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Portland police officers approach protesters on May 30, 2020. MATHIEU LEWIS-ROLLAND

The Portland Police Bureau (PPB) estimated that, in 2020, its officers used force more than 6,000 times against members of the public participating in racial justice protests. This force came in the form of tear gas canisters shot into crowds of people, baton strikes, stun grenades filled with rubber bullets shot from an officer's gun, and forceful shoves. These actions resulted in countless injuries amongst members of the public, several lawsuits, one officer arrest, and more than one hundred public complaints filed against the bureau.

Yet, according to the Independent Police Review (IPR), the city department that investigates officer misconduct complaints, none of those forceful incidents violated city policy. In a recent deposition interview with lawyers involved in one protest-related lawsuit against the city, IPR Director Ross Caldwell explained how PPB's directives make it impossible for the city to hold individual officers accountable for using riot control weapons against the public.

"...The directives make it really challenging for us to find something out of policy for the use of tear gas on unintended people," Caldwell said in the deposition by Ashlee Albies, one of several attorneys representing plaintiffs in the Don't Shoot Portland v City of Portland case.

The lawsuit accuses the city of indiscriminately using tear gas and munitions against members of the public during Portland's 2020 protests. On Wednesday, plaintiffs' attorneys filed a motion asking that a federal judge grant them permission to treat the lawsuit as a class action case. The 83-page document relied on interviews with Caldwell and others to explain how there are a sufficient number of people with common legal claims against the city to qualify for class action certification. Attorneys used the faults of the IPR process to illustrate how the city has a pattern of failing to hold officers accountable for misconduct.

Caldwell points to PPB's crowd control directive as reason his office can't hold individual officers accountable for their forceful actions during protests.

According to that directive, riot control agents can only be used by officers if they get authorization to do so by their manager, or "incident commander." This distinction effectively removes all responsibility from the officer who fired a munition. Even if city policy allowed IPR to hold an individual officer responsible for shooting a tear gas canister into a crowd, Caldwell said that it would be difficult to identify which particular officer fired the canisterlet alone expect the person who made the complaint to know the officer's name.

The court motion mentions that the "vast majority" of cases that were closed by IPR shortly after being submitted by the public were closed because IPR could not identify which officer was responsible for the conduct, based on the information that was provided.

Caldwell also points out that some specific complaints aren't addressed by PPB policy. In his deposition interview, Caldwell mentions people who reported being impacted by tear gas despite not being involved in any protest actions.

"[The directive] doesn't say anything about making sure this doesn't leak into people's houses that live near the PPB headquarters or anything like that," said Caldwell. "And... it doesn't spell out that the kind of innocent bystander being exposed to tear gas is a violation."

IPR went as far as green-lighting several incidents that a federal judge had already determined to be unlawful.

Shortly after the Don't Shoot case was filed, District Court Chief Judge Marco Hernandez ordered Portland police to limit their use of tear gas and other crowd control munitions to instances in which the lives and safety of the police or the public were at risk. Hernandez also prohibited officers from using force against people engaged in "passive resistance." This order was already in alignment with PPB policy, yet Hernandez later found officers had violated the order during a protest in late June 2020.

Yet an IPR investigation into those officers' use of force against protesters was found to be in alignment with city policy. This contradiction didn't seem to bother the city.

"The City has little concern about making findings in direct contradiction to a federal court judge," the motion reads. "In fact, the City affirms that... if the same incident happened today, the City would find the same conduct to be within policy."

The legal filing outlines some of the use of force incidents that were unquestioned by city investigators. Lawyers found that, from a sampling of 41 reports officers must file after using force (called Force Data Collection Reports), there were 45 uses of force documented that appeared to violate the Fourth Amendment, which prohibits an officer's search and seizure of a person without probable cause.

For example, the motion explains that one officer justified pepper spraying someone because the person had yelled "Don't fucking touch me" from at least five feet away. Another officer reportedly shot someone with a less-lethal munition because that person was behind a tree taunting the officers by jumping out from behind the tree and then ducking back behind it." A third officer pepper sprayed someone who was walking towards a police car, claiming that the person was going to kick the car. None of these examples show evidence, or probably cause, that suggest a person was going to commit a crime.

