Vol. 49 No. 2
May 3, 2018 - May 9, 2018
This publication is a Certified DBE/ SBE / MBE in the State of California CUCP #43264 Metro File #7074 & State of Texas File #802505971 “If you can control a man's thinking you do not have to worry about his action. When you determine what a man shall think you do not have to concern yourself about what he will do. If you make a man feel that he is inferior, you do not have to compel him to accept an inferior status, for he will seek it himself. If you make a man think that he is justly an outcast, you do not have to order him to the back door. He will go without being told; and if there is no back door, his very nature will demand one.” Carter G. Woodson, The Mis-Education of the Negro
Lynching Memorial and Museum Opening Highlights America's Racist Past, Parallels Today's Killings of African Americans "We're dealing with police violence. We deal with these huge disparities in our criminal justice system. You know, if everything was wonderful you could ask the question, 'Why would you talk about the difficult past?' But everything is not wonderful." Jayme S. Ganey April 27, 2018
Hundreds of people lined up in the rain to experience a long overdue piece of American history and honor the lives lost to lynching at the National Memorial for Peace and Justice and the Legacy Museum in Montgomery Alabama on Thursday. The Equal Justice Initiative, sponsor of this project, has documented more than 4,000 "racial
terror" lynchings in the United States between 1877 and 1950. The first memorial honoring the victims includes sculptures and art depicting the terror Blacks faced; 800 six-foot steel, engraved monuments to symbolize the victims; writings and words of Toni Morrison and Dr. Martin Luther King, Jr.; and a final artwork by Hank Willis Thomas capturing the
modern-day racial bias and violence embedded in the criminal justice system and law enforcement. Among memorial visitors were civil right activist Rev. Jesse Jackson and film director Ava Duvernay. According to the Chi-
cago Tribune, Jackson said it would help dispel the American silence on lynchings, highlighting that whites wouldn't talk about it because of shame and Blacks wouldn't talk about it because of fear. The "60 Minutes Overtime" on the memorial just
three weeks earlier was reported by Oprah Winfrey, who stated during her viewing of the slavery sculpture, "This is searingly powerful." Duvernay, quoted by the Chicago Tribune, said: "This place has scratched a scab." The Montgomery Downtown business association's President, Clay McInnis, who is white, offered his thoughts to NPR in reference to his own family connection to the history that included a grandfather who supported segregation and a friend who dismantled it. "How do you reconcile that on the third generation?" he asked. "You have conversations about it." A place to start: The Montgomery Advertiser, the local newspaper, apologized for its racist history of coverage between the 1870s and 1950s by publishing the names of over 300 lynching victims on Thursday, the same day as the memorial opening. "Our Shame: the sins of our past laid bare for all to see. We were wrong," the paper wrote. The innumerable killings of unarmed Black men and the robbing of Black families of fathers, moth-
ers, and children today not only strongly resemble the history of lynchings, but also bring up the discomfort and visceral reactions that many have not reckoned with. Bryan Stevenson, founder of the Equal Justice Initiative and the man who spearheaded this project, told NPR: "There's a lot of conflict. There's a lot of tension. We're dealing with police violence. We deal with these huge disparities in our criminal justice system. You know, if everything was wonderful you could ask the question, 'Why would you talk about the difficult past?' But everything is not wonderful." WFSA, a local news station, interviewed a white man who had gone to see the Legacy Museum downtown, also part of the EJI project, located at the place of a former slave warehouse. He talked about how he was overwhelmed by the experience and that "Slavery is alive in a new way today." Reactions on social media were reflective of the memorial's power and the work that is continuing toward progress.During a launch event, the Peace and Justice Summit, Marian Wright Edelman, activist and founder of the Children's Defense Fund, urged the audience to continue their activism beyond the day's events on issues like ending child poverty and gun violence, according to the Chicago Tribune: "Don't come here and celebrate the museum ... when we're letting things happen on an even greater scale." Perhaps the reason to honor and witness the horrific experiences of our ancestors is to seal in our minds the unacceptable killings of Blacks today, and the work we ALL have to do now to stop repeating the past.
173rd Airborne Brigade prepares to check in its first female infantrymen By: Meghann Myers
Cadet Taylor England fires her M4 carbine at a target during the Sandhurst Military Skills Competition at West Point, New York, April 14, 2018. England was the topranked infantry-bound cadet in the class of 2018. (U.S. Army photo) When the Army opened a second round of divisions to women in newly integrated direct combat specialties this year, an overseas option in Vicenza, Italy, opened as well, the Army’s personnel boss told Army Times on Thursday. The 173rd Airborne Brigade is also now available for women making their way into infantry, armor and artillery, Lt. Gen. Thomas Seamands said.
“We have about 700 females who’ve gone into infantry armor and artillery,” he said, starting with 1st Cavalry Division and the 82nd Airborne Division in 2017, expanding to the 101st Airborne Division, 4th Infantry Division and 1st Armored Division this year.At least one female officer is committed to the 173rd, according to an April 19 Army release. Cadet Taylor England, a regimental sergeant major at the U.S. Mili-
Cadet Taylor England plans to serve with the 173rd Airborne Brigade when she completes post-graduation training. (Army) tary Academy, has committed to the unit following her May graduation. “Our intent with Leaders First is, she’ll get there, she’ll be on the ground, and probably be on the ground there for a couple months,” Seamands said of the integration pilot program, which assigns officers to newly opened units first, then follows them with female noncommissioned officers and then junior enlisted. England is the top-ranked of 230 cadets heading to the infantry
branch in the class of 2018, according to the release. “In her most recent PT test, she maxed out at 360 points on a 300point scale,” the release said. “Her 2-mile run was clocked in at 13:09, just nine seconds shy from the men’s fastest standard.” After graduation, she will head to Fort Benning, Georgia, for a series of schools, including the Infantry Officer Basic Leader Course and airborne school. She will likely report to Vicenza next spring, Seamands said, with female NCOs and junior soldiers to follow. The Leaders First program is in the second of its three-year pilot, with plans to further open posts up to women next year, Seamands said. Currently, the 1st, 2nd and 3rd Infantry Divisions are still closed to women in infantry, armor and artillery. “Sooner rather than later, “ Seamands said of when he expects that the Army will be fully integrated.
