Author: gr-admin

Earlier this month, a march at the U.S.-Mexico border erupted into chaos as U.S. border protection agents fired tear gas into the crowd, which included small children. After the incident, which made international headlines, human rights experts (and many others) are questioning whether or not the U.S.’s use of force was legal or even justifiable.

What Happened?

The incident occurred at the busiest border in the world – San Ysidro crossing, which links Tijuana and San Diego. A photo taken by a Reuters journalist showing a woman fleeing a tear gas canister with her two young daughters – both in diapers and one without shoes – sparked outrage across the globe. A group of Central American migrants were peacefully protesting in Mexico when the protest got out of control. The result was Mexican police blockading and the migrants fleeing toward the Ysidro border. Responding to the chaos, U.S. border patrol officials temporarily shut down the border in both directions and began firing tear gas into Mexico to push back the migrants from the border fence. U.S. border officials state that some migrants where throwing projectiles at customs and border workers prior to the shut down.

International Concerns

International human rights legal experts have referred to language in the United Nations Charter (UN Charter) regarding the sovereign rights and obligations of member countries. Specifically, Article 2 prohibits nations from the threat or use of force against the territorial integrity of other member states. In short, if the migrants were on U.S. territory and presented an immediate threat, the use of tear gas to disperse them under certain conditions could be justified. Some other legal experts note that the tear gassing was in clear violation of Mexico’s territory and an interference in its affairs. Human rights activists contend that the use of tear gas was excessive and would still be even if the migrants were on U.S. territory at the time it was used.

Many of those migrants gathered at the Ysidro border intended to seek asylum in the U.S., raising questions as to whether the use of tear gas subverted their rights under international law. Article 14 of the Universal Declaration of Human Rights states that every person has the right to seek and enjoy asylum from persecution in other countries.

The U.S.’s Reasoning

While international treaties on the use of chemical weapons in war bans tear gas, according to the Organization for the Prohibition of Chemical Weapons, it is legal for federal authorities and police to use tear gas domestically in situations in which riot control is necessary. The U.S. Customs & Border Protection has guidelines for when its officers are allowed to use less-than-lethal force, which includes tear gas. The guidelines dictate, in part, that this force can be used when empty-hand techniques are not enough to control violent or disorderly individuals as long as it is a reasonable and necessary response. According to the federal agency, American border officials have fired tear gas near the southern border with Mexico a minimum of 126 times since 2012.

The state of Florida’s highest court rejected a 2013 law meant to bring the expert witness standard used in the state more in line with other states, according to the Daily Business Review. The Supreme Court of Florida (SCFL) found that the law overreached into court territory.

Daubert versus Frye

The Frye standard is commonly referred to as the “general acceptance test.” In short, scientific methods that are generally accepted are admissible in court; scientific methods that are not – i.e., on the fringe or not sufficiently established – are not admissible in court. It is named after a 1923 decision Frye v. United States.

Under Daubert, when scientific testimony is offered, the court is required to determine whether or not the testimony is based on scientifically valid reasoning or methodologies. It must also assess whether or not the testimony may be properly applied to the issue in question. Daubert uses a five-part test as a guide for courts to determine admissibility, including:

● Whether a theory or technique can be and has been tested;
● Whether the theory or technique has been subject to both peer review and publication;
● The known or potential error rate of the method;
● The existence and maintenance of standards controlling its operation; and
● Whether it has attracted widespread acceptance within the relevant scientific community.
Daubert is a more flexible standard than Frye, allowing for cross examination, introduction of contrary evidence, and the court’s instruction regarding the burden of proof. Daubert is named after a 1993 court decision, Daubert v. Merrell Dow Pharmaceuticals.
The Florida Supreme Court’s Decision

The 4-3 decision overturned a ruling by the Fourth District Court of Appeal and ordered reinstatement of a multi-million dollar verdict. The SCFL reinstated a $8 million verdict for a plaintiff, Richard DeLisle, who claimed his mesothelioma was due to exposure to asbestos in cigarette filters as well as workplaces. Justice Peggy Quince, who wrote the decision for the majority, noted the state’s adherence to the Frye standard was set in a 1923 United States Supreme Court (SCOTUS) decision.