PPB officers' heavy-handed use of force during the 2020 protests has been under close scrutiny from the US Department of Justice (DOJ). In 2014, the city entered a settlement agreement with the DOJ after federal investigators found PPB officers to have a "pattern and practice" of using force against people with a mental illness. While the city had made significant moves to adhere to the fed's agreement in recent years, the actions of police during the 2020 protests reversed much of that work.

In July, the DOJ demanded that PPB improve its crowd control tactics with several new measures, including a directive to hold responsible incident commanders who granted officers permission to use force during 2020 protests. The city has reportedly agreed to these new requirements.

Juan Chavez, another attorney representing Don't Shoot plaintiffs, said his legal team's findings show how Portland's past decade of police reformsranging from additional officer trainings to new paperwork to track officers' use of forcehave neglected to improve its police force.

"A lot of people have been demanding this kind of accountability for long before the uprising of 2020, but all weve gotten is pats on the head and reassurances that things are fine, that [the city] has all these processes in place to deal with misconduct," said Chavez. "That all dissolved within a week in May 2020."

He continued: "The public now has proof that an abundance of uses of force were not reviewed in any way that would have passed normal scrutiny if, in fact, the city was wanting to hold someone accountable."

Continue reading here:
Most Officers Who Used Force During 2020 Protests Have Been Cleared By the City of Misconduct. Here's Why. - The Portland Mercury

As a Department of Justice attorney charged enforcing voting rights during the Obama administration, Laura Coates says she saw countless ways in which the Voting Rights Act of 1965 was being undermined.

"People went to great lengths to try to engage in voter intimidation, whether it meant trying to move polling places to known Klan locations [or] changing or attempting to change the Election Day practices," she says. "Jurisdictions ... would try to advertise their elections on a different day than Election Day on Spanish language [radio] stations."

Coates saw voter rolls being purged, and instances where jurisdictions pretended that widespread voter fraud was taking place. And, she says, it wasn't just happening in Southern states.

"[It was] also in jurisdictions you wouldn't expect," Coates says. "We would investigate places in Washington state and California and Philadelphia, in the Northeast and all through the country. And so the perception that Jim Crow only flew below the Mason-Dixon line when it came to voting rights was actually a fallacy."

To make matters worse, it seemed like lobbyists and elected officials at both the state and federal levels would often interfere, rendering investigations futile.

"They would ... put their thumb on the scales in terms of which jurisdictions we looked at [and] which jurisdictions we were proactively investigating," Coates says. "It was frustrating for me to [see] the politics of how we prosecute cases."

Coates moved out of the Civil Rights Division and instead became a federal prosecutor. But while she had felt like a hero as an advocate for voting rights, she sometimes wondered if her new position made her a traitor to her people.

"I was viewed as an agent of The Man," she says of her role as a federal prosecutor. "[I was] considered and viewed and conflated with people who, for the public's perception, were against the communities of color, were against Black people, were trying to harm them in some way."

Coates eventually left the DOJ altogether. She now teaches law at George Washington University Law School and is a senior analyst for CNN. Her new memoir is Just Pursuit: A Black Prosecutor's Fight for Fairness.

On feeling called to work for civil rights

I revered the heroes of the civil rights movement, those who are the sung and unsung heroes. ... For me, when I thought about who my heroes were, it was those people who saw an injustice, thought about a way to solve it, took advantage of every different aspect of our government to do so, and advocated for those who didn't have a voice. And for me, I wanted to be and walk in those shadows, in those footsteps, and feel as though I had given back in some small, yet meaningful, way to those who had given so much to me.

