administration had announced a process to allow parents inside the U.S. to apply for refugee status for their children in Central America. By the middle of 2015, fewer children were being detained at the southern border, perhaps because the U.S. gave Mexican authorities tens of millions of dollars to conduct a "ferocious crackdown on refugees." Last year's crisis unsurfaced intense hostility to illegal immigration  along the U.S.-Mexico border, but also brought out the better angels of our nature

The refugee crisis that caught the world's attention this year had little to do with the U.S.-Mexico border. The Syrian refugee crisis, which the media called a "migrant crisis" for legal reasons, was the largest refugee crisis since the end of World War II. The United Nations High Commissioner for Refugees counts 4,288,672 refugees who have been displaced from Syria. Germany alone expected 800,000 refugees to arrive by the end of 2015, causing tension between Chancellor Angela Merkel and her right-wing coalition partners. Anti-refugee attitudes led to increased right-wing popularity in SwedenAustria, and Denmark. Those attitudes worsened last month. 

A dark day and our "unfinest hour"

On November 13, 129 people were killed in the second-deadliest terrorist attack since September 11, 2011 (the 2004 Madrid train bombing killed 191). Some reports claimed that one of the terrorists carried a Syrian passport. Before the weekend was over, almost all of the Republican candidates for president spoke out against President Obama's plan to resettle 10,000 Syrian refugees, with Ted Cruz and Jeb Bush suggesting that only Christian refugees should be admitted. 

Within a week of the tragedy, 31 state governors had stated publicly that their states would not resettle refugees. Although the International Rescue Committee debunked myths about Syrian refugees, and twenty national security veterans– including Henry Kissinger, Madeleine Albright, and David Petraeus–urged Congress to back off on anti-refugee legislation, the House of Representatives passed a law making it harder for Syrians to come as refugees. 

Editorial boards from the New York Times to the Boston Globe to the Houston Chronicle rejected the conservative proposals. California governor Jerry Brown promised to accept Syrian refugees, and Washington governor Jay Inslee expressed his support in a New York Times opinion piece

President Obama gave a press conference in Turkey, which has resettled over 2 million Syrian refugees (two hundred thousand times more than in Obama's proposal), and reaffirmed America's values:

We also have to remember that many of these refugees are the victims of terrorism themselves -- that’s what they’re fleeing. Slamming the door in their faces would be a betrayal of our values. 

But the sharpest criticism came from the country our founding fathers once fled. The Economist pulled no punches in an editorial titled "Unfinest hour," reminding us that over half of Americans opposed admitting Jewish refugee children during the Hitler regime, and calling the current conservative anti-refugee rhetoric "lamentable."  

Looking back and giving thanks

The post-Paris attack rhetoric in the U.S. sounded dissonant in the days leading up to Thanksgiving. In his Thanksgiving address to the nation, President Obama compared the Syrian refugees to the pilgrims who came to America fleeing "persecution and violence in their native land." John Oliver of HBO's "Last Week Tonight" put a finer point on the comparison:

There was only one time in American history when the fear of refugees wiping everyone out did actually come true, and we'll all be sitting around a table celebrating it on Thursday. 

Here in San Diego, we also had recently celebrated the fortieth anniversary of the use of Camp Pendleton as a refugee camp for people fleeing Vietnam. "Operation New Arrivals" brought 50,000 Vietnamese refugees to Camp Pendleton following the fall of Saigon in April 1975. Many of the same Marines who fought in the conflict built the camp with only a couple days' notice, and San Diego remains a "refugee hub" to this day, a continuing testament to the value of opening our doors and arms to people who need our help. 

From bad to worse

Donald Trump, who announced his candidacy for president in June with a speech calling Mexicans "rapists," and who is currently in first place in pre-primary Republican polls, defended the idea of shutting down mosques in the immediate aftermath of the Paris attacks. After suggesting that he would also support registering Muslims in a database and issuing ID cards, an American-Muslim who serves in the Marine Corps tweeted a picture of his military ID and the #MuslimID hashtag, and tens of thousands more joined in. 

Last week, Texas Governor Greg Abbott authorized a lawsuit to attempt to block the resettlement of refugees in Texas. (More on Texas's love of anti-immigration litigation later in our list.)

Yesterday, December 7, Trump proposed prohibiting all Muslims from traveling to the United States, and spoke positively of FDR's executive actions during World War II allowing the detention of Italian, German, and Japanese citizens. Trump's announcement followed last week's shooting in San Bernardino, California, which killed 14 people; one of the perpetrators was an American-born Muslim and his wife immigrated from Pakistan on a fiancée visa

The silver lining

Twenty-one refugees are arriving in Texas this week, and so far Obama has not reneged on his promise to resettle 10,000 Syrians. Germany surpassed its expected 800,000 refugees, and is on track to admit a million people this year

As for Trump? The White House has said that his comments disqualify him from being president, and even Dick Cheney said the proposal "goes against everything we stand for and believe in."

Much to our surprise, we agree with Dick Cheney. 

