Hundreds of people who
were arrested in Baltimore over the last week of controversy and
protest were held in jail for more than 24 hours. A judge has ruled that
that is legal. Is it? Now joining us is an esteemed panel. First of all
joining us, from the University of Baltimore Law School, Byron Warnken.
He's a professor and he's an expert on criminal and appellate law. Also
joining us, Dwight Pettit. He's a civil rights attorney and
constitutional lawyer in Baltimore.Thank you both for joining us.A. DWIGHT PETTIT, CIVIL RIGHTS ATTORNEY: Thanks for having us.JAY:
So I'm going to start with Mr. Warnken. What do you think of the
judge's decision? The judge is Charles J. Peters. He says the extended
detentions were a result of a system simply overwhelmed by the large
number of arrests that occurred and not a deliberate move to hold
arrestees, thus it's reasonable and okay.BYRON WARNKEN,
Esq.: I think an appellate court would probably affirm his decision. And
the reason for that is yes, Maryland does have a rule that says you may
be, you must be presented to a court commissioner as soon as possible,
but no longer than 24 hours. However, the law's clear that if that is
violated that doesn't entitle you to habeas corpus so you can get
released. And the Supreme Court has held in 1991 that holding someone
for 48 hours would be permissible.I could make an argument
that the 24 is an absolute strict requirement. I think the court would
decide that under these circumstances where there were a lot of people
out there that they would probably affirm it. You could argue it either
way.JAY: So just to be clear so everybody understands, in
Maryland the way it works when you're arrested, normally within 24 hours
you get in front of a commissioner who sets bail. And then the bail is
reviewed in front of a judge usually within a day or two. But if you can
meet the bail conditions you do get out, and these people were held
longer than 24 hours. Mr. Pettit, what do you think? Correct or
incorrect?PETTIT: I agree with Warnken. A court would
probably uphold it. But I do think that the 24 hours is mandatory. And I
don't think there's discretion for either executive authority or
judicial authority to in fact waive that. A lot of things in the law we
see "it shall be". Shall means what it says, mandatory.JAY:
So what do you make of that? So he's saying--it's almost a more
political argument. You're saying the appellate court will likely uphold
it, but you think the correct meeting allows not to uphold it.WARNKEN:
Well, I agree with part of Dwight's analysis. And that is when the
court rules, or the statues say "shall", normally that's interpreted to
be mandatory and that no one has the power to get around it. However,
even those things are--sometimes the courts look the other way if
there's a legitimate basis. And I think that Dwight and I are both
probably correct to say that notwithstanding what that rule says,
because of the extraordinary circumstance during those couple days, the
court would probably just decide that these people were not entitled to
anything.Now the reality is, they all eventually got
things happening. So I don't think they're going to get anywhere. You
know, could they sue the government for detaining them? Perhaps. Three
years later, maybe they'd have a judgment. And I'm not trying to be a
smartie on this, but I'm saying it's kind of a de minimis intrusion and
it probably would be upheld.JAY: What do you think? Let's
forget about whether it should be upheld or not, because that's, as I
say, a bit of a political question. The question is, should it be upheld
based on the reading of the law? I mean, how minimis is it to spend
another 24 hours in jail? It's not so minimis if you're in the jail
cell. Tremendously overcrowded. We've heard reports, I can't verify it,
but for example the lawyer Doug Colbert told us that people are being
fed, like, bread and slice of cheese, like the main meal of the day was
four piece of bread and a couple of slices of cheese.I
mean, there is a point here--and we're going to get into this as we do
other interviews on other issues. I mean, do constitutional rights
matter? Or is it just all a practical issue? Oh, we could make it
happen.PETTIT: What we're saying I think, and what I
think, I agree with Byron, that it's a political decision in which they
will say "shall" doesn't mean what shall meant.JAY: Shall doesn't mean must.PETTIT:
Right. But I think as a matter of law in terms of strict constitutional
interpretation, it, the mandatory should be read as mandatory. And it's
a violation of law to hold the people that were arrested in excess of
24 hours.JAY: And where does it become--and the Supreme Court has said 48's reasonable. What about 52, or 69, or--.WARNKEN:
Well, the Supreme Court had ruled in 1975 that an individual must be
taken before a court commissioner promptly. And in 1991 they had
occasion to figure out where the outer limit of that was, and they
decided that your 4th Amendment was not violated if they took you before
a court commissioner within 48 hours. Maryland's always had a rule
that's more favorable to defendants than that 48 hours.JAY:
Now they, they have weekends in Baltimore, I understand it, where often
some people are, as many as 150 and 200 people are arrested over the
course of a weekend. I mean, they seem to be set up to deal with large
numbers of people, don't they?WARNKEN: Well, but
apparently the number of people--this wasn't a weekend. I guess it was
Monday, Tuesday, Wednesday during the week with the curfew. I think they
were just overwhelmed.JAY: That's what I'm getting at.
They didn't have the weekend normal traffic. There was a curfew. I mean,
do you think it's possible that some of this holding was, let's teach
these kids a lesson, if they're in jail they're not going to be back out
on the streets?PETTIT: I think definitely it was a
political move to in fact censor the heart of the protest. If you put
them in jail and hold them, then the more active leaders of the protest
will be removed. I think that's a political decision, and I think when
you go to the arguments of their continued detention over the 24 hour
requirement, then that becomes subjective. And when it becomes
subjective it becomes political.JAY: And what do you think
of that? Is this part of a strategy of the overall emergency police
planning? We know there's such a thing in here called a fusion center.
We're not just dealing with Baltimore police, we're not just dealing
with National Guard. We're dealing with NSA, and FBI gets involved and
Homeland Security. A lot of thinking goes into planning for these
things.WARNKEN: Whether the length of the detention was
simply a function of how long it took to process this large number of
people or whether there was any kind of plan saying let's, let's keep
them a little longer and teach them a lesson, I have no idea.JAY: Is there a basis here do you think, Dwight, for some kind of class action lawsuit?PETTIT:
Well, the question becomes what are the damages? And I think you put it
very well. If you're the one being detained then the damages are
severe, because your constitutional rights are being [offended]. And I
would tend to think, I'm not sure how this was challenged, whether it
was challenged by the public defender, but I'd anticipate that we might
have seen something from the American Civil Liberties Union, which would
have attacked it on a class basis at that point in time. I don't know
whether you have sufficient damages to warrant a class action
post-ruling to in fact seek any type of dispositive ruling, now that
everybody--the remedy's already been provided because people are being
released.JAY: Because the problem that happens--I mean,
I've talked on The Real News quite a bit about the Toronto G20, where a
thousand people were arrested. And in truth most of those thousand
people weren't charged. Very, very few were charged. But all thousand
essentially lost their right to free assembly. They lost the right to
protest. And then they're thrown back out again. But what does the right
to free assembly mean if they can arrest you, hold you, and actually
never charge you with anything, but they've taken you out of the
protest. Where's the right to free assembly, and how does that ever get
changed if it isn't through some kind of class action suit?WARNKEN:
Well, that would get changed I think through a lawsuit for false
detention. For being held for no reason. I mean, I have a 4th Amendment
interest in my body. Being held for no reason would create a 4th
Amendment lawsuit for the civil rights--those are the things that Dwight
litigates.
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Monday 18 May 2015
Was it Legal to Hold Baltimore Protestors More Than 24 Hours Without Bail?
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