On how the dilution of voting rights puts American democracy in peril

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Democracy is absolutely in peril, not only because of the Big Lie [that Trump won the 2020 election] that questioned the integrity of our electoral system, but also because it's a lie that jurisdictions were, in fact, believing that there was widespread voter fraud. In many respects, the jurisdictions that have already tried to claw back the Voting Rights Act and have tried to codify different aspects of this lie of widespread voter fraud, they wanted to do it before Donald Trump. They wanted to do it before the 2020 election. They just find it convenient to be able to capitalize on this Big Lie because now it had the platform and gravitas of a sitting president of the United States. But our democracy is in peril every time we claw back the gains of the Voting Rights Act, because we dilute voting power, we dilute voting strength, we undermine the philosophy of one person, one vote, and we pretend that race has no impact and that in and of itself is a lie.

On being seen as a hero in her community when she was in the voting rights division and as a traitor when she became a prosecutor in the criminal division

I did not appreciate ... how the two roles were in such stark contrast in terms of public perception. When you are a civil rights advocate and civil rights trial attorney in the Department of Justice, you are presumed the advocate on the side of the people who are most impacted by discrimination.

As a federal prosecutor ... I noticed from the very beginning the ways in which, when I'd be inside the courtroom, I would see the ways in which people would question my allegiance. Was it to the United States of America? Was it to the Black community? Was it to the Department of Justice? Whose side was I on? And I would often be criticized by my defense counsel counterparts about how somebody who has an interest in civil rights, as a Black woman, how could you be on the side of prosecutors?

On her relationship with the police, as a Black prosecutor

I worked very closely with the police. They were completely critical to the ability to prosecute cases, whether it's through their testimony, through their evidence gathering, through their help in contacting and being a go-between for witnesses and others. But I always met them with a healthy level of skepticism from having been and continuing to be a Black woman in America. I'm the daughter of a Black man. I'm the wife of a Black man. I am the mother of a Black girl and a Black boy growing up in this world, and I have been a student of history and a student of the present, and I'm trying to ensure that I can have an impact on the future. ...

I look at [police officers] through the lens of a skeptical juror who is questioning whether they have followed the Fourth Amendment, whether they have used the right amount of force, whether their statements sound more like the regurgitation of a script or genuine observation. And that was always a difficult needle to thread, to, on the one hand, know that you must rely on them and also to doubt them based on your own personal and professional experience that sometimes, like everyone else, they are fallible.

On what Dr. Martin Luther King Jr. means to her

When I think of Dr. King, the first thing that comes to mind is going to his museum down in Atlanta and looking at the number of times he was arrested. Now that might seem an oddity to people. Mostly, we think about his speeches and the impactful words, and he was an eloquent orator, and he was obviously deserving of all the accolades as it relates to his speechwriting and his sermons. But for me, I think about the number of times he was a civil rights first responder, ... the number of times he went into the battlefield, the number of times he pulled an entire race out of the wreckage, the number of times that he subjected himself to physical violence. It's the notion that myself, as a mother, looking at my young children, when all I want to do is grow old and watch them grow even older, that he had to accept the inevitability that he would not do the very things every parent wants to do. And why? Because he was thinking not only of his own children, but my children and my children's children. ...

Every time I think about his death, I think to myself, God, was that how young he was? And every year that I live beyond that, I thank him, because the life I have is because of the choices he made, because of the discomfort he experienced. And I just love this man for making those choices and for aligning his moral compass with what he was willing to do.

Sam Briger and Thea Chaloner produced and edited the audio of this interview. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the web.

Read this article:
Attorney Laura Coates has witnessed the dissolution of voting rights first hand - Wisconsin Public Radio News

The 1963 mug shot of Dr. Martin Luther King Jr. after his arrest in Birmingham, Alabama, for leading marches against segregation.

Martin Luther King Jr.s words written from a jail cell in Birmingham, Ala., in 1963 resonate today when considering the current state of criminal justice in Massachusetts. Dr. King summed up his disappointment with white moderates saying: The white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail to do this they become the dangerously structured dams that block the flow of social progress.