This is not what we stand for. This is not what we believe in.

Let's do better next year.


Top ten justice stories of 2015

The first of our top ten justice stories of 2015 is about law enforcement violence on the U.S.-Mexico border, where we live and work. While stories of police brutality in cities around the United States will make an appearance further up our list, the attempt to rein in "The Green Monster" is our #10 pick for the most important justice story of the year.

Important justice stories are impossible without good reporting. We are grateful to Bob Ortega and the Force at the Border page from the Arizona Republic, and to Nigel Duara of the Los Angeles Times, for all of their great work this year.

10. The end of Border Patrol immunity? 

This September, United States Border Patrol Agent Lonnie Swartz was indicted for second-degree murder, the first-ever indictment of an agent for a cross-border shooting. Back in 2012, Swartz allegedly killed 16-year-old Jose Antonio Elena Rodriguez by shooting him 10 times, including 8 shots to the back. Swartz was on the U.S. side of the border fence in Nogales, Arizona; José was on the other side in Nogales, Sonora. 

Swartz has claimed that he acted in self-defense against people throwing rocks over the fence. According to the forensic analysis done by law enforcement in Sonora, Swartz “emptied his service handgun on the 16-year-old, reloaded, and kept firing.” Two videos of the incident were recently disclosed to the defense under a protective order. 

Swartz pled not guilty in October, and he is presumed innocent. 

But this rare indictment of a CBP officer suggests that maybe the nationwide calls for reform and accountability of law enforcement have finally reached the nation's largest law enforcement agency.

Watch the throne

Last year, former Drug Czar R. Gil Kerlikowske was confirmed as Commissioner of Customs and Border Protection. He promised to bring more transparency to the agency, which he believes expanded too quickly after 9/11. Last May, he released the results of a study by the Police Executive Research Forum that reviewed 67 case files involving CBP's use of deadly force between 2010 and 2012. That report suggested that CBP officers sometimes created situations that led them to use deadly force, and recommended changes to CBP's use-of-force policy. Kerlikowske removed CBP's head of internal affairs and temporarily replaced him with Mark Morgan, an FBI investigator who promised to review the cases mentioned in the PERF report. Morgan was back at the FBI by the end of 2014.

This year, CBP conducted a months-long trial of body cameras (more on body cameras coming later in our top ten), ultimately deciding against requiring officers to wear them. The top two posts in CBP Internal Affairs were vacant until June. In November, the Department of Justice announced that its investigation into the death of Anastasio Hernandez Rojas would end with no charges. Hernandez Rojas died from a heart attack after being shocked with Tasers by agents at the San Ysidro border crossing. This summer, Kerlikowske reported that the CBP had cleared officers in all but three of the 67 cases under review. Swartz’s shooting of José Antonio Elena Rodriguez was one of the final three cases.

Making the border patrol pay (maybe).

The Swartz case highlights the fight for Border Patrol accountability in civil court as well. The parents of José Antonio Elena Rodriguez sued Lonnie Swartz in civil court for violating their son's civil rights, and Swartz moved to dismiss the lawsuit. Swartz made two arguments: first, that the right against excessive force found in the Fourth Amendment does not apply to foreign nationals on foreign soil; and second, that he was entitled to qualified immunity from liability.   

Qualified immunity, one of the big legal stories of last year,

shields public officials from being sued for actions that fall short of violating a clearly established statutory or constitutional right.

Swartz argued that foreign nationals on foreign soil are not protected by the U.S. Constitution. On the other hand, if foreign nationals do have Fourth Amendment rights on the other side of the border, those rights are not "clearly established." Swartz relied on this year's en banc, per curiam decision of the Fourth Circuit Court of Appeals, Hernández v. United States The plaintiffs in Hernández are the parents of Sergio Adrian Hernández Guereca. In 2010, 15-year-old Sergio was shot in the head and killed by Border Patrol agent Jesus Mesa, Jr., who was standing on the El Paso side of the U.S.-Mexico border. That court, which has authority over cases originating in Texas, Louisiana, and Mississippi, ruled that foreign nationals on foreign soil, without a "significant voluntary connection" to the U.S., cannot raise Fourth Amendment claims. The court found that Mesa was protected by qualified immunity, because any right that Hernández may have is not "clearly established." 

Chief District Judge Raner Collins disagreed with the Fourth Circuit, ruling that in Rodriguez's case, the Fourth Amendment does apply. Judge Collins also rejected Swartz's argument about qualified immunity, noting: 

at the time he shot J.A., Swartz was an American law enforcement officer standing on American soil and well-aware of the limits on the use of deadly force against U.S. citizens and non-citizens alike within the United States.

The plaintiffs in the Hernández case, which is now Hernández v. Mesa, have asked the Supreme Court to take the case.  On November 30, the Supreme Court asked the Solicitor General to weigh in, suggesting that the Supreme Court may decide to hear the case next year.  Meanwhile, the criminal trial of Lonnie Swartz has been continued until January. The future of Border Patrol immunity and accountability is likely to continue to be a big story in 2016.