The legislature attempted to impose the Daubert standard came shortly thereafter in 41 states and federal courts. The change in the standard was opposed by plaintiff’s attorneys but backed by business groups and the Republican-controlled legislature.

According to the SCFL, the question of what expert witness standard applies is for the court alone to decide. Under separation of powers, the Court reasoned, the legislature has authority over substantive law while the judiciary is responsible for procedural standards. Justice Quince was joined by Justices Pariente, Labarga, and Lewis.

Chief Justice Charles Canady, joined by Justices Polston and Lawson, found the court lacked the legal jurisdiction to decide the matter because there was no conflict among the district courts.

The Jurist, a legal news and research site, reports that multiple civil rights organizations have filed a lawsuit against Georgia’s Secretary of State Brian Kemp – who is also the Republican nominee for state governor – to stop enforcement of recent election law. House Bill 268 (HB 268) has essentially placed a hold on more than 50,000 registered voters – a majority of whom are African American.
HB 268

Earlier this year, the state Supreme Court of Washington ruled that the death penalty laws of the state violated the constitution. According to DeathPenaltyInfo.org, there are 30 states in the country that impose the death penalty, including Georgia. 20 states prohibit the death penalty, as it was either abolished or overturned over the years.

The Case: State v. Gregory

The decision in State v. Gregory involved a man who had been convicted by a jury of aggravated first degree murder and was punished with the death penalty. Gregory appealed the conviction and the case was remanded for resentencing. A different jury sentenced Gregory to death, a verdict which he appealed. Gregory challenged Washington State’s death penalty system claiming it is imposed justice in a racially biased and arbitrary manner, and commissioned a study on the effect of race and county on the courts’ imposition of the death penalty. The American Civil Liberties Union (ACLU) filed an amicus brief urging the state Supreme Court to strike down Washington’s death penalty system. Its brief argued that the system is unfair, arbitrary, and racially biased.

The Higher Court’s Decision

In reaching its conclusion, the Washington Supreme Court relied heavily on the conclusions and analysis that came from the study. The study revealed that special sentencing proceedings in the state of Washington that involved black defendants were 3.5 to 4.6 more likely to result in a death sentence than those involving non-black defendants. The court ultimately held that Washington’s death penalty is administered in a racially biased and arbitrary manner and failed to serve its sentencing goals. Consequently, the Washington Supreme Court ordered that all death sentences in Washington be converted to life imprisonment.

Georgia: Death Penalty

No executions have occurred in the past five years in 38 states plus three jurisdictions that either do not have the death penalty or have not executed prisoners under the law. The state of Georgia has executed 70 people since 1976. Three crimes in Georgia punishable by death are treason, aircraft highjacking, and murder with the following aggravating circumstances:

The offender:

• Has a prior capital conviction.
• Was in the process of committing another capital crime, aggravated battery, burglary, or arson.
• Used or possessed a weapon or device capable of causing significant harm to more than one person simultaneously.
• Committed offense for monetary gain.
• Was in the custody of, or had escaped from, law enforcement or a correctional facility.
• Was resisting arrest.
• Had a prior conviction for rape, aggravated sodomy, aggravated child molestation, or aggravated sexual battery.
• Hired another to commit the murder or committed it for hire.

Or the victim:

• Was or had been a judicial officer, district attorney, or solicitor general, and was murdered for reasons relating to their employment as such.
• Was tortured.
• Was a law enforcement officer or firefighter and was performing his/her official duties.

Notably, Georgia has been the key state involved in both landmark U.S. Supreme Court death penalty decisions: Furman v. Georgia (1972) where the Supreme Court struck down the death penalty nationwide. But, the death penalty was reinstated nationally by the same court in Gregg v. Georgia (1976).