He had grown tired of hearing the word wait from those who believed that time, on its own, would solve grave racial injustices because [t]his wait has almost always meant never. Anyone who spends time in a courthouse in Berkshire County will witness the enduring truth of Dr. Kings words. In Massachusetts in 2016, Black people were six times more likely to enter jails or prisons than whites. In Berkshire County in 2015, cash bail amounts imposed on Black people was five times greater than their white counterparts. Although Black people make up only 6.5 percent of the states population, they are the subjects of 17.1 percent of criminal court cases, and Black people receive sentences an average of 168 days longer.

These numbers dont lie. White moderates in liberal Massachusetts have been complicit in perpetuating an oppressive criminal legal system. This system is a relic of the reconstruction era that was intentionally designed and implemented as a means of power and control over Black people as a substitution to slavery.

These stark realities fuel distrust in the legal system, especially for those who are the most vulnerable to victimization. All over Berkshire County, Black and Brown people tell me that they are afraid to report crimes. This distrust undermines the essential work of law enforcement to protect victims and public safety. An egregious example of this is the ineffectiveness of the legal system in addressing intimate partner violence perpetuated against Black women who suffer even higher rates of domestic violence than White women. The violence that Black women endure is largely driven by victims reasonable fear of the justice system. While White victims fear that seeking help wont result in a strong enough response from law enforcement, Black women tend to fear that law enforcement will be overly punitive to themselves and their intimate partners. In my experience as a defense attorney and as a prosecutor, these fears are well-founded.

Fear and distrust of the legal system also impedes my offices efforts to investigate crime and solve homicides. Building trust among our diverse communities and eradicating the scourge of racism from our criminal legal system is central to the mission of law enforcement and is necessary to our public safety.

My office is taking ownership of the prosecutors role in correcting an unjust system. We recognize that vulnerable communities are at heightened risk for landing in the justice system because for decades our society used the judicial system to stigmatize people with mental illness, substance use disorder, and those living in poverty. The prosecutors in my office decline to prosecute cases where people who present minimal risks to the public face charges resulting from symptoms of mental health or substance use disorder, and I actively advocate for the public health system to address public health issues.

Prosecutors in my office recognize that their power to punish through the courts has real-world, high-stakes consequences for those involved and their families, and we seek alternatives to incarceration. Our approach has impacted thousands of people and families in positive ways.

One of the more painful conversations that I have had since being elected was with an elderly, formerly incarcerated Black woman from Berkshire County at a talk that I gave about my offices preference for non-violent people to receive treatment for substance use disorder over incarceration. This woman was heartbroken that she did not have an opportunity to receive treatment in a therapeutic setting. She and her children, including a child who was incarcerated at the time, suffered horribly throughout their lives because of the punitive and oppressive war on drugs. She is among hundreds of thousands of Americans who have suffered thanks to an oppressive system designed to punish.

Conversely, I have a dear friend who is in recovery from problem opioid use. He has a thriving family and is making valuable contributions professionally to his community. He credits his recovery and success on his privilege he had never been charged with a crime even when he was stopped by police while carrying drugs. He speaks eloquently on the impact of his privilege as a white person and how devastating the shame and trauma that arise from arrest, prosecution and incarceration would have been for his recovery, not to mention the lifelong impacts of having a criminal record. Every member of our community deserves medical treatment in a health setting. Relying on incarceration as a substitute for high-quality treatment for substance use and mental illness has perpetuated long-term and multi-generational hardships for individuals, families, and ultimately for our entire community. Over-represented communities of color carry this burden at a vastly higher degree. Since taking office, the number of people newly incarcerated in Berkshire County has decreased thanks to my reforms.

My office will not participate in the over prosecution of communities of color. Instead, we redirect our resources toward investigating and prosecuting domestic violence, sexual assaults, and homicides. We are working with our community partners to organize the community around public health solutions to public health problems.

I made this cultural shift in the Berkshire District Attorneys Office by instituting a values-based review system for assistant district attorneys and staff members. I have provided prosecutors with the training and tools necessary to make decisions that are fair and just as opposed to the length and number of convictions that they obtain.

