Showing posts with label criminal justice. Show all posts
Showing posts with label criminal justice. Show all posts

Thursday, October 8, 2020

Texas indictment surfaces problem of elected prosecutors; First Amendment protects Netflix film

Actor, model, and District Attorney Lucas Babin
(Steve Stewart CC BY 4.0)
A Tyler County, Texas, grand jury has indicted Netflix for lewd depiction of TV girls in the French film, Cuties (2020).  Sadly, the indictment says more about Texas and American criminal justice dysfunction than about Netflix or contemporary media.  

The film plainly is protected by the First Amendment, rendering the indictment more political stunt than serious legal maneuver.  I wasn't going to watch Cuties, but now I feel like I should, so score one for Netflix, nil for District Attorney Lucas Babin.  Or, I should acknowledge, this might be good campaign fodder for an elected D.A. in East Texas, so it's win-win, minus transaction costs.  

Using the criminal justice system as a means to political ends is a deeply disturbing phenomenon; John Oliver featured the issue in 2018 commentary on Last Week.

Besides being an attorney, Babin is himself, or was, an actor and a model.  His father is dentist and U.S. Rep. Brian Babin (R-Tex.).

The September 23 indictment (image from Reason) relies on Texas Penal Code § 43.262, Possession or Promotion of Lewd Visual Material Depicting Child.  The statute reads:

(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

     (1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;

     (2) appeals to the prurient interest in sex;  and

     (3) has no serious literary, artistic, political, or scientific value.

The latter conjunctive element (3), lacking in serious value, is a typical savings provision meant to bring the law into conformity with the First Amendment, which certainly protects the film.

Promotional image of Cuties French release
Cuties, or Mignonnes in the French original, is a 96-minute drama about a Senegalese-French girl coming of age in contemporary Paris.  She struggles to reconcile her conservative Muslim upbringing with the popular culture of her schoolyard peers in the social-media era.

A Sundance 2020 award winner in dramatic world cinema, the film was written and directed by Parisian born Maïmouna Doucouré, herself of Senegalese heritage.  In a September 15 op-ed in The Washington Post (now behind pay wall), Doucouré wrote:

This film is my own story. All my life, I have juggled two cultures: Senegalese and French. As a result, people often ask me about the oppression of women in more traditional societies. And I always ask: But isn't the objectification of women's bodies in Western Europe and the United States another kind of oppression? When girls feel so judged at such a young age, how much freedom will they ever truly have in life?

The sexualization of the girls in the film is already familiar in the life experience of an 11- or 12-year-old, Doucouré further wrote. Still, a counselor was on set, and French child protection authorities signed off on the film.

Some of the flap over Cuties, and probably precipitating the Texas indictment, was Netflix's initial promotion of the film with an image of the child stars in sexually suggestive outfits and pose (see Bustle).  Netflix apologized publicly and to Doucouré and withdrew the portrayal.

Here is the trailer for Cuties.

The case is State v. Netflix, Inc., No. 13,731 (filed Tex. Dist. Ct. Tyler County Sept. 23, 2020).

Monday, September 21, 2020

Man may sue police in tort, civil rights for violent beating, despite his conviction for resisting arrest

"Defund the police" has been a rallying cry in recent protests. (Photo at BLM
encampment, New York City, June 26, 2020, by Felton Davis CC BY 2.0.)
The Massachusetts Supreme Judicial Court last week vacated and remanded the trial court's judgment for police in a civil suit with racial overtones.

Authoring the unanimous opinion, Justice David A. Lowy characterized the case as "disturbing."  The court recited the facts as most favorable to the plaintiff, Mark S. Tinsley, the non-moving party.  According to that recitation, Tinsley, who is African American, was stopped by Framingham, Massachusetts, police for speeding in 2012.  Suspecting Tinsley of hiding something, police ordered Tinsley from the car, and he refused.  The traffic stop by two police officers became a physical struggle with five to pull Tinsley from the car.  Once he was out of the car, on the ground,

several police officers began beating him.  Tinsley did not resist. He tried to put his hands behind his back so that the police officers would handcuff him and thus, he thought, stop hitting him. The police officers did not stop. [One officer] struck Tinsley's collarbone and upper shoulder, and stomped on Tinsley's left hand. [A second officer] sprayed Tinsley with pepper spray. [A third officer] called Tinsley a "fucking n[word]" [footnote: "At trial, [the third officer] denied that he or any other police officer swore at Tinsley or called him 'any names.'"] and kicked Tinsley in the head. While Tinsley was on the ground, an officer handcuffed him [footnote omitted quoting Tinsley's trial testimony]. Tinsley suffered a broken nose, a broken finger, and a wound on the side of his head that required stitches.

Tinsley was convicted on counts including assault and battery (criminal), carrying a dangerous weapon ("a spring assisted knife"), and resisting arrest.  While criminal charges were pending, Tinsley sued for civil rights violation and tort claims including assault, battery, intentional infliction of emotional distress, and false arrest.  Upon two motions, the latter decided after the conclusion of the criminal proceeding, the trial court entered judgment for defendants police and town on all counts.

The question on appeal was whether the trial court properly recognized in the civil proceeding the collateral estoppel effect of Tinsley's criminal conviction.  The doctrine of collateral estoppel precludes a later civil court from re-trying facts and conclusions of law that were determined by jury and court in an earlier criminal proceeding.  Thus, after conviction, a defendant may not argue his innocence in a later case.

However, the facts deemed determined in the earlier criminal proceeding are limited to the facts that supported conviction.  Tinsley argued, and the Court agreed, that the jury's conviction was not inconsistent with Tinsley's claim of excessive force for the beating he endured on the ground, outside the car, after his arrest.  The Court reasoned that Tinsley was placed under arrest when he was seized inside the car.  Insofar as Tinsley was resisting arrest inside the car, then, collateral estoppel pertains, precluding suit on the tort of false arrest.  But the jury may have based its conviction on a fact pattern that ended before Tinsley was on the ground. So the facts of the beating, occurring after arrest, remain arguable in the civil case.

The Court explained,

Even where the use of force to effect an arrest is reasonable in response to an individual's resistance, the continued use of force may well be unreasonable, as an individual's conduct prior to arrest or during an arrest does not authorize a violation of his or her constitutional rights....  To hold differently would implicitly permit police officers, in response to a resisting individual, to exert as much force as they so choose "and be shielded from accountability under civil law," so long as the prosecutor could successfully convict the individual of resisting arrest.

Accordingly, the Court vacated judgment for defendants on the civil rights claim and the assault, battery, and IIED counts, and remanded the civil case to proceed.  The false arrest claim was properly barred.

The case is Tinsley v. Town of Framingham, No. SJC-12826 (Mass. Sept. 17, 2020).  Chief Justice Gants participated in deliberations before his death.