Editor in Chief’s Corner Email: sbamericannews@gmail.com Clifton Harris Publisher of The San Bernardino AMERICAN News
The Bane Act and beyond California’s civil rights statutes, especially The Tom Bane Act, are an untapped resource that extends far beyond the usual police misconduct cases Matthew S. McNicholas /Holly Boyer California’s civil rights statutes represent an untapped resource for plaintiffs whose rights have been interfered with as a result of the intentional tortious conduct of public and private actors in a variety of contexts and circumstances. In addition to broad statutory language that can encompass a multitude of tortious conduct, including conduct of employers and others who have “aided” another in the deprivation of one’s statutory and common-law rights, these statutes contain significant remedies such as punitive damages and attorney’s fees. Exploring just three of California’s civil rights statutes provides a glimpse of what is possible and will hopefully spark an interest in pursuing these virtuous claims. California Civil Code § 52.1 (The Bane Act) Civil Code Section 52.1, the Tom Bane Civil Rights Act, authorizes suit against anyone who by threats, intimidation, or coercion interferes with the exercise or enjoyment of rights secured by the state or federal Constitutions or laws without regard to whether the victim is a member of a protected class. (Civ. Code § 52.1.) To obtain relief under Section 52.1, a plaintiff does not need to allege that a defendant acted with discriminatory animus or intent; liability only requires interference or attempted interference with the plaintiff’s legal rights by the requisite threats, intimidation, or coercion. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841-843 (“Venegas I”).) “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” (Austin B. v. Escondido Union Sch. Dist. (2007) 149 Cal.App.4th 860, 883.) While Bane Act violations most often accompany section 1983 and Monell claims in federal court, the reach of the Bane Act extends far beyond police misconduct cases. Indeed, while one might assume that a constitutional right must be at issue, the statute does not require interference with only those rights secured by the constitution. Rather, as described in Section 52.1, a plaintiff’s legal rights include “rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Civ. Code, § 52.1, subd. (a) (emphasis added).) Although in Venegas I, the California Supreme Court repeatedly referred to “laws of this state” as “statutory rights” (see Venegas I, supra, 32 Cal.4th at pp. 841-43), in construing the exact same term in the context of the Fair Employment and Housing Act (“FEHA”), the Supreme Court found that the phrase “laws of this state” includes both
statutes and common law (Rojo v. Kliger (1990) 52 Cal.3d 65, 75-76). Thus, the reach appears to extend beyond the interference of constitutional and statutory rights and includes rights secured by common law. Furthermore, and as explicitly stated in Section 52.1, liability does not require actual interference with a plaintiff’s legal rights. Rather, even an attempted interference is enough to give rise to a Bane Act claim. (Civ. Code, § 52.1, subds. (a), (b); Ramirez v. County of Los Angeles (C.D. Cal. 2005) 397 F. Supp. 2d 1208.) The Act provides for liability for interference or attempted interference with an individual’s rights “by threats, intimidation, or coercion.” While the terms “threat,” “intimidation” or “coercion” are not defined in Section 52.1, courts have applied their ordinary and common meaning. (See, e.g., Zamora v. Sacramento Rendering Co. (E.D. Cal. 2007) No. Civ. S-05-00789 DFL KJM, 2007 WL 137239, *8, n. 6 [defining intimidation according to its ordinary meaning as “to make timid or fearful”]; McCue v. S. Fork Union Elem. Sch. (E.D. Cal. 2011) 766 F. Supp. 2d 1003, 1011 [explaining “[f]or the purposes of the Bane Act, the term ‘threat’ means ‘an “expression of an intent to inflict evil, injury, or damage to another.”]; see also Kahn and Links, Cal. Civ. Practice: Civil Rights Litigation (2016) § 3:19.) But with the lack of attention litigants have devoted to the Bane Act, there is little to no authority discussing the meaning of these terms. A federal district court case, Cole v. Doe 1 thru 2 Officers of City of Emeryville Police Dept., 387 F. Supp. 2d 1084, 1102-04 (N.D. Cal. 2005), addressed the meaning and found that even in the absence of any excessive force, “[u]se of law enforcement authority to effectuate a stop, detention (including use of handcuffs), and search can constitute” a threat, intimidation or coercion. (Cole, 387 F.Supp.2d at p. 1103.) In reaching this conclusion, Cole relied on the “persuasive reasoning” of the unpublished California court of appeal decision in Whitworth v. City of Sonoma, 2004 WL 2106606 (Cal.App.1st Dist. 2004), which held that the conduct of a police officer physically barring a person from entering a meeting is a form of “coercion” under the Bane Act, even if there was no actual use of force. (See also O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 502 [assuming without deciding that police officers’ conduct in demanding that protesters leave a college campus and then arresting one of them after he refused to discontinue his activities constituted “coercion” for purposes of Civ. Code, § 52.1].) By its terms, Section 52.1 does not require a showing of violence or threat of violence. (Cole, at p. 1103; but see Judicial Council of California Advisory Committee on Civil (continued on page 3)
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