Our team has created a culture in the office that analyzes every aspect of our decision-making for bias and systemic racism. We carefully scrutinize cases arising from motor vehicle stops and decline to prosecute those that indicate any element of racial profiling while actively engaging with law enforcement officers to explain our decisions and the legal requirements of the Fourth amendment. We removed race-based questions from our jury selection process. We have created a diverse inner office working group led by retired Superior Court Justice and former prosecutor Tina Page to review and develop further recommendations for anti-racist prosecution policies.

I am proud of the strong cooperation from my law enforcement partners in establishing policies that ensure convictions are based on fairness, such as our Brady Policy which asks police departments to review their records for the last decade and provide my office with information that could undermine the credibility of a conviction to disclose to defense counsel.

My office virtually eliminated the use of cash bail, replacing the wealth-based model of pre-trial detention shown to perpetuate racial disparities for one that protects both a defendants due process rights and public safety.

Most cases are resolved through pleas as opposed to trials. This process has historically been cloaked in secrecy and rife with racial inequity. My office is opening that black box to identify bias that unfairly impacts how prosecutors use their discretion. Our plea tracker project is the first in the nation to allow researchers unprecedented access to our decision-making process. We are grateful for a partnership with the nations leading criminal justice scholars at the Wilson Center at Duke Law for their expertise in bringing this bold initiative to life. This tool will identify and remedy systemic racism in the plea process and serve as a national model.

These actions are designed to treat all members of our community with dignity. Our actions moves our historically oppressive system towards one that guarantees justice for all. That is how we will earn trust in the justice system.

Time in itself does not make change; actions do. I am humbled to lead a staff of public servants who care deeply not just about accountability but about justice. We are making substantial changes to reform the system to value the needs of the people that we serve over the desires of the powerful. We recognize that we have much work left to do, and we are acting with urgency to correct injustices others are scared to acknowledge because it upsets the status quo. This work takes courage.

This weekend I remember Martin Luther Kings words, Time is neutral. It can be used either destructively or constructively. I am coming to feel that the people of ill-will have used time much more effectively than the people of good will. We will have to repent in this generation not merely for the vitriolic words and actions of the bad people but for the appalling silence of the good people.

As your district attorney, I understand that justice goes beyond accountability and that it is my responsibility to correct the injustices prosecutors have historically perpetuated. I am leading my team of prosecutors to act with urgency because the community has bestowed a responsibility to uphold justice upon us rather than simply maintaining order. There is much left to do and continuing this work will require good people to speak out for the cause of justice.

Link:
Action toward justice: Reforming Berkshire County justice system in the spirit of Martin Luther King Jr. - theberkshireedge.com

Don Pesci and I have little in common on the issue of reproductive rights (column, Blumenthal in a select minority on abortion) and on fidelity to the truth. Mr. Pesci asserts certain things that are inaccurate. For example, he says that if Roe v. Wade is overturned, women would not necessarily be deprived of the right to an abortion, conveniently ignoring trigger laws in 10 states that would automatically make abortion illegal, sometimes even in cases of rape or incest. Abortion must be a universal right based on the Fourth Amendment right of the people to be secure in their persons, houses, papers, and effects. A womans body is her own, not the property of the government.

Mr. Pesci further claims that Sen. Blumenthal is somehow fanatical in allowing for second and third trimester abortions. The vast majority (98.7%) of abortions take place (often spontaneously) during the first 20 weeks, well before the fetus is capable of independent survival. This leaves 1.3% of all abortions. I can assure Mr. Pesci that no woman wants to wait that long to decide. The situations at that point are dire. The womans life or health may be in danger. The baby may be so deformed, as with anencephaly, that it will not survive or will live briefly and in agony. This is a decision best made by the woman and her doctor not some political hack.

Finally, Mr. Pesci asserts that religions throughout history have regarded abortion as a sin, lumping together all Christian, Muslim, and non-Orthodox Jewish teachings and omitting other world religions. Balderdash! They dont agree. Please also note that sin is not a concept found in the Constitution, nor was abortion illegal when the U.S. was founded. If Mr. Pesci regards abortion as abhorrent, he simply shouldnt have one.

See more here:
Letter to the editor: Where is columnist's fidelity to the truth? - Journal Inquirer

EDITORS NOTE: The observations contained herein are solely those of the authors and do not represent the views of the University of South Dakota.

The South Dakota Supreme Court had an intriguing year, to the satisfaction of some and frustration of others.

This year, the Top Ten Remarkable Decisions from the South Dakota Supreme Court are listed in ranked order, with top decision listed first as no. 1, the second most remarkable listed as no. 2, etc. The analysis and compilation of these decisions belongs to the authors. In that regard, preparation for this article was assisted and facilitated by an informal survey circulated among the members of USDLAW, an electronic listserve which serves the legal community in South Dakota.

No. 1. Untimeliness of Decision Overshadows Amendment A ruling

William Gladstone stated in his 1868 comments in the House of Commons, Justice delayed is justice denied.

Many say that this is what happened in the Amendment A litigation. In Thom & Miller V. Barnett Et Al./Election Contest As To Amendment A, 2021 S.D. 65, the trial court ruled that the voter-initiated Constitutional Amendment (encompassing recreational marijuana usage) was improper. The proponents of the amendment appealed, looking to the Supreme Court to correct the wrong asserted to be done by the trial judge.

Would the high Court respond? Yes, after a very long while.

Eventually, the Supreme Court held, by a vote of 4-1, that the voter-initiated Amendment A was invalid because it violated the single subject requirement in the South Dakota Constitution. Proponents of Amendment A vigorously argue that this decision wrongfully overturns the will of the people. There are rumors that the Justices who voted in favor of this decision may face organized opposition in retention elections.

The most remarkable aspect of this decision is not its holding but the delay of close to seven months between submission of the issues and the Courts ruling. The case was orally argued on April 27, 2021, with the decision being released to the public on Nov. 24, 2021. The wheels of justice ground very slowly on this one, disappointing a broad range of communities voters, legislators, governmental entities, and the media. There was a failure by the judicial system to respond in a timely fashion.

No. 2. Tourism reigns supreme

Just exactly how much does South Dakota cater to tourism? This question underlies the decision in Wilson V. Maynard, 2021 S.D. 37.

Homeowners near Deadwood objected to their neighbors usage of their home as an Airbnb based upon restrictive covenants for homes in this development. The restrictive covenants limit the usage to residential purposes. The home in question was rented [out as an Airbnb] nearly every day between June and September [in 2019]. During the 2018 and 2019 Sturgis Motorcycle Rallies, they rented the Property to twelve guests at once; and the Property has housed as many as twenty guests at a time. [The owners charged] $500 for weekday stays, $650 for weekend stays, and up to $1,200 per day during the Sturgis Rally.

In a split decision, three justices of the S.D. Supreme Court determined that the short-term rentals were permissible.

In a survey put forward to South Dakota lawyers, this decision was voted to be one of the most remarkable decisions of 2021. One responding lawyer commented that this decision provides, Important legal input into the relationship of AirBnbs in the context of residential development, residential zoning, and residential uses. Other than the Amendment A litigation, this is the case that I have talked about the most at work and at home.

No. 3. We protect our workers

Anderson V. Tri State Construction, 2021 S.D. 50: This decision permits an injured worker to utilize South Dakotas Workers Compensation laws to seek recovery for injury sustained in Wyoming. The employer is a South Dakota corporation with headquarters in South Dakota, but the injury occurred in Wyoming and the injured worker initially filed a work comp claim there, receiving temporary total benefits under Wyoming law. The employee then shifted her claim to South Dakota to request permanent total disability benefits under the more liberal South Dakota law because Wyoming law would only permit benefits for 80 months. Both the South Dakota Department of Labor and the trial court refused to allow the employee to proceed on the basis of a lack of jurisdiction.

The South Dakota Supreme Court reversed, holding, South Dakota has a substantial connection to [employee and employers] employment relationship sufficient to provide authority to adjudicate [the employees] claim.

This decision is important because it portrays the courts unwavering desire to protect South Dakota workers in the face of strong resistance by the insurance industry.

No. 4. We really do protect our workers

Billman V. Clarke Machine, Inc., 2021 S.D. 18: Here, the South Dakota Supreme took a deep dive into the underlying work comp claim and found that this 62-year-old employee was entitled permanent total disability benefits as a result of a work-related injury which necessitated the amputation of a portion of his left leg. Both the South Dakota Department of Labor and the trial court ruled for the work comp insurer, finding that the employee was employable.

Kudos to the S.D. Supreme Court for its unanimous holding that the Department of Labors position was clearly erroneous.

No. 5. Civil disputes dont belong in criminal court

State V. Suchor, 2021 S.D. 2: What was primarily a civil dispute between three builders and a contractor landed in criminal court by way of a grand jury. At a jury trial, the defendant was found guilty of three counts of grand theft by misappropriation of funds.

Taking another deep dive into the facts, the South Dakota Supreme Court reversed, holding that the defendant was entitled to a Judgment of Acquittal.

This decision makes the list because it not only demonstrates the courts willingness to analyze underlying facts, but it also helps curb the propensity to allow civil parties to utilize South Dakotas criminal justice system for civil disputes.

No. 6. More encroachment on tribal sovereignty

In decisions handed down in 1990 and 2004, the South Dakota Supreme Court established the rule of law that a state law enforcement officer is not permitted to intrude upon reservation territory in the pursuit of a suspect and to gather evidence without a search warrant or tribal consent.

This rule was significantly altered in State V. Cummings, 2021 S.D. 4. In Cummings, the trial court suppressed statements made by the defendant to an investigating officer at the defendants home located on Indian Trust land. The statements related to a burglary that occurred outside of Indian Country. The trial court ruled, under existing precedent, that the investigating officer lacked authority to investigate crimes in Indian Country.

The S.D. Supreme Court took the case on an intermediate appeal and reversed. The court held that the statements made were in the context of a consensual conversation and, as such, not in violation of the Fourth Amendment. In reaching this holding the Court side-stepped precedent stating, In re-examining [earlier] decisions, we conclude that [they] incorrectly conflated jurisdictional principles associated with tribal sovereignty and individual rights afforded by the Fourth Amendment.

No. 7. Can law enforcement really use excessive force without civil ramification? Yes, by a vote of 3-2.

In HAMEN v. HAMLIN CNTY., 2021 S.D. 7, we find a situation where law enforcement personnels utilization of an armored vehicle rendered $18,778.61 worth of damage to a residential trailer.

As pointed out in the dissenting opinion, this destructive force was invoked even though no one was barricaded inside with hostages or shooting at law enforcement or even threatening to shoot. Law enforcement did not take incremental steps to clear the trailer, but rather chose to tear [it] apart absent an immediate threat. The trial court permitted an excessive force claim to stand against the sheriff.

The S.D. Supreme Court granted an intermediate appeal and held that, as a matter of law, that the sheriff was entitled to a dismissal of excessive force claim. This decision is based upon a 3-2 split of the Justices. The two-justice dissenting opinion presents four color photos of the damaged trailer and states, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the warrant at issue.

No. 8. Another Excessive Force situation when will it end?

Another glimpse of excessive force is found in Interest of N.A., 2021 S.D. 57, where a minor child was adjudicated as a delinquent based upon allegation that she assaulted a police officer.

The S.D. Supreme Court reversed and remanded, finding that the police officer used excessive force in the events which prompted the juvenile to react. The court stated:

[22.] Based upon our de novo review of this constitutional issue, and after considering the totality of the circumstances, we conclude Officer Bassett used excessive force to detain N.A. when he grabbed and pulled a non-threatening, non-fleeing, and non-resisting female teenager to the ground in a dark room, without warning.

The court further held that the trial court did not properly analyze and consider the juveniles claim of self-defense.

Note: This decision does not deal with a claim for damages, but simply acknowledges the utilization of excessive force against a minor.

No. 9. State permitted to renege on plea agreement

In State V. Guziak, 2021 S.D. 68, the state agreed to sentence cap of 180-days in jail in exchange for defendants guilty plea to abuse or cruelty to minor. But at sentencing, the state changed course, arguing that the defendant, has a history that is egregious and warranting a hefty sentence. The trial court imposed a 12-year penitentiary sentence with 8-years suspended on the child abuse conviction.

In a 4-1 ruling, the S.D. Supreme Court upheld this result, applying the plain error standard of review. The dissents approach (which we believe is more appropriate) asserted that the unique facts of this case present a special category of cases in which prejudice need not be shown under the plain error standard of review.

No. 10. Lock him up and throw away the key? Not so fast Imperfect Self-Defense recognized as Defense

The trial court went too far by imposing a sentence of 124 years in State V. Mitchell, 2021 S.D. 46. The defendant, originally charged with first- degree murder, pleaded guilty to reduced charge of first-degree manslaughter. State recommended sentence of 60 years. The victims family requested sentence of life imprisonment. The trial court sentenced defendant to 124 years.

The S.D. Supreme Court reversed and remanded, stating that, in order to accurately assess the nature of [Defendants] conduct, the [trial] court must consider the fact that he was reacting to a threat posed by [the Victims] own assaultive conduct. This opinion discusses, for the first time in South Dakota jurisprudence, the notion of an imperfect self-defense which is described in 36 as follows:

Contrasted from a perfect self-defense claim where the defendant is free from fault in bringing about difficulty with his adversary and reasonably believe[d] he needed to respond to an adversarys threat with deadly force, an imperfect self-defense presents manslaughter as a different option for criminal liability, short of murder and without the potential of an outright acquittal. Wayne R. LaFave, Substantive Criminal Law, 15.3(a) (2020). The reason for the imperfection can either be the defendants own fault in bringing on the difficulty or the unreasonableness of [his] honest but erroneous belief that he is in danger of serious or fatal injury which he can prevent only by killing the victim. Id.

The incident resulting in the victims death was captured on video recording and reviewed by both the trial court and the SD Supreme Court. The Courts opinion described the underlying facts as follows:

After a brief confrontation with Lucas Smith at a local bar, Jameson Mitchell armed himself with a handgun and encountered Smith in a nearby alley. Smith ran toward Mitchell, shouting for Mitchell to shoot him. After taking a few steps back, Mitchell fired at the charging Smith, fatally wounding him.

We recognize that selection of the Top Ten decisions is subjective. The proverbial saying that reasonable minds may differ certainly comes into play. In that regard, we would like to point out that the following decisions were considered as being viable nominations, but ultimately left out of our Top Ten list. These additional decisions might appropriately be awarded the title of Honorable Mention: State V. Langen, 2021 S.D. 36 (3-2 decision limiting the speedy trial requirement of SDCL 23A-44-5.1, with the authors preferring the analysis of the two-Justice dissent); State V. Reeves, 2021 S.D. 64 (establishing a flexible rule of evidence for admission of surveillance video); Patterson V. Plowboy, LLC, 21 S.D. 25 (limiting opportunity for appellate review under rule 54(c)); State V. Klinetobe, 2021 S.D. 24 (addressing sentencing standards); Matter of Implicated Individual, 2021 S.D. 61 (application of open records laws to search warrants and supporting affidavits).

Professor Emeritus Roger Baron, USD School of Law, has served as the unofficial reporter for South Dakota Supreme Court opinions for over a decade, providing weekly summaries of newly released opinions. He also maintains and operates USDLAW, an electronic listserve which serves the legal community in South Dakota.

Lori Goad graduated with honors from USD Law School in 2017 and served as judicial clerk for the Fourth Judicial Circuit upon graduation. She currently works as Assistant Public Defender in Pennington County.

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